第48章

We have now examined all parts of the ancient Law of Personswhich fall within the scope of this treatise, and the result ofthe inquiry is, I trust, to give additional definiteness andprecision to our view of the infancy of jurisprudence. The Civillaws of States first make their appearance as the Themistes of apatriarchal sovereign, and we can now see that these Themistesare probably only a developed form of the irresponsible commandswhich, in a still earlier condition of the race, the head of eachisolated household may have addressed to his wives, his children,and his slaves. But, even after the State has been organised, thelaws have still an extremely limited application. Whether theyretain their primitive character as Themistes, or whether theyadvance to the condition of Customs or Codified Texts, they arebinding not on individuals,but on Families. Ancientjurisprudence, if a perhaps deceptive comparison may be employed,may be likened to International Law, filling nothing, as it were,excepting the interstices between the great groups which are theatoms of society. In a community so situated, the legislation ofassemblies and the jurisdiction of Courts reaches only to theheads of families, and to every other individual the rule ofconduct is the law of his home, of which his Parent is thelegislator. But the sphere of civil law, small at first, tendssteadily to enlarge itself. The agents of legal change, Fictions,in turn to bear on the Equity, and Legislation, are broughtprimeval institutions, and at every point of the progress, agreater number of personal rights and a larger amount of propertyare removed from the domestic forum to the cognisance of thepublic tribunals. The ordinances of the government obtaingradually the same efficacy in private concerns a in matters ofstate, and are no longer liable to be overridden by the behestsof a despot enthroned by each hearthstone. We have in the annalsof Roman law a nearly complete history of the crumbling away ofan archaic system, and of the formation of new institutions fromthe recombined materials, institutions some of which descendedunimpaired to the modern world, while others, destroyed orcorrupted by contact with barbarism in the dark ages, had againto be recovered by mankind. When we leave this jurisprudence atthe epoch of its final reconstruction by Justinian, few traces ofarchaism can be discovered in any part of it except in the singlearticle of the extensive powers still reserved to the livingParent. Everywhere else principles of convenience, or ofsymmetry,or of simplification -- new principles at any rate haveusurped the authority of the jejune considerations whichsatisfied the conscience of ancient times. Everywhere a newmorality has displaced the canons of conduct and the reasons ofacquiescence which were in unison with the ancient usages,because in fact they were born of them.