in it has been transmuted, and the law with it. I suggest, therefore, that the Roman Equity had its beginning before legal history began, in a modified ancestor-worship and a change in the religious constitution and religious duties of the family. There are no ancient philosophies, and perhaps not many modern philosophies, which may not be suspected of having their roots in a religion. The Athenian law corresponds in some of its rules of collateral succession to the later rather than to the earlier Roman law, and here, too, I suggest that a change was produced by an alteration of religious ideas.

NOTES AND ILLUSTRATIONS.

NOTE A.

HINDU PATRIA POTESTAS.

It is possible that the ancient sacerdotal writers, besides being led by the dependent position of their order into denying the multiplication of religious observances through the dissolution of tribal and joint family groups, were also desirous that the period at which each household broke up into several families should not be delayed till the death of its head. Their expectation is that the faithful Hindu, the man twice born through the study of the Scriptures, will retire in advanced years from active life and become an ascetic or a hermit. There are a few texts which have been thought to imply that the sons of an aged father could compel his retirement. Gautama (xv. 19), while condemning such a practice, perhaps admits its existence. But, whatever be the meaning of these texts, I cannot allow that they lend any countenance to an opinion that sons could compel a partition of the family property at any time against the will of their father. I regard them as exclusively applying to the case of a father who has reached an age at which it has become a religious duty for him to abandon secular life. The fulness of the ancient Hindu Patria Potestas may be safely inferred from the veneration which even a living father must have inspired under a system of ancestor-worship.

At

a much later date the law-book of Manu declares that Three persons-a wife, a son, and a slave-are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong' (Manu, viii. 416). A still more recent, but still ancient, authority-Narada (v. 39)—says that a son is of age and independent in case his parents be dead; during their lifetime he is dependent, even though he be grown old.' And nowadays Mr. Nelson, speaking of the South of India, over which the crust of sacerdotal Hinduism is thin, describes the Patria Potestas, which he knows by observation, as the one great standing institution of the Hindu. 'It is the undoubted fact that among the so-called Hindus of the Madras province the father is looked upon by all at the present day as the Rajah or absolute sovereign of the family that depends upon him. He is entitled to reverence during life as he is to worship after his death. His word is law, to be obeyed without question or demur. He is really the master of the family,-of his wife, of his sons, of his slaves, and of his wealth' ('View of the Hindu Law,' p. 56). And, at p. 38, Resistance to the will of the father appears

monstrous.'

NOTE B.

POLYANDRY.

I SHOULD be sorry to have it supposed that I doubt the existence of Polyandry, and specially in the form of a plurality of husbands who were brothers, as an occasional practice of the ancient world. The muchdiscussed story, in the Mahabharata, of Draupadi becoming the wife of the five Pandavi princes may

be open to various interpretations (see Mayne's 'Hindu Law and Usage,' p. 52), but there is fairly good evidence (Polybius, xii. 7, 732, following Timæus) that the Spartans practised polyandry. What I doubt (with Mr. L. H. Morgan) is the importance of the place assigned by Mr. McLennan to polyandry in the evolution of society. It serves as a caution against being too much impressed by the antiquity of the Indian and Greek examples to be reminded that the President de Brosses accused the Venetian aristocracy of practising the polyandry of brothers in the early part of the eighteenth century ('Lettres Écrites d'Italie, tom. i. p. 157). The Spartan and Venetian aristocracies were both noted for their want of delicacy in sexual relations, and in both cases the cause of the practice seems to have been the levy of public taxation on separate households which did not come into existence without separate marriages. The usage seems to me one which circumstances overpowering morality and decency might at any time call into existence. It is known to have arisen in the native Indian army.

CHAPTER V.

ROYAL SUCCESSION AND THE SALIC LAW.

In the legal history of those Western societies which have passed through feudalism, Succession to Property and Succession to Thrones are intimately connected together. When Bruce and Baliol, with ten other competitors, conduct a litigation before Edward I. of England respecting the right to the Scottish Crown, the arguments are not distinguishable in principle from arguments on the inheritance of an ordinary fief, and in point of fact this famous dispute did settle some points in the law of succession to land all over the West. But the law systems of the East, which contain an elaborate law of succession to private property, contain little or nothing about succession to thrones. One reigning Mahommedan house, that of the Ottoman Sultans, has continued to our day a system of royal succession of the highest antiquity-that under which the eldest male relative is preferred in the succession to the son; but there is no clear connection between this rule and any part of the abundant private