cu. xviii.] THE EVOLUTION OF SOCIETY. 221 



change of one form of servitude for another. No transfer of 

 property was valid, unless the persons conducting it swore 

 in the name of some ancestor, — dead ages ago, it might be ; 

 for so absolute was the authority of iha paterfamilias that it 

 could not be conceived as departing from him at death, but 

 must be exercised by him, through the medium of prescrip- 

 tive ceremonial, over whole generations to come. Nothing, 

 in short, was regulated by contract, but everything was deter- 

 mined by status} And this is the fact which irretrievably 

 demolislies Eousseau's theory that social aggregation is due to 

 a primitive compact. That tlieory is merely an illegitimate 

 attempt to explain an ancient phenomenon by causes which 

 have had only a modern existence.^ The member of a pri- 

 mitive tribal community had no conception of contract; what 

 he was born to do, belonged to his status ; and that he must 

 do. The prevalence of this state of things in the empires of 

 the East is chief among many converging proofs that those 

 nations are nothing but immense tribes, or aggregates of the 

 first order. 



With the rise of higher aggregates, such as states, civic or 

 imperial, this sinking of the individual in the corporate 

 existence still for some time continued. The rights and 

 duties of the individual were still unrecognized, save in so far 

 as tliey followed from the status in which he happened to be 

 placed. In republican Eome, and in the Hellenic commu- 

 nities, the well'are of the citizen was universally postponed 

 to the weKare of the state. But circumstances too compli- 

 cated to be here detailed, of which the chief symptom was 

 the increasing importance assigned by lioman jurisprudence 

 to contracts, resulted, at an advanced period of the empire, 



* This term is well defined by Heineccius : — " Status est qualitaa cnjns 

 ratione homines diverso jure utuntur. . . Alio jure utitur liber homo ; alio 

 lervus ; alio civis , alio perei^rinus." Recitationes, lib. i. tit. 3. 



3 See the discu.ssiou of the docrrine in Austin, Province of Jurispnidenat, 

 pp. 331 — 371 ; Kant, Rcchtslehre, Th. ii., Absehn. Lj StaUl, Philosofkie dst 

 Rechts, vL 142 ; Maine, Ancieni Law^ chap. It 



