Ancient Law | Page 8

recognised in the purifications and expiations which they perform, and
which appear intended to deprecate punishment for involuntary or
neglectful disrespect. Everybody acquainted with ordinary classical
literature will remember the sacra gentilicia, which exercised so
important an influence on the early Roman law of adoption and of wills.
And to this hour the Hindoo Customary Law, in which some of the
most curious features of primitive society are stereotyped, makes
almost all the rights of persons and all the rules of succession hinge on
the due solemnisation of fixed ceremonies at the dead man's funeral,
that is, at every point where a breach occurs in the continuity of the
family.
Before we quit this stage of jurisprudence, a caution may be usefully
given to the English student. Bentham, in his Fragment on Government,
and Austin, in his Province of Jurisprudence Determined, resolve every
law into a command of the lawgiver, an obligation imposed thereby on
the citizen, and a sanction threatened in the event of disobedience; and
it is further predicated of the command, which is the first element in a
law, that it must prescribe, not a single act, but a series or number of
acts of the same class or kind. The results of this separation of
ingredients tally exactly with the facts of mature jurisprudence; and, by
a little straining of language, they may be made to correspond in form

with all law, of all kinds, at all epochs. It is not, however, asserted that
the notion of law entertained by the generality is even now quite in
conformity with this dissection; and it is curious that, the farther we
penetrate into the primitive history of thought, the farther we find
ourselves from a conception of law which at all resembles a compound
of the elements which Bentham determined. It is certain that, in the
infancy of mankind, no sort of legislature, not even a distinct author of
law, is contemplated or conceived of. Law has scarcely reached the
footing of custom; it is rather a habit. It is, to use a French phrase, "in
the air." The only authoritative statement of right and wrong is a
judicial sentence after the facts, not one presupposing a law which has
been violated, but one which is breathed for the first time by a higher
power into the judge's mind at the moment of adjudication. It is of
course extremely difficult for us to realise a view so far removed from
us in point both of time and of association, but it will become more
credible when we dwell more at length on the constitution of ancient
society, in which every man, living during the greater part of his life
under the patriarchal despotism, was practically controlled in all his
actions by a regimen not of law but of caprice. I may add that an
Englishman should be better able than a foreigner to appreciate the
historical fact that the "Themistes" preceded any conception of law,
because, amid the many inconsistent theories which prevail concerning
the character of English jurisprudence, the most popular, or at all events
the one which most affects practice, is certainly a theory which
assumes that adjudged cases and precedents exist antecedently to rules,
principles, and distinctions. The "Themistes" have too, it should be
remarked, the characteristic which, in the view of Bentham and Austin,
distinguishes single or mere commands from laws. A true law enjoins
on all the citizens indifferently a number of acts similar in class or kind;
and this is exactly the feature of a law which has most deeply
impressed itself on the popular mind, causing the term "law" to be
applied to mere uniformities, successions, and similitudes. A command
prescribes only a single act, and it is to commands, therefore, that
"Themistes" are more akin than to laws. They are simply adjudications
on insulated states of fact, and do not necessarily follow each other in
any orderly sequence.

The literature of the heroic age discloses to us law in the germ under
the "Themistes" and a little more developed in the conception of
"Dike." The next stage which we reach in the history of jurisprudence
is strongly marked and surrounded by the utmost interest. Mr. Grote, in
the second part and second chapter of his History, has fully described
the mode in which society gradually clothed itself with a different
character from that delineated by Homer. Heroic kingship depended
partly on divinely given prerogative, and partly on the possession of
supereminent strength, courage, and wisdom. Gradually, as the
impression of the monarch's sacredness became weakened, and feeble
members occurred in the series of hereditary kings, the royal power
decayed, and at last gave way to the dominion of aristocracies. If
language so precise can be used of the revolution, we might say