position before laid down as to the essentially transient and
terminable influence of the most powerful Legal Fictions. At some
point of time--probably as soon as they felt themselves strong enough
to resist extrinsic pressure--all these states ceased to recruit
themselves by factitious extensions of consanguinity. They
necessarily, therefore, became Aristocracies, in all cases where a
fresh population from any cause collected around them which could put
in no claim to community of origin. Their sternness in maintaining the
central principle of a system under which political rights were
attainable on no terms whatever except connection in blood, real or
artificial, taught their inferiors another principle, which proved to
be endowed with a far higher measure of vitality. This was the
principle of _local contiguity_, now recognised everywhere as the
condition of community in political functions. A new set of political
ideas came at once into existence, which, being those of ourselves,
our contemporaries, and in great measure of our ancestors, rather
obscure our perception of the older theory which they vanquished and
dethroned.
The Family then is the type of an archaic society in all the
modifications which it was capable of assuming; but the family here
spoken of is not exactly the family as understood by a modern. In
order to reach the ancient conception we must give to our modern ideas
an important extension and an important limitation. We must look on
the family as constantly enlarged by the absorption of strangers
within its circle, and we must try to regard the fiction of adoption
as so closely simulating the reality of kinship that neither law nor
opinion makes the slightest difference between a real and an adoptive
connection. On the other hand, the persons theoretically amalgamated
into a family by their common descent are practically held together by
common obedience to their highest living ascendant, the father,
grandfather, or great-grandfather. The patriarchal authority of a
chieftain is as necessary an ingredient in the notion of the family
group as the fact (or assumed fact) of its having sprung from his
loins; and hence we must understand that if there be any persons who,
however truly included in the brotherhood by virtue of their
blood-relationship, have nevertheless _de facto_ withdrawn themselves
from the empire of its ruler, they are always, in the beginnings of
law, considered as lost to the family. It is this patriarchal
aggregate--the modern family thus cut down on one side and extended on
the other--which meets us on the threshold of primitive jurisprudence.
Older probably than the State, the Tribe, and the House, it left
traces of itself on private law long after the House and the Tribe had
been forgotten, and long after consanguinity had ceased to be
associated with the composition of States. It will be found to have
stamped itself on all the great departments of jurisprudence, and may
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account