CHAPTER V.

PRIMITIVE SOCIETY.

THE publication of Ancient Law practically revolutionised the ideas of English readers upon the primitive condition of society. All the early attempts to reason about the primitive state of mankind were vitiated by the error that afflicts every science at its commencement. It determines at once, by a process of guessing, the ideas or principles which it shall adopt as its basis, and then proceeds to reason from these deductively. But no science can claim the privilege of deduction until it has passed through a long and toilsome course of inductive discovery. Some sciences there are which have not yet accomplished this, others which have hardly begun it. The science which attempts to deal with the relations of men, and especially their primitive relations, can only recently be said to have escaped from the above error. The course which described by Sir

it originally adopted has been well

Henry Maine in Ancient Law. It consisted, as he there tells us, in "first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve

the same sentiments and prejudices by which they are now actuated, although, in fact, these sentiments may have been created and engendered by those very circumstances of which, by the hypothesis, they are to be stripped." The keynote to the revolution which has thus taken place in considering the early relations of mankind, is the discovery that we must not conceive of primitive man as existing in the separate and isolated condition of modern times, in which sentiment has but a small share in regulating his conduct with regard to his fellows, a regulation which is now largely effected by contract; we must, on the other hand, exalt and enlarge the feelings which spring from family and political life, and conceive of men as regulating their actions chiefly with regard to the position they hold in the family or in the community. In other words as "the movement of progressive societies has hitherto been a movement from Status to Contract,"" so, in returning to primitive times, we must follow the reverse order; we must cease to think of the relations between man and man as arising by agreement, and look at them as taking their origin in the natural position of the individual as a member of a family and of a community.

Thus, while early speculators regarded primitive men as individuals in a state of war until they found it necessary to regulate their relations by contract, recent investigations lead us to regard the primitive man as a member of an organisation which, however hostile may have been its relations to other similar 1 P. 254. 2 Ancient Law, p. 170.

organisations, was yet internally in a condition of settled peace and order. As natural sentiment, whereever it exists, even now binds men together far more strongly than contracts enforced by law can do, so we may easily conceive that in the primitive family, meaning by this word a somewhat extensive assemblage of individuals, a peaceful and harmonious condition of things existed which was certainly not contemplated by the writers on the social compact.

Taking advantage, then, of the information which has thus been given to us, I shall present a short sketch of the actual course which the development of society has taken, in order to point out how the different stages of this development correspond to radically different conceptions as to the nature of Law, and in order to present, in as clear a shape as possible, the actual forms which legal relations have taken. In doing this I shall suppress details as far as possible, and thus the results may appear somewhat idealised and the distinctions too sharply drawn. It must be remembered, however, that we are only seeking for foundations on which general conceptions must rest, and that these have almost always to be rectified when reintroduced into actual life.

There has been a very prevalent opinion that mankind passed through a roving and pastoral stage before they took to agriculture and settled down upon definite tracts of land. But although we wish to get the earliest view possible of those rules which correspond to our modern law, it would be superfluous for us to go back to this stage in human development.

Professor Holland does, indeed, tell us that "the shepherd who guides his flock, or, on a larger scale, the head of a family who regulates its encampments and employments, seems to have been the earliest 'lawgiver,' and his directions, as orders given by one who has power to enforce their observance, are the earliest laws':"1 but it seems to me that we cannot consider mere detached commands of this kind as in any way corresponding to the true notion of law, and the comparison perhaps shows too rigid an adherence to the Austinian Sovereign and Sanction. It is true that all assemblages of men must submit to certain rules; yet these, among a society in the pastoral state, pertain rather to general administration, like those which govern an army, than to the social relations between individuals with which legal rules are more properly concerned. These rules, indeed, chiefly refer to property and the relative position of individuals; a relative position which, in later ages, is determined by contract, but, in earlier times, by conditions imposed by birth upon the individual, and denoted by the term status. Hence legal rules do not become prominent until the possessions of the community or of individuals attain some importance, and until the organisation of society requires the imposition of different duties upon different individuals; until, that is, we have a regulated system for the use of property together with distinctions of caste. This, however, does not apparently happen till after the pastoral stage has been passed, and it is to subsequent developments that we 1 Jurisprudence, p. 13.

must look for the social facts which have favoured the growth of legal rules and of regulated sovereignty.

It may be as well to state at once that I regard it to be of the essence of Law that it should govern all parties in the State, and hence it is more proper to look for its origin in Custom than in Command. It is true that one German writer of note has come so near to the English school as to regard Law as a Command, but then he goes beyond it in requiring that this Command should have a bilateral force, and he maintains that we have not arrived at the developed idea of Law till we have seen the State power learning to control itself and submit to regulation just like a subject. Of course I do not deny that Law, considered merely as a command, has had the greatest influence on legal progress.

It will be useful in the first place to give a brief summary of the course of events in primitive society which Sir Henry Maine has been gradually making clear to us. In the beginning of things we find men united by ties of actual or assumed consanguinity; and in the latter case the assumption is not merely sentimental, like our modern saying that all men are brothers, but it is to all intents and purposes regarded as a fact. At the head of the group thus united we find the Chief, who derives a direct descent, if possible, from the common ancestor, but who must qualify by merit as well as by birth. The government of the tribe is in the hands of this Chief, but he is more like

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