130 The Evolution of Law. 



When the State at last interfered it did no more than to 

 compel the tribe of the injured man to accept a money 

 compensation. 



A notable generalization of comparative law has been 

 expressed by Maine, in a significant sentence : " The move- 

 ''ment of progressive Societies has been from Status to 

 " Contract." In ancient communities State law does not 

 reacli the individual : it deals only with family relations. 

 The individual was absolutely subject in life, person, and 

 earnings, to the head of the family, no matter how old he 

 might be. He had no personal rights; if injured he 

 could not recover damages ; his family must prosecute, and 

 received the damages ; if he injured a member of another 

 family, his own settled by the payment of a fine. He was 

 not a legal unit, or even a legal fraction ; he was an abso- 

 lute zero. It followed that in a political and a legal point 

 of view his condition was that of status, determined by 

 family and tribe, with no element of individuality in it. 

 He had no legal free-will, so could not bind himself by a 

 promise; and therefore could not make a contract. As 

 he had no legal free-will, his legal status, of whatever sort, 

 could not be changed by his own act. When contract 

 seems to be first enforced by law it is not for the reason of 

 the English law, that there has been some consideration ; 

 or for that of the Roman law, that it is equitable that 

 a man shall be bound by his promise but it was en- 

 forced because some public State ceremonial had been per- 

 formed in which certain formalities in act and formulas in 

 words had been followed with exactness ; then the promisor 

 was bound, even if his promise had been obtained by fraud 

 or force. In the early stage of development of contract, 

 an agreement could not be made binding by private consent 

 or action alone. The State must give its sanction in some 

 ceremonial. Even to-day, in some of the Indian provinces, 

 a contract is not considered binding by the natives until it 

 has been confirmed by the courts, representing the State. 



At last, with help of Fiction, Equity and Legislation, 

 the old patria 2>otestas has almost died out of Western 

 law. Status has passed to Contract; and the riglit of men 

 and women too to be their own masters, and to ex- 

 tend the spliere of the action of their will over things by 

 private owership, and over persons by contract, is forever 

 assured. 



