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nected together by common subjection to the Paternal Power of the chief of the Household.*
When we remember that with the Communal period commences also man's settlement on land, while the patriarchal period is one of pure nomadism, it will be understood that the examples from independent sources, that is, from existing types of mankind, are not altogether capable of systematic grouping. But the science of Sociology has attempted this. We meet with types of the most fully developed patriarchal families in North America among the Comanches, the Dakotahs, the Iroquois, and others." We meet with types of the most primordial society, that of simple families independent of each other, in the WoodVeddahs who roam about in pairs, the Bushmen wandering about in families, the Fuegians in clusters of a dozen or more, and tribes of Australians and Andamanese within the limits of twenty to fifty. I But, not to weary the reader with multiplication of examples, we think we have warrant for saying that primitive man, who, before any arts of life were developed, necessarily lived on wild food implying wide dispersion of small numbers, was not much habituated to associated life. ||
We have thus seen how far history takes us back into the social life of man-even to the very border of his first step in the way of progress. During the course of this inquiry, also, we have perceived three distinct epochs, standing out above all others, in the history of sovereignty. We find, in other words, that a Communal Sovereignty and a Patriarchal Sovereignty answered, each in its own time and place and with all its own special surroundings, to modern sovereignty in modern civilised countries. It is the special fact of Patriarchal Sovereignty to which I would direct attention ; for, in ascertaining its place in the great * Village Communities, page 15.
† Prin. of Soc, i., 485. I Prin, of Soc., i., 482 ; and Pritchard's Physical Hist. of Mankind, i., 178.
|| Prin. of Soc., i., 71.
unity of history, we establish what is perhaps of equal or greater importance, the continuity of the fact of sovereignty among the institutions of the human race, dating back from a period which has hitherto not been investigated by historical jurists.
We have now to deal with the second portion of our subject, the internal regulations of this patriarchal familyi.e., the internal regulations so far as law and sovereignty are concerned.
It is, of course, the well-known patria potestas of later times which is typical of the law and sovereignty of this period. The universal traces of its existence among barbarians as well as civilised people, among ancient as well as modern nations, give evidence of its primordial origin before the separation of mankind into races. We meet with it everywhere, in forms varying in detail from each other, but still having common features. It is, of course, known to all students of Roman law, which has supplied a terminology for the whole of history, from the vigorous and unbending character of its own form of this power, which received in legislation an unalterable shape and absolutely guided and governed the Roman household without any special authority from, or responsibility to, the State.* To turn to other great nations of antiquity, we find that Sir Gardner Wilkinson has examined this subject with reference to the Egyptians, and his views are thoroughly conclusive as to the existence of a despotical paternal power among them; † a tablet of primitive Accadian laws, published in the third volume of “ Records of the Past,” from a translation by Mr. Sayce, gives similar evidence with reference to the Eastern nations; among the Greeks, also, and the Teutonic invaders of Rome, we can trace a corresponding form. Even in modern civilised countries, though the power of the father is much modified, having passed to the State, there still exist undeniable proofs of its despotic origin; and in Russia at the present day, a married son does not establish a separate household as long as the head of the family is living. *
* The best authorities are Inst. of Gaius, i., 55 ; Sir H. Maine's Anc. Law, passim ; Mackenzie's Roman Law, 143 ; Mommsen's Rome, i., 60. Its occurrence in the Twelve Tables is not proof that it was the result of legislation, but rather that legislation adopted what was already existing. See, for evidence of this, the law which modifies the power of the father, Tab. iv., sec. iii.
+ Anc. Egyptians, ii., 38.
Now, such a régime is only capable of one origin. Like the aggregation of families, it was rather the result of history than the product of brilliant statesmanship. And this history is primæval : it belongs to the same period, corresponds to the same social institution, as patriarchal, independent families and patriarchal sovereignty. Fortunately, we possess some indications of this. One of our greatest à priori writers distinctly perceives that a society is practically incapable of making any progress until it has · learnt to obey ; t and transferring this to the domain of sociology, we have a chain of historical evidence to prove that, be the course of submission what it may, a relatively subordinate nature is everywhere shown by men composing social groups; I which, by the light of our previous researches, would be, in the first instance, the outcome of the obedience of children and slaves to a father, or father chieftain.
It now remains for us to summarize the result of our historical researches, and apply it to the question before us. First, then, we have three distinct epochs in the life of social man-epochs which now and again overlap each other, but which, nevertheless, are plainly discernible on the pages which record man's progress. These three
* Rev. J. Long's Village Communities in India and Russia, Appendix B. The laws of Massachusetts assigned the penalty of death to all stubborn and rebellious sons. Taylor's Words and Places, p. 16.
+ J. S. Mill's Rep. Gov., p. 37 I Spencer's Prin. of Soc., i., 69, 70.
epochs are, or may be, termed (1) the patriarchal, (2) the period of aggregated patriarchal units, (3) modern civilised society. To these three social epochs correspond three stages of sovereignty which I term (1) patriarchal, (2) corporate assembly of patriarchal chiefs, (3) modern sovereignty, whether corporate or individual. To complete this summary, we have the following general conclusions, (I) that, in the first epoch and the last, law is, for all practical purposes, identical with the power of the sovereign, and (2) that in the second period a body of customary rules exists which do not enter into the jurisdiction of the sovereign body, but which, nevertheless, help to govern the community.
It must here be noted that parental law and modern law do not tally in form, though they do in political relationship. Parental law is what Austin would designate “ occasional or particular commands,” which is something less than his general definition of law. But this is only an early phase in the history of law, which cannot be divorced from later phases by any deficiency of terminology. Each command was promulgated, not to meet possible breaches in the future, but to settle present disputes; each command was spoken directly by the sovereign, and did not apply by analogy to any other series of cases; it was, in fact, judicial rather than legislative. But, after all, it is not in reference to its form that we are now discussing it, but with reference to its relationship to the sovereign; and in this last aspect we find nothing to preclude us from pronouncing that the most primitive and most recent law can be defined as identical with the coercive force of the sovereign.
This conclusion is of more value than at first sight would appear to be the case, when we understand the political significance of the additional historical epoch in the history of law, which I have attempted to establish in the period of the independent patriarchal family. The patriarchal family is by no means unknown to historical jurists, and
Sir Henry Maine, above all others almost, appears to have an appreciation of its value in the history of sovereignty, but an appreciation, I venture to think, which is trammelled by the remembrance of the absurd use made of it by Filmer.* It appears to me that its position in history has not yet been thoroughly investigated. Whenever the Patriarchal Family appears in the writings of jurists and Historians, it appears as a member of an aggregated community, not as an independent society; and though Austin assumes the existence of a social unit, which almost coincides with one phase of the patriarchal unit I am dealing with, it is exactly at this stage of society that Austin denies the existence of sovereignty, denies the application of the term political society, denies that natural offspring may be termed subjects. Here history steps in however and confirms, what before theory only vaguely asserted, and more vaguely in the case of Austin than of Hobbes or Bentham. It declares patriarchal society to be an ascertained epoch of human life ; and parental law and parental sovereignty to have begun the history of law and sovereignty. If, in addition to this, we may calculate its original undeveloped duration by a geological rather than a historical standard (and such researches as those of Mr. Fiske's Cosmic Philosophy go far to confirm the investigations of natural scientists); if this form of power has not yet spent its influence upon us; if it is one of the facts with which the Western World will some day assuredly have to reckon, that the political ideas of so large a portion of
* For instance, at p. 386 of Early Institutions, we have the following remarkable passage :-" The most nearly universal fact which can be asserted respecting the origin of political communities called states, is that they were formed by the coalescence of groups, the original group having been in no case smaller than the patriarchal family.” Now this is exactly the state of things which points to the original independence of the patriarchal family; but Sir H. Maine does not proceed to investigate the circumstances of this independence, but rejects it from his argument on the score of Austin's appeal to the ridiculous.