I. Introductory: Legal Symbolism and Primitive Life

The chief sources of information regarding the early history of civil society are, first, the study of races in their primitive condition; and, second, the study of the symbols employed by advanced nations in the constitution or exercise of civil rights. From these studies pursued together, we obtain, to a large extent, the power of classifying social phenomena as more or less archaic, and thus of connecting and arranging in their order the stages of human advancement.

None of the usual methods of historical inquiry conduct us back to forms of life so nearly primitive as many that have come down into our own times. The geological record, of course, exhibits races as rude as any now living, some perhaps even more so, but then it goes no farther than to inform us what food they ate, what weapons they used, and what was the character of their ornaments. More than this was not to be expected from that record, for it was not in its nature to preserve any memorials of those aspects of human life in which the philosopher is chiefly interested—of the family or tribal groupings, the domestic and political organisation. Again, the facts disclosed by philology as to the civil condition of the Indo-European race before its dispersion from its original headquarters,—the earliest, chronologically considered, which we possess respecting the social state of mankind,—cannot be said to tell us anything of the origin or early progress of civilization. Assuming the correctness of the generalization by which philologers have attempted to reconstruct the social economy of the Aryans, we find that people, at an unknown date before the dawn of tradition, occupying nearly the same point of advancement as that now occupied by the pastoral hordes of Kirghiz Tartary, and leading much the same sort of life. They had marriage laws regulating the rights and obligations of husbands and wives, of parents and children; they recognised the ties of blood through both parents; they had great flocks and herds, in defence of which they often did battle, and they lived under a patriarchal government with monarchical features. It is interesting—a short time ago we should have said surprising—to find that such progress had been so early made. But in all other respects this so-called revelation of philology is void of instruction. Those Aryan institutions are—to use the language of geology—post-pliocene, separated by a long interval from the foundations of civil society, and throwing back upon them no light. Marriage laws, agnatic relationship, and kingly government, belong, in the order of development, to recent times.

For the features of primitive life, we must look, not to tribes of the Kirghiz type, but to those of Central Africa, the wilds of America, the hills of India, and the islands of the Pacific; with some of whom we find marriage laws unknown, the family system undeveloped, and even the only acknowledged blood-relationship that through mothers. These facts of to-day are, in a sense, the most ancient history. In the sciences of law and society, old means not old in chronology, but in structure: that is most archaic which lies nearest to the beginning of human progress considered as a development, and that is most modern which is farthest removed from that beginning.

And since the historical nations were so far advanced at the earliest dates to which even philology can lead us back, the scientific investigation of the progress of mankind must not deal with them, in the first instance, but with the very rude forms of life still existing, and the rudest of which we have accounts. The preface of general history must be compiled from the materials presented by barbarism. Happily, if we may say so, these materials are abundant. So unequally has the species been developed, that almost every conceivable phase of progress may be studied, as somewhere observed and recorded. And thus the philosopher, fenced from mistake, as to the order of development, by the interconnection of the stages and their shading into one another by gentle gradations, may draw a clear and decided outline of the course of human progress in times long antecedent to those to which even philology can make reference. All honour to philology; but in the task of reconstructing the past, to which its professors declare themselves to be devoted, they must be contented to act as assistants rather than as principals.

We have said that the preface of general history must be compiled from materials presented by barbarism. Some may account it illogical to prefix a scheme of early progress formed on view of societies that have not yet advanced far, if at all, from savagery, to a scheme of further progress deduced from the written histories of nations whose origin and early training we are unacquainted with. But, in point of fact, it is not so. It is the best proof of the propriety of such a course—as well as of the continuity and uniform character of human progress—that we can trace everywhere, disguised under a variety of symbolical forms in the higher layers of civilization, the rude modes of life and forms of law with which the examination of the lower makes us familiar. Indeed, were these remarks not merely general and introductory to the investigation of the origin of one particular symbol, many instances of this correspondence between the higher and lower levels might be cited, to show that the symbolism of law in the light of a knowledge of primitive life, is the best key to unwritten history.

Of the value of that symbolism—of that reverence for the past to which it owes its origin—there will be occasion to say something hereafter. Meantime, we observe that, wherever we discover symbolical forms, we are justified in inferring that in the past life of the people employing them, there were corresponding realities; and if, among the primitive races which we examine, we find such realities as might naturally pass into such forms on an advance taking place in civility, then we may safely conclude (keeping within the conditions of a sound inference) that what these now are, those employing the symbols once were. History is thus made to ratify conclusions derived from the observation of rude tribes; while such observation, again, is made to furnish the key to many of the enigmas of history.

For it is not as regards unwritten history merely that the two sources of information specified at the outset are of importance. Apart from the tests of truth afforded by the minute knowledge of primitive modes of life and their classification as more or less archaic, nothing could be more delusive than written history itself. In Roman law, to take a convenient example, Confarreatio has the foremost place among the modes of constituting marriage. Usus is just mentioned in the twelve tables, which contain a provision against the wife coming into the Manus of her husband through Usus. Coemptio does not appear in the old law of Rome at all, nor is there any mention of it earlier than that by Gaius. But it can easily be shown that Usus and Coemptio come first in order of age, and Confarreatio later; that is to say, the two former are more archaic than the latter. Yet have recent learned writers, overlooking this fact and the meaning of legal symbolism, represented Usus and Coemptio as forms invented and introduced by the legislators of Rome, whereby the plebeians might have their wives in Manu, and enjoy the other advantages of Justæ Nuptiæ; Usus as an invention; and the fictitious sale in Coemptio as merely a device of legislative ingenuity. The true explanation of the late appearance of both Usus and the fictitious sale in the Roman law, is this—that the law at first was not that of the whole people but of a limited aristocracy, who, with a Sabine king and priesthood, adopted the Sabine religious ceremony of marriage; that the law long totally ignored the life and usages of the mass, and that their modes of marrying and giving in marriage began to appear, and to make their mark in the law, only on the popular element in the city becoming of importance. Instead of marriage per coemptionem being the invention of legislators, it was of spontaneous popular growth, and must have been as old as the establishment of peaceful relations between tribes and families. All fictions, or nearly all, have had their germs in facts; became fictions or merely symbolical forms afterwards. And that the fictitious sale was originally an actual sale and purchase, cannot be doubted by any one who knows that marriage by the form of actual sale has prevailed almost universally among rude populations.

We see in the case of the Roman law how incomplete must necessarily be the history of the law of a country, as written on the face of it. The law is at first that of the dominant and presumably the most advanced classes—the literates, warriors, and statesmen; the rest of the community are beyond its pale, a law unto themselves. When the levelling processes, by which the lower classes succeed in the long run in acquiring rights more or less equal, have gone on for some time, then the ruder customs followed by them before and since the commencement of the State appear in a modified form in what is now for the first time really becoming the law of the people. Civility seems suddenly to assume the garb and the air, and to use the gutturals of barbarism; legal processes are gone through with the frantic howls and gesticulations of armed Ojibeways; and while all this, to those who are ignorant of primitive times, seems mere idle pantomime, sometimes silly, sometimes odd, sometimes puzzling by its intricacy, to those who are prepared to receive their suggestions, the forms employed are pregnant with meaning and instruction. Fortunately all the nations in the world have not advanced in civility pari passu; and what is pantomime with one people, we discern to be grimmest reality with another. Were it not for this inequality of development, in what mysteries would the history of the race be enveloped! What Michelet calls the poetry of law would have to be received as such simply; as so many grotesqueries or graces introduced into the ways of life to satisfy the popular fancy. As it is, however, the so-called poetry of law, the symbolic forms that appear in a code or in popular customs, tell us as certainly of the early usages of a people, as the rings in the transverse section of a tree tell of its age.

The Libripens, with his scales, officiating at a will or act of adoption, seems out of place; but his presence illustrates the source whence all ideas of formal dispositions were derived—the sale of fungibles. So does an old form of process preserved by Gaius—the Legis Actio Sacramenti of the Romans—prove that cultivated people to have been at one time in pari casu as regards the administration of justice with many races which we find ignorant of legal proceedings, and dependent for the settlement of their disputes on force of arms or the good offices of neutral parties interfering as arbiters.

So far, briefly, of the importance of the symbolism of law and of the study of races in their primitive condition. What follows is an attempt at a practical exemplification in a new direction of the aid derivable from these sources in the task of unveiling the past.