It may seem strange that omission is made of the Egyptians. The fact is that they, with all their talent, do not belong in the line of development. Nor can any sound idea of their law be obtained, until they passed under the Macedonian sway and borrowed much from the Greek law. But they had a very fine sense of justice and a powerful rhetorical appeal to justice, if we may trust the literature. A curious instance of a demand for legal redress against a grafting official remains to prove it. A peasant going from his oasis with his donkeys laden with produce is robbed by an official. He appeals for justice to a superior officer, who reports the matter to the king. The latter is so impressed by the peasant’s eloquence that he prolongs the case until the peasant has made nine different speeches upon the high standard of even-handed justice. The king was evidently entranced with the peasant’s eloquent eulogy. The translation given runs like this: “For thou art the father of the orphan, the husband of the widow, the brother of the forsaken maid, the apron of the motherless. Grant that I may set thy name in this land higher than all good laws, thou leader free from covetousness, great one free from pettiness, who bringest to naught the lie and causest right to be.” He reaches still higher in this strain: “Thou rudder of heaven, thou prop of earth, thou measuring tape! Rudder, fail not. Prop, fall not. Measuring tape, make no error.” He certainly deserved to win, as he did. His suit was granted, and the official punished.
Of the races in the true line of legal development we will notice the Aryans first, because the Semites at this same point of time represent a much higher culture. This Aryan race had the patriarchal household estate belonging to the family, the sacred fire and the worship of their ancestors in the male or agnatic line, and the forms of legal customs that go with such a development. At the same time, the aged and decrepit parents were thrust aside. Aryans had yet to learn a lesson in that respect from their Semitic relations. The power of the male head of the family over the family estate and over the conduct and the lives of those of the family was practically absolute. This was necessary in order to keep the family property together and in order to answer for the members of the family. It was a fairly reasonable rule for the condition of human life. The marriage custom was settled and the mass of people was monogamous. The chiefs and the rich, however, customarily had more than one wife. It has been said that monogamy was an evidence of the higher culture of the Aryans, and eulogies of their ancestors on this point have been offered by English and Germans; but the origin of monogamy was probably due wholly to economic factors. The prosaic consideration that Aryans were constantly sending off migratory bands makes it likely that they acted precisely as the beaver acts. When beavers migrate from their fixed home to establish a new one, it is always a pair that departs, and for the same reasons human beings were likely to enter upon their migrations in numbers of pairs. We may safely assume that the primitive man had as much social sense as the beaver. Instances like that of Abraham or the colonizing of the Greeks could be quoted to prove it.
These Aryans had developed, from their living in a constant state of movement, an unequal condition, due to the necessity for leaders and a crude sort of military discipline. The priestly function was well developed and they were ancestor worshipers. Among some of them the head of the family embodied this worship and was a priest as to its rites. They had also developed a system of serfdom or slavery. But it seems true that the Aryans were not cultivators of the soil.
The slaves and serfs represented generally captives in war or a conquered race. Whenever the rapacious Aryans came upon tribes cultivating the soil, serfdom took the form of a conquered race bound to the soil, rendering labor and services and grain or some kind of live stock to the master: but the slaves, at least, migrated with the tribe. Generally these serfs bound to the soil lived in a village community which represented, no doubt, the assembled dwellings of a kindred or large family of a subject tribe. This first form of slavery was not an oppressive system. The slaves belonged to the familia or household. The fact that the slaves or serfs were of the same race and color made ancient slavery a very different institution from the modern negro slavery. The institution was suited to the Aryan primitive cultivation. Social arrangements were simple. There was practically no division of labor, and of necessity the dependent classes were used as cultivators of the soil. The simple fact was that slave labor was unpaid labor. Payment for labor when no means of payment exist is legally unthinkable. Industrial organization of this kind can be traced in England from the Briton to the Anglo-Saxon and on to the English manor. Its development is no less clear in France.
It has been noted that slavery was a natural development among men just as it was among ants. This fact renders absurd the contention between two men considered jurists, Kohler and Stammler, as to whether slavery was right.1 We may as well ask, is slavery among the ants right? It is idle to put the question as to primitive men, because they had no doubts on the subject. To them it was natural. Even to Plato or Aristotle it had no moral aspect. It took long ages to develop among men any conception of the rightfulness or wrongfulness of slavery. The fallacy of ascribing to primitive men our ideas of right and wrong ought to be apparent to any thinking man.
The joint family property still continued among these Aryans. The same form of patriarchal family or household is found among the Semites, the Indian Aryans, the Slavonic tribes, the Celts, and the Germans. It received its highest development among the Romans. Yet each male member of the family could for himself attain property of his own, except possibly among the early Latins. This family estate in land at first was inalienable by the head of the family, and upon his death it still remained to the family. It was considered as granted by the tribe to each family. The personal estate also was not alienable, but upon the death of the head of the family one-third was reserved to the family and one-third went to the deceased’s funeral equipment, while the other third was spent in carousing when the corpse was cremated. It is needless to say that in later times the reservation of a third to the dead man went to the church. This early distinction between the inalienable land property and the personal property was of immense influence in later law. It led directly to the substitution of the eldest son for the father as inheriting the family estate in land, with the duty of providing the common home and endowing the daughters, who were excluded from succession to any interest in the landed property. The making of a will was, of course, unknown, for it could not be conceived of until language came to be written. But this supposed necessity and the custom of preserving the family property led to various legal rules that were later developed.
There remain various collections of law of different Aryan tribes after the great Aryan migrations, which are not yet properly classified and arranged. Developments, hundreds—it may be thousands—of years apart, are found side by side. Primitive collections of such laws are the Hindu collections in their sacred writings, and the Brehon law of the Celts, and the Germanic laws that are in some respects more primitive. The Teutonic customs will be reserved for the story of English law, in order to show its beginnings with the Anglo-Saxon customs grafted on the Briton or Celtic older organization of the conquered Celtic tribes. Although these Hindu and Brehon laws of certain Aryan tribes are in point of time later than the Babylonian law, we can use them here as illustrating the more primitive condition out of which the civilized systems of law arose. The Hindu laws are called the Laws of Manu. While the collection of these laws is, historically speaking, late, they embody much information on the ancient primitive customs of the Aryan race. The religious and legal customs are all grouped together, just as we find them in the laws of the Hebrews. Many customs appear to be obsolete, but the customary law is older than the sacred law. All the laws are given a divine origin and are not subject to change. The caste of the religious men, the priests, as the highest, next the caste of the warriors, next those of commerce and agriculture, are plain, while the servile classes, at least, represent the subdued and subject race. The patriarchal system, with the power of the head of the family, is well developed and the joint family property is in the family ownership. It is a sort of corporate ownership. There is the family home where all the agnates (relatives in the male line) and the unmarried females are entitled to a home. This is generally a collection of houses. This home and property is enjoyed in common and no account is kept of expenditures for each of the family, although the expenditures are by no means equal. The duty is added to discharge the debts of the dead, for the dead man with debts unpaid will suffer tortures and the duty is recognized to deliver