Chamber, is that one had its origin before the authority whence it sprang had been seriously questioned, while the other did not obtain an effectual jurisdiction till its time had gone by. The depth of discredit into which Star-Chamber justice fell marks the decline and fall of the King's beneficial influence over law. The royal judicial authority was once the most valuable and indeed the most indispensable of all reforming agencies, but at length its course was run, and in nearly all civilised societies its inheritance has devolved upon elective legislatures, themselves everywhere in the western world the children of the British Parliament.

CHAPTER VII.

THEORIES OF PRIMITIVE SOCIETY.

SOME years ago (in 1861) I published a work (on 'Ancient Law') which I described in the preface as having for its chief object to indicate some of the earliest ideas of mankind as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought.' It was not part of my object to determine the absolute origin of human society. I have written very few pages which have any bearing on the subject, and I must confess a certain distaste for inquiries which, when I have attempted to push them far, have always landed me in mudbanks and fog. The undertaking which I have followed in the work just mentioned, and in others, has been to trace the real, as opposed to the imaginary, or the arbitrarily assumed, history of the institutions of civilised men. When I began it, several years before 1861, the background was obscured and the route beyond a certain point obstructed by à priori theories based on the hypo

thesis of a law and state of Nature. In endeavouring to get past this barrier, I had occasion to point out the claims of the so-called Patriarchal theory of society to be considered a real historical theory; that is, as a theory giving an account upon rational evidence of primitive or very ancient social order. The Patriarchal theory is the theory of the origin of society in separate families, held together by the authority and protection of the eldest valid male ascendant; and, having dwelt on the peculiar importance of Roman law in investigations such as I was prosecuting, I insisted in a few pages of my book on the testimony to this theory supplied by the earliest records of Roman jurisprudence. We have not indeed knowledge of any working system of institutions in which the Family exactly corresponds to the primitive family assumed by the theory. The Roman law, as a working system, takes a view of Family and Kinship not very different from that accepted in modern societies, but we happen to have unusual facilities for ascertaining a very ancient condition of this law, and it is not possible to doubt that, when the law was in this state, the Family and the Kinship of which it took cognisance had for their basis the authority of the eldest male ascendant. Other bodies of old usage and legal rule, less perfectly known to us than the Roman from the scantiness or the inferior quality of their materials, seemed to me

to suggest that a Family organised on the Patriarchal model had been the near or remote antecedent of the

Family which they reflected. The Hindu law appeared to me to suggest this very strongly. So did Slavonian law, as far as it was known. Greek law seemed to point to the same conclusion, less distinctly yet not very obscurely; and, more doubtfully, the ancient law of the Teutonic races. The evidence appeared to me very much of the same kind and strength as that which convinces the comparative philologist that a number of words in different Aryan languages had a common ancestral form in a now unknown ancestral mother tongue; but I stated with some caution the opinion that, at that stage of the inquiry, the difficulty was to know where to stop and to say of what races of mankind it was not allowable to lay down that the society in which they were united was originally organised on the patriarchal model' ('Ancient Law,' 123). My book was published in 1861, and delivered as lectures in the four or five previous years, and it is needless to say that, since then, all this evidence has been added to, re-examined, and placed in new lights. We now can discern something of the real relation which the sacerdotal Hindu law bears to the true ancient law of the race. Slavonian law and usage, chiefly known in 1861 from the books of Haxthausen, is becoming a more trustworthy subject of study through the

labours of Prof. Bogišić. The earliest monuments of German law have been repeatedly fought over by earnest controversialists, with no very certain result. The Irish Brehon law, once inaccessible, is gradually becoming known to students of archæology. Still, if the inquiry were to be confined to the ancient institutions of the group of societies which I examined more than twenty years ago, I should maintain the conclusions which I reached, subject only to some qualifications which are suggested in the first four chapters of the present work. But much testimony of an altogether new kind has been obtained, since I wrote, from the ideas and usages of societies which live in a condition of barbarism or savagery, and the two zealous inquirers, now lost to us, J. F. McLennan and L. H. Morgan, who have put this testimony into order, have been led by it to form opinions on the primitive or very early condition of human society which they themselves at all events consider to be quite inconsistent with the Patriarchal theory. I am desirous of stating in what light I see these new facts and theories, and of showing at the same time that I have not neglected the friendly challenge to examine them which Mr. J. F. McLennan addressed to me in the preface to his 'Studies in Ancient History.' I trust that the general considerations to which I have been conducted may obtain some attention from persons more versed than I am in this special line of