Now, I venture to think that the argument which may be drawn from the passage which I have quoted ought not lightly to be dismissed as a mere argumentum ad hominem.
Sir H. Maine says that the prætors early laid hold on cognation as the natural form of kinship. Either, then, they did this really detecting this principle as inhering in the natural law which was in tradition, or as detecting it as the “law common to all the nations known to the Romans.” In the latter case, it shows that, whereas cognation was common among the surrounding nations, agnation obtained among the Romans. The latter was therefore their peculiar institution, which sustains the argument which I have just put. If, on the contrary, they detected cognation underlying the institutions of all nations, and as part of their traditional law of nature, we cannot wish for a better and clearer instance of the natural law cropping up. And it is an instance, too, of the advantage at which those argue who have on their side the authority of Scripture, indicating the landmarks. Knowing that mankind sprang from a single pair, we can see that cognation must have been the law from the commencement: for it stands to reason that commencing with common ancestors the normal and natural mode would be to include all the relations according to degrees of descent, until there was some object in excluding them. With some political necessity or expediency for the limitation to males and the exclusion of females would agnation have commenced. If we require a case in point we have it in the relationship of Laban to Jacob. According to agnatic relationship they were second cousins, but according to cognatic relationship Laban was his maternal uncle, and such accordingly he is called in the sacred text (Gen. xxviii. 2). But in the seventh century before Christ, in the thickness of Paganism, men would scarcely have come to this conclusion, since they had apparently lost, as far as we know, the knowledge of their origin; although, as we have already seen, they retained dimly the tradition of many things of which they had forgotten the specific history. From the information we derive from Sir H. Maine, the memory of cognation, as the earliest and most natural scheme of kinship, must somehow have subsisted in tradition. It was not certainly in their power to verify the truth of the tradition as we can by a reference to revelation, and yet it would seem as if, having come to this conclusion, that it was almost within the grasp of human reason to have inferred from it the origin from a single pair, and thus to have recovered the knowledge they had lost from the tradition they had preserved.[296]
A few points in Sir H. Maine’s argument (supra, [p. 352]) remain to be noticed. I must take exception, for instance, to his averment “that what we respect and admire,” viz. “principles so universal,” the Roman “regarded with jealous dread.” “The parts of jurisprudence which he looked upon with affection, and the solemn gestures, &c., were the parts which a modern theorist leaves out of consideration,” for he seems to have recognised their justice, and allowed them to operate so effectually that his whole system of jurisprudence, which was originally based on agnatic kinship, came round to the principle of cognation.[297] In the process, and through the action so skilfully evolved and unfolded in Sir H. Maine’s pages, two principles, equally to our mind, were brought into gradual recollection, viz. the comity of nations and equality before the law. The “solemn gestures,” "the nicely-adjusted questions and answers of the verbal contract,“ "the endless formalities,” are at least in evidence of the tradition.
And this suggests a reflection upon the basis of Sir H. Maine’s argument, viz. that the Romans could only draw their induction from “the customs of the old Italian tribes, as these were all the nations whom the Romans had the means of observing.” Now, if we attach the weight which is due to Dr Newman’s remarkable view (vide supra) as to the course and confines of civilisation, we shall be, I think, struck with the fact that the two nationalities of Greece and Rome, which were destined to form its heart and centre, had as their common substratum a very peculiar people, whose characteristics exactly adapted them to retain traditions, and to carry out the scriptural saying about the people, “And they shall maintain the state of the world”—a people who were the first occupiers of the soil of Greece and Italy, and who, if not directly and historically, can through philology be traced back to the most primitive times;[298] a people tenacious of customs and traditions,[299] who were the guardians of the worship and tradition of the Dodonæan Jupiter,[300] and in possession of his shrine when the worship of Jupiter was only the thinly-disguised corruption of the worship of the true God;[301] a people to whom, according to Mr Gladstone, the Greek religion owed its sacerdotal and ceremonial development,[302] and who also inclines to the opinion, which has a more especial significance, and bearing on the present argument, that the Amphictyonic Council was a Pelasgian institution.
Now, let us consider this special significance of the Amphictyonic Council. On the one hand, it is attributed to Amphictyon, the son of Deucalion; on the other hand (as I shall presently show), we see the almost identical institution in Italy in contact with Roman law. What, then, was the Amphictyonic Council? Those who have written upon it appear to me to have endeavoured to regard it too much as a federation. Hence a double error. On the one side it was found that, instead of being a federation of all Greece, at most it was only a federation of twelve cities; it was further found that it had no external action, and that on occasions, as, e.g. the Persian war, in which the whole nation of Greece acted as one people, it made no appearance.[303] A feeling of disappointment necessarily supervened, and it was asked, if not a federation, what was it? On the other hand, although not a federation for the purposes of government or war, it would be an equal error to deny that it was a federation for certain purposes, more or less invisible to the eye, and which for such purposes retained sufficient vitality to assemble deputies twice a year, and during several centuries, for it is certain that it subsisted to the close of Grecian history, when, indeed, we are astonished to find that when faith in everything else had died out, belief in the Amphictyons again flickers into life. It is true that we know little, but the little that has transpired implies so much more. Were it not for a casual passage in a speech of Æschines, we should hardly have known more than of their existence. As it is, we are thrown back upon conjecture, and upon what we can recover indirectly from tradition. Now, if we suppose the Amphictyonic Council to have tradited down, and to have been a federation for the purposes of traditing down from primitive times, even in their rudimentary form, the rules and principles of the laws of nations, much that is strange and mysterious in its history will disappear.[304] It will at once account for its duration and prestige, in spite of its inactivity and merely passive existence, even supposing that it is reduced in our estimation to a sort of convocation, powerless for action, and merely keeping alive a tradition of the past. From this point of view, the fact of its merely being a federation of twelve States, which is generally adduced to reduce it to unimportance, taken in connection with another fact which I shall presently substantiate, really militates in favour of my argument. It shows that instead of being the one typical institution of the sort, it is only the one which stands out most prominently in history, and merely handed down a tradition which was common to many others. I have already alluded to the Latin league, through which, apparently, the Romans recovered their tradition of the law common to all nations. If all these isolated federations retained their tradition of a law common to all nations—although practically limited to the members of their own confederation—is it not at once in evidence of the action of the Dispersion and at the same time of a tradition anterior to the disruption? Without pretending to have gone over the ground necessary to present an exhaustive catalogue of such federations, I may present the following facts in evidence and illustration.
Outside the Amphictyonic union there were other federations, even within the confines of Greece itself:—
“Qui avoient le même caractère, et peut-étre un caractère plus intime d’association entre des etats voisins, pour honorer ensemble des dieux, ou pour se prêter, dans certains cas, un appui necessaire. Il s’en reunissoit une non loin de Trezime ou Argolide, une autre à Corinthe, une autre à Onchiste en Beotie; on en trouve de semblables encore dans plusieurs îles de la Grece, et dans les colonies de l’Asie Mineure.[305] Ces associations, au reste, ne seconderent pas moins la civilisation generale que n’auroit pu le faire un Amphictyonat universel.”—Pastoret, Hist. de la Legis., v. 27.
We find the same federations when we come to Italy:—
“Among the other works of Servius Tullius was a temple of Diana, which he erected on the Aventine, apparently near the present church of Sta. Prisca. This temple, in imitation of the Amphictyonic confederacy, was to be the common sanctuary and place of meeting for the cities belonging to the Latin league, of which Rome had become the chief through the conquest of Alba Longa; and her supremacy was tacitly acknowledged by the temple being erected with money contributed by the Latin cities. It is said to have been an imitation of the Artemisium, or temple of Diana at Ephesus. (Liv. i. 45; Dionys. iv. 26; Varro, L. L. v. § 43; Val. Max., vii. 3, § 1.) The brazen column containing the terms of the league, and the names of the cities belonging to it, was preserved in the time of Dionysius.”—Dyer’s Hist. of City of Rome, p. 51.
Compare this with Niebühr, Hist. ii. chap. ii. (Travers Twiss’ “Epitome.”)