118 The Evolution of Law. 



instrument for the modification and improvement of law- 

 is Fiction. Old law, particularly Roman and English, is 

 full of these devices. 



One of them had a great influence, civil and social, in 

 ancient time, and has left its traces in many parts of 

 modern law. In Palestine, India, Greece, and Kome, there 

 was nothing of so much social and civil importance as that 

 the integrity of the family should continue unbroken after 

 the death of the father. He was its head and lord ; and 

 more, for he was household priest. He alone could law- 

 fully conduct the rites of ancestral worship. Any inter- 

 ruption of sacred rites was fatal in its consequences. 

 When the father died, his office immediately passed to the 

 oldest male descendant. In those days of private feud 

 and tribal conflict, when men fought like kites and crows, 

 it was likely to happen that all the males in a family 

 would perish. But the worship of ancestors mvist be kept 

 up without a day's interruption. Some remedy must be 

 devised. There was no thought of any out of the exact 

 line of the old ceremonial. The law was that the duty 

 could not be delegated ; it must fall upon the oldest male 

 descendant. But there was none. The problem was solved 

 by the formal adoption of a stranger as son, who immedi- 

 ately became such, not only by law, but also in the 

 regard of the family and in the opinion of the community. 

 Headship could not descend to a female. From this rule 

 of exclusive devolution of the paternal power to a male 

 is derived a great part of the modern law which deter- 

 mines the course which the property of an intestate shall 

 follow, and also the legal relations of husband and father 

 to w^ife and children. 



The fiction of adoption was extended to other trans- 

 actions. The strict rule of ancient law did not permit a 

 man to sell his laud or to devise it by will. He held land 

 and goods as trustee for his family, to the end that it 

 might not perish out of the land. Private ownership with 

 right to sell is an incident of advanced law. Of course, 

 with change of conditions as time goes on, this rule be- 

 comes inconvenient. The public begin to regard it first 

 as inconvenient, then as unjust, at last as not to be endured. 

 Then public opinion begins its influence ui)on the magis- 

 trates. But there is no thought of changing the old law 

 imposed by the ancestral gods which declares that prop- 



