e fiction of adoption
as so closely simulating the reality of kinship that neither law nor
opinion makes the slightest difference between a real and an adoptive
connection. On the other hand, the persons theoretically amalgamated
into a family by their common descent are practically held together by
common obedience to their highest living ascendant, the father,
grandfather, or great-grandfather. The patriarchal authority of a
chieftain is as necessary an ingredient in the notion of the family
group as the fact (or assumed fact) of its having sprung from his
loins; and hence we must understand that if there be any persons who,
however truly included in the brotherhood by virtue of their
blood-relationship, have nevertheless _de facto_ withdrawn themselves
from the empire of its ruler, they are always, in the beginnings of
law, considered as lost to the family. It is this patriarchal
aggregate--the modern family thus cut down on one side and extended on
the other--which meets us on the threshold of primitive jurisprudence.
Older probably than the State, the Tribe, and the House, it left
traces of itself on private law long after the House and the Tribe had
been forgotten, and long after consanguinity had ceased to be
associated with the composition of States. It will be found to have
stamped itself on all the great departments of jurisprudence, and may
be detected, I think, as the true source of many of their most
important and most durable characteristics. At the outset, the
peculiarities of law in its most ancient state lead us irresistibly to
the conclusion that it took precisely the same view of the family
group which is taken of individual men by the systems of rights and
duties now prevalent throughout Europe. There are societies open to
our observation at this very moment whose laws and usages can scarcely
be explained unless they are supposed never to have emerged from this
primitive condition; but in communities more fortunately circumstanced
the fabric of jurisprudence fell gradually to pieces, and if we
carefully observe the disintegration we shall perceive that it took
place principally in those portions of each system which were most
deeply affected by the primitive conception of the family. In one
all-important instance, that of the Roman law, the change was effected
so slowly, that from epoch to epoch we can observe the line and
direction which it followed, and can even give some idea of the
ultimate resul