The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface.
• Early Law and Custom.
• Chapter I.: The Sacred Laws of the Hindus.
• Chapter II.: Religion and Law.
• Notes and Illustrations.
• Note A.: Wheel-pictures.
• Chapter III.: Ancestor-worship.
• Chapter IV.: Ancestor-worship and Inheritance.
• Notes and Illustrations.
• Note A.: Hindu Patria Potestas.
• Note B.: Polyandry.
• Chapter V.: Royal Succession and the Salic Law.
• Chapter VI.: The King, In His Relation to Early Civil Justice.
• Chapter VII.: Theories of Primitive Society.
• Notes and Illustrations.
• Note A.: the Andaman Islanders.
• Chapter VIII.: East European House Communities.
• Notes and Illustrations.
• Note A.: the Gens.
• Chapter IX.: The Decay of Feudal Property In France and England.
• Notes and Illustrations.
• Note A.: Village-communities and Manors.
• Chapter X.: Classifications of Property.
• Chapter XI.: Classifications of Legal Rules.

NOTES AND ILLUSTRATIONS.

Note A.

HINDU PATRIA POTESTAS.

It is possible that the ancient sacerdotal writers, besides being led by the dependent position of their order into denying the multiplication of religious observances through the dissolution of tribal and joint family groups, were also desirous that the period at which each household broke up into several families should not be delayed till the death of its head. Their expectation is that the faithful Hindu, the man twice born through the study of the Scriptures, will retire in advanced years from active life and become an ascetic or a hermit. There are a few texts which have been thought to imply that the sons of an aged father could compel his retirement. Gautama (xv. 19), while condemning such a practice, perhaps admits its existence. But, whatever be the meaning of these texts, I cannot allow that they lend any countenance to an opinion that sons could compel a partition of the family property at any time against the will of their father. I regard them as exclusively applying to the case of a father who has reached an age at which it has become a religious duty for him to abandon secular life. The fulness of the ancient Hindu Patria Potestas may be safely inferred from the veneration which even a living father must have inspired under a system of ancestor-worship. At a much later date the law-book of Manu declares that ‘Three persons—a wife, a son, and a slave—are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong’ (Manu, viii. 416). A still more recent, but still ancient, authority—Narada (v. 39)—says that a son is ‘of age and independent in case his parents be dead; during their lifetime he is dependent, even though he be grown old.’ And nowadays Mr. Nelson, speaking of the South of India, over which the crust of sacerdotal Hinduism is thin, describes the Patria Potestas, which he knows by observation, as the one great standing institution of the Hindu. ‘It is the undoubted fact that among the so-called Hindus of the Madras province the father is looked upon by all at the present day as the Rajah or absolute sovereign of the family that depends upon him. He is entitled to reverence during life as he is to worship after his death. His word is law, to be obeyed without question or demur. He is really the ‘master of the family,—of his wife, of his sons, of his slaves, and of his wealth’ (‘View of the Hindu Law,’ p. 56). And, at p. 38, ‘Resistance to the will of the father appears monstrous.’

Note B.

POLYANDRY.

I should be sorry to have it supposed that I doubt the existence of Polyandry, and specially in the form of a plurality of husbands who were brothers, as an occasional practice of the ancient world. The much-discussed story, in the Mahabharata, of Draupadi becoming the wife of the five Pandavi princes may be open to various interpretations (see Mayne’s ‘Hindu Law and Usage,’ p. 52), but there is fairly good evidence (Polybius, xii. 7,732, following Timæus) that the Spartans practised polyandry. What I doubt (with Mr. L. H. Morgan) is the importance of the place assigned by Mr. McLennan to polyandry in the evolution of society. It serves as a caution against being too much impressed by the antiquity of the Indian and Greek examples to be reminded that the President de Brosses accused the Venetian aristocracy of practising the polyandry of brothers in the early part of the eighteenth century (‘Lettres Écrites d’Italie, tom. i. p. 157). The Spartan and Venetian aristocracies were both noted for their want of delicacy in sexual relations, and in both cases the cause of the practice seems to have been the levy of public taxation on separate households which did not come into existence without separate marriages. The usage seems to me one which circumstances overpowering morality and decency might at any time call into existence. It is known to have arisen in the native Indian army.

CHAPTER V.

ROYAL SUCCESSION AND THE SALIC LAW.

In the legal history of those Western societies which have passed through feudalism, Succession to Property and Succession to Thrones are intimately connected together. When Bruce and Baliol, with ten other competitors, conduct a litigation before Edward I. of England respecting the right to the Scottish Crown, the arguments are not distinguishable in principle from arguments on the inheritance of an ordinary fief, and in point of fact this famous dispute did settle some points in the law of succession to land all over the West. But the law systems of the East, which contain an elaborate law of succession to private property, contain little or nothing about succession to thrones. One reigning Mahommedan house, that of the Ottoman Sultans, has continued to our day a system of royal succession of the highest antiquity—that under which the eldest male relative is preferred in the succession to the son; but there is no clear connection between this rule and any part of the abundant private law of inheritance declared by the Mahommedan doctors. At most we may trace a resemblance in the places respectively assigned to the son and to the paternal uncle in the Mahommedan scheme. Indeed, of all systems of succession to property, the Mahommedan system is the most difficult to adjust to royal successions. It is a system of minute fractional division between a number of relatives whose grouping1 nobody seems to me to have as yet successfully explained. I agree with Sir George Campbell, that it must have grown up among a race whose property was easily divided into units, and possibly consisted of flocks and herds; and, again, I think that Mr. Almaric Rumsey (‘Mohammedan Law of Inheritance’) has conclusively shown that its greatest apparent difficulties arise from the fact that, whatever was the algebraical knowledge of later Mahommedans, the earliest expositors of this law were ignorant of some simple principles in the manipulation of fractions. On the whole, we must at present be satisfied with the orthodox Mahommedan explanation of the rules, which is, that they rest upon separate utterances of authorities supposed to speak with Divine authority—of the Prophet, his companions, and those who talked with them; and that they are not therefore necessarily reducible to systematic order.

The Hindu law of succession has more authentic claims than that of the Mahommedans to a religious origin. Some of its principles can be applied without much difficulty to a royal succession; but nevertheless it is essentially a law of succession to private property. It is somewhat remarkable that we learn little from the ancient Hindu lawyers of the rules under which a King should succeed. For when they have once recognised the King as an important auxiliary of the Brahman, they are not chary of advice to him or of opinions on his duties. First of all, he is to execute justice and maintain truth. But much more than this is inculcated on him. Even so old an authority as Apastamba (ii. x. 25. 1) tells him how to build a city and a palace. ‘The palace shall stand in the heart of the town. In front of it there shall be a hall. That is called the Hall of Invitation. At a little distance from the town to the south he shall cause to be built an assembly house, with doors on the south and on the north sides, so that one can see what passes inside and outside. In all these three places fires shall burn constantly, and oblations shall be offered in them daily, or at the daily sacrifice of a householder. In this hall he shall put up his guests, at least those who are learned in the Vedas. Rooms, a couch, meat and drink should be given to them according to their good qualities. But let not the king live better than his spiritual directors or his ministers.’ Elsewhere he is taught how to amuse himself with dice, ‘in even numbers, made of vibhitaka wood;’ how to appoint administrative deputies; how to reward successful generals. Gautama compendiously lays down that the king is ‘master of all with the exception of Brahmans;’ and in the later treatises, Vishnu and Manu, there are very long discussions on regal duties, the teacher even giving an account of the art of strategy and of the methods of taxation. But there is nothing about the way in which princes succeed to thrones, unless a trace of a rule be sought in a direction to a victorious king, ‘not to extirpate the royal race’ when he conquers a country, but to invest a prince of this race with the royal dignities. The modern Hindu applies his religious law to royal succession only by analogy, and he generally applies the oldest part of that law. The family customs which have grown up in Indian royal houses reflect the ancient rules, barely mentioned by our oldest authorities, on the subject of primogeniture and indivisible patrimony, and it is to be observed that they show a marked preference for Adoption over Collateral Succession.

The truth is, that for Oriental systems of succession to Thrones, we have to go to usages, older perhaps than the great religious movements which have swept from time to time over the East, and having, at all events, a history independent of the institutions to which these movements give birth. The real or pretended doubts, the bitter disputes, and the sanguinary wars which the application of these customs occasioned were once among the chief scourges of mankind in the countries in which they prevailed, but the area of such troubles has been much contracted by the British Indian Empire. Yet the Empire itself was only the other day mixed up with one controversy of the kind which might be taken as a typical example of its class. One can never be very sure how long any Indian events survive in English memory, and yet some of us should recollect the perplexity caused by the names and claims of the various Chiefs or Princes who appeared during three or four years in the newspaper correspondence as pretenders to sovereign authority in Afghanistan. We heard of the unhappy Shere Ali Khan who, after the first British success, retired from Cabul, his capital, only to die—of Yakub Khan, now a State-prisoner in India, who ruled at Cabul as Shere Ali’s successor at the time of Sir Louis Cavagnari’s assassination—of Abdurrhaman Khan, long an exile in Russia, who now wears the most distinct badge of modern Afghan sovereignty by holding the three great cities of Cabul, Candahar, and Herat—of Ayub Khan, who, after inflicting on British Indian troops the first defeat in the open field which they had suffered for seventy-eight years, was utterly routed by the victorious General Roberts, and who, after another success against his rival Abdurrhaman, was finally defeated and compelled to take refuge in Persia. There were also the obscurer names of Abdulla Jan, now dead, who was a younger son of Shere Ali Khan, and who was long accepted by all except his elder brother as his father’s heir-apparent, and of Musa Khan, the son of Yakub, whom I have seen spoken of in the newspapers as the only legitimate claimant to the Afghan throne. All the princes I have named were in some sense pretenders to the throne, and they are all near kinsmen, being all descendants of Dost Mahomed Khan, against whom the British fought in the old Afghan war of forty-four years since, and in whose room they set up for a while a client of their own, Shah Suja. How was it that so many near relatives claimed to be the successors of the last reigning prince? Hardly one of them is entitled under the rules about succession to thrones to which we are accustomed. Shere Ali, after a hard struggle, succeeded his father, Dost Mahomed, but he was not his father’s eldest son. Yakub Khan was not Shere Ali’s eldest son, and he was all but supplanted by a much younger brother, Abdulla Jan, and was long imprisoned for questioning his claims. Abdurrhaman Khan, the now reigning Ameer, is not a son of Shere Ali at all, but the son of his elder brother, and yet not, it is thought, of his eldest brother. Ayub Khan, on the other hand, is a son of Shere Ali, but he is younger than his brother Yakub Khan, who has a son living, the Musa Khan who, as I said before, has been called the legitimate heir to the throne. How then come all these princes to be rivals of one another? How is it that there is no rule, as with us, to regulate (as we should say) the descent of the Crown?

The great difference between the East and West is that the Past of the West lives in the Present of the East. What we call barbarism is the infant state of our own civilisation. The rivalries of these Afghan princes bring us back to one of the oldest causes of war and bloodshed among men, the disputed succession to political sovereignty. And the source of these disputes is to be sought in an ancient fact too often neglected or forgotten. When political sovereignty first shows itself (and the stage of human history at which it shows itself is by no means the earliest ascertainable), this sovereignty is constantly seen to reside, not in an individual nor in any definite line of persons, but in a group of kinsmen, a House or Sept, or a Clan.

In Greek history, there is a later form of this sovereignty which has a name of its own; it is called a hegemony, the political ascendency of some one city or community over a number of subject commonwealths. But in more ancient times the royal or ruling body was more often a group of kinsmen, a Clan, or a Sept, called in India a Joint Family. In the ancient world, this group of royal kinsmen had often a purely fictitious pedigree, and pretended to be descended from a god; and there is an example of this claim in our own day, since the Emperor or Mikado of Japan, who has a Minister at the English Court, lays claim to a divine ancestry. Sometimes, however, the reigning House consists of the descendants of a known historical hero, as was the case with the most illustrious of all royal families, the Jewish princes descended from David, the son of Jesse. And just as among the Hebrews there were two rival royal clans, the princes of Judah and the princes of Israel, so also there have been rival clans pretending to the Afghan throne, and the old Afghan war was not so much a struggle between Dost Mahomed and Shah Suja as between the clans to which these chiefs belonged, the Suddozies and the Barukzies. Bloody wars have frequently been fought between the partisans of rival clans and houses, but in somewhat later times civil strife has chiefly raged between individual pretenders belonging to the same house. The reason of this is, that there are few things on which mankind were at first less agreed, few things on which their usages were less at one, than the rule which should determine which of the family should have its headship. We are so used to some form or other of Primogeniture as the system which regulates the devolution of crowns that we have some difficulty in understanding the ancient disputes of which I have spoken. Yet Primogeniture—to which as a political institution I may observe that the human race has been deeply indebted—did not at first appear in anything like the shape in which we are familiar with it; and, even when it approached that shape, its rules were subject to many uncertainties. On all sides we find evidence that, in the beginnings of history, quarrels were rife within reigning families as to the particular rule or usage which should invest one of the royal kinsmen with a primacy over the rest; and these quarrels bore fruit in civil wars. The commonest type of an ancient civil war was one in which the royal family quarrelled among themselves and the nobility or the people took sides. The madness of rivalry took possession of the chiefs and the people were smitten.

A very ancient, possibly the most ancient, method of settling these quarrels was that which has been called in our day Natural Selection. The competing chiefs fought it out, and the ablest, or the strongest, or the luckiest, lifted himself into supremacy. Now and then, one of the kinsmen has had the opportunity of crushing the others by a sudden blow, and this is the case of those massacres of princes which from time to time appear in Oriental history. One of them is described in that story in the Hebrew Chronicles which gives its plot to Racine’s fine play of ‘Athalie.’ Athaliah, the queen-mother in Judah, that ‘wicked woman,’ seeing that her son King Ahaziah was dead, arose and destroyed all the seed royal of the house of Judah. One child was saved and hidden in the house of God six years: and Athaliah reigned over the land (2 Chron. xxii. 10). More revolting, because more systematic, were the massacres of their near collateral relatives by the Ottoman Sultans; but the Turk who bore no brother near his throne had his excuse in a peculiar rule of royal succession of which I will say something presently. The atrocities of the Seraglio were more than matched only the other day by those committed in the palace at Mandalay by the present King of Burmah, Thebaw. I have little to say for a personage who in the course of a single week shed the blood of nearly every relative, male or female, within his grasp; but undoubtedly, when there is no clear rule of royal succession, the choice may unhappily lie between one of these massacres and prolonged and desolating civil war. Fortunately a great deal of the progressive civilisation of the human race has consisted in the discovery of remedies against violence; and the evil of dynastic contests has been so manifest, and so little tolerable, that men seem very early to have striven to find contrivances for preventing them. Such contrivances were indeed not absolutely new; most of them were still more ancient tribal or family usages put to a new use.

One of the most ancient of them is to obtain the peaceful consent of the community to the succession of a particular chief either before the death of the last reigning sovereign or immediately afterwards. An elective monarchy, much modified in its later form, survived till the last century in Poland, and the most august throne in Europe, that of the Empire, of the Roman or German Empire, was till the beginning of the present century open in theory, as Mr. Freeman puts it, to every baptized Christian. There are in fact few monarchies in whose records some trace of an original popular election or confirmation cannot be found, and there is even a survival of it in the ceremonies of an English Coronation. A convenient modification of the system, which removes a dangerous interval between prince and prince, is to have the election during the lifetime of the reigning chief or king; and thus, in Germany, a King of the Romans was generally chosen who was to become Emperor on the Emperor’s death. A precaution of the same class, particularly where there is a numerous progeny of princes produced by polygamy, lies in the appointment of his successor by the reigning chief during his lifetime. This on the whole seems to be the system of succession prevailing in Afghanistan. Shere Ali owed his throne to it and so would Shere Ali’s heir-apparent, Abdulla Jan, if he had lived. But that it has to compete with other ideas about succession is plain from the bloody civil war which followed Shere Ali’s accession and from the later quarrel on this very point between Yakub Khan and his father. The present Ameer, Abdurrhaman Khan, owes nothing to it. The weakness of the system lies in its tendency to produce the nomination of the child of some favourite wife, and thus to lead to endless palace-intrigues which sometimes bear fruit in civil war. Yet another contrivance, probably much older and in itself extremely rational, was once very widely diffused over the world, but has now only one field of operation among the European dynasties. This is the descent of the sovereignty to the oldest living male of the family. It still survives among the Turks. The present Sultan succeeded his brother, who had children; and Sultan Murad, who reigned for a few months, succeeded his uncle, though his uncle, Abdul Aziz, left male children. Where the system may be observed in its more barbarous form, we find it generally combined with that which I mentioned first, popular or tribal election. The Irish tribesmen and even the clansmen of the Scottish Highlands once elected their chiefs, but the former always chose the brother of the last chief, if of mature years, and the latter seem in very ancient times to have made similar elections. In warlike and perpetually disturbed societies there could be hardly a better principle to follow, for it has the great advantage of providing that the new chieftain shall be a grown and experienced man; and barbarism cannot afford to face the dangers of royal minorities. Its disadvantages do not begin till princes have begun to live in palaces amid luxury and ease. The heir-apparent then receives a training which more than compensates for his maturity of years. The seclusion in which he is kept, the jealousy with which all his energies are repressed by the reigning monarch, and his long familiarity with the harem, make it too probable that he will prove an incapable ruler if he is allowed to succeed. But the interests of the existing Chief, and still more of his children, are against the heir-apparent continuing to live. It is only in quite recent times that the next eldest male relative of a Turkish Sultan could be reasonably sure of the succession. The declaration that fratricide is a rule of the Ottoman State is attributed to Mahommed II., but the great example of the practice was set by Mahommed III., who massacred nineteen of his brothers and caused to be drowned twelve of his father’s wives who were supposed to be pregnant.

The system which I have described, that under which not the eldest son but the eldest male kinsman succeeds, now bears very generally the name of Tanistry, from the Celtic word which points to its practice in ancient Ireland. Tanistry seems to be the undoubted parent of Primogeniture as we know it. But this later system of succession to thrones, though in some respects a great advance on Tanistry, was not at all free from dangerous uncertainties when it was first followed, and indeed some of these uncertainties linger about it still. It was through one of such uncertainties that the fortunes of this country came to be mixed up with a disputed succession, and that our ancestors were engaged in a foreign war which lasted a hundred years and which entailed a bloody civil war as its consequence. The Royal House or Sept, whose disputed headship involved England in these calamities, was that of the Capetians, of the collective body of the descendants of Hugh Capet, who in 987 got himself elected King of the Franks, or French, and founded the feudal monarchy of the country which, by successive additions, has since become so famous under the name of France. The progeny of Hugh Capet, continued exclusively through males, is not extinct at the present moment, after nine centuries; but his male descendants, in the direct line of descent, came to an end in 1328. Philip the Fair, the man of strongest character in the whole line of French kings, with the possible exception of Henry IV. of France and Navarre, had died in 1314, leaving three sons who successively ascended the French throne under the names of Louis X., Philip V., and Charles IV. No one of these three kings left sons, but two of them left each a daughter, and one left three. Now Edward III. of England, who held the English Crown by an independent title, was a Capetian through his mother, Isabel, the ‘she-wolf of France’ of Gray’s well-known Ode. Isabel was a daughter of Philip the Fair. On the death of Charles IV. of France, the youngest of the three royal brothers who died without male issue, our Edward III. put in a claim to the French Crown. It is usual both with French and with English historians to describe this claim as wholly untenable, but, though I will not here discuss what is really a point of technical law, I will pause to say that this view of the utter baselessness of Edward’s title seems to me to be based partly on ignorance of certain peculiarities in ancient systems of law and partly on the assumption that certain legal rules, which were then unsettled, were as clearly recognised as they now are. There are some very ancient bodies of law which, though showing a decided preference for male inheritance, nevertheless permit the family to be continued through a daughter when the sons have failed. The ancient Hindu law required that in such a case the daughter should be2appointed, as the Sanscrit word is translated, to bear a son to her father. It is remarkable that this was the exact position of Edward III. He disclaimed the idea that France could be ruled by a woman, but he contended that, her brothers having died, she could transmit her father’s right to her own male child. There are other apparent objections to Edward III.’s claim, arising from the fact that all the sons of Philip the Fair had left daughters, but it may be shown from the law-books of the time that, even in the inheritance of private property, the rules of succession which were to prevail under such circumstances were still uncertain.

It is probable, then, that the argument of Edward III. was not considered in his day to be as untenable as all French and some English writers have represented it, but that it answered to some ideas about royal and other successions which were more or less current. But the point was no doubt regarded always as a doubtful one; and in fact in 1316, on the death of the eldest son of Philip the Fair, Louis X., who left a daughter, an Assembly of Notables, which is sometimes described as the States-General of France, had resolved that the French Crown descended exclusively to males and through males. Thus the question of law was fully and fairly raised; and it promptly fell under the only jurisdiction by which it could possibly be decided. It was put to the arbitrament of the sword. From the commencement of active hostilities by Edward III. to the close of the English invasion of France undertaken by Henry V., the years of war between the English and French were as nearly as possible a hundred and twenty, interrupted only once by a regular peace, and always on the question of royal succession; and this hundred years’ war, as historians now call it, left undoubtedly as a legacy, as the result of the fierce military habits which it produced, the bloody struggle known as the Wars of the Roses, in which, to say the truth, the symbols of the two contending royal houses, the White Rose and the Red, were no more to the turbulent and warlike English nobility than the blue and green colours of the racecourse which once divided the populace of Constantinople, the New Rome, into fierce and seditious factions. The English kings bore the title of King of France, and carried the French lilies on their arms, down to the beginning of the present century. In the repeated negotiations between the British Government and the first French Republic, which at last bore fruit in the hollow and transient Peace of Amiens, the question of giving up this title and armorial bearings played a considerable part, as may be seen from the Papers of Lord Malmesbury.

With this famous dispute between the English and French kings—a dispute in which the English people from the first heartily took part, and in which the French people first imbibed the national spirit which has ever since characterised them—with this dispute there are considerations connected which seem to me sufficiently interesting to deserve to occupy the rest of this paper. Some of this interest is literary; some is archæological; but some is practical. We Englishmen are satisfied to rest the title of our Royal House on the Act of Settlement, which limits the right of succession to the descendants of the Electress Sophia of Hanover. But in other countries the old doubts which caused the war of a hundred years have still vitality enough to affect practical politics. As I before stated, the Capetian Sept or House, composed on the principle laid down by the States-General of 1316, of males who spring from males, still continues. It embraces the elder branch of French Bourbons, represented by the Count de Chambord, the younger branch consisting of the Princes of Orleans, the Spanish Bourbons, and the Italian Bourbons sprung from them. King Alfonso of Spain is the son of a Bourbon father and a Bourbon mother, but he is a king in right of his mother, and he was engaged a few years since in a civil war with his cousin, Don Carlos, whose pretensions to the throne are derived exclusively through males. The conflict of title between the Count de Chambord and the Orleans princes is of another kind and of a more modern type. All of them are full Bourbons; but nevertheless the theory of sovereignty and government called Legitimism, which is still a factor in French and Spanish politics, is ultimately based on the assumption of a sort of sacred and indefeasible law regulating succession to the Crown, and placing it beyond competition and above popular sanction. There is no doubt that the belief in the existence of such a law first showed itself during the controversy between Edward III. and Philip of Valois.

This sacred and indefeasible law bears a familiar name. As it was at first conceived it was called the Salic law. It is not quite certain when men first began to suppose that the law thus designated applied to royal successions, but clearly this view prevailed both in England and France soon after the beginning of the hundred years’ war. What were the ideas about the Salic law which were common in this country from one hundred to one hundred and fifty years after the conclusion of this quarrel may be gathered from Shakespeare’s ‘Henry V.,’ act i. scene 2, where the English argument is put into the mouth of the Archbishop of Canterbury. It amounts to what lawyers call a plea in confession and avoidance. It admits the existence of a royal Salic law, but denies that it applied to the case of Edward III. and his rival. Now the Salic law, like the Capetian House, is still in existence, and we can put our finger on the very passage which was supposed to confer on Philip of Valois his title to the French throne. But both to the French argument and to the counter-argument which Shakespeare borrowed from the English chroniclers there is one fatal objection. The Salic law does not apply at all to thrones and to the succession to thrones. It merely regulates the succession to private property. When this most indisputable fact was first discovered in the sixteenth century by the rising learning of those times, there was a good deal of scandal in France and some little dismay. Montesquieu in the eighteenth century popularised the discovery; and Voltaire is never tired of jesting at the Salic law, which he had always supposed, he says, to have been dictated by an angel to Pharamond, the first Frankish king, and to have been written with a quill from the angelic wing. The Salic law might in fact be best described as a manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organised Teutonic Courts, the Court of the Hundred: it only mentions the king in so far as the king has authority in the Court. It was once supposed to contain a reference to some peculiar description of land called Salic land; but the new English edition3 clearly shows that the word ‘Salic’ is an interpolation, and that nothing is referred to except the private inheritance of simple land.

It becomes therefore a matter of some interest to search out the true origin of this celebrated rule (erroneously supposed to be contained in the Salic law), which not only excluded females from succession to thrones, but denied the royal office to the nearest male kinsman if his connection with the royal house was through a female. It is first to be observed that, at the time of which we are speaking, the middle of the fourteenth century, there were two systems of royal succession in existence of much greater antiquity than either the Royal House of England or the Royal House of France. One of these was followed by semi-barbarous tribes at the very extremity of Europe, but it is of immemorial age, and, as some think, almost as old as mankind itself. I have already called it Tanistry, the system under which the grown men of the tribe elect their own chief, generally choosing a successor before the ruling chief dies, and almost invariably electing his brother or nearest mature male relative. In the fourteenth century this system was confined to the so-called kings or chiefs of that part of Ireland which lay beyond the English Pale, but there is a far-off echo of the same system in the story which furnished a plot to the tragedy of ‘Hamlet,’ where the murdered king is succeeded not by his son, but by his brother, who strengthens his title (according to a usage also of the highest antiquity) by marrying the widow of his predecessor. The very memory of Tanistry would probably have died out of Europe if, a century later, this method of succession had not become that of a throne once the most exalted in Europe through the capture of Constantinople by the Ottoman Turks. The Sultanate in their hands followed this rule of descent, brother succeeding brother, but all trace of election by the people, if it ever existed, was lost. As followed by the Turks, the system of course excludes females, but it would probably have excluded them at all times, as its main object is to secure a military leader in the maturity of life.

The other system of regal succession to which I referred was that to the throne and crown of the Roman Empire, which still theoretically survived in Germany and Italy. This too was a system of election, but the right to have a voice in the choice of the Emperor had gradually become limited to a certain number of prelates and of princes once great officers of the Imperial Court. From one of these, whom we know as the Elector of Hanover, our own royal family is descended. The parentage of the elective Roman Empire may be traced to the acclaim of the Roman soldiery saluting a successful general as ‘Imperator;’ but since the fall of the Roman Republic, the Imperial dignity had a tendency to concentrate itself in particular families, a settled succession being procured by the practice of choosing the new Cæsar during the reigning Emperor’s life. In the more modern or Romano-German Empire, a successor might be elected, before the death of the reigning Emperor, under the name of the King of the Romans; and the same result followed in the practical limitation of the Imperial dignity to particular families, of whom the House of Austria was the last. The German Empire, considered as the direct successor of the Roman Empire, fell in 1806; but in our own day it has been revived without a revival of election and as a dignity hereditary in the Prussian Royal House.

When, then, France and England entered into their bloody war of a hundred years, which was to decide the place of women in royal successions, there were two systems of succession in Europe which would have undoubtedly excluded women from the throne. One would have shut them out from the most august dignity in the West, because it had been originally an honour conferred on a triumphant soldier. The other would have denied to them a petty Irish chieftainship, because the chief was intended to be a fighting man all his life. But in the monarchies which lay between these extremes, monarchies of the class which we call feudal, there was no settled rule excluding women, and still less their male children. See what had occurred in England as long as nearly two centuries before Edward III.’s time. The country had been desolated by the war between the Empress Matilda and Stephen of Blois, afterwards King Stephen of England. But Stephen’s claim to the throne was derived not from his father, but from his mother; and Matilda, herself a woman, and but faintly objected to by the English barons on that account, transmitted an unquestioned title to her son Henry II. How, then, came such a difference to arise between countries so alike as France and England then were—between monarchies not then divided by a silver streak of sea, since the English kings had ever since the Conquest ruled over more or less of France, sometimes over its most flourishing provinces, as vassals of the French king more powerful than their suzerain?

I will indicate as briefly as I can the chief conclusions to which a long, intricate, and difficult inquiry would lead us. All the Western European monarchies, lying between the Roman Empire and the tribal chieftainships of the Irish and of the Scottish Highlanders, were (to use a word which imperfectly expresses their characteristics) feudal. Now among the many things which may be said about the system known to us as Feudalism, one of the least doubtful is that it mixed up or confounded property and sovereignty. Every Lord of the Manor or Seigneur was in some sense a King. Every King was an exalted Lord of the Manor. This mixture of notions which we now separate had been unknown to the Romans of the Empire, and had somehow been introduced into the Western world by the barbarous conquerors of the Roman Imperial territories. If then we avert our eyes from the ideas about chiefship and kingship entertained by barbarous races—ideas generally associated with some form of the system which I have called Tanistry—and if we look to their ideas concerning the inheritance of property, we find the same uncertainty and difference of view about the right of women to succeed to it which we observe in the feudal monarchies. Here no doubt we come upon a set of phenomena of which the precise significance is much disputed in our day; but probably there would be general agreement in the statement which follows. The greatest races of mankind, when they first appear to us, show themselves at or near a stage of development in which relationship or kinship is reckoned exclusively through males. They are in this stage; or they are tending to reach it; or they are retreating from it. Many of them in certain contingencies, generally rare or remote, give women and the descendants of women a place in succession, and the question with modern inquirers is whether the place thus assigned to them is the survival of an older barbarism, now exemplified in savage races, which traced kinship exclusively through females, or whether it results from the dissolution, under various influences, of ‘agnatic’ relationship, that is, of relationship through males only.4 The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or in classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably took a great share in producing by their household labour; for example, in the real Salic law (not in the imaginary Code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. Indeed, it is not to be supposed that under a purely ‘agnatic’ system of relationship governing inheritance, women are wholly unprovided for. The idea is that the proper mode of providing for a woman is by giving her a marriage-portion; but when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group.

There is therefore a strong probability that, among the miscellaneous mass of barbarians of Aryan breed who overran Western and Southern Europe, all sorts of ideas prevailed about succession to property. Some would exclude the descendants of women altogether. Others would admit them in certain contingencies. I regard therefore these disputes about the right of succession to feudal monarchies as having their origin in differences of opinion about the inheritance of property, but as transferred by the feudal spirit to the descent of crowns.5 They are a late survival of very ancient differences of usage between barbarous communities, now mixed together as conquerors of the West. The claim of Edward III. to the French throne would have received favourable consideration as a claim to property by those most ancient Brahman lawyers who framed the Hindu law-books erroneously called by Western scholars Codes.

It will therefore be perceived that the question, as it presents itself to my mind, is not, why did Edward III. of England, the son of a Capetian Princess, become a pretender to the throne of France on the death of his three uncles without male issue, but rather, why were the ruling classes of the provinces then composing France so obstinately persuaded that nobody but a man descended through men from the founder of the Royal House could rightfully reign over them? I think there is an explanation of this strong conviction for which the Frenchmen of that day fought so stoutly. It is this. There are some peculiarities in the Royal House founded by Hugh Capet which, if not unique, are of extreme rarity. The Sept, or, as it is called in India, the Joint-Family, consisting of the male stock of the founder, of male descendants tracing their descent entirely through males, still exists, although not much less than 900 years have elapsed since Hugh Capet died, and moreover it shows no signs of dying out. Several times in the course of this long history it has seemed on the point of extinction. Twice has the reigning branch ended in three kings who had no male children. The direct descendants of Hugh Capet ended, as you have heard, in 1328. Then the Valois succeeded, and they too came to an end in three brothers who had no legitimate children, male or female, Francis II., Charles IX., and Henry III. But the fertility of some younger branch has always remedied the decay of the elder, and on the death of Henry III., Henry of Navarre took his place, just as a Valois had taken the place of the lineal heir of Hugh Capet. The same rule of the infecundity of the elder line being repaired by the fecundity of the younger, seems still to hold good. Of the Bourbons who are descended from Henry of Navarre, the branch of Condé was exhausted almost in our own day. The eldest branch of the same house seems likely to close with the childless Prince known as the Count de Chambord, and the elder branch of the Spanish House has only been continued through women. But the younger lines of all the Bourbon Houses are still prolific, represented by the French Princes of Orleans, by the Italian Bourbon Princes, and by the Spanish Princes descended from the first Don Carlos. All these Princes are the male issue, descended exclusively through males, of Hugh Capet, who, as I said, died nearly 900 years ago.

These facts are possibly not unexampled, but they are very unusual and extremely remarkable. Their rarity may be concealed from us by our English way of talking loosely about families who came in with the Conqueror, and through our English usage of tracing descent indiscriminately through males and females. No doubt there are longer genealogies which are matter of belief. The most illustrious of all, that of the House of David, is longer, but then the Kings of Judah were polygamous, and polygamy, though it sometimes produces sterility, occasionally results in families like that of the Shah of Persia, who not many years ago left eighty sons. In India there are pedigrees greatly longer, for there are princes claiming to descend from the Sun and the Moon. But I need scarcely say that the earlier names in these genealogical trees are those of fabulous personages, and indeed under a system of succession which, like most of the Indian systems, permits the adoption of children, there can be but little assurance of the absolute purity of male descent. It must at the same time be understood that I am not asserting the impossibility of pedigrees of this length, but only their rarity. It is said that genuine pedigrees almost as long may be found among the English gentry, but anybody can convince himself that among the English nobility a long continuity of male descents is very rare, though there are exceptions, a notable one being that of the Stanleys.

But, rare and striking as is this peculiarity in the family history of the Capetians, that House presented in the fourteenth century a phenomenon which is still rarer and still more impressive. The kings sprung from Hugh Capet succeeded one another, son to father or brother to brother, for more than 300 years. Through all this time there was no occasion to call in a remote collateral, an uncle or great-uncle or a cousin. How unusual is such a succession we can conceive ourselves by taking a very simple test. Let us take any half-dozen conspicuous men of a hundred years since, conspicuous in any way we please, statesmen or writers or simply of noble birth, and we shall find that their living descendants through males are few, though their descendants through women may be numerous. Go two hundred years back and you will see that the fewness of male descendants through males from men of eminence much increases, and if you go three hundred years back, it becomes6 extraordinary. The whole subject belongs to a branch of the theory (as it is called) of Heredity which has not been perfectly investigated as yet, and which it would be out of place to discuss here. I think, however, that it is not too bold a proposition that the greater the eminence of the founder of a non-polygamous family, the greater on the whole is the tendency of the family to continue itself (if it continue at all) through women in the direct line; and that the best securities for a pure pedigree through males are comparative obscurity and (I could almost say) comparative poverty, if not extreme. The rule is of course only approximate, and the example of the Capetian dynasty sufficiently shows that there are exceptions to it. At the same time, the position of the early Capetians must not be judged by the splendour of the late Kings of France. They were comparatively poor and comparatively obscure, and for long could hardly make head against even the humbler of their nominal vassals.

This, then, I believe to be the true secret of the so-called Salic rule of succession. There is nothing, even now, very uncommon in the frame of mind which leads men to think that everything, of which they know or remember nothing to the contrary, has existed from all time and that it ought to continue for ever. But in an age in which historical knowledge was all but non-existent, and in which the mass of mankind lived by usage, such a habit of thought must have been incomparably stronger; and we cannot doubt that men’s minds were powerfully affected by this uninterrupted continuation of male descents in the royal family of France, which even to us is impressive. Nobody, they would say, has reigned in France but a King the son of a King. There had been no occasion to call to the throne a collateral relative, much less a kinsman through women. Amid a general flux of men’s ideas on the subject of succession to thrones, the French law would at all events have appeared to have solidified. And, such being the preconceived notions of Frenchmen, there is no doubt that they were strengthened by the provision of the real Salic law, which said that land—or, as it was once read, Salic land—should descend exclusively to males through males. This legal provision was in fact irrelevant to the question, but it may very easily have been misunderstood; and it is a significant circumstance that manuscripts of the true Salic Code, the Lex Salica of the Germans, appear to have been found in the Royal Library at Paris from the time of its first foundation.

The supposed Salic rule, excluding women and their descendants from royal successions, has been adopted in later days in many countries in which women were at one time permitted to succeed. In constitutionally governed States, female successions have always been popular; and quite recently, in Spain and Portugal, the establishment of constitutional government coincided with the overthrow of the rule which excluded queens from the throne. The Spanish monarchy was composed of portions in most of which the throne might be filled by a woman, but when the younger branch of the Bourbons obtained the Crown of Spain, they introduced the so-called Salic rule. This system of succession is manifestly thought to be convenient wherever, whether there be a Constitution or not, a large measure of authority resides with the sovereign. Thus the succession to the German Empire, following that of the Prussian kingdom, is now Salic; and in Russia, where an extremely peculiar rule of succession prevailed, one of the most usual successions being that of the widow of the late Emperor, the exclusive devolution of the Crown through males on males was for the first time introduced by the Emperor Paul I.

The explanation given by French historians of the memorable rule which first sprang up in their country has nothing to do with reasons of convenience. They say that the exclusion of women and their issue was the fruit of the intense national spirit of Frenchmen. If it had not been for this principle the King of France might have been an Englishman, or a German, or a Spaniard, according to the nationality of his mother’s husband; and this was contrary to the genius of France, which imperatively required that the King should be a Frenchman. But this is the error, not so very uncommon in the philosophy of history, of taking the consequence for the cause. It was not the national spirit of Frenchmen which created the Salic rule, but the Salic rule had a great share in creating the French national spirit. No country grew together originally so much through chance and good luck as France. Originally confined to a small territory round Paris, province after province became incorporated with it through feudal forfeitures, through royal marriages, or through the failure of lines of vassals even more powerful than the King to whom they owed allegiance. But owing to the Salic rule, the King always belonged to the heart and core of the monarchy. The King of England who first annexed Ireland was a Frenchman. The King of England who united Scotland with her was a Scotchman. But the King of France was from first to last born and educated a Frenchman. The same vein of character may be seen running through the whole series of French Kings, broken only perhaps in the unhappy Prince who closed the dynasty in the last century. Hence the whole authority of the French Kings was exerted to bring each successive acquisition of the Crown into political and social conformity with the original kernel of the kingdom. And in this way was created the French love of unity, the French taste for centralisation, the French national spirit. The undoubted power which France possesses of absorbing into herself and imbuing with her national character all the populations united with her has been attributed to the French Revolution; in reality it is much older, and may be traced in great part to the Salic rule of royal succession.

CHAPTER VI.

THE KING, IN HIS RELATION TO EARLY CIVIL JUSTICE.

Whenever in the records of very ancient societies, belonging to races with which we have some affinity, we come upon a personage resembling him whom we call the King, he is almost always associated with the administration of justice. The King is often much more than a judge. He is all but invariably a general or military chief. He is constantly a priest and chief priest. But, whatever else he may be, he seldom fails to be a judge, though his relation to justice may not be exactly that with which we are familiar.

The examples of this association which I will give must be few among many. The monuments of jurisprudence which lay claim to the highest antiquity are those of the Hindus, one of which has long been vaguely known to Europeans under the name of the Code of Manu. Many similar collections of ancient Indian legal rules have of late been discovered, and some have been translated, but it is to be observed they none of them deserve to be called Codes. They are in fact books of mixed law and theology, the manuals in use with the Indian Brahmans in ancient law-schools, in which their subjects were no doubt at first taught orally and committed to memory and were only embodied in writing in comparatively recent times. They are further, as we have them, the result of a sort of literary evolution. The original treatises, or rather bodies of learning, dealt with all things divine and human (regarded no doubt from a purely theological point of view), but the various portions of this learning became gradually specialised, till at last treatises dealing with law mainly, or law entangled with religious ritual, were finally separated from the rest. In these ancient law-books, in so far as they are law-books, the authority of a King is assumed. He sits on the throne of justice. He has the book of the law before him. He has learned Brahmans for assessors. Some part of these ideas, like much else of immemorial antiquity, survive in India. A gentleman in a high official position in India has a native friend who has devoted his life to preparing a new book of Manu. He does not, however, expect or care that it should be put in force by any agency so ignoble as a British Indian legislature, deriving its powers from an Act of Parliament not a century old. He waits till there arises a King in India who will serve God and take the law from the new Manu when he sits in his court of justice.

If we pass from the extreme East to the extreme West, from the easterly to the westerly wing of the Indo-European or Aryan race, from India to Ireland, we find this same association. That most interesting system, the ancient Irish law, is known as the Brehon Law, because it is said to have been declared by the Brehons, who are in fact as nearly as possible the Brahmans of India, with many of their characteristics altered, and indeed their whole sacerdotal authority abstracted, by the influence of Christianity. Here, too, we find that the great Brehons are Kings or King’s sons; and we come upon the significant proposition that, though a King is necessarily a judge, it is lawful for him to have a professional lawyer for an assessor. There are many most striking resemblances, often on the most unexpected points, between ancient Indian and ancient Irish law; and this hint as to the proper constitution of a Court of Justice is one of them.

The ancient Hindu lawyers claimed a descent from supernatural personages only second to the gods. The ancient Irish lawyers pretended that the first of their order was a pupil of Moses in the Desert. But, in point of fact, the order of ideas exhibited by both systems is relatively more modern than that which we can trace in the poems attributed to Homer. Here we can perceive the undeveloped form of the Indian and Irish conception of a Court. The Homeric King is chiefly busy with fighting. But he is also a judge, and it is to be observed that he has no assessors. His sentences come directly into his mind by divine dictation from on high. These sentences, or θέμιστες—which is the same word with our Teutonic word ‘dooms’—are doubtless drawn from pre-existing custom or usage, but the notion is that they are conceived by the King spontaneously or through divine prompting. It is plainly a later development of the same view when the prompting comes from a learned lawyer, or from an authoritative law-book.

I pause on one more instance of the association familiar to all of us. The Judges of the Hebrews represent an old form of kingship. The exploits told of them in the Scriptural Book of Judges point to them chiefly as heroes raised up at moments of national disaster; but, independently of the etymology of the name by which they are designated, they were clearly exponents of law and administrators of justice. Deborah, the prophetess, who is counted among them, judged Israel. She dwelt under the palm-tree of Deborah in Mount Ephraim, and all Israel came up to her for judgment. Eli, the last but one of the Judges, had judged Israel forty years, and Samuel the prophet, the last of them, expressly claims credit in his old age for the purity of his judgments. On the other hand, the decline of the system is shown by the fact that the sons of Eli are expressly charged with abuse of authority, and those of Samuel with corruption. In the more mature kingship which presently succeeded, the military functions of the King are most prominent in Saul and David, but the judicial authority again manifests itself in Solomon.

There is one portion of these ancient ideas about justice on which it is necessary to dwell for a moment on account of the great importance which they prove to have had for mankind. It would seem that, in these early times, however much the administration of justice might be organised, even though a system of law-courts might exist competing with the King’s justice and quite independent of him, even though all or some part of the law might have been set forth in writing, yet there was always supposed to be what may be called a supplementary or residuary jurisdiction in the King. The law, however administered, was never believed to be so perfect but that the royal authority was always required to eke out and correct it. Just as, according to the most modern ideas about jurisprudence, every body of law is thought certain to become an instrument of gross tyranny unless there is somewhere a legislature to amend it, so even that servility to immemorial usage which is characteristic of very ancient times did not exclude the correction of usage by the authority of the King. We owe to this belief in a supplementary judicial authority residing in the King some branches of our own jurisprudence which are in great credit, e.g. the so-called Equity of our Court of Chancery; and others of much less repute may be traced to it, such as the old Court of Star Chamber1 which was established by a belated and therefore unpopular exercise of this same residuary royal power. But a large part of mankind is indebted for much more than this to these ancient notions. Practically at this moment two systems of law divide between them the whole civilised world. One is the English law, followed by nearly all the English-speaking peoples—by ourselves, by all the colonies actually planted by Englishmen, by all the Northern and Central States of the American Union, and to a greater extent every day by the millions of India. The other is the Roman law, whether it take the form, as in Germany, of what we call a common law, or whether it appears under a slight disguise in the French Civil Code, and the numerous codes descended from it. But the real indigenous law of ancient Rome deserved no such fortune as this. It was a stiff system of technical and ceremonious law, belonging to a common and easily recognisable type. But it underwent a transformation through this very residuary or supplementary royal authority of which I have been speaking. The judicial powers of those dimly seen and half fabulous personages, the Kings of Rome, descended, at the establishment of the Roman Republic, to the magistrate known as the Prætor; and the old belief in a divine or semi-divine inspiration, dictating judicial rulings to the ancient King, gradually converted itself into the assumption, first of a religious and then of a philosophical theory, guiding the more modern Prætor. Auguste Comte might have appealed to the change as illustrating the transformation of a theological into a metaphysical conception. What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Prætor, and by him gradually bent into supposed accordance with the law of Nature. The origin, therefore, of a body of law, regarded by some of the most civilised societies of mankind as the perfection of reason, and spoken of by continental lawyers with what Englishmen at all events regard as extravagance of praise, is to be sought in this most ancient belief that law, custom, and judicature were all necessarily and naturally subject to correction by the supreme authority of the King.

I wish, however, to speak less of early Kings in general than of the early Teutonic or Germanic King and of his relation to civil justice. Our own Queen Victoria has in her veins the blood of Cerdic of Wessex, the fierce Teutonic chief out of whose dignity English kingship grew; and in one sense she is the most perfect representative of Teutonic royalty, as the English institutions have never been so much broken as the institutions of other Germanic societies by the overwhelming disturbance caused elsewhere by Roman law and Roman legal ideas.

But, though this is true, there is no community of which the early legal history is more obscure than ours, much as English and German learning has lately done for it. Fortunately, for an account of the early relations of the Germanic King to justice, we can turn to a monument of ancient Teutonic law constructed at a time when piratical chiefs from Jutland and Friesland were beginning to work the overthrow of the Roman provincial administration in our island. This is the Salic Law, the oldest of the Teutonic codes, the oldest portrait of Germanic institutions drawn by a German. Scholars are now pretty much agreed that it belongs to the fifth century after Christ, and that its preparation was prompted by the great codification of Roman law effected by the Emperor Theodosius II. Nothing is more singular than the delusion, so long and so obstinately entertained in Europe, that the Salic Law either was a system of rules, or at any rate comprised a set of rules, regulating the succession to thrones and crowns. In reality it deals with much humbler matters. It is concerned with the daily life of the men who belonged to the confederation of German tribes called (it is not altogether known why) the Salian Franks. It deals with thefts and assaults, with cattle, with swine, and with bees, and above all with the solemn and intricate procedure which every man must follow who would punish a wrong or enforce a right. It might be best described as a manual of law and legal procedure for the use or guidance of the free judges in that ancient Teutonic Court, the Court of the Hundred. It is written in phraseology which probably reflects accurately the way in which the Germans of the fifth century spoke Latin. Some of the manuscripts of it contain interlineations in a very old Teutonic dialect which, under the name of the Malberg Gloss, still excite the strongest interest among philologists. With Kings it has nothing whatever to do, except so far as the King is concerned with the administration of justice. The famous passage which was once thought to justify bloody European wars, which caused the war of a hundred years between England and France, and which is still the basis of the theory of politics called Legitimism, merely gives the rule of inheritance to landed property.2

This Court of the Hundred, which administered the Salic law to the Salian Franks, was the most ancient of the organised Courts among the Germanic races. There were probably ‘natural’ prehistoric Courts which were older, such as the assemblies (or moots) of the various village communities, but the Hundred Court was the result of a deliberate attempt to furnish an alternative to violence and bloodshed, and it seems to have been practically universal among the Germanic tribes. It has bequeathed to this country a territorial description, the Hundred, or (as it is called in the north) the Wapentake; and Mr. Gomme, in his interesting volume on ‘Primitive Folk Moots,’ has traced many of the sites at which its open-air meetings were held. They seem to be particularly abundant in Norfolk and in the east of England. The Hundred Court, however, was not an institution which had great vitality in our country, since part of its powers seems at an early date to have gone over to the larger judicial body called the County or Shire Court, while another part went back again to the village communities under their newer name of Manors.

As the Hundred Court appears in the Salic Law, it looks at first sight like an entirely popular tribunal with which royal authority has nothing to do. The judges are all the freemen living within the limits of the Hundred. The President is elective and bears the name of the Thunginus or Thingman. I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself sufficient proof that legal technicality is a disease not of the old age, but of the infancy of societies. But it has one remarkable peculiarity, that in a large class of cases which come before it, those based on contract or ownership, it does not enforce its own decisions. It may be suspected that, at a still earlier date, this singular inability to discharge what seems to us the most distinctive function of a judicial tribunal extended to all the decrees of the Hundred Court, whatever might be their object. The explanation seems to be that the most ancient Courts deliberately established by mankind were intended to be what we should call Courts of Arbitration. Their great function was to give hot blood time to cool, to prevent men from redressing their own wrongs, and to take into their own hands and regulate the method of redress. The earliest penalty for disobedience to the Court was probably outlawry. The man who would not abide by its sentence went out of the law. If he were killed, his kinsmen were forbidden, or were deterred by all the force of primitive opinion, from taking that vengeance which otherwise would have been their duty and their right.

But at this very point the Salic Law puts us on the trace of one of the greatest services which royal authority has rendered to civil justice. At the first glance, the King appears to have nothing to do with the Court of the Hundred. He is merely represented in it by a class of officers who collect his share of the fines imposed—a very important part of the royal revenues. We find, however, that if the unsuccessful litigant in the Court had agreed to abide by the sentence, the King’s officer would enforce it; and even in the absence of such an agreement, if the litigant who had been successful went to the King in person and petitioned him, the King would do him justice in virtue of his ultimate residuary authority. These are the first feeble and uncertain steps of royal authority towards the ascendency which in all Teutonic countries it has gained over the primitive popular justice. It has dwarfed and finally absorbed this justice, but then it has conferred on it the faculty without which we can scarcely conceive it existing. The King has nerved its arm to strike, and there seems no doubt that the process by which the whole force of the State is employed to enforce the commands of the judge is the result of the contact, ever growing in closeness, between the royal authority and the popular court. We possess in the Capitularies of the Frankish Kings some evidence of the further course of these relations between the King and the Court. After a while, the popular president of the Hundred Court, the Thingman, disappears, and his place is taken by the Graf or Count, the deputy of the King. Royal authority is therefore constantly growing, and, as a consequence, we find that the Count will use the King’s power to enforce all decrees of the tribunal, without reference to their nature, without previous agreement, and without appeal to the King’s supreme equity. The presidency of the royal officer over the Court was the beginning of a separate set of changes by which the character of the old popular justice was profoundly changed. Everywhere in the Teutonic countries we find deputies of the King exercising authority in the ancient courts, insisting that justice be administered in the King’s name, and finally administering a simpler justice of their own amid the ruins of the ancient judicial structures fallen everywhere into disrepute and decay. Such being the well-established consequences of the contact between the Teutonic King and the Teutonic Popular Courts, it seems worth while inquiring what were the weaknesses of those Courts, what seeds of dissolution they contained, and what there was in the King, even apart from this power, which made him their natural successor.

Two forms of authority, the King and the Popular Assembly, are found side by side in a great number of the societies of mankind when they first show themselves on the threshold of civilisation. The Popular Assembly and the Popular Court of Justice are in principle the same institution; they are gatherings of the freemen of the community for different public purposes. The King as political chief is contrasted with the Popular Assembly; as military leader he is contrasted with the host, with the general body of fighting men; with the Popular Court of Justice he is contrasted as judge, as depositary of the special judicial authority which is my subject. I do not enter upon questions, now much disputed, whether the King or the Popular Assembly is the older of the two, or whether they have co-existed from all time, and I will merely observe that the tendency of recent research is to assign the higher antiquity to the assembly of tribesmen. Taking it, however, as a fact that the two authorities very generally appear together, we may remark a further law of progress which they seem to follow. In such communities as those of which Athens and Rome are the great examples—in that walled city which was the cradle of a large part of modern ideas—the organs of freedom, as we should say, continually increase in importance. The assemblies monopolise power. The King either disappears or becomes a mere shadow. But in communities spread over large spaces of land, and without walled towns, it is the King who grows, and all popular institutions tend to fall into decrepitude. Are there, then, any reasons for this growth and decay, so far as regards the particular institutions with which we are concerned—judicial institutions? One source of weakness may, I think, be traced in the ancient popular institutions, both judicial and political. This was the great number of men, and the large portion of every man’s time, which they required for their efficient working. Even in communities confined by the surrounding wall to moderate dimensions, we can see the difficulty of bringing up the people to the discharge of their public duties. Scholars will remember the vermilion-stained rope which was dragged along the streets of Athens to force the citizens to the place of assembly, and which exposed the laggard marked by it to a fine; and their recollection will also dwell on the famous fee, the three obols, which was paid for attendance there and at the popular tribunal. Mr. Freeman, speaking of the later revival of Hellenic freedom in the collection of States united by the Achæan League (‘History of Federal Government,’ i. 266), has noticed the effect which the burden of attendance on political duties had in throwing political privilege into a few hands and thus in converting democracies into aristocracies. Much of ancient freedom was, in fact, lost through the vastness of the payment in person which it demanded. In communities of the other class, those spread in villages over a great extent of country, the burdensomeness of public duties must always have been considerable, and must have become very great when their size increased through the absorption of many tribes in the same nation. Some evidence of this may be discerned in the importance which old Germanic law assigns to the sunis or essoin, a word which once puzzled English lawyers greatly, but which is of old German origin, and really signifies the ground of legal excuse which a man may make for failing to discharge any duty in a popular Teutonic tribunal. But the difficulty is easily understood in another way. Although its pedigree is much interrupted, our English jury is a survival of the old popular justice; yet nobody even now, I suppose, receives a summons to attend a jury with perfect complacency. What, however, must the necessity for attendance have been when the place of meeting was at the other side of the hundred, or perhaps of the county, when there were no roads in England except the Roman roads, when the eastern counties were little better than a fen, and when the Wealden of the south were really forests? Yet there is some ground for thinking that the burden of attendance was lighter in England than elsewhere. On the Continent of Europe, so long as the Hundred Court had a genuine existence, and up to the time when it was converted into a limited Committee of Experts, we cannot trace any relaxation of the severe rule that every man of full age and free must be present. But, even in this particular, the beginnings of that representative system which has done so much to continue the English form of Teutonic liberty in life can be perceived specially characterising this country. From very early times the English Hundred and Shire Courts were attended not by every freeman, but by the Lords of Manors, and by the Reeve and four men representing each village or parish. Nevertheless there can be little doubt that even in England the duty of attendance was felt to be very burdensome. In the Confirmation of Magna Charta by Henry III. in 1217, there is a provision that the County Court shall not meet more than once a month; and Mr. Stubbs (‘Const. Hist.’ i. 605) suggests the explanation that the sheriffs had abused their power of summoning special meetings of the court and fining absentees. He adds that it was the direct interest of the sheriffs to multiply the occasions of summons.

This multitudinousness, if I may so describe it, of all Courts of Justice except those of the King, lasted far down into the feudal period. Feudalism attained its greatest completeness in France, and French historians are astonished at the number of persons who were required for the organisation of a feudal Court of Justice. The principle is expressed in a phrase familiar to us, that every man must be tried by his peers, which originally meant that his judges were the entire body of persons standing in the same degree of relation with himself to some superior above. If a great vassal of the Crown had to be tried for treason or felony, all the great vassals of the French Kings must assemble from all parts of the territories of which the French King was the overlord; and it was precisely such a Court which deprived our King John of the fairest provinces of France. If, on the other hand, a villein had to be tried, his peers were the villeins of the same seigneurie. The inevitable result was that the French feudal Courts dwindled into bodies which confided all active duties to a small committee of experts, and as these experts were for the most part devotees of the Roman law, they exercised memorable influence in diffusing notions of the absolute power of the King, and specially of his rightful authority over justice. Quod principi placuit, legis habet vigorem—this was the central principle of the developed Roman jurisprudence.

It may thus be believed that the ancient Germanic Popular Courts, and probably the Popular Courts of many other societies, fell into disfavour or decay, as communities of men grew larger by tribal intermixture, through the multitude of judges they included, and through the great difficulty of discharging judicial functions. The freeman who ought to have attended preferred to stay at home, sending his excuse or essoin for the neglect, and submitting to a fine if it were insufficient. The tribunals were thus ever changing into committees of legal experts, with a strong bias towards royal authority. Meantime we know from other evidence that the King and the King’s justice were ever growing at their expense; and we may ask ourselves whether there was anything in the royal office and functions which gave them an advantage in this competition with the Popular Local Courts. The story of the struggle is far too long and intricate to be told here; but the habits of the King gave him one advantage which there is some interest in pointing out, all the more because it is often overlooked. I do not suppose that, when a litigant put himself from the first into the King’s hands, or appealed to the King over the head of the popular tribunal, he went to some royal residence, palace, or castle. This would have been an aggravation of the difficulties of the popular local justice. It was not the litigant who went to the King, but the King who came to the litigant. I believe upon a good deal of evidence3 that these ancient kings were itinerant, travelling or ambulatory personages. When they became stationary, they generally perished. The primitive Kings of communities confined within walls, like the old Athenian and the old Roman Kings, soon dropped out of sight. Perhaps, as Mr. Grote has suggested, they lived too much in full view of their subjects for their humble state to command much respect when the belief in their sacredness had been lost. But the more barbarous King of communities spread over a wide territory was constantly moving about it; or, if he did not, he too perished, as the Kings called the rois fainéants of the Franks. If I were called upon to furnish the oldest evidence of these habits of the ancient King, I should refer to those Irish records of which the value is only beginning to be discerned, for, whatever may be said by the theorists who explain all national characteristics by something in the race or the blood, the most ancient Irish laws and institutions are nothing more than the most ancient Germanic laws and institutions at an earlier stage of barbarism. Now, when Englishmen like Edmund Spenser first began to put their observations of Ireland into writing at the end of the sixteenth century, there was one Irish practice of which they spoke with the keenest indignation. This was what they called the ‘cuttings’ and ‘cosherings’ of the Irish chiefs, that is, their periodical circuits among their tenantry for the purpose of feasting with their company at the tenants’ expense. It was, in fact, only a late survival of common incidents in the daily life of the barbarous Chief or King, who had no tax-gatherers to collect his dues, but went himself to exact them, living as a matter of right while he moved at the cost of his subjects. The theory of the Irish law was, though it is impossible to say how far it corresponded with the facts, that the Chief had earned this right by stocking the clansman’s land with cattle or sheep. We find a highly glorified account of the same practice in ancient records of the life and state of those Irish Chiefs who called themselves Kings. ‘The King of Munster,’ says the ‘Book of Rights,’ ‘attended by the chief princes of his kingdom, began his visits to the King of Connaught, and presented to him 100 steeds, 100 suits of military array, 100 swords, and 100 cups; in return for which the said King was to entertain him for two months at his palace at Anachan, and then to escort him to the territories of Tyrconnell. He presented to the King of Tyrconnell 20 steeds, 20 complete armours, and 20 cloaks, for which the said King supported him and the nobility of Munster for one month, and afterwards escorted him to the principality of Tyrone.’ The King of Munster is then described as proceeding through Tyrone, Ulster, Meath, Leinster, and Ossory, everywhere bestowing gifts on the rulers, and receiving entertainment in return. I suspect that the entertainment is of more historical reality than the royal gifts. The practice, however, described with this splendour by the chronicler or bard, is plainly the same as the cutting and coshering which Spenser and others denounce as one of the curses of Ireland.

There is reason to believe that the English Kings itinerated in the same way and mainly for the same purpose. The ‘Eyres’ of the Anglo-Saxon Kings are described by Palgrave in his ‘Rise of the English Commonwealth’ (i. 286). The lawyer might suspect the continuance of the practice from the comparative obscurity of some of the places at which some of the most permanently important of our old statutes were enacted—Clarendon, Merton, Marlbridge, Acton Burnell. The novel-reader comes upon a survival of it in ‘Kenilworth,’ for the progresses of so late a sovereign as Elizabeth were certainly descended from the itinerancy of her predecessors. But there is other evidence of a rather remarkable kind. Two historical scholars, Mr. Eyton and the late Sir T. Duffus Hardy, have constructed from documentary testimony accounts of the movement from place to place, during a long space of time, of two of our English Kings, King Henry II. and King John. Neither of them of course is a very ancient King, and in both there may have been a certain amount of native restlessness, but their activity, though it may have been excessive, was certainly not a new royal habit. I take the movements of King John for notice, because his reign makes an epoch not only in English political but in English judicial history. Sir Thomas Hardy’s ‘Itinerary of King John’ gives the places at which that King is found to have stayed during every month of every year from 1200 to 1216, the regnant year then beginning on Ascension Day. I take almost at a venture May of 1207. On the 1st of May the King is found at Pontefract, on the 3rd at Derby, on the 4th at Hunston, on the 5th at Lichfield, on the 8th at Gloucester, on the 10th at Bristol, on the 13th at Bath, on the 16th at Marlborough, on the 18th at Ludgershall, on the 20th at Winchester, on the 22nd at Southampton, on the 24th at Porchester, on the 27th at Aldingbourn, on the 28th at Arundel, on the 29th at Knep Castle, and on the 31st at Lewes. The King must of course have made all these journeys on horseback over a country scarcely provided with any roads except the Roman roads. But, again, I will take June in 1212, when the King goes to a more distant and more impracticable tract of country. On June 4th he leaves the Tower of London, and on the 28th is at Durham, having been in the meantime to Hertford, Doncaster, Richmond in Yorkshire, Bowes, Appleby, Wigton in Cumberland, Carlisle and Hexham. What is still more remarkable, he marches at much the same rate in Ireland, which was then as little known and as impassable a country as now are the wildest parts of the Sierra Nevada. He reaches Waterford with his troops from Haverfordwest on June 20th, 1210, and is back again at the end of August, having been at every place of importance in the south-eastern half of the country. It must be understood that I am not selecting periods in which the King’s movements were exceptional or his activity greater than usual. This was practically his life during every month of every year of his reign. King John passes for an effeminate sovereign, but no commercial traveller of our day, employed by a pushing house of business, was ever, I believe, so incessantly in movement, and for so many successive years, with all the help of railways.

We are able to see how the itinerant King gradually became a monarch of the modern type. The change may be attributed to the growth of the system of missi, of itinerant deputies of the sovereign, his servants, as the English phrase was, in eyre. The first employment of the missi was much older than the reign of King John on the Continent, and considerably older in England. But, as is usual in such cases, one system did not all at once displace the other, and Kings, though gradually becoming more stationary or sedentary, did not suddenly cease to move about their dominions when they began to be represented by itinerant justices or deputies of their own. The transition, however, was hastened in our own country by the great constitutional change of which I will speak presently.

But first of all let us notice how this ambulatory life of the ancient Teutonic King gave him an advantage, as a great judicial authority, over the ancient local Popular Courts which had possibly existed from time immemorial by his side. As I have explained, they contained in themselves certain seeds of decay. Their numerous members had the strongest reasons for evading or slackly discharging what must have seemed to them a most rigorous duty. They had to waste many days and to incur many dangers while travelling by forest and fen to the place of meeting. They had to acquaint themselves with all the circumstances of the cases brought them without any of the aids of a modern Court of Justice. They had often to visit the scene of alleged acts of violence. They had not merely, like a modern jury, to decide on questions of fact; they had also to declare the law or usage and to pronounce the sentence. And then after all this, they might themselves be proceeded against for a wrongful judgment, and even, according to the judicial system of some communities, they might be called upon to defend their sentence in arms. A capitulary of Charles the Bald bids them go to Court armed as for war, for they might have to fight for their jurisdiction; and at a later date the oath of service exacted by the feudal lord constantly bound the vassal just as closely to service in Court as to service in arms. The burden on the poor man was so severe that the Church interfered in his favour, and a Council of the ninth century protested against the cruelty of forcing the poor to do suit in Court.

But while all these causes were weakening and emptying the Popular Courts, the King was constantly perambulating the country, carrying with him that royal justice which had never been dissociated from him since his dignity existed.4 The justice which he dispensed was in the first place complete, since he always by his officers executed his own decrees. It was also irresistible, since he generally had with him the flower of the military strength of the country. It was probably purer than that of the popular tribunal, which was certainly not inaccessible to corruption; and it was more exact, for anything like precise legal knowledge was very much confined to the experts who followed the King in his progresses. Moreover, in those days, whatever answered to what we now call the spirit of reform was confined to the King and his advisers; he alone introduced comparative gentleness into the law and simplified its procedure. Thus the royal justice was ever waxing while the popular justice was waning; and from the ascendency which the first finally attained are in fact descended most of the characteristics which we associate with the law, and which some theorists declare to be inseparable from it—uniformity, inflexibility, and irresistibility.

It may almost be laid down that in England nothing wholly perishes. The itinerant King is still represented among us by the Judges of Assize on Circuit; the ancient Popular Court survives in the Jury, though in the last instance the line of descent is far dimmer and far more broken than in the first. When John reigned, the delegation of the royal authority to itinerant servants of the King for some purposes had long been known; but one branch of royal jurisdiction, that over the Common Pleas, or in other words over the greatest part of the more important civil litigation of the nation, was carried about with him by the King in those surprising progresses of which I have spoken. Hence gradually arose a great abuse. In primitive times, when questions were simple, the King as he approached each local centre in turn had perhaps no difficulty in deciding every case which came before him before he went away. But, as a more complex and wealthier society arose, there was the greatest difficulty in getting the King, as it was called, to give the suitor a day. Sir Francis Palgrave has printed in the second volume of his ‘Rise of the English Commonwealth’ a most curious document, which is the account given by one Richard de Anesty of the trouble and charges to which he was put in respect of a mixed civil and ecclesiastical case which he had before the Archbishop of Canterbury and the King. Besides infinite vexation from the Ecclesiastical Courts, he had to follow Henry II. across the sea to France and up and down England before he could get his day. After reading this paper, we gain a vivid idea of the importance of the provision in the Great Charter that the ‘Common Pleas shall no longer follow the King.’ This is a great judicial epoch, marking a revolution in judicature; and King John at once proceeded to illustrate the necessity for it. He sealed Magna Charta at Runnymede on June 15, 1215, and before July 15 he had been over the whole of the south of England and again northwards as far as Oxford. Meantime the judges of the Common Pleas were sitting—as they did ever since till the Court of Common Pleas was absorbed the other day in the High Court of Justice—at Westminster, and at Westminster only.

With the sealing of the Great Charter the early history of the relation of the English King to civil justice comes to a close, and the modern English judicial system is established. It is distinguished in some respects from the corresponding systems of the European Continent, though these too were results of the same general causes. It is the most highly centralised system of judicial administration in the world, all the important branches of judicial business being localised in London, and a portion only diffused through the country by Judges in eyre, the old missi sent from the side of the King. The only considerable modification of these principles was made when the modern County Courts were established, courts extremely unlike the old Shire Courts. These last have left the merest trace behind them, perhaps in some mound now overgrown with trees which marks their ancient place of open-air meeting, perhaps in some trifling fine imposed on landholders for failing to attend a non-existent tribunal. Even with the addition of the newer County Courts, the English judicial system has another feature peculiar to itself—the fewness of the judges employed in administering justice.

If you look across the channel to France, you find these characteristics reversed—comparatively little judicial centralisation, a large number of local courts, a multitude of judges distributed over the various tribunals. The French King, like the English King, became the theoretical fountain of justice, but the effect was produced much more by the zeal with which expert lawyers trained in the Roman law preached his authority than by direct supersession of the local courts by emissaries of his own. On the other hand, the character of the law itself, however administered, was much more changed in France and on the Continent generally than in England. The Roman law gained everywhere a considerable, and here and there a complete, ascendency over ancient custom, and the French Civil Code, the outcome of the Revolution, is only a version of Roman jurisprudence. But, though much is obscure in the beginnings of what we Englishmen call the Common Law, it was undoubtedly in the main a version of Germanic usage, generalised by the King’s courts and justices. Some savour of the ancient opposition between the popular justice and the royal justice still clung about it, since we know that, theoretically administered in the King’s name, it came at a much later date to be thought the barrier of popular liberty against assertions of prerogative by Tudor and Stuart. Meantime that residuary authority over law and justice, which was never in ancient times quite dissociated from the King, survived the maturity of the common law. From this sprang the jurisdiction of the Court of Chancery, which cannot be said to have ever been exactly popular, but which certainly owed whatever unpopularity attached to it not to any supposed inherent badness, but to incidental vices, its dilatoriness and its costliness. But then from this same residuary authority arose the criminal jurisdiction of the Star Chamber, which has become with ordinary English historians a very proverb of judicial oppression. The true historical difference, however, between the so-called equity of the Court of Chancery, and the illegalities and unconstitutionalities of the Star Chamber, is that one had its origin before the authority whence it sprang had been seriously questioned, while the other did not obtain an effectual jurisdiction till its time had gone by. The depth of discredit into which Star-Chamber justice fell marks the decline and fall of the King’s beneficial influence over law. The royal judicial authority was once the most valuable and indeed the most indispensable of all reforming agencies, but at length its course was run, and in nearly all civilised societies its inheritance has devolved upon elective legislatures, themselves everywhere in the western world the children of the British Parliament.

CHAPTER VII.

THEORIES OF PRIMITIVE SOCIETY.

Some years ago (in 1861) I published a work (on ‘Ancient Law’) which I described in the preface as having for its chief object to ‘indicate some of the earliest ideas of mankind as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought.’ It was not part of my object to determine the absolute origin of human society. I have written very few pages which have any bearing on the subject, and I must confess a certain distaste for inquiries which, when I have attempted to push them far, have always landed me in mudbanks and fog. The undertaking which I have followed in the work just mentioned, and in others, has been to trace the real, as opposed to the imaginary, or the arbitrarily assumed, history of the institutions of civilised men. When I began it, several years before 1861, the background was obscured and the route beyond a certain point obstructed by à priori theories based on the hypothesis of a law and state of Nature. In endeavouring to get past this barrier, I had occasion to point out the claims of the so-called Patriarchal theory of society to be considered a real historical theory; that is, as a theory giving an account upon rational evidence of primitive or very ancient social order. The Patriarchal theory is the theory of the origin of society in separate families, held together by the authority and protection of the eldest valid male ascendant; and, having dwelt on the peculiar importance of Roman law in investigations such as I was prosecuting, I insisted in a few pages of my book on the testimony to this theory supplied by the earliest records of Roman jurisprudence. We have not indeed knowledge of any working system of institutions in which the Family exactly corresponds to the primitive family assumed by the theory. The Roman law, as a working system, takes a view of Family and Kinship not very different from that accepted in modern societies, but we happen to have unusual facilities for ascertaining a very ancient condition of this law, and it is not possible to doubt that, when the law was in this state, the Family and the Kinship of which it took cognisance had for their basis the authority of the eldest male ascendant. Other bodies of old usage and legal rule, less perfectly known to us than the Roman from the scantiness or the inferior quality of their materials, seemed to me to suggest that a Family organised on the Patriarchal model had been the near or remote antecedent of the Family which they reflected. The Hindu law appeared to me to suggest this very strongly. So did Slavonian law, as far as it was known. Greek law seemed to point to the same conclusion, less distinctly yet not very obscurely; and, more doubtfully, the ancient law of the Teutonic races. The evidence appeared to me very much of the same kind and strength as that which convinces the comparative philologist that a number of words in different Aryan languages had a common ancestral form in a now unknown ancestral mother tongue; but I stated with some caution the opinion that, at that stage of the inquiry, ‘the difficulty was to know where to stop and to say of what races of mankind it was not allowable to lay down that the society in which they were united was originally organised on the patriarchal model’ (‘Ancient Law,’ 123). My book was published in 1861, and delivered as lectures in the four or five previous years, and it is needless to say that, since then, all this evidence has been added to, re-examined, and placed in new lights. We now can discern something of the real relation which the sacerdotal Hindu law bears to the true ancient law of the race. Slavonian law and usage, chiefly known in 1861 from the books of Haxthausen, is becoming a more trustworthy subject of study through the labours of Prof. Bogišić. The earliest monuments of German law have been repeatedly fought over by earnest controversialists, with no very certain result. The Irish Brehon law, once inaccessible, is gradually becoming known to students of archæology. Still, if the inquiry were to be confined to the ancient institutions of the group of societies which I examined more than twenty years ago, I should maintain the conclusions which I reached, subject only to some qualifications which are suggested in the first four chapters of the present work. But much testimony of an altogether new kind has been obtained, since I wrote, from the ideas and usages of societies which live in a condition of barbarism or savagery, and the two zealous inquirers, now lost to us, J. F. McLennan and L. H. Morgan, who have put this testimony into order, have been led by it to form opinions on the primitive or very early condition of human society which they themselves at all events consider to be quite inconsistent with the Patriarchal theory. I am desirous of stating in what light I see these new facts and theories, and of showing at the same time that I have not neglected the friendly challenge to examine them which Mr. J. F. McLennan addressed to me in the preface to his ‘Studies in Ancient History.’ I trust that the general considerations to which I have been conducted may obtain some attention from persons more versed than I am in this special line of study; but I do not print them without some reluctance, since, as will appear from remarks in the following pages, I am not satisfied that the investigation has advanced far enough to admit of a very confident opinion.

The Patriarchal theory of society is, as I have said, the theory of its origin in separate families, held together by the authority and protection of the eldest valid male ascendant. It is unnecessary to add that this theory is of considerable antiquity. So far as we can judge, it first occurred to the great Greek observers and philosophical thinkers of the fourth century before Christ. Plato (‘Laws,’ iii. 680) and Aristotle (‘Politics,’ i. 2) both enunciate it, the first briefly, the last with so much detail that little has been added in more recent times to his statement of it. It may be proper here to remark that the theory was not founded by them on mere conjecture. They both profess to base it on actual observation. Plato expressly says that forms of society, answering to the assumed original groups, survived in his day; he calls them by the obscure name δυναστει̑αι (‘chieftainships;’ Jowett, ‘lordships’). Aristotle expressly appeals to the actual social state of ‘barbarians.’ It should be noted that the opportunities of these observers were such as can never again recur. Living more than 2,000 years ago, they were so much nearer the barbarism of the greater races; the societies open to their observation were not the mere waifs and strays of humanity, but people of the same ethnical stock with themselves and ourselves, lagging, however, far behind the Greeks in civilisation. Aristotle, whom nobody I suppose will deny to have been a good observer, had abundant material for his conclusions. He was born in the scarcely Hellenic city of Stageira. He passed much of his life at the semi-barbarous Court of Pella, where his father was physician to the Macedonian King. And he left a special treatise on ‘Barbarian Customs’ (νόμιμα βαρβαρικὰ), now unfortunately lost.

The Patriarchal theory, during the dark ages, would have shared the fate of much else in Greek speculation if it had not been kept alive by its correspondence with the Scriptural account of the Hebrew Patriarchs. But, in the 17th and 18th centuries, its place was taken by à priori theories of the State of Nature which long satisfied curiosity as to the original condition of mankind. Its revival may be said to be owing to Niebuhr’s discovery of the ‘Commentaries of Gaius,’ which, though not directly treating of ancient Roman law, enabled us to divide it into successive stages or strata, and gave us a singularly complete view of the earliest among them. I am not sure, however, that the appeal to Roman law has not done disservice with some minds to the Patriarchal theory. It has encouraged the belief that it referred to a relatively advanced social order. Now Plato and Aristotle clearly intended to describe a highly barbarous condition of the race. They both illustrate it by the Homeric story of the ‘Cyclops,’ ‘who had neither assemblies for consultation nor dooms, but each exercised jurisdiction over (issued dooms to) his wives and children, and they paid no regard to one another.’ But the family groups contemplated by the theory are more than barbarous; they are extremely savage, if the test be applied of analogy to the life of animals. The strongest and wisest male rules. He jealously guards his wife or wives. All under his protection are on an equality. The strange child who is taken under it, the stranger who is brought under it to serve, are not distinguished from the child born under the shelter. But when wife, child, or slave escapes, there is an end to all relations with the group, and the kinship which means submission to power or participation in protection is at an end. This is the family (to borrow Sir George Cox’s energetic expression) of the wild beast in his den. But when these several relations are decorated with the Roman technical names of Patria Potestas, Manus, Dominion, Adoption, Divorce, Agnation, Emancipation (which mean precisely the same things), an impression of recency is given which some minds are clearly unable to shake off.

The other theory which is now opposed to that long called Patriarchal is the theory of the origin of society, not in the Family but in the Horde. Aristotle and the writers who have followed him suppose that the larger groups of men discernible in the twilight of history have somehow grown out of isolated families like that of the Homeric Cyclops. As these larger groups first show themselves, it is impossible to believe that they are composed throughout of blood-relations, but the Patriarchal theory according to recent interpreters assumes that there is a real core of consanguinity in some or most of them, to which artificial additions have been made by a number of fictions of which Adoption is the type; and that others have been created by a process, not wholly extinct,1 of imitating a dominant or fashionable model. My own conclusion in my ‘Ancient Law’ was thus stated: ‘The conclusion which is suggested by the evidence is not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence or solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but where-ever their ingredients recombined, it was on the model or principle of an association of kindred. Whatever were the fact, all thought, language, and law adjusted themselves to the assumption.’ The theory, which deserves to be associated with the names of McLennan and Morgan, may be said in some sense to invert this account of the matter. It derives the smaller from the larger group, not the larger from the smaller. Founded, as was the Patriarchal theory, on observation, but on observation of the ideas and practices of the now savage races, it deduces all later social order from the miscellaneous, unorganised Horde. I must confess that I do not find it easy to bring home to myself the nature of the original groups as conceived either by McLennan or by Morgan. But I think I may lay down that these assemblages are regarded as companies of men and women, in which the relations of the sexes were wholly unregulated at first, but passed through various stages of limitation or restriction until the Family, Patriarchal or other, was reached. The modern social order is thus the result of a modified promiscuity. These two most original inquirers differ widely in their determination of the stages through which this course of development passed. Totemism (or the origin of the conception of kinship in the mark placed by savages on their bodies), the slaughter of female children, woman-stealing, polyandry (or a plurality of recognised husbands), and the well-known Levirate, play a great part in the system of Mr. McLennan. Consanguine Marriage, Punaluan Marriage (or the intermarriage of brothers as a group with sisters as a group), and Classificatory Relationship (or the confusion under the same general view and name of all members of the tribe belonging to the same generation) are all-important to Mr. Morgan’s theory. But both agree in considering human society as beginning in promiscuity, and as continually modified by its progressive regulation, as beginning in the Horde and as gradually lifting itself till the Family was reached. Both writers seem to me to hold that human society went everywhere through the same series of changes, and Mr. McLennan at any rate expresses himself as if all these stages could be clearly discriminated from one another, and the close of one and the commencement of another announced with the distinctness of the clock-bell, telling the end of the hour.

Before I go further, I think it useful to remark that the point at issue seems to me capable of being more simply stated than it usually is by these writers and their followers. The chief or the one piece of evidence obtained from now savage societies, which points to an original promiscuity, is their habit of tracing relationship for some purposes through females only. When, however, the inference from this characteristic is stated to be that ‘the exogamous totemkin’ of McLennan, or the group which Morgan by an unhappy petitio principii has called the ‘gens,’ is necessarily older than the Family, which in all its forms assumes some certainty of male parentage, such language may lead to confusion of thought. The physiological elements of the Family must always have been present, and must always have been the source of the larger groups. A human being can no more, physiologically, be the child of two fathers than of two mothers, and the children of the same man, no less than of the same woman, must always have had something in their nature which distinguished them from every other group of human beings. What therefore is meant is, that though the Family must always have existed, it could not be recognised through prevalent habits, and through the consequent uncertainty of paternity. I think it important to call to notice that the fact alleged is not a fact of human nature but a fact of human knowledge. It is merely intended to be asserted that circumstances long prevented savage men from discovering and recognising paternity, which is matter of inference, as opposed to maternity, which is matter of observation. It is certainly remarkable that, as soon as intelligent curiosity was directed to the question, it seems to have exaggerated the share of paternity in parentage. Probably it was so directed very early; there is a striking remark of M. Fustel de Coulanges, that to the ancient societies based on kinship, the problem of generation was very much what the problem of creation is to the moderns. Euripides2 distinctly states that in his day the universal physiological doctrine was that the child descended exclusively from the male parent, and Hippocrates (περὶ παιδίου), in energetically combating this opinion, and contending that the child descended from both parents, seems to admit that it was a prevalent heresy. For the purpose of agreeing with McLennan and Morgan, we must assume that the not very difficult observation on which the opinion rested could not be made, so brief and so little exclusive was the union of the sexes.

It appears to me that, while the Patriarchal theory and the counter-theory of which I have been speaking each explain reasonably well a certain number of ancient social phenomena, both are open to considerable objection as universal theories of the genesis of society. There are unquestionably many assemblages of savage men so devoid of some of the characteristic features of Patriarchalism that it seems a gratuitous hypothesis to assume that they had passed through it. It ought further to be admitted that much of the archæological evidence for the Patriarchal theory is capable of being so put as to suggest the conclusion that the societies, seen to be almost but not quite in the condition from which the theory supposes them to have started, are approaching that condition or tending towards it, rather than declining from it as an older state. But on the other hand, apart from all disputes as to the value of the evidence in detail, the newer theory is surrounded by difficulties quite as grave or graver. Mr. McLennan compared the state of relations out of which he conceived human society to have lifted itself to that exhibited by the unfortunate class now found in great European cities. But the comparison suggests the reflection that this class is almost wholly infertile; and though doubtless explanations of the phenomenon may be offered, a good deal of evidence3 (which at the same time I do not represent as conclusive) tends to show that such a state of original promiscuity as that which McLennan and Morgan postulate tends nowadays to a pathological condition very unfavourable to fecundity; and infecundity, amid perpetually belligerent savages, implies weakness and ultimate destruction. A far greater objection is that the theory takes for granted the abeyance, through long ages, of the mightiest of all passions, a passion which man shares with all the higher animals, sexual jealousy. It is thus strongly contrasted with the Patriarchal theory, which virtually assumes this jealousy to be the force binding together and propelling the ancient social order. I will presently deal with this difficulty at greater length.

I have never myself imagined that any amount of evidence of law or usage, written or observed, would by itself solve the problems which cluster round the beginnings of human society. ‘The imperfection of the geological record’ is a mere trifle to the imperfection of the archæological record. ‘What were the motives,’ I asked in my ‘Ancient Law’ (p. 270), ‘which originally prompted men to hold together in the family union?’ ‘To such a question,’ I answered, ‘Jurisprudence unassisted by other sciences is not competent to give a reply.’ This anticipation of aid to be expected from biological science has been fulfilled, and it is remarkable that, while the greatest luminary of ancient science invented or adopted the Patriarchal theory, the greatest name in the science of our day is associated with it. Mr. Darwin appears to me to have been conducted by his own observations and studies to a view of the primitive condition of mankind, which cannot be distinguished from this theory. ‘We may conclude (‘Descent of Man,’ ii. 362) from what we know of the passions of all male quadrupeds that promiscuous intercourse in a state of nature is extremely improbable. . . . If we look far enough back in the stream of time, it is exceedingly improbable that primeval men and women lived promiscuously together. Judging from the social habits of man as he now exists and from most savages being polygamists, the most probable view is that primeval men aboriginally lived in small communities, each with as many wives as he could support or obtain, whom he would have jealously guarded against all other men. . . . In primeval times men . . . would probably have lived as polygamists or temporarily as monogamists. . . . They would not at that period have lost one of the strongest of all instincts, common to all the lower animals, the love of their young offspring’ (p. 367). With his usual candour Mr. Darwin admits, though with some hesitation, the conclusions of writers who have followed a different path of inquiry from his, but he thinks that the licentiousness attributed to savages belonged to a ‘later period when man had advanced in his intellectual powers but retrograded in his instincts.’

It must be remembered that a difference in the nature of the sexual union, answering to the difference of view separating the Patriarchal theory from its opposite, runs through the whole animal world; and, under such circumstances, considering the extreme scantiness of the archæological evidence, it would seem reasonable to call in the testimony of those who have made the animal world their study. When man had most of the animal in him, he belonged to the highest animals; and this is the consideration which gives such importance to Mr. Darwin’s opinion. It would be possible to deny, or to shrink from, the absolute conclusion reached in the book (the ‘Descent of Man’) in which this opinion is stated; and yet it would remain a most wonderful magazine of facts, pointing to the prodigious influence of sexual jealousy in the animal world, a force increasing in intensity as the animal ascends in the scale, and compelling the sexes to associate in groups closely analogous to those in which Plato and Aristotle conceived primitive men to be united. The foreign labourers in the field which McLennan and Morgan have occupied with us, have mostly had the advantage of biological training; and they seem all to have formed the same conclusion as Mr. Darwin. Dr. Letourneau, whose very full and very valuable compendium of the facts of savage life contains a protest against the modern English theories as premature,4 is quite clear as to the nature of the primitive family. ‘Nos primitifs ancêtres errèrent alors dans les forêts, par petits groupes, composés chacun du père (du mâle plutôt), de sa ou de ses femmes, des jeunes; le tout formant une association temporaire sous l’autorité paternelle’ (Letourneau, ‘La Sociologie,’ p. 379). Dr. Le Bon (‘L’Homme et les Sociétés,’ ii. 284) strongly denies that the state of promiscuity could be the earliest state of mankind. ‘Dans les sociétés des animaux qui se rapprochent le plus de notre espèce, nous voyons l’animal, monogame ou polygame, toujours jaloux de ses prérogatives sexuelles, les défendre avec l’énergie pendant le temps plus ou moins long que dure son union, c’est-à-dire au moins pendant la période nécessaire pour élever ses petits.’ There can be no question that this is the result arrived at whenever the higher animals are strong enough to give full rein to sexual jealousy. But sexual jealousy, indulged through Power, might serve as a definition of the Patriarchal Family.

If, however, the human race may still be believed to have started with the Patriarchal Family, how are we to explain the many remarkable phenomena of savagery and infant civilisation for the first time noticed by McLennan and Morgan, and woven by them into rival theories of the original condition of mankind? The inference that they point to an absolute promiscuity must be received with the greatest hesitation, both for Mr. Darwin’s reasons and because the evils which such a condition would draw with it would possibly lead to the extinction or the dangerous weakening of the societies which practised it. But it cannot be doubted that these phenomena do suggest such a relation of the sexes as may be supposed to leave the paternity of children in much uncertainty. The explanation appears to me to lie partly in Mr. Darwin’s conjecture that these phenomena belong to a ‘later period when man had advanced in his intellectual power but retrograded in his instincts,’ and partly in McLennan’s hypothesis of a great (and, he appears to think, an universal) deficiency of women in the primitive groups of men. It is not hard to see that the cause assigned by McLennan for the phenomena is a vera causa—it is capable of producing the effects. We must remember that the monogamy now practised by the greatest part of mankind (and even by the so-called polygamous races) is closely connected with a primary natural fact, the near equality of the two sexes in numbers. The idle conjectures which were once common as to the preponderance of male and female births have been set aside by observation, which shows that these births are as nearly as possible equal in number. At the same time, in settled modern communities, the number of grown women is, on the whole, in excess of the number of grown men, because of the more rapid exhaustion of the males through war or dangerous adventure. Let us, however, for a moment, and for the sake of argument, assume that balance to be very seriously disturbed. Let us suppose a community in which for long periods together there is a large excess of females over males. There is no question that monogamy might be substantially maintained in such a community, by the precepts of some widely diffused religion, or by a morality derived from some former age or from some external source; but on the whole we should expect that such a community would, in some of its parts, be polygamous. Again, let us make the counter-hypothesis and suppose a population in which there is an excess of males over females. Here again the Family, as we understand it, the Family founded on monogamy, might be long preserved by the powerful sanctions of religion, morality, or law; but nobody would be surprised that the practices witnessed to as prevailing among savages, had here established themselves now or at some former time, that morality and law had adjusted themselves to social habits, and that explanations of them or justifications of them were even to be found in religion. Institutions savouring of such a social condition might still be in existence, though they had lost all reality, and though the natural balance of the sexes had been restored, since the mere survival of an institution proves nothing as to the length of time which may have elapsed since it was produced by circumstances.

Now that, during a large part of human history, portions of the human race have suffered from a disproportion of females as compared with males, is in a high degree probable. McLennan, as is well known, explained it by the virtually universal prevalence of infanticide, confined to female children. This position was not accepted by Morgan, and, if asserted of the whole human race, has generally been considered as not credible. Nevertheless it may well be believed that under unfavourable circumstances savage men have constantly prevented their weaker offspring from living. But there are many other causes of the disproportion of the sexes which disclose themselves in the twilight of history. A great part of the race, when we first obtain a glimpse of it, is in a state of movement. Portions have been torn away from larger aggregates and are wandering far and wide, either pressed by enemies or searching for more abundant food. No community, when first seen by the historian, can be certainly said to occupy its original seat. It is in a high degree likely that these wandering bodies included more men than women. There is evidence that some of the islands of the Pacific were populated by boat-loads of men and a few women, and it would be no very violent conjecture that the aborigines of Australia and America originally reached their present homes with the sexes in this proportion.

It is needless to say what would be the character of the institutions which would establish themselves under such circumstances. In fact, it may be said to have been the usages of the Australians and American Indians which respectively suggested the theories of McLennan and Morgan, and it is singular how often, wherever a dim glimpse of similar institutions is caught elsewhere, it is amid societies originally settled, like the Irish, by wanderers over the sea. An even more active cause of inequality between the sexes must have been war; and we may freely admit the importance and significance of those practices of woman-stealing on which McLennan dwells so emphatically, if only we remember that, if some communities lost their women through defeat, others must have gained through victory. I will call attention to one striking monument of the scale on which this loss and gain occurred, which has not been much noticed. It is an Egyptian inscription, on the reverse of a stele in the Berlin Museum, commemorating the results of a conquering expedition.

Line 20. I sent my bowmen against the foes in the town of Makhenunem. They smote it and made a great slaughter, taking all the women prisoners and all the beasts of burden—505,349 Bulls, and Women 2,236.

Line 25. I made a slaughter among all that were the chief of the Land of Lobardu. All the gold he had, Bulls 203,346, Horned Cattle 603,108. All the women who were spared, the chief gave us.

Line 27. I sent my soldiers against Arrosa. I made a great slaughter, taking all the women prisoners. Bulls 22,110. All the women.

Line 29. From Makhisherkert, I took all the... men? All the women.

Line 32. I made a great slaughter against those with the chief of Tamakliv. I took all their wives, all their horses. Bulls 35,330.

In all this inscription, which is a long one, there is only one line which may be thought to speak of taking the men alive, and there the reading is doubtful. With other records of ancient warfare, it leaves on my mind no doubt that the common rule of tribal victory was to take only the women. The men escaped or were slain; but the women and perhaps the children were spared for servitude, and this seems to be the point of the well-known exhortation of Greek generals to Greek soldiers on the eve of battle.

I think then that it must be allowed to be more than probable that, since the appearance of mankind on the earth, an indefinite portion of the race has suffered at different times from a serious inferiority in numbers of women to men. It must further be acknowledged that the advance in intelligence of which Darwin speaks would lead men to establish institutions in conformity with this proportion between the sexes, if only for the purpose of keeping within bounds that sexual jealousy which could not fail under such circumstances to produce, if unrestrained, a perpetuity of violence and bloodshed. It must be admitted that the tendency of such institutions would be to arrange men and women in groups very unlike those in which, according to the biologists and according to the Patriarchal theory, they were originally combined. If however it be impossible to say what portion of the human race has suffered from this disproportion between the sexes—if we are unable to deny that some fragments of the vast aggregates of men speaking languages of the Aryan and Semitic stocks may conceivably at some time or other have had this experience—what use, it may be asked, is there in insisting on the Patriarchal theory as expressing the primitive grouping of mankind? I answer that there is the greatest use; and that, unless we bring home to ourselves all that is implied in the Patriarchal theory, it is impossible to understand a number of phenomena which McLennan and Morgan leave unexplained or explain unsatisfactorily.

The Patriarchal theory in the first place fixes on Power, the Power of the strong man, as the principal formative cause of the groups within which the conception of kinship first grew up. The counter-theories assume the abeyance, during long ages, of Power. On this, beyond noting the improbability of the assumption, I will merely now remark that the only source known to us of new forms of kinship is Power. It is a special form of Power, that called by jurists Sovereignty, which has created the modern Kinship known as Nationality, which enables us to speak of Englishmen, Frenchmen, Australians, Americans. In the next place the Patriarchal theory supposes that the motive which led to the exertion of power was sexual jealousy. The counter-theories assume the abeyance during long ages of sexual jealousy. Now it is of course possible to believe, upon sufficient evidence, that the passion which caused the wrath of Achilles and the agony of Othello was unknown to men originally, or was neutralised by the countervailing pressure of circumstances; but if it be once believed that this passion, which is one of the mightiest of the forces acting on man in the height of his moral strength and the plenitude of his intellectual vigour, was also one of the most uncontrollable of his instincts when he had most of the animal in him, the whole of the recently observed phenomena appear to me to show themselves in a light materially different from that in which the observers have seen them.

The student, then, of social archæology who is called upon to believe that the Family constituted by sexual jealousy indulging itself through Power is of modern origin or of rare occurrence, will be very rigorous in his scrutiny of the evidence presented to him.5 He will be cautious in accepting a statement about savages, or an interpretation of a ‘survival’ in a system of institutions, which is primâ facie at variance with observed facts of human nature.

Admitting it to be probable, as he is bound to do, that some portions of mankind have at some time been united in groups, which included considerably fewer women than men, and allowing that this scarcity of women would probably result in such institutions as the tracing kinship through descent from females, he will see reasons for thinking that the condition out of which these institutions arose could not, as a general rule, be more than temporary. A tribe in which the women were for a very long period inferior in number to the men would be at a great disadvantage compared with tribes in which the sexes were on a near equality. It would be liable to infecundity, possibly from disease, certainly from the relative fewness of births from a small number of mothers.

Again, he will understand better than the recent inquirers how it was that all the societies which, if I may use the expression, attained to any degree of respectability, recovered at last what he will believe to have been the original condition of the Family. Nothing is more unsatisfactory in the writings of McLennan and Morgan than their account of the recognition of Paternity. Morgan seems almost to suppose that it was introduced by popular vote. McLennan expressly suggests that it arose from a custom of putative fathers giving presents to putative children. But the truth is that a great natural force must always have acted, and must be still acting, on these aberrant forms of society, tending always to make the most powerful portion of each community arrange itself in groups, which admit of the recognition of fatherhood, and the indulgence of the parental instincts. And thus reasons appear why it is that, when the Family does reappear, it reappears not as the modern Family, but as the Family in which Kinship is blended with Power, and why it is that the Family so often discloses itself as an institution of aristocracies, not of slaves, nor even of dependents.

He too who is alive to the nature of this great emotional force, ever acting upon the class of societies of which I have been speaking, will be slow to believe that they recovered all or much of their original condition by a series of changes identically the same. He will rather suspect that the stages of recovery were infinitely various. Thus he will be indifferent to many or most of the points of controversy between the school of McLennan and the school of Morgan, and will be inclined to think that there has been room, not only for two, but for many courses of modification and development, each proceeding within its own area. So far as I am aware, there is nothing in the recorded history of society to justify the belief that, during that vast chapter of its growth which is wholly unwritten, the same transformations of social constitution succeeded one another everywhere, uniformly if not simultaneously. A strong force lying deep in human nature, and never at rest, might no doubt in the long run produce an uniform result, in spite of the vast varieties of circumstance accompanying the stern struggle for existence; but it is in the highest degree incredible that the action of this force would be uniform from beginning to end.

Lastly, if we consider the weight of argument and evidence to be in favour of the commencement of human society in Patriarchal (or Cyclopean) families, we shall think it not only not incredible but highly probable that certain communities which have survived to historical times have grown without interruption out of their original condition. ‘In most of the Greek States and in Rome,’ I wrote in ‘Ancient Law’ (p. 128), ‘there long remained the vestiges of an ascending series of groups out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a series of concentric circles which have expanded from the same point. The elementary group is the Family, connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? Of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock.’ Antecedently, is it necessary to assume that such societies passed through a stage of promiscuity, more or less modified? That would depend on the circumstances in which they were placed. If they suffered from a scarcity of women, such phenomena as polyandry and a tracing of kinship through women would probably show themselves, and at any stage of social growth. But some communities of men must always have been stronger, cleverer, more fortunately placed than others—must have had fewer motives than others for killing their female children, and more success in carrying away the women of other tribes. The great reason for antecedently doubting the alleged evidence of promiscuity in the branches of the Aryan race is that, as it has been the most successful, so it must have been one of the strongest of races. Of course the significance of some pieces of this evidence cannot fairly be denied, nor can it be thought very unlikely that some of the divisions of this race which wandered furthest, or some of the more savage communities which adopted its tongue, fell for a while into a more or less modified promiscuity. But the whole question must be decided by the preponderance one way or the other of the not very plentiful evidence. Only let it be clearly understood what the problem is. I have recently stated it in the following words:6 ‘The greatest races of mankind when they first appear to us show themselves at or near a stage of development in which relationship or kinship is reckoned exclusively through males. They are in this stage; or they are tending to reach it; or they are retreating from it. Many of them, in certain contingencies, generally rare or remote, give women and the descendants of women a place in succession; and the question with modern inquirers is whether the place thus assigned to them is the survival of an older barbarism, now exemplified in savage races, which traced kinship exclusively through females, or whether it results from the dissolution, under various influences, of “agnatic” relationship, that is, of relationship through males only.’ The ‘influences’ in question (I have elsewhere shown) were in the case of the Roman law, that of the Prætorian equity, and in the case of the sacerdotal Hindu law, the influence of Religion.

I have yet a few words to say on a topic which owes the importance and interest now commanded by it almost entirely to the labours of Mr. J. F. McLennan. He is the author of the terms ‘Exogamy’ and ‘Endogamy’; the first signifying the practice of taking wives exclusively beyond the limits of a particular tribal circle; the last indicating the custom of marrying within that circle. The fact that certain ancient races extended their prohibitions of intermarriage far beyond the narrow boundaries of our Table of Prohibited Degrees—that, theoretically at all events, they forbade a man’s marrying any woman whose descent from the same ancestor with himself was ascertainable—was not unknown to students of Hindu law; but Mr. McLennan was the first to point out the wide prevalence of these prohibitions among barbarous societies and their connection, among savage races, with the system of reckoning kinship through women. The first remark which I have to make on these discoveries, which are closely interwoven with Mr. McLennan’s theory of social advance, is, that it does not seem to me certain that the terms ‘exogamy’ and ‘endogamy’ can be directly opposed to one another. Is there any society which is not at the same time ‘exogamous’ and ‘endogamous’? Let us fix our ideas, as it is always desirable to do, by looking at the ancient Roman law. Any marriage of a Roman citizen within a circle not widely different from that traced by our own Table of Prohibited Degrees was invalid; and the children of such a marriage would be illegitimate. But again, any marriage of a Roman citizen with a woman who was not herself a Roman citizen, or who did not belong to a community having the much-valued and always expressly conferred privilege of connubium with Rome, was also invalid; and no legitimate children could be born of such a marriage. Thus Roman society was both exogamous and endogamous; there was both an outer and an inner limit. The double rule is found in the Hindu law. A Hindu may not marry a woman belonging to the same gotra, all members of the gotra being theoretically supposed to have descended from the same ancestor; but then he must marry within his own caste. Here again, therefore, there is the outer and the inner limit. I do not pretend that the point is proved by the evidence respecting the great number of savage or barbarous tribes which have been shown to have an extended ‘exogamy.’ My suggestion in fact is that the outer limit within which a man must marry has been overlooked through the interest excited by the long unnoticed exogamous prohibition; and I wish to urge that the subject requires re-investigation. I myself, though not a professed inquirer in this field, have repeatedly found indications of the outer or endogamous limit. Thus there are in China large bodies of related clansmen, each generally bearing the same clan-name. They are ‘exogamous’; no man will marry a woman having the same clan-name with himself; and much has been made of this fact. But one of a group of earnest inquirers, who are investigating Chinese social phenomena on the spot, Mr. Jamieson, has found that they are endogamous also. ‘Externally they are endogamous—they refuse marriage with any surrounding tribe; internally they are exogamous; they refuse marriage with anyone whose surname shows him to be of the same stock’ (‘China Review,’ vol. x. No. 2).

These limits, outer and inner, may still be discerned in the most civilised Western societies. On the one hand, ‘exogamy’ is enforced by law. There are always some of his near kin whom a man may not marry. The law rests partly on considerations of physiology and partly on considerations of religion, religion and physiology not being, however, quite agreed as to what should be the proper Table of Prohibited Degrees. On the other, the outer or endogamous limit, within which a man or woman must marry, has been mostly taken under the shelter of fashion or prejudice. It is but faintly traced in England, though not wholly obscured. It is (or perhaps was) rather more distinctly marked in the United States, through prejudices against the blending of white and coloured blood. But in Germany certain hereditary dignities are still forfeited by a marriage beyond the forbidden limits; and in France, in spite of all formal institutions, marriages between a person belonging to the noblesse and a person belonging to the bourgeoisie (distinguished roughly from one another by the particle ‘de’) are wonderfully rare, though they are not unknown. The Church, it may be added, has repeatedly relaxed the ‘exogamous’ rule which forbids the intermarriage of near kin in order to save a member of a great Continental House from having to transgress the outer limit within which he is bound to marry.

I have a special reason for dwelling on the point. Exogamy plays a great part in the system of McLennan, and (though not under the same name) in the system of Morgan. Both hold that a definite stage of human development is marked by the appearance of a group which Morgan calls the ‘Gens’ and McLennan the ‘exogamous totem-kin,’ a body of kinsmen and kinswomen never intermarrying and witnessing to their kinship by a common mark on their persons. In so far as this group has fallen under actual observation, in America and Australia, it is more like a Sex than any other assemblage of human beings; it cannot reproduce itself unless it combines with some similar body, for the men cannot find wives nor the women husbands. Consequently it is always nowadays a part of some larger social aggregate. But, although I may not have clearly realised McLennan’s conception, I understand him to consider that this group is the developed form of the independent primitive group, which he believes to have been an assemblage of men and much fewer women, living together in promiscuity, and therefore very unlike the Patriarchal or Cyclopean family assumed by the older theory. The fewness of women was produced by infanticide, and had for its consequence the habit of stealing women from other groups, still supposed to be witnessed to by the form of capture widely characterising the marriages of barbarians. Under the influence of this habit the practice of ‘exogamy’ was gradually created. On the other hand, Morgan, though he too believes the sexes to have originally lived together in promiscuity, does not seem to consider that their numbers were very unequal. He supposes that primitive men very early discovered the evils of close interbreeding, and that all the early transformations of human society were the results of a constant struggle to prevent these evils. In his view, therefore (as I understand it), the ‘Gens,’ as he rather unfortunately calls it (the ‘exogamous totem-kin’ of McLennan), is not a primitive group, but a mere subdivision of larger tribal societies originally promiscuous, formed for the purpose of limiting interbreeding.

For reasons which I have already given, I have no wish to take sides with Morgan or with McLennan, but it does seem to me that, if further inquiry should disclose the prevalence of an outer ‘endogamous’ as well as an inner ‘exogamous’ circle of consanguinity, it lends some strength to Morgan’s theory of development, which is certainly easier to understand than McLennan’s. I merely accept Morgan’s theory so far as it is an explanation of the original formation of exogamous groups, and in so far as it considers them to have been subdivisions of larger communities, and formed for the purpose of limiting interbreeding. The difficulty which seems to be felt by candid opponents of this hypothesis is that primitive men are unlikely to have made any such physiological discovery. If it be true that interbreeding is an evil, its very truth, in their view, militates against the antiquity of human knowledge about it. Indeed it is not certain that it is true. Physiologists are not agreed as to Tables of Prohibited Degrees. Some no doubt would considerably extend them, but others deny that the evil which they prevent is of serious proportions. I think, however, it is forgotten that the assertion made by Morgan is made of a time when neither Surgery nor Medicine existed, of a time before that at which, according to the Greek tradition, Prometheus discovered the chopped herbs which were to be the remedy for human ailments. With the vast resources of modern medicine at hand, the evils of the intermarriage of near kin may have been reduced to a minimum or may have come to be doubted. But what is invaluable to a savage is, I take it, what we should call a good constitution; such a constitution received at birth as will not easily admit disease, or will easily overcome it by its own native soundness. For among such men disease once contracted cannot be artificially cured. Even therefore if the advantage given by exogamous marriage to the children be now a slight one, it might be beyond price to primitive mankind. I cannot see why the men who discovered the use of fire and selected the wild forms of certain animals for domestication and of vegetables for cultivation should not find out that children of unsound constitutions were born of nearly related parents. If such children, left to themselves, are really weakly, the fact would be forced on notice by the stern process of natural selection, affecting either the individual or the tribe. It is this process which has produced those wonderful contrivances for the intercrossing of plants and the generation of a healthier vegetable offspring which have recently been observed by men of science; but if the process ever acted without check on mankind I should imagine that their earliest intelligence would enable them to note its operation. It should be added that the earliest serious attempts to combat disease appear to have taken the form of precautions, of training and of the formation of habits, rather than of remedies as now understood.

[1 ]The difficulty is caused by the composition of the class of Mahommedan Inheritors known as the Sharers. The two remaining classes seem to exhibit the usual preference of Agnates to Cognates.

[2 ]See above, Chapter IV.

[3 ]See below, Chapter VI. p. 169.

[4 ]I have endeavoured to state the alternative theories as I suppose they would have presented themselves to the mind of Mr. J. F. McLennan, prematurely lost to this branch of inquiry, who has forced all interested in them to revise or review their opinions.

[5 ]The most general feudal rule about succession to fiefs is that contained in the Customs of Normandy; but the compiler, as is usual with such writers, gives merely feudal reasons for it. Thus, after stating that the rule forbidding one uterine brother to succeed to another (cum a parentibus suis non descendit) is subject to exception in the case of a fief descending from the mother, he goes on to say ‘procreati autem ex feminarum lineâ, vel feminæ successionem non retinent dum aliquis remanserit de genere masculorum.’

[6 ]The subject, as respects the pedigrees of the nobility, is discussed by Mr. Hayward in a very interesting paper in his Biographical and Critical Essays, Third Series, ‘English, Scotch, Irish, and Continental Nobility.’ See page 260. ‘It is quite startling on going over the beadroll of English worthies, to find how few are directly represented in the male line.’

[1 ]There is no doubt that the Court of Star Chamber was of higher antiquity than the statutes regulating it, 3 Henry VII. c. 1, and 21 Henry VIII. c. 20.

[2 ]De terrâ (Salicâ) in mulierem nulla portio hœreditatis transit,’ &c. The word ‘Salicâ’ is certainly an interpolation, as may be seen at a glance from the tabular comparison of the MSS. in the splendid edition of the Lex Salica by Messrs. Kern and Hessels. (London: Murray, 1880), L.S. 379 et seq.

[3 ]See Grimm, Deutsche Rechtsalterthümer I. 237. ‘Erstes Geschäft des neuen Königs war sein Reich zu umreiten.’ . . . Grimm quotes Gregory of Tours, 4, 14, ‘Deinde ibat rex per civitates in circuitu positas.’ He refers also to similar duties of the Swedish King, and cites the prayer of the Saxons to Henry IV.: ‘Ut totam in solâ Saxoniâ ætatem inerti otio deditus non transigat, sed interdum regnum suum circumeat.’

[4 ]A passage in an interesting book, Drew’s Kashmir and Jummoo, curiously illustrates the character of the ancient royal jurisdiction, and also one of the motives which produced the King’s activity in exercising it. Here is an account of what still goes on in the Curia Regis of the Maharajah of Cashmere, himself a sovereign much more modern than the system he follows. Gholab Singh, the first of the dynasty which was established by the English in 1846, was (says Mr. Drew) ‘always accessible, patient and ready to listen to complaints. He was much given to looking into details, so that the smallest thing might be brought before him and receive his consideration. With the customary offering of a rupee, any one could get his ear; even in a crowd one could catch his eye by holding up a rupee and calling out “My Lord the King, a petition!” He would pounce down like a hawk on the money, and, having appropriated it, would patiently hear out the petitioner. Once a man after this fashion making his complaint, when the Maharajah was taking the rupee, closed his hand on it and said, “No; first hear what I have got to say.” Even this did not go beyond Gholab Singh’s patience; he waited till the man had told his tale and opened his hand; then, taking the money, he gave orders about the case.’ ‘The civil and criminal cases,’ it is afterwards stated, ‘have usually been previously inquired into by judicial officers in the Courts of First Instance, and perhaps have been adjudicated upon by the Court of Appeal; but it is open to suitors and complainants to try their fortune with the Maharajah himself.’

[1 ]See Sir A. Lyall’s paper on the ‘Formation of Clans and Castes,’ now forming Chapter IV. of his Asiatic Studies; and see Note A, on ‘The Gens,’ to Chapter VIII. of the present work.

[2 ]Euripides, Frag. Stobæus, 77, p. 455—

• Ἀλλ’ ἴστ’, ἐμοὶ μὲν οὖτος οὐκ ἔσται νόμος
• τὸ μὴ οὐ σέ, μῆτερ, προσϕιλῆ νέμειν ἀεὶ,
• καὶ τοῦ δικαίου, καὶ τόκων τῶν σῶν χάριν·
• στέργω δὲ τὸν ϕύσαντα τῶν πάντων βρότων
• μάλισθ’· ὁρίζω του̑το, καὶ σὺ μὴ ϕθόνει·
• κείνου γὰρ ἐξέβλαστον, οὐδ’ ἂν εἷς ἀνὴρ
• γυναικὸς αὐδήσειεν, ἀλλὰ τοῦ πατρός.

This passage is parallel to a better known passage in the Eumenides of Æschylus, in which Apollo, as advocate for Orestes, argues that he was not of kin to his mother, Clytemnestra, whom he had killed. The argument seems to me wholly physiological, and not in any way archæological. Apollo, like an advocate of the present day with a doubtful case, appeals to the newest physiology. The ‘ancient rules’ which the Eumenides on the other side declare to be trampled under foot, are those of accepted morality, as may be seen from the first lines of the above fragment.

[3 ]An eminent living physiologist (Dr. Carpenter) who visited the West Indies before the abolition of slavery, well remembers the efforts of the Planters to form the negroes into families, as the promiscuity into which they were liable to fall produced infertility, and fertility had become important to the slave-owner through the prohibition of the slave-trade. It should be added that, independently of pathological evils, the same infecundity would follow if the promiscuity arose from a considerable inferiority in number of women to men. It is only under very unusual circumstances that a small number of women would give birth to offspring equalling numerically the whole parent generation, male and female.

[4 ]Ces faits et bien d’autres prouvent combien il est prématuré aujourd’hui de prétendre formuler des lois sociologiques, précises et rigoureuses, comme des lois scientifiques. Rassembler des faits, les grouper, et hasarder prudemment quelques théories générales, sujettes à révision: voilà à peu près tout ce que nous pouvons nous permettre dans nos essais de sociologie (Letourneau, p. 320). La prudence du serpent est la vertu qu’il ne faut pas se lasser de recommander aux sociologistes de nos jours (p. 332).

[5 ]See Note A to this Chapter, on the ‘Andaman Islanders.’

[6 ]Vide Chapter V. above, p. 149.