Folkways. William Graham Sumner
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Persistency in spite of change of religion. Matthews saw votive effigies in Mandan villages just like those which Catlin had seen and put into his pictures seventy years before.90 In the meantime the Mandans had been nearly exterminated by war and disease, and the remnant of them had been civilized and Christianized. The mores of the Central American Indians inculcate moderation and restraint. Their ancient religion contained prescriptions of that character, and those prescriptions are still followed after centuries of life under Christianity.91 In the Bible we may see the strife between old mores and a new religious system two or three times repeated. The so-called Mosaic system superseded an older system of mores common, as it appears, to all the Semites of western Asia. The prophets preached a reform of the Jahveh religion and we find them at war with the inherited mores.92 The most striking feature of the story of the prophets is their antagonism to the mores which the people would not give up. Monotheism was not established until after the captivity.93 The recurrence, vitality, popularity, and pervasiveness of traditional mores are well shown in the Bible story. The result was a combination of ritual monotheism with survivals of ancient mores and a popular religion in which demonism was one of the predominant elements. The New Testament represents a new revival and reform of the religion. The Jews to this day show the persistency of ancient mores. Christianity was a new adjustment of both heathen and Jewish mores to a new religious system. The popular religion once more turned out to be a grand revival of demonism. The masses retained their mores with little change. The mores overruled the religion. Therefore Jewish Christians and heathen Christians remained distinguishable for centuries. The Romans never could stamp out the child sacrifices of the Carthaginians.94 The Roman law was an embodiment of all the art of living and the mores of the Roman people. It differed from the mores of the German peoples, and when by the religion the Roman system was brought to German people conflict was produced. In fact, it may be said that the process of remolding German mores by the Roman law never was completed,95 and that now the German mores have risen against the Roman law and have accepted out of it only what has been freely and rationally selected. Marriage amongst the German nations was a domestic and family function. Even after the hierocratic system was firmly established, it was centuries before the ecclesiastics could make marriage a clerical function.96 In the usages of German peasants to-day may be found numerous survivals of heathen notions and customs.97 In England the German mores accepted only a limited influence from the Roman law. The English have adopted the policy of the Romans in dealing with subject peoples. They do not meddle with local customs if they can avoid it. This is wise, since nothing nurses discontent like interference with folkways. The persistency of the mores is often shown in survivals—senseless ceremonies whose meaning is forgotten, jests, play, parody, and caricature, or stereotyped words and phrases, or even in cakes of a prescribed form or prescribed foods at certain festivals.
86. Roman law. In the Roman law everything proceeds from the emperor. He is the possessor of all authority, the fountain of honor, the author of all legislation, and the referee in all disputes. Lawyers trained by the study of this code learned to conceive of all the functions of the state as acts, powers, and rights of a monarchical sovereign. They stood beside the kings and princes of the later Middle Ages ready to construe the institutions of suzerainty into this monarchical form. They broke down feudalism and helped to build the absolutist dynastic state, wherever the Roman law was in force, and wherever it had greatly influenced the legal system. The church also had great interest to employ the Roman law, because it included the ecclesiastical legislation of the Christian emperors of the fourth and fifth centuries, and because the canon law was imitated from it in spirit and form. In all matters of private rights the provisions of the Justinian code were good and beneficial, so that those provisions won their own way by their own merit.98 In the Sachsenspiegel there was no distinction of property between man and wife, but this meant that all which both had was a joint capital for use in their domestic economy. When the marriage was dissolved the property returned to the side from which it came. Later, in many districts, this arrangement developed into a real community of goods under various forms. "It was in regard to these adjustments of property rights that the jurists of the Middle Ages did most harm by introducing the Roman law, for it was especially in regard to this matter that the Roman law stood in strongest contrast to the German notions, and the resistance of the German people is to be seen in the numerous local systems of law, which remained in use in most of Germany; unfortunately not everywhere, nor uniformly."99
87. The Roman law: its effect on later mores. Throughout the north of Europe, upon conversion to Christianity, tithes were the stumbling-block between the old mores and the new system.100 The authority for the tithe system came from the Roman system. It was included in the Roman jurisprudence which the church adopted and carried wherever it extended. After the civil code was revived it helped powerfully to make states. This was a work, however, which was hostile to the church. The royal lawyers found in the civil code a system which referred everything in society to the emperor as the origin of power, rights, and honor. They adopted this standpoint for the kings of the new dynastic states and, in the might of the Roman law, they established royal absolutism, which was unfavorable to the church and the feudal nobles. They found their allies in the cities which loved written law, institutions, and defined powers. Stubbs101 regards the form of the Statute of Westminster (1275) as a proof that the lawyers, who "were at this time getting a firm grasp on the law of England," were introducing the principle that the king could enact by his own authority. The spirit of the Roman law was pitiless to peasants and artisans, that is, to all who were, or were to be made, unfree. The Norman laws depressed the Saxon ceorl to a slave.102 In similar manner they came into war with all Teutonic mores which contained popular rights and primary freedom. Stammler103 denies that the Roman law, in spite of lawyers and ecclesiastics, ever entered into the flesh and blood of the German people. That is to say, it never displaced completely their national mores. The case of the property of married persons is offered as a case in which the German mores were never overcome.104 A compromise was struck between the ancient mores and the new ways, which the Roman Catholic religion approved.
88. Variability. No less remarkable than the persistency of the mores is their changeableness and variation. There is here an interesting parallel to heredity and variation in the organic world, even though the parallel has no significance. Variation in the mores is due to the fact that children do not perpetuate the mores just as they received them. The father dies, and the son whom he has educated, even if he continues the ritual and repeats the formulæ, does not think and feel the same ideas and sentiments as his father. The observance of Sunday; the mode of treating parents, children, servants, and wives or husbands; holidays; amusements; arts of luxury; marriage and divorce; wine drinking—are matters in regard to which it is easy to note changes in the mores from generation to generation, in our own times. Even in Asia, when a long period of time is taken into account, changes in the mores are perceptible. The mores change because conditions and interests change. It is found that dogmas and maxims which have been current do not verify; that established taboos are useless or mischievous restraints; that usages which are suitable for a village or a colony are not suitable for a great city or state; that many things are fitting when the community is rich which were not so when it was poor; that new inventions have made new ways of living