For this purpose I do not need to deal with the dim ages which ethnology just reveals to us—with the stone age, and the flint implements, and the refuse-heaps. The time to which I would go back is only that just before the dawn of history—coeval with the dawn, perhaps, it would be right to say—for the first historians saw such a state of society, though they saw other and more advanced states too: a period of which we have distinct descriptions from eye-witnesses, and of which the traces and consequences abound in the oldest law. 'The effect,' says Sir Henry Maine, the greatest of our living jurists—the only one, perhaps, whose writings are in keeping with our best philosophy—'of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory. There is no doubt, of course, that this theory was originally based on the Scriptural history of the Hebrew patriarchs in Lower Asia; but, as has been explained already, its connection with Scripture rather militated than otherwise against its reception as a complete theory, since the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against Hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records. Even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them, as forming part of the traditions of a Semitic people. It is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the Indo-European stock, the Romans, Hindoos, and Sclavonians supplying the greater part of it; and indeed the difficulty, at the present stage of the inquiry, is to know where to stop, to say of what races of men it is NOT allowable to lay down that the society in which they are united was originally organised on the patriarchal model. The chief lineaments of such a society, as collected from the early chapters in Genesis, I need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes its name from the debate between Locke and Filmer, they fill a whole chapter, though not a very profitable one, in English literature. The points which lie on the surface of the history are these:—The eldest male parent—the eldest ascendant—is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. The flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. A less obvious inference from the Scriptural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. The families of Jacob and Esau separate and form two nations; but the families of Jacob's children hold together and become a people. This looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of family relation.
'If I were attempting for the more special purposes of the jurist to express compendiously the characteristics, of the situation in which mankind disclose themselves at the dawn of their history, I should be satisfied to quote a few verses from the "Odyssee" of Homer:—
'"They have neither assemblies for consultation nor THEMISTES, but everyone exercises jurisdiction over his wives and his children, and they pay no regard to one another."' And this description of the beginnings of history is confirmed by what may be called the last lesson of prehistoric ethnology. Perhaps it is the most valuable, as it is clearly the most sure result of that science, that it has dispelled the dreams of other days as to a primitive high civilisation. History catches man as he emerges, from the patriarchal state: ethnology shows how he lived, grew, and improved in that state. The conclusive arguments against the imagined original civilisation are indeed plain to everyone. Nothing is more intelligible than a moral deterioration of mankind—nothing than an aesthetic degradation—nothing than a political degradation. But you cannot imagine mankind giving up the plain utensils of personal comfort, if they once knew them; still less can you imagine them giving up good weapons—say bows and arrows—if they once knew them. Yet if there were a primitive civilisation these things MUST have been forgotten, for tribes can be found in every degree of ignorance, and every grade of knowledge as to pottery, as to the metals, as to the means of comfort, as to the instruments of war. And what is more, these savages have not failed from stupidity; they are, in various degrees of originality, inventive about these matters. You cannot trace the roots of an old perfect system variously maimed and variously dying; you cannot find it, as you find the trace of the Latin language in the mediaeval dialects. On the contrary, you find it beginning—as new scientific discoveries and inventions now begin—here a little and there a little, the same thing half-done in various half-ways, and so as no one who knew the best way would ever have begun. An idea used to prevail that bows and arrows were the 'primitive weapons'—the weapons of universal savages; but modern science has made a table,3 and some savages have them and some have not, and some have substitutes of one sort and some have substitutes of another—several of these substitutes being like the 'boomerang,' so much more difficult to hit on or to use than the bow, as well as so much less effectual. And not only may the miscellaneous races of the world be justly described as being upon various edges of industrial civilisation, approaching it by various sides, and falling short of it in various particulars, but the moment they see the real thing they know how to use it as well, or better, than civilised man. The South American uses the horse which the European brought better than the European. Many races use the rifle—the especial and very complicated weapon of civilised man—better, upon an average, than he can use it. The savage with simple tools—tools he appreciates—is like a child, quick to learn, not like an old man, who has once forgotten and who cannot acquire again. Again, if there had been an excellent aboriginal civilisation in Australia and America, where, botanists and zoologists, ask, are its vestiges? If these savages did care to cultivate wheat, where is the wild wheat gone which their abandoned culture must have left? if they did give up using good domestic animals, what has become of the wild ones which would, according to all natural laws, have sprung up out of them? This much is certain, that the domestic animals of Europe have, since what may be called the discovery of the WORLD during the last hundred years, run up and down it. The English rat—not the pleasantest of our domestic creatures—has gone everywhere; to Australia, to New Zealand, to America: nothing but a complicated rat-miracle could ever root him out. Nor could a common force expel the horse from South America since the Spaniards took him thither; if we did not know the contrary we should suppose him a principal aboriginal animal. Where then, so to say, are the rats and horses of the primitive civilisation? Not only can we not find them, but zoological science tells us that they never existed, for the 'feebly pronounced,' the ineffectual, marsupials of Australia and New Zealand could never have survived a competition with better creatures, such as that by which they are now perishing. We catch then a first glimpse of patriarchal man, not with any industrial relics of a primitive civilisation, but with some gradually learnt knowledge of the simpler arts, with some tamed animals and some little knowledge of the course of nature as far as it tells upon the seasons and affects the condition of simple tribes. This is what, according to ethnology, we should expect the first historic man to be, and this is what we in fact find him. But what was his mind; how are we to describe that?