"The conclusion, then, 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 wherever their ingredients recombined, it was on the model or principle of an association of [Pg 52] kindred. Whatever was the fact, all thought, language, and law adjusted themselves to the assumption" (p. 131).
"On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the lifelong authority of the Father, or other ancestor, over the person and property of his descendants, an authority which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities"
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(p. 135).
"It may be shown, I think, that the Family, as held together by the Patria Potestas, is the nidus out of which the entire Law of Persons has germinated" (p. 152).
"When we speak of the slave as anciently included in the Family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This consequence is, in fact, carried in the general assertion already made, that the primitive ideas of mankind were unequal to comprehending any basis of the connection inter se of individuals apart from the relations of Family" (p. 164).
"The point which before all others has to be apprehended in the constitution of primitive societies, is that [Pg 53] the individual creates for himself few or no rights and few or no duties. The rules which he obeys are derived first from the station into which he is born, and next from the imperative commands addressed to him by the chief of the household of which he forms part" (p. 311).
Then as to the union of government with religion:--"A stage occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. The members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction" (p. 23). At the time of the Code of the Twelve Tables, "Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded" (p. 18).
For, in fact, originally, "Law is the parent's word" (p. 125), and "the civil Laws of States first make their appearance as the Themistes of a patriarchal sovereign" (p. 166); that is, "as separate, isolated judgments, which, consistently with the belief in their emanation from above, cannot be supposed to be connected by any thread of principle" (p. 5). Moreover, as to the origin of Property:--"It is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and the groups of kindred" (p. 259), as shown in the Indian village-community, [Pg 54] the Russian and Slavonic village. And "we have the strongest reasons for thinking that property once belonged not to individuals, nor even to isolated families, but to larger societies composed on the patriarchal model" (p. 268). Thus the author conjectures "that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community" (p. 269).
He remarks "a peculiarity invariably distinguishing the infancy of society. Men are regarded and treated not as individuals, but always as members of a particular group. Everybody is first a citizen, and then, as a citizen, he is a member of his order--of an aristocracy or a democracy, of an order of patricians or plebeians; or in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste; next he is member of a gens, house, or clan; and lastly he is member of his family. This last was the narrowest and most personal relation in which he stood; nor, paradoxical as it may seem, was he ever regarded as himself, as a distinct individual. His individuality was swallowed up in his family. I repeat the definition of a primitive society given before. It has for its units not individuals, but groups of men united by the reality or the fiction of blood-relationship" (p. 183). "The history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted; by [Pg 55] what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family, and of families to each other" (p. 185).
Such is the strong--may we not say irrefragable?--testimony which the condition of human society, as it emerges into the light of history, bears to the family as the cradle of man's life. It is in the original soil of the family that the four goods we have noted, marriage, religion, government, and the alliance between religion and government, spring up together. Further, also, they are seen to be not separate, one here and another there, but bound together in the strictest coherence. For if this human race be thrown up and down throughout the world, divided and insulated in its several parts by vast distances and by thousands of years, even the scattered limbs are shaped in the mould stamped upon it at its birth, and in them government, law, property in its origin and its succession, and religion bear witness to the family character. This archaic society, from the Pacific to the Atlantic Oceans, from Scythia in the north to India in the south, is never a crowd of individuals but an organic structure: Adam and Eve prolonged and living in their race. We see that in the beginning the fathership of God created a human plant which should reveal Himself in its development, bearing in its structure and fruit an undying witness to His nature; and serving, in spite of corruption and decline, for the future exhibition of His fathership in a yet higher degree, even to the communication of the divine nature.
[Pg 56] Whatever may be the interval of time which runs out between the dispersion of the family at Babel, and the appearance of each separate member on the platform of history--and the longer this time, the greater the marvel we note--the family remains in each as a sort of universal kkkmkk upon which the commonwealth, the government, property viewed in itself and in its descent, law, and religion itself rest. The "natural state" and the "social compact" when inquired into become unsubstantial fictions; "theories
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plausible and comprehensive," as the author of ancient law observes, "but absolutely unverified" (p. 3). Man is seen to be the child
of Adam; and all the relations of men to each other to have been originally determined by that origin, and persistently maintained in its mould.
Now let us return to the relation between the Spiritual and the Civil Power, which forms part of this original constitution of the race.
At the head of the human race we have seen, first in Adam and then in Noah, the junction of the two orders, sovereignty and priesthood. There never was a time when the race was without government; there never was a time when the race was without sacrifice. The delegated authority of God rested ever upon the former for the prosperity of man's life upon earth; the worship of the one God, man's Creator and End, was summed up in the latter. All human life consists of the tissue formed by the two; and as in his first abode man's condition was subject to his obedience to the divine command, so throughout his course his worship of God [Pg 57] ruled his temporal condition. The lot of the antediluvian world bore witness to that truth. With Noah the experience began afresh. Then once again the covenant with Noah and