Government was furnished from a vast store of information which he had collected from more than one hundred states in the mother country; but this, by the light of modern historical science, only goes to strengthen the remark of Macaulay, that the Greeks admired only themselves; for had Aristotle but surveyed, with more than an incidental glance, the contemporary history of Græco. Italian life, he would have gained much to help his judgment on the Grecian forms of government and done all that was necessary to lift the historical compositions of his age out of that groove which, as Mommsen says, undertook toform links of connection between Greece and Rome by the spread of Hellenic story and fiction in keeping pace with the extension of geographical knowledge.* It was not only experience from foreign history that the Grecian philosophers refused to use, but from their own history at an earlier stage of progress to that in which they happened to live. Though Mr. Gladstone considers that we scarcely find the strictly patriarchal king in the Iliad, † we have ample evidence that the poetry of Homer points back to patriarchal times, which, whether arising from Aryan or purely Grecian legend, undoubtedly shows a connection between Grecian political life and Grecian tribal life. We catch a glimpse of a period when a constitution had not been formed, and when "they had neither assemblies for consultation, nor themistes, but every one exercised jurisdiction over his wives and children, and paid no regard to one another."‡ It is this quotation from Homer which is used by Plato when he proceeds to speak about the origin of society. Professor Jowett, in his introduction to the Laws (p. lxiii.), points out that Plato's chief object "in tracing the origin of society, is to show the point at which regular government superseded the patriarchal authority, and laws common to many families took the place of old customs." Yet this object of the greatest of heathen philosophers seems to have been shielded behind the supposition of infinite time; seems rather to have generalised the conception of progressive development, than to have fixed a period when the distinction of nationality first began to be possible, and patriarchal chieftains became monarchs. He says that we may accept Homer's witness to the fact that there was a time when primitive societies existed; but the process by which "History of Rome," book ii., cap. ix. (vol. i., page 484), E. T. I would refer also to some remarks by Baldwin in his "Prehistoric Nations," p. 46. +"Homeric Studies," iii. p. 30. "Ancient Vide Gladstone's "Homeric Studies," iii. 141; Maine's Law," p. 125. It is peculiar to note that Pope's translation of this passage of "The Odyssey" is singularly vague in its meaning, while some passages in his "Essay on Man" convey very distinctly this stage of society. May we not see here the influence of his friend St. John, to whose historical criticisms the present age is much indebted ? "we seem to have stumbled upon the beginning of legislation, fills up but indistinctly that immense period of time which is as vaguely delineated in Plato's writings as it is certainly existent in his mind.* It is important that we should point out now, by tracing its subsequent career, how this idea of a great lapse of time overshadowed, for so long a period, the growth of subsequent historical thought, which might otherwise have sought to fill up the period between man's national and natural life, by evidence from contemporary sources, when the modern civilised nations of Europe were primitive tribes. It passed into the system of the Stoics and so severed later Grecian thought from Homeric thought. When the classical jurists of Rome appealed to the Stoic philosophers for their principles of morality, they clothed their jus gentium with notions entirely at variance with the equity of early Roman law, and produced, in Justinian's Pandects and Institutes, a jus gentium whose principal feature is its ambiguity. The jus gentium of the classical jurists of Rome suggested the Natural Law of the moderns (Austin's Lectures, No. xxxi.), which, in the instance of the Lockeian theory of the origin of law in a social compact, scarcely conceals its Roman derivation.t Though the theory of Hobbes," says Sir Henry Maine," was partly devised to repudiate the reality of a law of nature, yet these two theories resemble each other strictly in their fundamental assumption of a non-historic, unverifiable condition of the human race, for the authors agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion, we cannot doubt, they borrowed, consciously or unconsciously, from the Romans." It is unnecessary to suggest further how, in its career from Plato's hazy conception of the dawn of society, it has passe i through phases wherein its principal features lay dormant under an enormous mass of empty declamation, as John Austin terms it; and that it again reared its head in a later age, when philosophers, forgetting or neglecting its original home, once more desired to stumble uron the beginning of legislation. It will be necessary to notice shortly how the indefiniteness of any theory on the origin of society is still more apparent in Aristotle's system of half empirical, half a-priori method of thought. In Book i. cap. 2 of the "Politics," he clearly traces society from its germ in a single family to the combination of many families, which was instituted for mutual and lasting advantages," and hence by the way,” he adds, "states were originally governed by kings, for "If a man wants to know the origin of states and societies, he should behold them from the point of view of time."-Laws, book iii. + Vide Maine's "Ancient Law," p. 114. they were composed of those who were always under kingly government, for every family is governed by the elder, as are its branches, on account of their relationship." In the same division of the work, however, we are told that" in the order of nature the state is prior to the family or individual;" and, in book iii., cap 15, a further passage occurs which is still more inconsistent with an historical belief in the Patriarchal Theory: " The reason that the first governments were generally monarchies was because it was difficult to find a number of persons eminently virtuous, more particularly as they dwelt in particular communities." And yet the period at which Aristotle lived was not so far separated from that stage of Grecian life which may be termed patriarchal, that no remnants of such a system existed as evidence to the historical observer. The laws of King Italus were still obtained during his time, and Dr. Mommsen thinks they may denote the institutions common to Græco-Italian life, when the association in communities of families under patriarchal chiefs contained the germ out of which the laws of both nations were moulded.* The tribal form of patriarchal life had not entirely died out, and here and there the ancient genealogical tribes existed side by si le with the more modern local tribes ;† and still Aristotle, with that peculiar knowledge of Grecian history for which, as before mentioned, he is so much lauded, fails to record the change-fails to recognise, in the contrast, an item of pure history, and in the older form, an argument for many of the points raised in his system of politics. We have to turn to a different source than historical or philosophical writings in ascertaining the Roman conception of Patriarchal authority. What Homer has done for the Greeks has been very imperfectly accomplished for the Romans, whose origin was veiled even from their own eyes ; though there are some glimpses of a possible national epic in the odes which used to be sung on festive occasions, in the houses of men of rank, in praise of the heroes from whom they claimed descent, which are alluded to by Cato in his treatise "Origines," and regretted by Cicero that they had become obsolete.§ The Romans sought for their history in Grecian mythology and Grecian genius ; but we are now coming upon an age when the lost works of Cato may be somewhat compensated for by modern researches into Roman archæology, and Roman history * "History of Rome," book i. cap. ii., vol. i. p. 26, of E. T. + Niebuhr's "Rome," vol. i., p. 262. E. T. Ortolan's "History of Roman Law," sect. ii. § Cicero, in Brutum, sect. 19. Ovid's Metamorphosis views the world unfolded through the mytho logical and ancient times down to the days of Julius Cæsar. And see Momm sen's Rome, book ii. cap. ix. Ill we put the Roman conception of the Pasion, al Theory & their leg å system. We can only see here its ley emoting the firm of its principal rello-the Pa Pos This important element in Roman law to a great extent angerseled the wi le machinery of modern criminal law, though the wie basis on whith Roman family law was forled is that it premla hoy, there is no trace of its or in ever having been sought for in the patriarchal primitiveness from which the nation hai descer lel. With its first introduction into written coles, we perceive also the commencement of its decay, but Lot a sign of its injustice or its arbitrary introduction into their system. The Twelve Tables make provision relating to the control of the father over his children-the right existing during their whole life to imprison, scourge, keep to rustic labour in chains, to sell or slay, even though they be in the enjoyment of high offices. By the side of this despotic rule, however, is a section (and it derives aditional authority from being an original fragment of the celebrate i code, which the preceding is not, stating that three consecutive sales of the son by the father releases the former from the patria potestas-si pater Alium ter rem duit, filius a patre liber esto.t Now, so completely is the origin of patria potestas obscured at the time of the Antonines, that Gaius affrms there is scarcely any other nation where fathers are invested with such power over their children as at Rome," although I am aware," he adds, "that among the Galatians parents are invested with power over their children." Sir Henry Maine observes upon this, that had he glanced across the Rhine or the Danube, to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen examples of patriarchal power in its crudest forms. But neither did his contemporaries, and amongst them the noble genius of Tacitus, perceive sufficient analogy to trace a common origin from a patriarchal commencent of tribal life, though, according to Professor Stubbs, it is on points of social and political organisation that our greatest debt to Tacitus is due. We owe to his historical taste a narrative which has supplied to modern scholars the place of a Pentateuch or Iliad and Odyssey; but his own country * Austin, lecture xliv. + Ortolan's History of Roman Law, sec. 119. 1 These are portions of the fourth table; but the first one is not included by Dr. Wordsworth in "Fragments and Specimens of Early Latin," p. 256. It is given in Ortolan's History of Roman Law, p. 107-Nasmith's translation. Institutes, i. 55. owed to his historical vision absolutely nothing, or much of the opposition and bitter hostility of Roman and barbarian might have been influenced by the softening power which is now exerting itself on Hindoo and Englishman. In passing from Roman to English history, it must not be supposed that we are passing from ancient to modern thought. The medieval age of the world stretches far down into European history, and the subject of this paper illustrates this conception of Bunsen very clearly. Moreover, a peculiar parallelism is observable in that, instead of tracing the evidence from the literature of the age, it is necessary to have recourse to the legal or political actions of the government, as they stand unrecorded except in the dry annals of official routine. The long series of chronicles, due chiefly to the Romish monks, give but very little elucidation of the course of early English historical life; and it would be an interesting chapter of English literature to trace the causes which may account for the late development of historical writing. England falls equally short with Greece and Rome in failing to perceive what was going on around her from a properly historical point of view. We meet this with peculiar significance in the treatment of Ireland by the English Government.* Sir Henry Maine, in his valuable work on Early Institutions, while noticing the invectives of Sir John Davis and the author of the "Faery Queene" against the "lewd" institutions of the Irish, claims that they were virtually the same institutions as those out of which "the just and honourable law" of England grew. In following the lectures of Professor O'Curry on Irish history, it is easily perceived that the whole basis claimed for Irish institutions, and more particularly those which roused the anger of the English ministers of Elizabeth, was derived from that system common to the whole Aryan peoplethe Patriarchal system. It is not found that the Irish claimed this for themselves, any more than Greece and Rome did of old. Though much of what might have remained had yielded to the raids and innovations of English conquerers, we find that, at a much earlier period of English history the same narrow view of historical evidences was taken as that in Elizabeth's reign. In 1277, King Edward I. wrote to his chief-justice in Ireland that 8000 marks were offered him to establish the English laws in that country; and that he consents to do it, because, says he, those which the Irish make use of are abominable in the sight of God and by consequence ought not to be deemed laws.† The English Justinian held a broad and states * Vide Dr. Sullivan's Introd. to O'Curry's Lectures on Ancient Irish, page clxxxiv., on the custom of gavelkind. + Vide Rymer's Foedera, ii., p. 78. |