[290] Either, then, the Roman lawyers fell back upon the old traditions, or else the lawyers introduced the superstition of the law of nature, and then became victims to the superstition they had invented. In any case, the “belief” in “the lost code of nature gradually prevailed.” I am presently going to discuss with Sir H. Maine how far in the latter case such a belief is likely to have prevailed.
[291] Vide also Sir H. Maine, p. 77: “It is important, too, to observe that this model system, unlike many of those which have mocked men’s hopes in later days, was not entirely the product of imagination. It was never thought of as founded on quite untested principles. The notion was that it underlay existing law, and must be looked for through it. Its functions were, in short, remedial, not revolutionary or anarchical. And this unfortunately is the exact point at which the modern view of a law of nature has often ceased to resemble the ancient.”
[292] I shall consider that Dr Dyer has fairly reinstated a large portion of early Roman history until I see his arguments refuted. Without endorsing his opinion I may quote what Dr Dyer says (“Hist. of the City of Rome,” p. 27) in evidence of the admixture of the Sabine element:— “The importance of the Sabine element at Rome has not perhaps been sufficiently considered. The late M. Ampere has discussed the subject with great learning and ability in his interesting work, ‘L’Histoire Romaine à Rome.’ He remarks that not only did the Romans borrow from the Sabines almost all their religious and much of their political and social organisation, their customs, ceremonies, arms, &c., but also that the far greater part of the primitive population of Rome was Sabine, that most of the men who played a part in Roman history were of Sabine extraction, and that what is called the Latin tongue contains a strong infusion of Sabine elements.”
[293] Evidences of the Etruscan element are so marked, that Niebühr, in his first edition, asserted the Etruscan origin of the city. He subsequently, however, came to the conclusion that “there was so much in the Roman state that was peculiar to Rome and Latium, as to be incompatible with the supposition of Rome being an Etruscan colony.”—_Appendix to Travers Twiss’ Epitome of Niebühr._
[294] A federal union existed between the Roman people and the Latins in the reign of Servius Tullius (Niebühr, i. ch. xxv.) “The old Latin towns had retained their ancient rights, and the colonies, that together with them formed the Latin nation, had all received the full freedom of Rome, and had become municipia a full century before the Consul Junius Norbanus introduced the franchise of the Latin freedmen.... The towns on the north of the Po, inhabited by a mixed population of Italians and Celts speaking Latin,... were termed the ‘Lesser Latium.’... A law which regarded Latin citizens as foreigners, and applied to them the principle that the child follows the condition of the baser parent, can only have related to this inferior Latium.” (Niebühr, ii. ch. vi.)
[295] Vide also De Fresquet, “Droit Romain,” ii. 25–29.
[296] “The above table shows that before the separation of the Aryan race, every one of the degrees of affinity had received expression and sanction in language, for, although some spaces had to be left empty, the coincidences, such as they are, are sufficient to warrant one general conclusion.”—Vide table, Max Müller’s Essays, ii. p. 31.
Of course, I am speaking only of the actual affinity, not of laws of succession founded upon it. These must be controlled by other considerations, and by other natural rights, as, for instance, the right of testation or by reasons of State requiring hereditary succession and a Salic law, or by reasons of family compelling the agnatic rule as the only mode of preserving the ancestral domain to the family—a necessity which applies as stringently to small freeholds as to broad manors.
In illustration, I quote the following passage from the Rev. W. Smith’s “Pentateuch” (above referred to, ch. xiii., “Indirect internal evidence of Mosaic authorship,” vol. i. 307)—“As the journey (Exodus) proceeds so laws originate from the accidents of the way.... The laws regulating the succession to property furnish an example of the same kind. In Numbers xxvi. 32–36 it is ordained in accordance with patriarchal usage, that the family inheritance descend by the male line. But a case immediately turns up where there happens to be no male issue. Zelophahad had left no sons, but only daughters, and what was to become of the property? How was the succession to be regulated? To meet the case, Jehovah orders Moses to proclaim the law of Numbers xxvii. 8–11, in virtue of which daughters, in failure of sons, are to succeed. Shortly after, a new difficulty arises. As heiresses, the daughters of Zelophahad were now to have property of their own. But if they married out of their tribe, was the property to go with them? (Num. xxxvi. 1–9.) Such a condition would at once have upset the fundamental laws of inheritance. Hence, to avoid the evil, they are enjoined to marry within their own tribe; and a general law to the same effect is promulgated” (xxxvi. 8, 9).
[297] “We should know almost nothing about it (agnation) if we had only the compilations of Justinian to consult; but the discovery of the MS. of Gaius discloses it to us at a most interesting epoch, just when it had fallen into complete discredit, and was verging on extinction.”—Ancient Law, p. 153.