Page:The early history of the property of married women.djvu/12

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lodged with some depositary or body of depositaries. When these communities become blended in the larger groups which are conveniently called political, the re-combination of ideas originally blended becomes infinitely more difficult, and, when successfully effected, is among the greatest achievements of historical insight. But I venture to say that, whether we look to that immortal system of village communities which became the Greek or Hellenic world—or to that famous group of village-communities on the Tiber, which, grown into a legislating empire, has influenced the destinies of mankind far more by altering their primitive customs than by conquering them—or to the marvellously complex societies to which we belong, and in which the influence of the primitive family and village notions still makes itself felt amid the mass of modern thought—still I venture to say, that one great secret for understanding these collections of men, is the reconstruction in the mind of ancient, general, and blended ideas by the re-combination of the modern special ideas which are their offshoots.

The next stage in the legal history of Roman civil marriage is marked by the contrivance, very familiar to students of Roman law, by which the process of "coming under the hand" was dispensed with, and the wife no longer became in law her husband's daughter. From very early times it would appear to have been possible to contract a legal marriage by merely establishing the existence of conjugal society. But the effect on the wife of continuous conjugal society was, in old Roman law, precisely the same as the effect on a man of continuous servile occupation in a Roman household. The institution called Usucapion, or (in modern times) Prescription, the acquisition of ownership by continuous possession, lay at the root of the ancient Roman law, whether of persons or of things; and, in the first case, the woman became the daughter of the chief of the house; in the last case the man became his slave. The legal result was only not the same in the two cases because the shades of power had now been discriminated, and paternal authority had become different from the lordship of the master over the slave. In order, however, that acquisition by Usucapion might be consummated, the possession must be continuous; there was no Usucapion where the possession had been interrupted—where, to use the technical phrase (which has had rather a distinguished history), there had been usurpation, the breaking of usus or enjoyment. It was possible, therefore, for the wife, by absent-