The Germ of the State

“The State is an organism.” The words flow glibly from the tongue, but do we clearly know what we mean by the State? Among the lower forms of animal life we are at a loss to know whether to regard certain organisms, such, for example, as sponges, as individuals or as aggregations of individuals. But among the higher forms of life we have no difficulty. The animals best known to us are practically bounded by their skins, and it is very seldom that a question of individuation arises of any importance, though doubts have been expressed both in modern and ancient Courts of Justice as to whether the purchaser of a mare in foal is ipso facto the owner of the foal.

In the vegetable kingdom the difficulties of individuation are considerably greater; if the rose-​tree is an individual, what shall we say to the rose? Consider the growth of the strawberry, and of the banyan, which sends down roots from its branches to strike into the ground and themselves become trunks. One such tree, if it can be called one tree, has been known to measure more than five hundred yards in circumference round the trunks. Some would call the growth a single tree, and others would describe it as a grove of trees.

Social organisms in this respect more nearly resemble vegetable than animal forms. It is difficult to define and demarcate the individual. Those who have not reflected upon this difficulty may readily realise it by trying to group the following under the heads of individual states and parts of states—Canada, Egypt, Servia, Hungary, Ireland, Germany, Sweden, Ohio, Poland, Wales. But if, on the one hand, there is difficulty in deciding in certain cases, in other cases, on the other hand, there is no difficulty whatever. No one will pretend that Yorkshire and Lancashire are two different and separate states. We all know the meaning of France, though we might find some difficulty in denning even that very precisely about the eastern boundary. Now, without attempting to define exactly the term State, or to follow Austin in his exhaustive inquiry into the question, let us take it for granted that in the main we understand pretty clearly what we mean by the term. Just as we know, in spite of the puzzles of individuation, that there are such individual things as oak-​trees, so we know that there are such individual things as states. And let us trace the natural history of states from their first appearance on the planet.

And first, as to their origin. The germ of the State must of course be looked for and found in that phase of social development known as complete savagery; and I would venture to say that the very first state which ever existed was a human family consisting of a mother and her offspring. With all deference to sociologists, the family is a state and the earliest form of state. By “state,” I mean not a mere aggregation of men, but a growth, a social organism. The laws which govern the structure of the earliest form of state must be pre-​social and therefore biological. These are the laws which underlie all political laws, and from which all political laws take their origin. It may safely be said that all the laws, the complicated laws of civilised nations, conflicting as they seem to us at the present day, are the lineal descendants of filial obedience and parental affection.

And next, as to the growth of states. The family, as such, doubtless existed for a very long period without any tendency towards coalescence, but in course of time we find these families drawn together in little groups and loosely compounded under a single head. Whether this aggregation was originally due to conscious combination for purposes of mutual defence and other advantages, or whether it was simply a clannish extension of the family following upon paternal recognition of offspring, and the consequent continuation of the family life during the lifetime of the head of the family, is a question for which there is neither the time nor the need in this place. All that it behooves us to note here is that in process of time we find the family consisting, not as among the lower animals of the mother and her offspring alone, but of the father together with his wives and all their children, many of whom are themselves fathers of families. In addition to these members of the family there were others who for various reasons were admitted into it….Later still, we find larger families whose original head is no longer living, though there is no doubt that the sub-​families composing it are apparently and professedly connected by blood. Whether the paterfamilias was as a rule the head of the senior family, or, as appears to have certainly been the case in some places, the youngest son of the deceased patriarch, or whether it was some other person elected or nominated or otherwise fixed upon, does not concern us here. The compound family existed, and we may call it a Gens or a Curia, or by any other name for which there is any warrant. Whoever the paterfamilias might be, there is something artificial in obedience to a brother as compared with filial obedience, which goes far to show that the compounding and continued adhesion of these houses was a conscious and deliberate act of which the motive was the advantage (of one sort or another) derived from co-​operation.

Finally, these families and houses are found aggregated into what is called a tribe. And still later, as we sail down the stream of history we see these tribes themselves beginning to confederate. The interests which the tribes had in common, though not so deep-​rooted or important as those which were peculiar to the members of the several tribes, were nevertheless an ever-​increasing quantity. Probably the earliest trustworthy records of intertribal action are the historical references to the Greek Amphictyonic Councils. These Amphictyones were councils of the tribes and not of the states. The tribes, no matter how great or how small their individual importance, had all an equal vote. Not even Athens or Sparta counted for more than one. And we see the same process going on in early Roman history. Whether the Comitia Curiata was originally anything more than a periodic gathering of the elders under the old paternal roof (curia), or whether it was an expressly invented institution for the management of tribal affairs, cannot be positively stated (I incline to the former view), but there can be no doubt from the name and from the ceremonies associated with the institution that it dates back from a period when the “Kurios” himself ruled the Gens, and likely enough under that designation. Curiously enough, the Amphictyones were concerned not only with the foreign affairs of tribes federated for offensive or defensive alliance, but also with the worship of the deceased common ancestor. As time wore on, these somewhat loose federations became more and more welded into a compact whole or nation. And this is the highest social aggregate with which we are as yet fully acquainted. Into the actual causes of these successive compoundings and recompoundings we have no time to inquire here. They are to be found set forth in Mr. H. Spencer’s Principles of Sociology.

Pari pesse with this compounding and recompounding of social groups a transformation necessarily takes place in judicial procedure. The despotism of the paterfamilias continues to obtain recognition inside the family, whereas transactions between members of different families or between families…are regulated in accordance with the laws of the Gens. Similarly, when the Houses become federated, a higher system of law governs the dealings between them. Some of the differences in procedure survive to a very late period in history, and prove a mystery and a stumbling-​block to jurists and historians. For example, the Romans recognised a distinction between res mancipi and res nee mancipi, a distinction based solely on the mode of transfer required by law. The line of cleavage was in no wise coincident with the line of cleavage between our real and personal property. Slaves, oxen, horses, and certain other chattels, fall into the category of res mancipi, together with laud and houses. May not ploughs be added to the list? Jurists have sought in vain to discover something common and peculiar to the members of this class, the true explanation being that whereas res nee mancipi were transferred according to the rules of the smaller group, res mancipi, on the other hand, were transferred by means of the process required by the law of the compound group. And for this reason: individual members of a family were in the habit of exchanging, bartering, and selling such things as spears, bows, shields, and the like, but not land and herds, which were held in common by the family, or by the head of the family, for the common good. Hence, when houses, acres, and flocks came to be the subject of dealings between family and family, it was necessary that the dealings should satisfy the requirements of the wider jurisprudence. Nor is it difficult to see that a more solemn and involved ceremonial would tend to develop itself in transfers from one family to another. Simple delivery in the presence of the patriarch or other responsible witnesses would be sufficient evidence as to the ownership of a shield or spear amongst members of the same family. The transaction would be sufficiently notorious. The thing would change hands, and words would be used indicative of the animus of the parties. But in the case of interfamily transactions much more would be needed. Not only are the things in which families would deal unfit for delivery from hand to hand (as, for example, a flock of sheep or a range of pasture), but, furthermore, the representative of the State (of the group-​force) is not present embodied in a single person ready to take note of the transaction. It is necessary either to convene those who in assembly represent the will of the federated families, or to perform such ceremonies as can leave no room for doubt as to the fact and the nature of the transaction. In Rome these ceremonies took the form of mancipation. We ourselves can recall the beatings of boundaries and the thrashing of younger children, and sometimes of the parson, which took place at the chief landmarks.

Similarly, when tribes had already become welded into fairly homogeneous states, and were on the point of still further federating into larger nations, we find a new conflict of jurisdictions and of legal systems. Probably a like explanation may be given of the Roman division of law into “Jus personarum” and “Jus rerum,” the former being the law of the smaller and earlier group, and the latter the law of the compound aggregate. It is unnecessary here to go into the history of the prætorian edict. It is sufficient to note that at the time of the remarkable integration known as the growth of the Roman Empire, the civil law was found unsuitable and inapplicable to the dealings between Roman citizens and members of surrounding states. Hence the “Jus Gentium” or law of the new federation, as opposed to the law of the chief component state. Whether this new jurisprudence came into existence through a process of extracting that which was common to the races and peoples making up the new aggregate; or whether it was based (as some alleged) on the law of nature, i.e. abstract justice as it presented itself to the conscience of successive prætors; or whether it grew up in some other way, matters not here; what is needful to be noted is this, that on the recompounding of the states, each with its own body of law, a new and more widely based legal system arose, which conflicted with and eventually tended to absorb the legal systems of the component states. The same process is at work amongst us at the present day. Nations and wide empires are themselves beginning loosely to aggregate and to become more or less federated. The legal systems of the several states are inapplicable to the dealings between members of such several states; and the outcome of the striving after order and amicable arrangement is what is known as international private law. If any body of rules on the face of the earth presents the appearance of being based on equity pure and simple, surely it is this body of rules recognised by civilised nations as governing the dealings of members of different countries one with another. The principles underlying these laws will doubtless tend in time to swallow up the principles upon which are based the laws peculiar to the separate nations. Thus international law may be regarded as a foreshadowing of—

Thus the international private law of to-​day bears the same relation to English or French law as the “Jus Gentium” of old bore to the Roman civil law or the Corpora Juris of Greek and African states; the same relation again which the “Jus Gentilitium” bore to the patriarchal law which preceded it.

History presents a picture of ever-​increasing political integration. First, the only political unit is the group consisting of a mother and her offspring; then on the recognition of paternity we enter upon the patriarchal stage, in which the unit consists of the descendants of a living male together with his wives and slaves; the whole despotically governed by himself. Next we have clans or houses consisting of federated families descended from a common deceased ancestor, having a common name and worship and held together by common interests which tend to wax stronger and stronger. These gentes again tend to be recompounded in one or more degrees till we have the tribe and eventually the nation. Finally, nations are themselves showing signs of coalescence. At first the bonds which hold together the new federation are extremely slight and frail; but they tend to strengthen until the individuality of the component groups is almost, if not altogether, merged and lost. And concurrently with the political integration there necessarily goes a juridical integration.

Frequently the new federation has proved itself unstable and premature, and has rapidly or gradually disintegrated. Nature places a limit on the process. We have seen the Macedonian Empire no sooner built up than falling to pieces again. So too the Roman Empire, after some centuries of a cumbrous and elephantine existence, broke up into fragments which proved to have more vitality than the great whole from which they were detached. Clearly there is a limit to the size of a state ruled by a single government. Now what is the law of the limit of political integration? In biology the limit of mass of any living organism depends on the power of co-​ordination; that is to say, any part of the body being affected the whole must respond; otherwise it is not an organic whole, but a mere aggregate. The same holds good of social organisms. The size of such organism depends on its power of internal co-​ordination. But as time wears on, the possibilities of integration are increased. We have better means of communication both in the way of locomotion and signalling. We have increased general knowledge, and more widely distributed information. And finally, we have the coming together of large masses of the population in towns. Hence, there has resulted a constant tendency towards increasing integration. Men can work together in larger numbers century by century. At the same time it behooves us to inquire whether the aggregations we see around us are themselves stable, or whether they are too large for equilibrium.