Page:The early history of the property of married women.djvu/19

15 of it, because few are aware that the peculiarity in question serves as a sort of test by which we can distinguish very ancient or undeveloped from comparatively matured and developed law.

All beginners in law have heard of the difference between distributing an inheritance per stirpes and distributing it per capita. A man has two sons, one of whom has eight children, and the other two. The grandfather dies, his two sons having died before him, and the grandfather's property has to be divided between the grandchildren. If the division is per stirpes the stocks of the two sons will be kept separate, and one half of the inheritance will be distributed between the eight grandchildren, and the other half between the two. If the division is per capita the property will be equally divided between the whole ten grandchildren, share and share alike. Now the tendency of matured and developed law is to give a decided preference to distribution per stirpes; it is only with remote classes of relatives that it abandons the distinctions between the stocks and distributes the property per capita. But in this, as in several other particulars, very ancient and undeveloped law reverses the ideas of the modern jurist, and uniformly prefers distribution per capita, exactly equal division between all the surviving members of the family; and this is apparently on the principle that, all having been impartially subject to a despotism which knew no degrees, all ought to share equally on the dissolution of the community by the death of its chief. A preference for decision per stirpes, a minute care for the preservation of the stocks, is in fact very strong evidence of the growth of a respect for individual interests inside the family, distinct from the interests of the family group as a whole. This is why the place given to distribution per stirpes shows that a given system of law has undergone development, and it so happens that this place is very large in Hindoo law, which is extremely careful of the distinction between stocks, and maintains them through long lines of succession.

Let us now turn to the causes which in the Hindoo law, and in the great alternative Aryan system, the Roman law, have respectively led to the disengagement of the individual from the group. So far as regards the Roman institutions, we know that among the most powerful solvent influences were certain philosophical theories, of Greek origin, which had deep effect on the minds of the jurists, who guided the development of the law. The law, thus transformed by a doctrine which had its most distinct expression in the famous