CHAPTER 1. THE PROBABLE ORIGIN OF GOVERNMENT. 1. Nature of the Question.—The probable origin of government is a question of fact, to be settled, not by conjecture, but by history. Its answer is to be sought amidst such traces as remain to us of the history of primitive societies. Facts have come down to us from that early time in fragments, many of them having been revealed only by inference, and having been built together by the sagacious ingenuity of scholars much as complete skeletons have been reared by inspired naturalists in the light of the meager suggestions of only a fossil joint or two. As those fragments of primitive animals have been kept for us sealed up in the earth’s rocks, so fragments of primitive institutions have been preserved, embedded in the rocks of surviving law or custom, mixed up with the rubbish of accumulated tradition, crystallized in the organization of still savage tribes, or kept curiously in the museum of fact and rumor swept together by some ancient historian. Limited and perplexing as such means of re-constructing history may be, they repay patient comparison and analysis as richly as do the materials of the archaeologist and the philologian. The facts as to the origin and early history of government are at least as available as the facts concerning the growth and kinship of languages or the genesis and development of the arts and sciences. At any rate, such light as we can get from the knowledge of the infancy of society thus meagrely afforded us is better than that which might be derived from any a priori speculations founded upon our acquaintance with our modern selves, or from any fancies, how learnedly soever constructed, that we could weave as to the way in which history might plausibly be read backwards.

2. Races to be studied: the Aryans.— For purposes of widest comparison in tracing the development of government it would of course be desirable to include in a study of early society not only those Aryan and Semitic races which have played the chief parts in the history of the world, but also every primitive tribe, whether Hottentot or Iroquois, Finn or Turk, of whose institutions and development we know anything at all. Such a world-wide survey would be necessary to any induction which should claim to trace government in all its forms to a common archetype. But, practically, no such sweeping together of incongruous savage usage and tradition is needed to construct a safe text from which to study the governments that have grown and come to full flower in the political world to which we belong. In order to trace the lineage of the European and American governments which have constituted the order of social life for those stronger and nobler races which have made the most notable progress in civilization, it is essential to know the political history of the Greeks, the Latins, the Teutons, and the Celts principally, if not only, and the original political habits and ideas of the Aryan and Semitic races alone. The existing governments of Europe and America furnish the dominating types of today. To know other systems that are defeated or dead would aid only indirectly towards an understanding of those which are alive and triumphant, as the survived fittest.

3. Semitic and Turanian Instance. — Even Semitic institutions, indeed, must occupy only a secondary place in such inquiries. The main stocks of modern European forms of government are Aryan. The institutional history of Semitic or Turanian peoples is not so much part of the history of those governments as analogous to it in many of the earlier stages of development. Aryan, Semitic, and Turanian races alike seem to have passed at one period or another through similar forms of social organization. Each, consequently, furnishes illustrations in its history, and in those social customs and combinations which have most successfully survived the wreck of change, of probable early forms and possible successive stages of political life among the others. Aryan practice may often be freed from doubt by Semitic or Turanian instance; but it is Aryan practice we principally wish to know.

4. Government rested First upon Kinship.-What is known of the central nations of history clearly reveals the fact that social organization, and consequently government (which is the visible form of social organization), originated in kinship. The original bond of union and the original sanction for magisterial authority were one and the same thing, namely, real or feigned blood relationship. In other words, families were the primitive states. The original State was a Family. Historically the State of to-day may be regarded as in an important sense only an enlarged Family:’State’ is ’Family’; writ large.

5. Early History of the Family; was it originally Patriarchal?— The origin of government is, therefore, intimately connected with the early history of the family. But the conclusions to be drawn from what is known of the beginnings of the family unfortunately furnish matter for much modern difference of opinion. This difference of opinion may be definitely summed up in the two following contrasted views:

(1.) That the patriarchal family, to which the early history of the greater races runs back, and with which that history seems to begin, was the family in its original estate, the original, the true archaic family.

The patriarchal family is that in which descent is traced to a common male ancestor, through a direct male line, and in which the authority of rule vests in the eldest living male ascendant.

(2.)That the patriarchal family, which is acknowledged to be found in one stage or another of the development of almost every race, was a developed and comparatively late form of the family, and not its first form, having been evolved through various stages and varieties of polyandry (plurality of husbands) and of polygamy (plurality of wives) out of a possibly original state of promiscuity and utter confusion in the relations of the sexes and of consequent confusion in blood-relationship and in the government of offspring.

In brief, it is held on the one hand that the patriarchal family was the original family; and on the other, that it was not the original but a derived form, others of a less distinct organization preceding it.

6. The Evidence: India. — As has been intimated, the evidence upon which the first-named view is based is drawn chiefly from the history of what I have called the central races of the world,-those Aryan races, namely, which now dominate the continents of Europe and America, and which, besides fringing Africa with their intrusive settlements, have long since returned upon the East and reconquered much of their original home territory in Asia. In India the English have begun of late years to realize more fully than before that they are in the midst of fellow-Aryans whose stayed civilization and long-crystallized institutions have kept them back very near to their earliest social habits. In the caste system of India much of the most ancient law of the race, many of its most rudimentary conceptions of social relationships, have stuck fast, caught in a crust of immemorial observance. Many of the corners of India, besides, contain rude village-communities whose isolation, weakness, or inertia have delayed them still nearer the starting-point of social life. Among these belated Aryans all the plainer signs point to the patriarchal family as the family of their origin.

7. Slavonic Communities, Ancient Irish Law, and Old Teutonic Customs. — In Russia, in Dalmatia, and in Croatia there still survive Slavonic village-communities of a very primitive type which give equally unequivocal testimony of the patriarchal organization as the original order of their social life. Ancient Irish law says the same thing of the archaic forms of social organization among the Aryan Celts: that the patriarchal family was the first political unit of the race. And to these the antique Teutonic community, still to be seen through all the changes of history in England and on the continent, adds the testimony of many customs of land tenure and of communal solidarity founded upon a clear tradition of kinship derived from a common ancestor.

8. Greek and Roman Families.-Besides these comparatively modern evidences of survived law and custom, we have, as clearer evidence still, the undoubted social beginnings of Greek and Roman politics. They too originated, if history is to be taken at its most plainly written word, in the patriarchal family. Roman law, that prolific mother of modern legal idea and practice, has this descent from the time when the father of the family ruled as the king and high priest of his little state impressed upon every feature of it. Greek in-stitutions speak hardly less distinctly of a similar descent. These great classic Aryan stocks, at any rate, cannot be conclusively shown to have known any earlier form of social practice than that of the patriarchal family.

9. A Doubt. —Still, even Aryan institutions bear some obscure traces-traces of a possible early confusion in blood-relationships-which suggest a polity not patriarchal; and those who regard the patriarchal family as a comparatively late development point to these traces with the suggestion that they are possibly significant of the universal applicability of their own view as to the archaic types of society. Even where such traces are most distinct, however, in legend and custom, they are by no means so distinct as to necessitate a doubt as to the substantial correctness of the patriarchal theory. They are all susceptible of ex-planations which would sustain, or at least not impair, that theory.

10. The Non-Aryan Family.— All the really substantial evidence of the absence from early society of anything like definite forms of the family, based upon clear kinship such as is presupposed in the patriarchal theory, is drawn from what, from our present point of view, we may call the outlying races,-the non-Aryan races. Many of these races have remained stationary, evidently for centuries, in what, comparing their condition with our own, we call a savage state, in which there is good reason to believe that very early systems of social order have been perpetuated. In such cases evidences abound of the reckoning of kinship through mothers only, as if in matter-of-course doubt as to paternity; of consanguinity signified throughout the wide circle of a tribe, not by real or supposed common descent from a human ancestor, but by means of the fiction of common descent from some bird or beast, from which the tribe takes its name, as if for lack of any better means of determining common blood; of marriages of brothers with sisters, and of groups of men with groups of women, or of groups of men with some one woman. In the case of some of these tribes, moreover, among whom polygamy or even monogamy now exists, together with a patriarchal discipline, it is thought to be possible to trace clear indications of an evolution of these more civilized forms of family organization from earlier practices of loose multiple marriages or even still earlier promiscuity in the sexual relation.

It is thus that color of probability is given to the view that the patriarchal family, in these cases almost certainly, has in all cases possibly been developed from such originals.

11. Aryan Tradition.— These proofs, however, reach the Aryan races only by doubtful inference, through rare and obscure signs. No belief is more deeply fixed in the traditions of these stronger races than the belief of direct common descent, through males, from a common male ancestor, human or divine; and nothing could be more numerous or distinct than the traces inhering in the very heart of their polity of an original patriarchal organization of the family as the archetype of their political order.

12. From the Patriarchal Family to the State -The patriarchal family being taken, then, as the original political unit of these races, we have a sufficiently clear picture of the infancy of government. First there is the family ruled by the father as king and priest. There is no majority for the sons so long as their father lives. They may marry and have children, but they can have no entirely separate and independent authority during their father’s life save such as he suffers them to exercise. All that they possess, their lives even and the lives of those dependent upon them, are at the disposal of this absolute father-sovereign. The family broadens in time into the House, the gens, and over this too the chiefest kinsman rules. There are common religious rites and observances which the gens regards as symbolic of its unity as a composite family; and heads of houses exercise high representative and probably certain imperative magisterial functions by virtue of their position. Houses at length unite into tribes; and the chieftain is still hedged about by the sanctity of common kinship with the tribesmen whom he rules. He is, in theory at least, the chief kinsman, the kinsman in authority. Finally, tribes unite, and the ancient state emerges, with its king, the father and priest of his people.

13. Prepossessions to be put away.— In looking back to these first stages of political development, it is necessary to put away from the mind certain prepossessions which are both proper and legitimate to modern conceptions of government, but which could have found no place in primitive thought on the subject. It is not possible nowadays to understand the early history of institutions without thus first divesting the mind of many conceptions most natural and apparently most necessary to it. The centuries which separate us from the infancy of society separate us also, by the whole length of the history of human thought, from the ideas into which the fathers of the race were born; and nothing but a most credulous movement of the imagination can enable the student of today to throw himself back into those conceptions of social connection and authority in which government took its rise.

14. The State and the Land.-How is it possible, for instance, for the modern mind to conceive distinctly a traveling political organization, a state without territorial boundaries or the need of them, composed of persons, but associated with no fixed or certain habitat? And yet such were the early states,-nomadic groups, now and again hunting, fishing, or tending their herds by this or that particular river or upon this or that familiar mountain slope or in-land seashore, but never regarding themselves or regarded by their neighbors as finally identified with any definite territory. Historians have pointed out the abundant evidences of these facts that are to be found in the history of Europe no further back than the fifth century of our own era. The Franks came pouring into the Roman empire just because they had had no idea theretofore of being confined to any particular Frank-land. They left no France behind them at the sources of the Rhine; and their kings quitted those earlier seats of their race, not as kings of France, but as kings of the Franks. There were kings of the Franks when the territory now called Germany, as well as that now known as France, was in the possession of that imperious race: and they became kings of France only when, some centuries later, they had settled down to the unaccustomed habit of confining themselves to a single land. Drawn by the processes of feudalization (secs. 243, 253, 268, 269), sovereignty then found at last a local habitation and a new name.

15. The same was true of the other Germanic nations. They also had chiefs who were their chiefs, not the chiefs of their lands. There were kings of the English for many a year, even for several centuries after A.D. 449, before there was such a thing as a king of England. John, indeed, was the first officially to assume the latter title. From the first, it is true, social organization has everywhere tended to connect itself more and more intimately with the land from which each social group has drawn its sustenance. When the migratory life was over, especially, and the settled occupations of agriculture had brought men to a stand upon the land which they were leaning to till, political life, like all the other communal activities, came to be associated more and more directly with the land on which each community lived. But such a connection between lordship and land was a slowly developed notion, not a notion twin-born with the notion of government.

16. Modern definitions of a state always limit sovereignty to some definite land. “The State,” says Bluntschli, “is the politically organized people (Volkper-son) of a particular land” and all other authoritative writers similarly set distinct physical boundaries to the state. Such an idea would not have been intelligible to the first builders of government. They could not have understood why they might not move their whole people, “bag and baggage,” to other lands, or why, for the matter of that, they might not keep them moving their tents and possession unrestingly from place to place in perpetual migration, without in the least disturbing the integrity or even the administration of their infant `State.’ Each organized group of men had other means of knowing their unity than mere neighborhood to one another; other means of distinguishing themselves from similar groups of men than distance or the intervention of mountain or stream. The original governments were knit together by bonds closer than those of geography, more real than the bonds of mere contiguity. They were bound together by real or assumed kinship. They had a corporate existence which they regarded as inhering in their blood and as expressed in all their daily relations with each other. They lived together because of these relations; they were not related because they lived together.

17. Contract versus Status. — Scarcely less necessary to modern thought than the idea of territoriality as connected with the existence of a state, is the idea of contract as determining the relations of individuals. And yet this idea, too, must be put away if we would understand primitive society. In that society men were born into the station and the part they were to have throughout life, as they still are among the peoples who preserve their earliest conceptions of social order. This is known as the law of status. It is not a matter of choice or of voluntary arrangement in what relations men shall stand towards each other as individuals. He who is born a slave, let him remain a slave; the artisan, an artisan; the priest, a priest, is the command of the law of status. Excellency cannot avail to raise any man above his parentage; aptitude may operate only within the sphere of each man’s birthright. No man may lose caste without losing respectability also and forfeiting the protection of the law. Or, to go back to a less developed society, no son, however gifted, may lawfully break away from the authority of his father, however cruel or inca-pable that father may be; or make any alliance which will in the least degree draw him away from the family alliance and duty into which he was born. There is no thought of contract. Every man’s career is determined for him before his birth. His blood makes his life. To break away from one’s birth station, under such a system, is to make breach not only of social, but also of religious duty, and to bring upon oneself the curses of men and gods. Primitive society rested, not upon contract, but upon status. Status had to be broken through by some conscious or unconscious revolution before so much as the idea of contract could arise; and when that idea did arise, change and variety were assured. Change of the existing social order was the last thing of which the primitive state dreamed; and those races which allowed the rule of status to harden about their lives still stand where they stood a thousand years ago. “The leaving of men to have their careers determined by their efficiencies,” says Mr. Spencer, “we may call the principle of change in social organization.”

18. Theories concerning the Origin of the State: the Contract Theory.-Such views of primitive society furnish us with destructive dissolvents of certain theories once of almost universal vogue as to the origin of government. The most famous, and for our present purposes most important, of these theories is that which ascribes the origin of government to a social compact among primitive men.

The most notable names connected with this theory as used to account for the existence of political society are the names of Hooker, Hobbes, Locke, and Rousseau. It is to be found developed in Hooker’s Ecclesiastical Polity, Hobbes’ Leviathan, Locke’s Civil Government, and Rousseau’s The Social Contract.

This theory begins always with the assumption that there exists, outside of and above the laws of men, a Law of Nature.’ Hobbes conceived this Law to include “justice,” “equity,” “modesty,” “mercy”; “in sum,” doing to others as we would be done to.” All its chief commentators considered it the abstract standard to which human law should conform. Into this Law primitive men were born. It was binding upon their individual consciences; but those con-sciences were overwhelmed by individual pride, ambition, desire, and passion, which were strong enough to abrogate Nature’s Law. That Law, besides, did not bind men together. Its dictates, if obeyed, would indeed enable them to live tolerably with one another; but its dictates were not obeyed; and, even if they had been, would have furnished no permanent frame of civil government, inasmuch as it did not sanction magistracies, the setting of some men to be judges of the duty and conduct of other men, but left each conscience to command absolutely its possessor. In the language of the “judicious Hooker,” the laws of Nature “do bind men absolutely, even as they are men, although they have never any settled fellowship, never any solemn agreement, amongst themselves what to do or not to do; but forasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things needful for such a life as our Nature cloth desire, a life fit for the dignity of man, therefore to supply these defects and imperfections which are in us living single and solely by ourselves, we are naturally induced to seek communion and fellowship with others. This was the cause of men uniting themselves at first in politic societies.” In other words, the belligerent, non-social parts of man’s nature were originally too strong for this Law of Nature, and the “state of nature,” in which that Law, and only that Law, offered restraint to the selfish passions, became practically a state of war, and consequently intolerable. It was brought to an end in the only way in which such a condition of affairs could be brought to an end without mutual extermination, namely, by common consent, by men’s “agreeing together mutually to enter into one community and make one body politic.” (Locke.) This agreement meant submission to some one common authority, which should judge between man and man; the surrender on the part of each man of all rights antagonistic to the rights of others; forbearance and cooperation. Locke confidently affirmed “that all men are naturally in that state (a state, i.e., of nature), and remain so till, by their own consents, they make themselves members of some politic society.” It was only as the result of deliberate choice, in the presence of the possible alternative of continuing in this state of nature, that commonwealths, i.e., regularly constituted governments, came into being.

19. Traditions of an Original Law-giver. — Ancient tradition had another way of accounting for the origin of laws and institutions. The thought of almost every nation of antiquity went back to some single law-giver in whose hands their government had taken its essential and characteristic form, if not its beginning. There was a Moses in the background of many a history besides that of the Jews. In the East there was Menu; Crete had her Minos; Athens her Solon; Sparta her Lycurgus; Rome her Numa; England her Alfred. These names do not indeed in every instance stand so far back as the beginning of all government; but they do carry the mind back in al-most every case to the birth of nationalsystems, and suggest the over-shadowing influence of individual statesmen as the creative power in framing the greater combinations of politics. They bring the conception of conscious choice into the history of institutions. They look upon systems as made, rather than as developed.

20. Theory of the Divine Origin of the State.-Not altogether unlike these ancient conceptions of law-givers towering above other men in wisdom and au-thority, dominating political construction, and possibly inspired by divine suggestion, is that more modern idea which attributes human government to the immediate institution of God himself,to the direct mandate of the Creator. This theory has taken either the definite form of regarding human rulers as the direct vicegerents of God, or the vague form of regarding government as in some way given man as part of his original make-up.

21. The Theories and the Facts. -Modern research into the early history of mankind has made it possible to reconstruct, in outline, much of the thought and practice of primitive society, and has thus revealed facts which render it impossible for us to accept any of these views as adequately explaining what they pretend to explain. The defects of the social compact theory are too plain to need more than brief mention. That theory simply has no historical foundation. Status was the basis of primitive society: the individual counted for nothing; society-the family, the tribe-counted for everything. Government came, so to say, before the individual. There was, consequently, no place for contract, and yet this theory makes contract the first fact of social life. Such a contract as it imagines could not have stood unless supported by that reverence for law which is an altogether modern principle of action. The times in which government originated knew absolutely nothing of law as we conceive law. The only bond was kinship,-the common blood of the community; the only individuality was the individuality of the community as a whole. Man was merged in society. Without kinship there was no duty and no union. It was not by compounding rights, but by assuming kinship, that groups widened into states-not by contract, but by adoption. Not deliberate and reasoned respect for law, but habitual and instinctive respect for authority, held men together; and authority did not rest upon mutual agreement, but upon mutual subordination.

22. Of the theories of the origination of government in individual law-giving or in divine dictate, it is sufficient to say that the one exaggerates the part played by human choice, and the other the part played by man’s implanted instincts, in the formation and shaping of political society.

23. The Truth in the Theories.-Upon each of these theories, nevertheless, there evidently lies the shadow of a truth. Although government did not orig-inate in a deliberate contract, and although no system of law or of social order was ever made out of hand by any one man, government was not all a mere spontaneous growth. Deliberate choice has always played a part in its development. It was not, on the one hand, given to man ready-made by God, nor was it, on the other hand, a human contrivance. In its origin it was spon-taneous, natural, twin-born with man and the family; Aristotle was simply stating a fact when he said, “Man is by nature a political animal.” But, once having arisen, government was affected, and profoundly affected, by man’s choice; only that choice entered, not to originate, but to modify government.

24. Conclusion.-Viewed in the light of “the observed and recorded experience of mankind,” “the ground and origin of society is not a compact; that never existed in any known case, and never was a condition of obligation either in primitive or developed societies, either between subjects and sovereign, or between the equal members of a sovereign body. The true ground is the acceptance of conditions which came into existence by the sociability inherent in man, and were developed by man’s spontaneous search after convenience. The statement that while the constitution of man is the work of nature, that of the state is the work of art, is as misleading as the opposite statement that governments are not made, but grow. The truth lies between them, in such propositions as that institutions owe their existence and development to deliberate human effort, working in accordance with circumstances naturally fixed both in human character and in the external field of its activity.”