times, and the comparisons with a professedly early Irish history are too complete to leave any shadow of a doubt as to their critical worth to the historian and Jurist, yet the period thus arrived at in Indo-Celtic history, and by strong inference in Aryan history, is not the earliest period in the history of man, or in the history of law and sovereignty. The chief feature that it exhibits, or, at any rate, the chief feature for our purpose, is the aggregation of several families into a village community, and a further aggregation of village communities into a gens or tribe. The splitting up of the Aryan and Semitic races into detached peoples commenced after the formation of aggregated communities, and it was rather political than natural causes which induced one set of Aryan tribes to travel beyond the Hindoo Koosh for a home, and another set through the forests and across the sea to Erin; and thus many of the most important systems upon which the modern political fabric is built, were originated, not in India or in Europe, but in that common home from which Indian, Greek, Roman, Celt, and Teuton departed on their several ways. * But there was a primitive system from which Semite and Aryan broke away; a primitive system which exhibits as firm traces of consistent organisation, though modified here and there, as the more recent Semitic and Aryan systems. It is within this primitive system that the early. history of sovereignty commenced. The question, then, practically resolves itself into this, does research into this early period of history confirm the conclusions of the Analytical Jurists with regard to law and sovereignty, and does it, therefore, alter or oppose Sir Henry Maine's argument against these conclusions. There are two sources of knowledge of some of the * See Freeman's Comparative Politics, lect. ii.; Mommsen's Rome (Eng. Trans.), vol. i., p. 18; Bunsen's Egypt, vol. iv., p. 562; Max Müller's Science of Language, ii., 236. most important social institutions belonging to an early period of history. These are (1) the survivals, which may be seen in later periods, existing alongside of the new growth or in written records; (2) living examples which have come down to modern times crystallised, so to speak, at their earliest stage of development, or which, after having progressed a short distance, have subsequently retrograded.* Of course, crystallization and retrogression are not exact types of the early period they represent, but the variation in both cases is extremely minute. Crystallization may produce a greater clinging to one form than to another; retrogression may not be along the self-same path that the progression took, but, on the whole, a tolerably clear view of primordial society may be obtained from these sources. Of the first class of evidence we have sufficient examples in our own national history, social and political, and for this class Mr. E. B. Tylor has supplied a correct and apt terminology in the word "survival." Of the second class uncivilized tribes may be cited in illustration, for they show little tendency to alter their social activities and structures under changed circumstances, but die out rather than adapt themselves.† From these observations it will be seen that it is better to commence with the latest period under notice and work backward; for by so doing we not only detect the survivals of the earlier period, but we reflect back, so to speak, the evidence thus obtained on to the evidence acquired from independent sources, and thus lend additional force to the argument we have in hand. I adopt this plan, therefore, with reference (1) to the external structure of the society containing sovereignty, and (2) to the internal regulations. *J. S. Mill's Rep. Government, pp. 26-7; Spencer's Princ. of Soc., i., 106; Niebuhr's Anc. Hist., ii., p. 97. + Spencer's Prin. of Soc., p. 598. Modern Bedouins show us a form of society which has remained substantially the same these 3,000 years, or more. I. The latest period for my purpose is the earliest period that Sir Henry Maine arrives at in his historical evidence on this subject. This I shall term the communal epoch in the history of sovereignty. The law which obtains at this period is customary law: that portion of the whole body of law which is claimed as being historical proof against the definition of law as the coercive force of the sovereign; that portion of law which, according to the Analytical Jurists, the sovereign permits, and therefore commands. The sovereignty of the period is represented either by a corporate body of chiefs, or by a single head with a council of chiefs, the corporate body being in both cases the distinctive feature. But there was also another species of sovereignty, and another species of law, existing alongside, and exercising power alongside, of communal law and sovereignty. It was a still surviving relic, shorn of all independence indeed, of an earlier age, when as yet the communal system had not been developed-it was patriarchal sovereignty and paternal law. For if we examine the nature of the communal sovereignty we find that it has authority, not over individual personages, but over groups of individuals, constituted chiefly and most anciently, of the natural offspring, and therefore, answering in some measure to the modern notion of family. In other words, the political unit with which the sovereign has to deal is not the individual but the family group-it is a corporate, not a personal unit. Now, this peculiar formation of society was not the product of the statesmanship of the period, but rather of the history of the period. We have not, therefore, to seek its origin in the decrees of a legislative assembly, but in an antecedent period of history. This antecedent period is clearly traceable by means of the very features which illustrate the later period; for these corporate units are not so closely welded together that the crevices between them cannot be discerned. The formation of a larger society, says Mr. Spencer, results only by combination of smaller societies, which occurs without obliterating the divisions previously caused by separateness.* Again, the sphere of usage or customary law was not the family, but the connexion of one family with another and with the aggregate community; and though it is only a conjectural explanation of the scantiness of ancient systems of law, as they appear in the monuments in which an attempt was made to set them formally forth, that the lawgiver attempted to fill, so to speak, the interstices between the families; it is a conjecture which follows pretty closely the forms of a logical sequence, and agrees pretty closely with what we see elsewhere in history. (a.) No people in the world developed the spirit of individuality so marvellously as the Greeks. Yet their early institutions are intensely corporate, just as much so as those of their Hindoo cousins, or, indeed, as those of any of their Aryan kinsmen. What Mr. Grote, Mr. Gladstone, and Professor Curtius have written on this subject, nay, what is displayed throughout the Homeric poems, is too well known to need repetition. Stating it shortly, the tribes were divided into brotherhoods and clans or houses. Now, the clan was the lowest aggregate which possessed any distinct political value-the clan, with chiefs like Agamemnon and Achilles at its head. But at the earliest. period of history, the interstices between the families composing the clan were so apparent that Aristotle distinguishes the latter as the offspring of some special compact. Spencer's Prin. of Soc., 485. + Maine's Village Communities, p. 79. Maine's Village Communities, p. 114. The following is the general characteristic of the village community:-A group of families united by the assumption of a common kinship. Ibid, page 12. This view is supported both by Niebuhr* and Grote.t Though I cannot perceive any evidence of the special compact, for history rather points to a natural aggregation of kinsmen, the mere fact that the theory of special compact has been propounded by such authorities suggests unmistakeably the independent origin of the family. And there is much further evidence. The chiefs in the agora did not interfere in dealing with homicide, but left it to the personal vengeance of the kinsmen and friends of the deceased and the Lacedæmonians held the doctrine that the door of his court was the boundary of every man's freedom; without, all around, the authority of the State, within, the master of the house, ruled as lord.|| (b.) The same features are visible in the early days of Rome, and the modern historian has no difficulty in tracing the lineaments of antiquity by the aid of survivals in the later history. Professor Mommsen not only positively asserts that the Roman State was based upon the Roman household, but goes deeper into the details of this original homestead. Even within the Palatine city, he writes, there was hardly a true and complete amalgamation of the different constituent elements of the settlement; there was as yet no common hearth for the city, but the various hearths of the curies subsisted side by side, and Rome as a whole was probably rather an aggregate of urban settlements than a single city. Of course this picture is far from perfect; but it should be remembered that comparatively fewer traces of the primitive state of things have been preserved in the case of the Romans than in the case of any other Indo-Germanic race.** (c.) With these examples before us, and by the light of modern science, it will not bring any special religious Hist. of Rome, i., 264 Grote's Hist. of Greece, ii., 125. § Hist. of Rome, i., 65. **Mommsen's Hist. of Rome, i., 157. + Hist. of Greece, iii., 73-7. Müller's Dorians, ii., and foot notes. |