of
gentler manners, the civil law has something like its modern
precedence; but the relative amount of space given to the modes of
redressing wrong, though not enormous, appears to have been large. It
may be laid down, I think, that the more archaic the code, the fuller
and the minuter is its penal legislation. The phenomenon has often
been observed, and has been explained, no doubt to a great extent
correctly, by the violence habitual to the communities which for the
first time reduced their laws to writing. The legislator, it is said,
proportioned the divisions of his work to the frequency of a certain
class of incidents in barbarian life. I imagine, however, that this
account is not quite complete. It should be recollected that the
comparative barrenness of civil law in archaic collections is
consistent with those other characteristics of ancient jurisprudence
which have been discussed in this treatise. Nine-tenths of the civil
part of the law practised by civilised societies are made up of the
Law of Persons, of the Law of Property and of Inheritance, and of the
Law of Contract. But it is plain that all these provinces of
jurisprudence must shrink within narrower boundaries, the nearer we
make our approaches to the infancy of social brotherhood. The Law of
Persons, which is nothing else than the Law of Status, will be
restricted to the scantiest limits as long as all forms of status are
merged in common subjection to Paternal Power, as long as the Wife has
no rights against her Husband, the Son none against his Father, and
the infant Ward none against the Agnates who are his Guardians.
Similarly, the rules relating to Property and Succession can never be
plentiful, so long as land and goods devolve within the family, and,
if distributed at all, are distributed inside its circle. But the
greatest gap in ancient civil law will always be caused by the absence
of Contract, which some archaic codes do not mention at all, while
others significantly attest the immaturity of the moral notions on
which Contract depends by supplying its place with an elaborate
jurisprudence of Oaths. There are no corresponding reasons for the
poverty of penal law, and accordingly, even if it be hazardous to
pronounce that the childhood of nations is always a period of
ungoverned violence, we shall still be able to understand why the
modern relation of criminal law to civil should be inverted in ancient
codes.

I have spoken of primitive ju