ut, through omitting to call in the assistance of
history, this analysis too often degenerates into an idle exercise of
curiosity, and is especially apt to incapacitate the inquirer for
comprehending states of society which differ considerably from that to
which he is accustomed. The mistake of judging the men of other
periods by the morality of our own day has its parallel in the mistake
of supposing that every wheel and bolt in the modern social machine
had its counterpart in more rudimentary societies. Such impressions
ramify very widely, and masque themselves very subtly, in historical
works written in the modern fashion; but I find the trace of their
presence in the domain of jurisprudence in the praise which is
frequently bestowed on the little apologue of Montesquieu concerning
the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes
were a people who systematically violated their Contracts, and so
perished utterly. If the story bears the moral which its author
intended, and is employed to expose an anti-social heresy by which
this century and the last have been threatened, it is most
unexceptionable; but if the inference be obtained from it that society
could not possibly hold together without attaching a sacredness to
promises and agreements which should be on something like a par with
the respect that is paid to them by a mature civilisation, it involves
an error so grave as to be fatal to all sound understanding of legal
history. The fact is that the Troglodytes have flourished and founded
powerful states with very small attention to the obligations of
Contract. The point which before all others has to be apprehended in
the constitution of primitive societies is that the individual creates
for himself few or no rights, and few or no duties. The rules which he
obeys are derived first from the station into which he is born, and
next from the imperative commands addressed to him by the chief of the
household of which he forms part. Such a system leaves the very
smallest room for Contract. The members of the same family (for so we
may interpret the evidence) are wholly incapable of contracting with
each other, and the family is entitled to disregard the engagements by
which any one of its subordinate members has attempted to bind it.
Family, it is true, may contract with family, chieftain with
chieftain, but the transaction is one of the same nature, and
encumbered by as many formalities, as the aliena