Tenure of as a general thing, though by no means uni versally, was supposed to belong to the clan, and later more especially to the head of the clan—not individually, but as the representative of its interest. He was to hold it for the common benefit, and as many were to live on it as chose. From this came the law of primogeniture, and also the theory of the Turkish government that the sovereign is the owner of all the land in his realm. Possession by the village or community as a body, such as exists with the min- in Russia and with many communities in India, is but another branch of the same theory, only the title is not vested in an individual.
Where the extent of land was insufficient not only for the clan, but even for the family in its narrow sense, the opposite custom from primo g,reniture arose—that termed in Great Britain borough which the older sons were portioned off or went forth to seek their fortunes, and the real property passed intact to the youngest son. The latest great body of laws, the Code Naloleon, recognizes the rights of children to the property of their parents, and by forbidding the alienation of any large part of it to other hands acknowledges to some extent the correctness of the earlier theories of property as not wholly of the individual.
to social life, the definition of a law is "a rule of action," and it is a serious error to suppose that even the most barbarous community does not recognize many such rules. They are not the edicts of a master or a governing body, but the results of the necessary respect for each other's rights which have been dictated by social contact. They are the customs and habits, consmeludines el mores, of the community, and they vary with the particular needs of each tribe. To violate them is deemed contra bonos mores, against good habits, or immoral.
At the outset every civil law is of this character, and has a snfficient and recognized reason for its existence. But this condition could never last long. Two causes have been always at work in every community to establish an artificial and code of action, not necessary to the com mon welfare and often seriously opposed to it.
Preccdents.—One of these is the strength of habit and the weight of precedent in matters of custom. A law originally established for suffi cient cause continues to be enforced long after the circumstances which justified it have passed away. An instance in point is the surviving law
of primogeniture in some European countries, whose origin is explained above. At present it completely fails of its original purpose and works injustice to the children.
Religious second cause is the claim of religions to establish laws governing social relations. This extension of the religions sentiment into the domain of legislation has in many instances completely overridden all other agencies affecting the social compact. The laws of Mann in India, of Menes in Egypt, and of Minos in Crete (if, indeed, the three are not reminiscences of the same mythical culture-hero) were all handed down as the edicts of divinity itself deciding on the rights of persons. The Pentateuch was the " Book of the Law" governing the tribes' minutest social relations ; and at this day in all Mohammedan countries there is no other civil law than the divinely-inspired Koran and its commentaries.
The beginning of this condition of legislation is seen in the capricious and insensate taboo, or prohibition, which in the Pacific islands the priest would lay upon certain places, things, articles of diet, or persons. The natives fully believed that a violation of it would bring about instant death. Not less influential are the shamans of Siberia and the so-called " medicine-men " among the American Indians. Their commands were often wholly unreasonable and injurious to the tribe, but they were obeyed without questioning. Property was squandered, the tillage of the fields neglected, the virtue of women sacrificed, at their behests. Missionaries and travellers are nigh unanimous that their influ ence has been one of the most serious drawbacks to the development of the red race_ Whether in the Old or New World, the result has been the same when founders of religions or sects undertook to impose their own dreams or theories on their fellows as rules of action in affairs of daily life; and it is a necessary result. An artificial code of morality was established, differ ent and generally contradictory to that required by the circumstances of the community, and a long conflict arose, ending either in the gradual deterioration of the nation or in the subversion or insensible alteration of the religious code.