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City is but an overgrown Family; and, as we have already said, we shall find the thought of Family itself by no means the simple one which speculative writers, deceived by popular language, have conceived it to be. We are told, for instance, of the Highland clanship, and something of the same kind in Ireland and elsewhere, and, if the theorists be right, at one time everywhere. The facts, we do not believe, anywhere support the theory. The chieftain of the clan ordinarily is not of the same blood as the great body of the clansmen. In Scotland, for instance, we do not believe that there is a single instance where the chieftain is not of a descent known to be different from that of the clansmen. Most of the chieftains are of Norse blood-successful invaders. In Ireland successive settlers adopted, to a later period than is generally thought, native names and native manners. Examine any of these cases, and you will find the Family means anything rather than the father and children of the same blood. In truth, so far is the word itself from having had its modern meaning, that it seems to have meant, in the first instance, household property; and in the next, slaves, distinguished from children, and, with beasts of the plough and such things, classed as articles of property. While among the individuals united in this mental combination, to which the name of "house” is given, some designation would be used to distinguish them, this would be confined to their necessary intercourse with each other; and their entire unimportance would prevent strangers from knowing them or any of them by any other name than that borne by the ruler of the household. Name, thus originating, would not be, as in the later stages of society, any proof of identity of blood. The analysis of Roman society, as we first find it, exhibits families united into combinations of families, the bond between whom was identity of religious rites. It is said that in Rome each family-I mean each household—had its own religious rites. The evidence of this, as the eminent jurist, Savigny, denies the existence of " sacra familiarum," must be regarded as doubtful. I think, however, it is difficult to give any reasonable meaning, consistent with Savigny's view, to the passages by which it seems to be proved, or to some of the consequences arising from adoption or from marriage; but, however this be, there can be no doubt that of the combinations and clusters of families, “gentes," as they have been called, each " gens” had its peculiar observances. Ten of these “ gentes” united formed what was called a “curia.” Religion was still the bond; each “curia” had its "præses" or “ curio,” who presided at the religious rites, the common observance of which united the particular ten “gentes” which composed the “curia.” In these rites none other participated, and thus a character of peculiar mystery distinguished each part of the Roman worship. Each “ curia" had its own public hall, where its proper business was transacted, and where its “sacra” were performed. There were thirty "curiæ" in each tribe, and thirty curiones or presidents formed a college of priests presided over by the "curio maximus.”
We must avoid, as far as we can, all antiquarian matter; our one object being to render intelligible the laws by which this society was held together: all controverted matter, too, we should wish to avoid. But it is impossible to move one step in this early history of Rome without finding ourselves in the fields of controversy. We are, however, safe in saying that, at the meetings of the “ curiæ,"—the " comitia cu. riata,"—in the early days of Rome, were proposed all changes in its laws; that the Roman people assembled at these meetings gave their assent to such acts of individuals as the disposition of property by will, or that change of an individual's relation to his family and the State which was expressed by his admission, through the ceremony of adoption, into another family. All these were, in the early stages of society, acts of legislation, or equivalent to such; and in each particular case the permission of the State was required to sanction that which affected the interests of all. There were rights of property in which the “ gens” to which any individual belonged had an eventual interest, which made it necessary that they should be consenting parties to such changes as were affected by testamentary disposition or by adoption. When individual right in property was acknowledged, and the testamentary power fully established, other and less formal means were found of accomplishing the objects of its owners; or if the old ceremonies were still in some cases required, they were ceremonies dying away. The parties and their witnesses attended. Solemnities, of which the precise meaning was unknown to those executing them, and was often the subject of doubt to the jurists themselves, were gone through in the deserted assembly hall of the “ curiæ,"—thirty lictors, servants of the courts, representing the thirty "curiæ."
It is impossible to discuss any portion of the Civil Law without anticipating in some degree what it will be the object of future lectures to exhibit in distinct detail. You will, perhaps, be surprised that I feel it necessary to dwell on the notions of " family,” and on the original constitution of civil society. Justinian, or rather the compiler of the Institutes, in the very opening of his work, goes farther back than the analysis to which I have adverted. His definition of Natural Law (Jus naturale) is as follows:-“ Jus naturale est quod Natura omnia animalia docuit; nam jus istud non humani generis proprium est, sed omnium animalium quæ in cælo, quæ in terrâ, quæ in mari nascuntur. Hinc descendit maris atque feminæ conjugatio, quam nos matrimonium appellamus; hinc liberorum procreatio et educatio. Videmus etiam cetera quoque animalia istius juris peritiâ censeri.” Whatever fault may be found with this description of the Law of Nature, we soon find that it has not been introduced without an adequate purpose; and it is plain that those who have accused Justinian of inaccuracy, and who would persuade us that he has confused the “ Jus naturale” with the “ Jus gentium," have themselves overlooked the important consequences which he immediately deduces from it.
I have told you of Aristotle's view of man, and his notion that slavery existed from the first. I have told you, however, at the same time, that he regarded it as arising from mutual advantage to master and servant, one being given by Nature talents fitted for command, the other incapable of exercising command, but not unfitted for ministerial service. In this thought there is nothing that renders the state of slavery, as it existed among the ancient nations, a condition destined to continue, when Man had in more perfect forms of society arrived at his true nature,—when to Society itself, - before aptly pictured, by the Hebrew prophets, when describing the ancient Empires, in one bestial form or another,—should be given at last, in the language of Scripture, “ the heart of a man.” The Roman jurist had, we think, this hope; and, though slavery existed in Rome, and existed often in its most revolting forms, yet the distinction which admitted natural rights acknowledged slavery as an unnatural condition; and it was scarce possible not to regard such maxims and such distinctions as we find in the Pandects and the Institutes, as preparing for its extinction. The precepts of nature and the laws of nature, we are told, are immutable. Those which arise from the “ Jus gentium," or from the civil law of any particular nation, may be altered by some new positive law, or become obsolete by disuse. And almost immediately after this proposition is laid down, we find the following definitions of Liberty and Slavery :-“ Libertas, quidem, ex qua etiam liberi vocantur, est naturalis facultas ejus quod cuique facere licet nisi quid viaut jure prohibetur.” “ Servitus, autem, est constitutio juris gentium qua quis dominio alieno contra naturam subjicitur.” In an after passage he tells us that in all countries masters had the power of life and death over slaves, and this he refers to the Jus gentium :“ In potestate dominorum sunt servi, quæ quidem potestas juris gentium est, namautem omnes peræque gentes animadvertere possumus dominis in servos vitæ necisque potestatem fuisse, et quodcunque per servum acquiritur id domino acquiri.”-1. i. 8.
These definitions, taken from the books of the Stoics, would seem to prepare the way for liberty.
The law of nations would, in this case, seem to violate natural rights; but in truth, of natural, unmodified rights, man in society knows nothing. We are born into society. To the law of nature, mentioned in the passage of the Institutes that I have read for you,-a law described there as common to all that live, to other animals as well as man,little can be referred but the instincts of self-preservation, and those by which provision is made for the union of the sexes, and the preservation of the offspring of such union. Some natural instincts supply the place of a law,-in the language of the jurists, imitate a law,- perhaps we should rather say, predict a law. There is, however, a just foundation for the analysis which distinguishes abstract rights from rights as modified by instituted laws; and, as in the case of slavery, which we have mentioned, it will be found wise not altogether to lose sight of these old distinctions. The severe and exclusive laws by which the Romans were first governed,—the fact, that within the same city were living from the earliest times two nations, as it were, possessing privileges essentially different, separated in a hundred ways, yet having perpetual occasions of intercourse,-compelled, especially from those who had to administer justice, incessant