in general history the necessity for reconstruction appears in the history of law. Law is a secondary phenomenon, and is itself the result of remoter antecedents. It follows, therefore, that, in the words of Sir H. S. Maine, "Nothing in law springs entirely from a sense of convenience."[1] In law, above all things, we must leave the streams and seek the sources. It is not long since it was thought to be a sufficient explanation of any legal peculiarity to refer it to the feudal system; and the feudal system has to answer for many an error, and much perplexity, in original inquiries into archaic society, and sometimes for more serious and practical inconveniences. It is now clear that we must go a long way behind feudalism, and that the so-called feudal analogies among (for example) the Rajpúts and the Afghans are altogether delusive. To these earlier social forms many branches of our law and our institutions may readily be traced. The development of the village, or assemblage of dwellings, gave the πόλις, or City State. The development of the arable mark gave the Indian and the Slav village communities. The development of the pastoral mark explains many peculiarities of the Keltic clan. The Comitatus is merely an enlargement of the household. The law of allegiance, the law of the precinct, the law of the peace, were all consequences of the Comitatus. They marked the authority of the House Father, whether personal, or local, or guaranteed. The various associations, whether for religious, or industrial, or professional purposes, pre-suppose and imitate the archaic forms of society. And these forms, and the modes of thought to which they give rise, alone explain the old disputes between the nobles and the plebeians, the nature of the tyrannies, and much else that is perplexing in the law and the government of antiquity.
- ↑ "Ancient Law," p. 233.
