第49章

The movement of the progressive societies has been uniform inone respect. Through all its course it has been distinguished bythe gradual dissolution of family dependency and the growth ofindividual obligation in its place. The Individual is steadilysubstituted for the Family, as the unit of which civil laws takeaccount. The advance has been accomplished at varying rates ofcelerity, and there are societies not absolutely stationary inwhich the collapse of the ancient organisation can only beperceived by careful study of the phenomena they present. But,whatever its pace, the change has not been subject to reaction orrecoil, and apparent retardations will be found to have beenoccasioned through the absorption of archaic ideas and customsfrom some entirely foreign source. Nor is it difficult to seewhat is the tie between man and man which replaces by degreesthose forms of reciprocity in rights and duties which have theirorigin in the Family. It is Contract. Starting, as from oneterminus of history, from a condition of society in which all therelations of Persons are summed up in the relations of Family, weseem to have steadily moved towards a phase of social order inwhich all these relations arise from the free agreement ofIndividuals. In Western Europe the progress achieved in thisdirection has been considerable. Thus the status of the Slave hasdisappeared -- it has been superseded by the contractual relationof the servant to his mater. The status of the Female underTutelage, if the tutelage be understood of persons other than herhusband, has also ceased to exist; from her coming of age to hermarriage all the relations she may form are relations ofcontract. So too the status of the Son under Power has no trueplace in law of modern European societies. If any civilobligation binds together the Parent and the child of full age,it is one to which only contract gives its legal validity Theapparent exceptions are exceptions of that stamp which illustratethe rule. The child before years of discretion, the orphan underguardianship, the adjudged lunatic, have all their capacities andincapacities regulated by the Law of Persons. But why? The reasonis differently expressed in the conventional language ofdifferent systems, but in substance it is stated to the sameeffect by all. The great majority of Jurists are constant to theprinciple that the classes of persons just mentioned are subjectto extrinsic control on the single ground that they do notpossess the faculty of forming a judgment on their own interests;in other words, that they are wanting in the first essential ofan engagement by Contract.

The word Status may be usefully employed to construct aformula expressing the law of progress thus indicated, which,whatever be its value, seems to me to be sufficientlyascertained. All the forms of Status taken notice of in the Lawof Persons were derived from, and to some extent are stillcoloured by, the powers and privileges anciently residing in theFamily. If then we employ Status, agreeably with the usage of thebest writers, to signify these personal conditions only, andavoid applying the term to such conditions as are the immediateor remote result of agreement, we may say that the movement ofthe progressive societies has hitherto been a movement fromStatus to Contract.

Ancient Law

by Henry Maine