initial commit of ebook 22910HEADmain

265 files changed, 31273 insertions, 0 deletions

diff --git a/.gitattributes b/.gitattributes
new file mode 100644
index 0000000..6833f05
--- /dev/null
+++ b/.gitattributes
@@ -0,0 +1,3 @@
+* text=auto
+*.txt text
+*.md text
diff --git a/22910-8.txt b/22910-8.txt
new file mode 100644
index 0000000..13392e1
--- /dev/null
+++ b/22910-8.txt
@@ -0,0 +1,9909 @@
+The Project Gutenberg EBook of Ancient Law, by Sir Henry James Sumner Maine
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Ancient Law
+       Its Connection to the History of Early Society
+
+Author: Sir Henry James Sumner Maine
+
+Release Date: October 7, 2007 [EBook #22910]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+
+
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+
+
+
+
+
+Everyman, I will go with thee, and be thy guide,
+      In thy most need to go by thy side.
+
+
+This is No. 734 of Everyman's Library. A
+list of authors and their works in this series
+will be found at the end of this volume. The
+publishers will be pleased to send freely to all
+applicants a separate, annotated list of the
+Library.
+
+
+
+
+J. M. DENT & SONS LIMITED
+10-13 BEDFORD STREET LONDON W.C.2
+
+E. P. DUTTON & CO. INC.
+286-302 FOURTH AVENUE
+NEW YORK
+
+
+
+
+EVERYMAN'S LIBRARY
+EDITED BY ERNEST RHYS
+
+
+HISTORY
+
+
+ANCIENT LAW
+
+BY SIR HENRY JAMES SUMNER MAINE
+
+INTRODUCTION BY PROF. J. H. MORGAN
+
+
+
+
+  SIR HENRY JAMES SUMNER MAINE, the
+  son of a doctor, born 1822 in India. Educated
+  at Christ's Hospital and Pembroke College,
+  Cambridge. In 1847 professor of civil law
+  at Cambridge; 1850, called to the Bar.
+  Member of Indian Council for seven years.
+
+  Died at Cannes, 1888.
+
+
+
+
+           ANCIENT LAW
+
+
+         [Illustration]
+
+
+         SIR HENRY MAINE
+
+
+   LONDON: J. M. DENT & SONS LTD.
+  NEW YORK: E. P. DUTTON & CO. INC.
+
+
+
+    _All rights reserved
+     Made in Great Britain
+  at The Temple Press Letchworth
+  and decorated by Eric Ravilious
+             for
+      J. M. Dent & Sons Ltd.
+  Aldine House Bedford St. London
+First Published in this Edition 1917
+   Reprinted 1927, 1931, 1936_
+
+
+
+
+INTRODUCTION
+
+
+No one who is interested in the growth of human ideas or the origins
+of human society can afford to neglect Maine's _Ancient Law_.
+Published some fifty-six years ago it immediately took rank as a
+classic, and its epoch-making influence may not unfitly be compared to
+that exercised by Darwin's _Origin of Species_. The revolution
+effected by the latter in the study of biology was hardly more
+remarkable than that effected by Maine's brilliant treatise in the
+study of early institutions. Well does one of Maine's latest and most
+learned commentators say of his work that "he did nothing less than
+create the natural history of law." This is only another way of saying
+that he demonstrated that our legal conceptions--using that term in
+its largest sense to include social and political institutions--are as
+much the product of historical development as biological organisms are
+the outcome of evolution. This was a new departure, inasmuch as the
+school of jurists, represented by Bentham and Austin, and of political
+philosophers, headed by Hobbes, Locke, and their nineteenth-century
+disciples, had approached the study of law and political society
+almost entirely from an unhistoric point of view and had substituted
+dogmatism for historical investigation. They had read history, so far
+as they troubled to read it at all, "backwards," and had invested
+early man and early society with conceptions which, as a matter of
+fact, are themselves historical products. The jurists, for example,
+had in their analysis of legal sovereignty postulated the commands of
+a supreme lawgiver by simply ignoring the fact that, in point of time,
+custom precedes legislation and that early law is, to use Maine's own
+phrase, "a habit" and not a conscious exercise of the volition of a
+lawgiver or a legislature. The political philosophers, similarly, had
+sought the origin of political society in a "state of nature"--humane,
+according to Locke and Rousseau, barbarous, according to Hobbes--in
+which men freely subscribed to an "original contract" whereby each
+submitted to the will of all. It was not difficult to show, as Maine
+has done, that contract--_i.e._ the recognition of a mutual agreement
+as binding upon the parties who make it--is a conception which comes
+very late to the human mind. But Maine's work covers much wider ground
+than this. It may be summed up by saying that he shows that early
+society, so far as we have any recognisable legal traces of it, begins
+with the group, not with the individual.
+
+This group was, according to Maine's theory, the Family--that is to
+say the Family as resting upon the patriarchal power of the father to
+whom all its members, wife, sons, daughters, and slaves, were
+absolutely subject. This, the central feature of Maine's speculation,
+is worked out with infinite suggestiveness and great felicity of style
+in chapter V. ("Primitive Society and Ancient Law") of the present
+work, and his chief illustrations are sought in the history of Roman
+law. The topics of the other chapters are selected largely with a view
+to supplying confirmation of the theory in question and, as we shall
+see in a moment, Maine's later works do but serve to carry the train
+of reasoning a step further by the use of the Comparative Method in
+invoking evidence from other sources, notably from Irish and Hindu
+Law. Let us, however, confine ourselves for the moment to "Ancient
+Law." Maine works out the implications of his theory by showing that
+it, and it alone, can serve to explain such features of early Roman
+law as Agnation, _i.e._ the tracing of descent exclusively through
+males, and Adoption, _i.e._ the preservation of the family against the
+extinction of male heirs. The perpetual tutelage of women is the
+consequence of this position. Moreover, all the members of the family,
+except its head, are in a condition best described as _status_: they
+have no power to acquire property, or to bequeath it, or to enter into
+contracts in relation to it. The traces of this state of society are
+clearly visible in the pages of that classical text-book of Roman Law,
+the _Institutes_ of Justinian,[1] compiled in the sixth century A.D.,
+though equally visible is the disintegration wrought in it by the
+reforming activity of the praetor's edicts. That reformation followed
+the course of a gradual emancipation of the members of the family,
+except those under age, from the despotic authority of the father.
+This gradual substitution of the Individual for the Family was
+effected in a variety of ways, but in none more conspicuously than by
+the development of the idea of contract, _i.e._ of the capacity of the
+individual to enter into independent agreements with strangers to his
+family-group by which he was legally bound--an historical process
+which Maine sums up in his famous aphorism that the movement of
+progressive societies has hitherto been a movement from Status to
+Contract.
+
+In the chapters on the early history of Wills, Property, and Contract,
+Maine supports his theory by showing that it is the key which unlocks
+many, if not all, of the problems which those topics present. The
+chapter on Wills--particularly the passage in which he explains what
+is meant by Universal Succession--is a brilliant example of Maine's
+analytic power. He shows that a Will--in the sense of a secret and
+revocable disposition of property only taking effect after the death
+of the testator--is a conception unknown to early law, and that it
+makes its first appearance as a means of transmitting the exercise of
+domestic sovereignty, the transfer of the property being only a
+subsidiary feature; wills only being permitted, in early times, in
+cases where there was likely to be a failure of proper heirs. The
+subsequent popularity of wills, and the indulgence with which the law
+came to regard them, were due to a desire to correct the rigidity of
+the Patria Potestas, as reflected in the law of intestate succession,
+by giving free scope to natural affection. In other words, the
+conception of relationship as reckoned only through males, and as
+resting on the continuance of the children within their father's
+power, gave way, through the instrumentality of the will, to the more
+modern and more natural conception of relationship.
+
+In the chapter on Property Maine again shows that the theory of its
+origin in occupancy is too individualistic and that not separate
+ownership but joint ownership is the really archaic institution. The
+father was in some sense (we must avoid importing modern terms) the
+trustee of the joint property of the family. Here Maine makes an
+excursion into the fields of the Early Village Community, and has,
+too, to look elsewhere than to Rome, where the village community had
+already been transformed by coalescence into the city-state. He
+therefore seeks his examples from India and points to the Indian
+village as an example of the expansion of the family into a larger
+group of co-proprietors, larger but still bearing traces of its origin
+to the patriarchal power. And, to quote his own words, "the most
+important passage in the history of Private Property is its gradual
+separation from the co-ownership of kinsmen." The chapter on Contract,
+although it contains some of Maine's most suggestive writing, and the
+chapter on Delict and Crime, have a less direct bearing on his main
+thesis except in so far as they go to show that the reason why there
+is so little in early law of what we call civil, as distinct from
+criminal, law, and in particular of the Law of Contract, is to be
+found in the fact that, in the infancy of society, the Law of Persons,
+and with it the law of civil rights, is merged in the common
+subjection to Paternal Power.
+
+Such, putting it in the simplest possible language, is the main
+argument of _Ancient Law_. The exigencies of space and of simplicity
+compel me to pass by, to a large extent, most of the other topics with
+which Maine deals--the place of custom, code, and fiction in the
+development of early law, the affiliation of international Law to the
+_Jus Gentium_ and the Law of Nature, the origins of feudalism and of
+primogeniture, the early history of delict and crime, and that most
+remarkable and profound passage in which Maine shows the heavy debt of
+the various sciences to Roman law and the influence which it has
+exerted on the vocabulary of political science, the concepts of moral
+philosophy, and the doctrines of theology. I must confine myself to
+two questions: how far did Maine develop or modify in his subsequent
+writings the main thesis of _Ancient Law_? to what extent has this
+thesis stood the test of the criticism and research of others? As
+regards the first point, it is to be remembered that _Ancient Law_ is
+but the first, though doubtless the most important, of a whole series
+of works by its author on the subject of early law. It was followed at
+intervals by three volumes: _Village Communities in the East and
+West_, _Early Institutions_, and _Early Law and_ _Custom_. In the
+first of these he dealt with a subject which has excited an enormous
+degree of attention and not a little controversy among English,
+French, German, and Russian scholars,[2] amounting as it does to
+nothing less than an investigation into the origin of private property
+in land. The question has been put in various forms: did it commence
+with joint (or, as some would put it, less justifiably, communal or
+corporate) ownership or with individual ownership, and again was the
+village community free or servile? It is now pretty generally
+recognised that there was more than one type, though common
+cultivation was doubtless a feature of them all, and even in India
+there were at least two types, of which the one presenting several, as
+opposed to communal, ownership is not the less ancient. But it may
+well be that, as Maitland so often pointed out, much of the
+controversy has been literally an anachronism; that is to say, that
+nineteenth-century men have been asking the Early Ages questions which
+they could not answer and reading back into early history distinctions
+which are themselves historical products. Ownership is itself a late
+abstraction developed out of use. We may say with some certainty that
+family "ownership" preceded individual ownership, but in what sense
+there was communal ownership by a whole village it is not so easy to
+say.
+
+Maine was on surer ground when, as in his studies of Irish and Hindu
+law, he confined himself to the more immediate circle of the family
+group. In his _Early Institutions_ he subjects the Brehon Laws of
+early Ireland to a suggestive examination as presenting an example of
+Celtic law largely unaffected by Roman influences. He there shows, as
+he has shown in _Ancient Law_, that in early times the only social
+brotherhood recognised was that of kinship, and that almost every form
+of social organisation, tribe, guild, and religious fraternity, was
+conceived of under a similitude of it. Feudalism converted the village
+community, based on a real or assumed consanguinity of its members,
+into the fief in which the relations of tenant and lord were those of
+contract, while those of the unfree tenant rested on status. In his
+_Early Law and Custom_ he pursues much the same theme by an
+examination of Hindu Law as presenting a peculiarly close implication
+of early law with religion. Here he devotes his attention chiefly to
+Ancestor-worship, a subject which about this time had engaged the
+attention, as regards its Greek and Roman forms, of that brilliant
+Frenchman, Fustel de Coulanges, whose monograph _La Cité Antique_ is
+now a classic. As is well known, the right of inheriting a dead man's
+property and the duty of performing his obsequies are co-relative to
+this day in Hindu law, and his investigation of this subject brings
+Maine back to the subject of the Patriarchal Power. He points out that
+both worshipper and the object of worship were exclusively males, and
+concludes that it was the power of the father which generated the
+practice of worshipping him, while this practice in turn, by the
+gradual admission of women to participate in the ceremonies, gradually
+acted as a solvent upon the power itself. The necessity of finding
+some one to perform these rites, on failure of direct male heirs,
+marked the beginning of the recognition of a right in women to
+inherit. The conception of the family becomes less intense and more
+extensive. These discussions brought Maine, in chapter VII. of _Early
+Law and Custom_, to reconsider the main theory of _Ancient Law_ in the
+light of the criticism to which it had been exposed, and every reader
+of _Ancient Law_ who desires to understand Maine's exact position in
+regard to the scope of his generalisations should read for himself the
+chapter in the later work entitled "Theories of Primitive Society."
+His theory of the patriarchal power had been criticised by two able
+and industrious anthropologists, M'Lennan and Morgan, who, by their
+investigation of "survivals" among barbarous tribes in our own day,
+had arrived at the conclusion that, broadly speaking, the normal
+process through which society had passed was not patriarchal but
+"matriarchal," _i.e._ understanding by that term a system in which
+descent is traced through females. It would take up far too much space
+to enter into this controversy in detail. It is sufficient to say that
+the counter-theory rested on the assumption that society originated
+not in families, based on the authority of the father and relationship
+through him, but in promiscuous hordes among whom the only certain
+fact, and, consequently, the only recognised basis of relationship,
+was maternity. Maine's answer to this was that his generalisations as
+to the prevalence of the patriarchal power were confined to
+Indo-European races, and that he did not pretend to dogmatise about
+other races, also that he was dealing not with all societies but all
+that had any permanence. He argues that the promiscuous horde, where
+and when it is found, is to be explained as an abnormal case of
+retrogression due to a fortuitous scarcity of females resulting in
+polyandry, and he opposes to the theory of its predominance the
+potency of sexual jealousy which might serve as only another name for
+the patriarchal power. On the whole the better opinion is certainly
+with Maine. His theory, at any rate, alone accords with a view of
+society so soon as it is seen to possess any degree of civilisation
+and social cohesion.
+
+It will be seen that Maine's work, like that of most great thinkers,
+presents a singular coherence and intellectual elegance. It is
+distinguished also by an extraordinary wide range of vision. He lays
+under contribution with equal felicity and suggestiveness the Old
+Testament, the Homeric poems, the Latin dramatists, the laws of the
+Barbarians, the sacerdotal laws of the Hindus, the oracles of the
+Brehon caste, and the writings of the Roman jurists. In other words,
+he was a master of the Comparative Method. Few writers have thrown so
+much light on the development of the human mind in its social
+relations. We know now--a hundred disciples have followed in Maine's
+footsteps and applied his teaching--how slow is the growth of the
+human intellect in these matters, with what painful steps man learns
+to generalise, how convulsively he clings in the infancy of
+civilisation to the formal, the material, the realistic aspects of
+things, how late he develops such abstractions as "the State." In all
+this Maine first showed the way. As Sir Frederick Pollock has
+admirably put it--
+
+
+     Nowadays it may be said that "all have got the seed,"
+     but this is no justification for forgetting who first
+     cleared and sowed the ground. We may till fields that
+     the master left untouched, and one man will bring a
+     better ox to yoke to the plough, and another a worse;
+     but it is the master's plough still.
+
+
+We may conclude with some remarks on Maine's views of the
+contemporary problems of political society. Maine was what, for want
+of a better term, may be called a Conservative, and, indeed, it may be
+doubted whether, with the single exception of Burke, any English
+writer has done more to provide English Conservatives with reasons for
+the faith that is in them. He has set forth his views in a collection
+of polemical essays under the title of _Popular Government_, which
+were given to the world in book form in 1885. He viewed the advent of
+Democracy with more distrust than alarm--he appears to have thought it
+a form of government which could not last--and he has an unerring eye
+for its weaknesses.[3] Indeed, his remarks on the facility with which
+Democracy yields itself to manipulation by wire-pullers, newspapers,
+and demagogues, have found not a little confirmation in such studies
+of the actual working of democratic government as M. Ostrogorski's
+_Democracy and the Organisation of Political Parties_. Maine
+emphasised the tyranny of majorities, the enslavement of untutored
+minds by political catchwords, their susceptibility to "suggestion,"
+their readiness to adopt vicarious opinion in preference to an
+intellectual exercise of their own volition. It is not surprising that
+the writer who had subjected the theories of the Social Contract to
+such merciless criticism sighed for a scientific analysis of political
+terms as the first step to clear thinking about politics. Here he was
+on strong ground, but for such an analysis we have yet to wait.[4] He
+seems to have placed his hopes in the adoption of some kind of written
+constitution which, like the American prototype, would safeguard us
+from fundamental changes by the caprice of a single assembly. But this
+is not the place to pursue such highly debateable matters. Enough if
+we say that the man who wishes to serve an apprenticeship to an
+intelligent understanding of the political society of the present
+cannot do better than begin by a careful study of Maine's researches
+into the political society of the past.
+
+J.H. MORGAN.
+
+
+     _Note._--The reader who desires to study Maine in the
+     light of modern criticism is recommended to read Sir F.
+     Pollock's "Notes on Maine's _Ancient Law_" (published
+     by John Murray at 2_s._ 6_d._, or, with the text, at
+     5_s._). The best short study of Maine with which I am
+     acquainted is the article by Professor Vinogradoff in
+     the _Law Quarterly Review_ for April 1904. The field of
+     research covered by Maine in his various writings is so
+     vast that it is impossible to refer the reader, except
+     at great length, to anything like an adequate list of
+     later books on the subjects of his investigation. In
+     addition to the works on the Village Community
+     mentioned in a previous footnote, I may, however, refer
+     the beginner to Mr. Edward Jenks' little book on _The
+     History of Politics_ in Dent's Primers, to Professor
+     Ashley's translation of a fragment of Fustel de
+     Coulanges under the title of _The Origin of Property in
+     Land_, and to Sir Frederick Pollock's brilliant little
+     book, _The Expansion of the Common Law_. The reader is
+     also recommended to study Mr. H.A.L. Fisher's succinct
+     survey of the contributions of Maitland to legal
+     history under the title of _F.W. Maitland; an
+     Appreciation_ (Cambridge University Press). One of the
+     most brilliant and ingenious studies of the origins of
+     European civilisation is to be found in the work of the
+     great German jurist, Ihering, _Die Vorgeschichte der
+     Indo-Europder_, translated into English under the title
+     of _The Early History of the Indo-European Races_
+     (Sonnenschein, 1897).
+
+    [1] The reader who desires to pursue the subject by
+    reference to one of Maine's chief authorities is
+    recommended to read the translation of the _Institutes_
+    by Sandars.
+
+    [2] English literature on the subject is best studied in
+    Maitland's _Domesday Book and Beyond_, Vinogradoff's
+    _The Growth of the Manor_ and _Villeinage in England_
+    (with an excellent historical introduction), and
+    Seebohm's _English Village Community_.
+
+    [3] Witness the characteristic sentence: "On the whole
+    they [_i.e._ the studies of earlier society] suggest
+    that the differences which, after ages of change,
+    separate the civilised man from savage or barbarian, are
+    not so great as the vulgar opinion would have them....
+    Like the savage, he is a man of party with a newspaper
+    for a totem ... and like a savage he is apt to make of
+    his totem his God."
+
+    [4] Something of the kind was done many years ago by Sir
+    George Cornewall Lewis in his little book on the _Use
+    and Abuse of Political Terms_. I have attempted to carry
+    the task a step farther in an article which appeared in
+    the form of a review of Lord Morley's "History and
+    Politics" in the _Nineteenth Century_ for March 1913.
+
+
+
+
+BIBLIOGRAPHY
+
+
+Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The
+Birth of the Prince of Wales (Prize Poem), 1842; Cæsar ad Rubiconem
+constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law
+and Legal Education (Essay), 1856; Ancient Law: its Connection with
+the Early History of Society and its Relation to Modern Ideas, 1861;
+Short Essays and Reviews on the Educational Policy of the Government
+of India, 1866; Village Communities in the East and West (Lectures),
+1871; The Early History of the Property of Married Women as collected
+from Roman and Hindoo Law (Lecture), 1873; The Effects of Observation
+of India on Modern European Thought (Lecture), 1875; Lectures on the
+Early History of Institutions, 1875; Village Communities, etc.; third
+ed. with other Lectures and Addresses, 1876; Dissertations on Early
+Law and Custom (selected from Lectures), 1883; Popular Government
+(four Essays), 1885; India [1837-1887] (in "The Reign of Queen
+Victoria," ed. by Thos. Humphry Ward, vol. i.), 1887; The Whewell
+Lectures: International Law, 1887, 1888; Ancient Law (ed. with
+introduction and notes by Sir Frederick Pollock), 1906; Ancient Law
+(Allahabad ed., with introduction by K.C. Banerji), 1912.
+
+Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine,"
+1871; "Quarterly Review," 1886; "Saturday Review," and "St. James's
+Gazette."
+
+A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant Duff;
+with some of his Indian speeches and minutes, selected by Whitley
+Stokes, 1892.
+
+
+
+
+PREFACE
+
+
+The chief object of the following pages is to indicate some of the
+earliest ideas of mankind, as they are reflected in Ancient Law, and
+to point out the relation of those ideas to modern thought. Much of
+the inquiry attempted could not have been prosecuted with the
+slightest hope of a useful result if there had not existed a body of
+law, like that of the Romans, bearing in its earliest portions the
+traces of the most remote antiquity and supplying from its later rules
+the staple of the civil institutions by which modern society is even
+now controlled. The necessity of taking the Roman law as a typical
+system has compelled the author to draw from it what may appear a
+disproportionate number of his illustrations; but it has not been his
+intention to write a treatise on Roman jurisprudence, and he has as
+much as possible avoided all discussions which might give that
+appearance to his work. The space allotted in the third and fourth
+chapters to certain philosophical theories of the Roman Jurisconsults
+has been appropriated to them for two reasons. In the first place,
+those theories appear to the author to have had a wider and more
+permanent influence on the thought and action of the world than is
+usually supposed. Secondly, they are believed to be the ultimate
+source of most of the views which have been prevalent, till quite
+recently, on the subjects treated of in this volume. It was impossible
+for the author to proceed far with his undertaking without stating his
+opinion on the origin, meaning, and value of those speculations.
+
+H.S.M.
+
+LONDON, _January 1861_.
+
+
+
+
+CONTENTS
+
+
+
+CHAP.                                                        PAGE
+
+   I. ANCIENT CODES                                             1
+
+  II. LEGAL FICTIONS                                           13
+
+ III. LAW OF NATURE AND EQUITY                                 26
+
+  IV. THE MODERN HISTORY OF THE LAW OF NATURE                  43
+
+   V. PRIMITIVE SOCIETY AND ANCIENT LAW                        67
+
+  VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION            101
+
+ VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS
+        AND SUCCESSIONS                                       127
+
+VIII. THE EARLY HISTORY OF PROPERTY                           144
+
+  IX. THE EARLY HISTORY OF CONTRACT                           179
+
+   X. THE EARLY HISTORY OF DELICT AND CRIME                   216
+
+      INDEX                                                   235
+
+
+
+
+
+CHAPTER I
+
+ANCIENT CODES
+
+
+The most celebrated system of jurisprudence known to the world begins,
+as it ends, with a Code. From the commencement to the close of its
+history, the expositors of Roman Law consistently employed language
+which implied that the body of their system rested on the Twelve
+Decemviral Tables, and therefore on a basis of written law. Except in
+one particular, no institutions anterior to the Twelve Tables were
+recognised at Rome. The theoretical descent of Roman jurisprudence
+from a code, the theoretical ascription of English law to immemorial
+unwritten tradition, were the chief reasons why the development of
+their system differed from the development of ours. Neither theory
+corresponded exactly with the facts, but each produced consequences of
+the utmost importance.
+
+I need hardly say that the publication of the Twelve Tables is not the
+earliest point at which we can take up the history of law. The ancient
+Roman code belongs to a class of which almost every civilised nation
+in the world can show a sample, and which, so far as the Roman and
+Hellenic worlds were concerned, were largely diffused over them at
+epochs not widely distant from one another. They appeared under
+exceedingly similar circumstances, and were produced, to our
+knowledge, by very similar causes. Unquestionably, many jural
+phenomena lie behind these codes and preceded them in point of time.
+Not a few documentary records exist which profess to give us
+information concerning the early phenomena of law; but, until
+philology has effected a complete analysis of the Sanskrit literature,
+our best sources of knowledge are undoubtedly the Greek Homeric poems,
+considered of course not as a history of actual occurrences, but as a
+description, not wholly idealised, of a state of society known to the
+writer. However the fancy of the poet may have exaggerated certain
+features of the heroic age, the prowess of warriors and the potency of
+gods, there is no reason to believe that it has tampered with moral or
+metaphysical conceptions which were not yet the subjects of conscious
+observation; and in this respect the Homeric literature is far more
+trustworthy than those relatively later documents which pretend to
+give an account of times similarly early, but which were compiled
+under philosophical or theological influences. If by any means we can
+determine the early forms of jural conceptions, they will be
+invaluable to us. These rudimentary ideas are to the jurist what the
+primary crusts of the earth are to the geologist. They contain,
+potentially, all the forms in which law has subsequently exhibited
+itself. The haste or the prejudice which has generally refused them
+all but the most superficial examination, must bear the blame of the
+unsatisfactory condition in which we find the science of
+jurisprudence. The inquiries of the jurist are in truth prosecuted
+much as inquiry in physics and physiology was prosecuted before
+observation had taken the place of assumption. Theories, plausible and
+comprehensive, but absolutely unverified, such as the Law of Nature or
+the Social Compact, enjoy a universal preference over sober research
+into the primitive history of society and law; and they obscure the
+truth not only by diverting attention from the only quarter in which
+it can be found, but by that most real and most important influence
+which, when once entertained and believed in, they are enabled to
+exercise on the later stages of jurisprudence.
+
+The earliest notions connected with the conception, now so fully
+developed, of a law or rule of life, are those contained in the
+Homeric words "Themis" and "Themistes." "Themis," it is well known,
+appears in the later Greek pantheon as the Goddess of Justice, but
+this is a modern and much developed idea, and it is in a very
+different sense that Themis is described in the Iliad as the assessor
+of Zeus. It is now clearly seen by all trustworthy observers of the
+primitive condition of mankind that, in the infancy of the race, men
+could only account for sustained or periodically recurring action by
+supposing a personal agent. Thus, the wind blowing was a person and of
+course a divine person; the sun rising, culminating, and setting was
+a person and a divine person; the earth yielding her increase was a
+person and divine. As, then, in the physical world, so in the moral.
+When a king decided a dispute by a sentence, the judgment was assumed
+to be the result of direct inspiration. The divine agent, suggesting
+judicial awards to kings or to gods, the greatest of kings, was
+_Themis_. The peculiarity of the conception is brought out by the use
+of the plural. _Themistes_, Themises, the plural of _Themis_, are the
+awards themselves, divinely dictated to the judge. Kings are spoken of
+as if they had a store of "Themistes" ready to hand for use; but it
+must be distinctly understood that they are not laws, but judgments.
+"Zeus, or the human king on earth," says Mr. Grote, in his History of
+Greece, "is not a lawmaker, but a judge." He is provided with
+Themistes, but, consistently with the belief in their emanation from
+above, they cannot be supposed to be connected by any thread of
+principle; they are separate, isolated judgments.
+
+Even in the Homeric poems, we can see that these ideas are transient.
+Parities of circumstance were probably commoner in the simple
+mechanism of ancient society than they are now, and in the succession
+of similar cases awards are likely to follow and resemble each other.
+Here we have the germ or rudiment of a Custom, a conception posterior
+to that of Themistes or judgments. However strongly we, with our
+modern associations, may be inclined to lay down _à priori_ that the
+notion of a Custom must precede that of a judicial sentence, and that
+a judgment must affirm a Custom or punish its breach, it seems quite
+certain that the historical order of the ideas is that in which I have
+placed them. The Homeric word for a custom in the embryo is sometimes
+"Themis" in the singular--more often "Dike," the meaning of which
+visibly fluctuates between a "judgment" and a "custom" or "usage."
+[Greek: Nomos], a Law, so great and famous a term in the political
+vocabulary of the later Greek society, does not occur in Homer.
+
+This notion of a divine agency, suggesting the Themistes, and itself
+impersonated in Themis, must be kept apart from other primitive
+beliefs with which a superficial inquirer might confound it. The
+conception of the Deity dictating an entire code or body of law, as in
+the case of the Hindoo laws of Menu, seems to belong to a range of
+ideas more recent and more advanced. "Themis" and "Themistes" are
+much less remotely linked with that persuasion which clung so long and
+so tenaciously to the human mind, of a divine influence underlying and
+supporting every relation of life, every social institution. In early
+law, and amid the rudiments of political thought, symptoms of this
+belief meet us on all sides. A supernatural presidency is supposed to
+consecrate and keep together all the cardinal institutions of those
+times, the State, the Race, and the Family. Men, grouped together in
+the different relations which those institutions imply, are bound to
+celebrate periodically common rites and to offer common sacrifices;
+and every now and then the same duty is even more significantly
+recognised in the purifications and expiations which they perform, and
+which appear intended to deprecate punishment for involuntary or
+neglectful disrespect. Everybody acquainted with ordinary classical
+literature will remember the _sacra gentilicia_, which exercised so
+important an influence on the early Roman law of adoption and of
+wills. And to this hour the Hindoo Customary Law, in which some of the
+most curious features of primitive society are stereotyped, makes
+almost all the rights of persons and all the rules of succession hinge
+on the due solemnisation of fixed ceremonies at the dead man's
+funeral, that is, at every point where a breach occurs in the
+continuity of the family.
+
+Before we quit this stage of jurisprudence, a caution may be usefully
+given to the English student. Bentham, in his _Fragment on
+Government_, and Austin, in his _Province of Jurisprudence
+Determined_, resolve every law into a _command_ of the lawgiver, _an
+obligation_ imposed thereby on the citizen, and a _sanction_
+threatened in the event of disobedience; and it is further predicated
+of the _command_, which is the first element in a law, that it must
+prescribe, not a single act, but a series or number of acts of the
+same class or kind. The results of this separation of ingredients
+tally exactly with the facts of mature jurisprudence; and, by a little
+straining of language, they may be made to correspond in form with all
+law, of all kinds, at all epochs. It is not, however, asserted that
+the notion of law entertained by the generality is even now quite in
+conformity with this dissection; and it is curious that, the farther
+we penetrate into the primitive history of thought, the farther we
+find ourselves from a conception of law which at all resembles a
+compound of the elements which Bentham determined. It is certain
+that, in the infancy of mankind, no sort of legislature, not even a
+distinct author of law, is contemplated or conceived of. Law has
+scarcely reached the footing of custom; it is rather a habit. It is,
+to use a French phrase, "in the air." The only authoritative statement
+of right and wrong is a judicial sentence after the facts, not one
+presupposing a law which has been violated, but one which is breathed
+for the first time by a higher power into the judge's mind at the
+moment of adjudication. It is of course extremely difficult for us to
+realise a view so far removed from us in point both of time and of
+association, but it will become more credible when we dwell more at
+length on the constitution of ancient society, in which every man,
+living during the greater part of his life under the patriarchal
+despotism, was practically controlled in all his actions by a regimen
+not of law but of caprice. I may add that an Englishman should be
+better able than a foreigner to appreciate the historical fact that
+the "Themistes" preceded any conception of law, because, amid the many
+inconsistent theories which prevail concerning the character of
+English jurisprudence, the most popular, or at all events the one
+which most affects practice, is certainly a theory which assumes that
+adjudged cases and precedents exist antecedently to rules, principles,
+and distinctions. The "Themistes" have too, it should be remarked, the
+characteristic which, in the view of Bentham and Austin, distinguishes
+single or mere commands from laws. A true law enjoins on all the
+citizens indifferently a number of acts similar in class or kind; and
+this is exactly the feature of a law which has most deeply impressed
+itself on the popular mind, causing the term "law" to be applied to
+mere uniformities, successions, and similitudes. A _command_
+prescribes only a single act, and it is to commands, therefore, that
+"Themistes" are more akin than to laws. They are simply adjudications
+on insulated states of fact, and do not necessarily follow each other
+in any orderly sequence.
+
+The literature of the heroic age discloses to us law in the germ under
+the "Themistes" and a little more developed in the conception of
+"Dike." The next stage which we reach in the history of jurisprudence
+is strongly marked and surrounded by the utmost interest. Mr. Grote,
+in the second part and second chapter of his History, has fully
+described the mode in which society gradually clothed itself with a
+different character from that delineated by Homer. Heroic kingship
+depended partly on divinely given prerogative, and partly on the
+possession of supereminent strength, courage, and wisdom. Gradually,
+as the impression of the monarch's sacredness became weakened, and
+feeble members occurred in the series of hereditary kings, the royal
+power decayed, and at last gave way to the dominion of aristocracies.
+If language so precise can be used of the revolution, we might say
+that the office of the king was usurped by that council of chiefs
+which Homer repeatedly alludes to and depicts. At all events from an
+epoch of kingly rule we come everywhere in Europe to an era of
+oligarchies; and even where the name of the monarchical functions does
+not absolutely disappear, the authority of the king is reduced to a
+mere shadow. He becomes a mere hereditary general, as in Lacedæmon, a
+mere functionary, as the King Archon at Athens, or a mere formal
+hierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, and
+Asia Minor, the dominant orders seem to have universally consisted of
+a number of families united by an assumed relationship in blood, and,
+though they all appear at first to have laid claim to a quasi-sacred
+character, their strength does not seem to have resided in their
+pretended sanctity. Unless they were prematurely overthrown by the
+popular party, they all ultimately approached very closely to what we
+should now understand by a political aristocracy. The changes which
+society underwent in the communities of the further Asia occurred of
+course at periods long anterior in point of time to these revolutions
+of the Italian and Hellenic worlds; but their relative place in
+civilisation appears to have been the same, and they seem to have been
+exceedingly similar in general character. There is some evidence that
+the races which were subsequently united under the Persian monarchy,
+and those which peopled the peninsula of India, had all their heroic
+age and their era of aristocracies; but a military and a religious
+oligarchy appear to have grown up separately, nor was the authority of
+the king generally superseded. Contrary, too, to the course of events
+in the West, the religious element in the East tended to get the
+better of the military and political. Military and civil aristocracies
+disappear, annihilated or crushed into insignificance between the
+kings and the sacerdotal order; and the ultimate result at which we
+arrive is, a monarch enjoying great power, but circumscribed by the
+privileges of a caste of priests. With these differences, however,
+that in the East aristocracies became religious, in the West civil or
+political, the proposition that a historical era of aristocracies
+succeeded a historical era of heroic kings may be considered as true,
+if not of all mankind, at all events of all branches of the
+Indo-European family of nations.
+
+The important point for the jurist is that these aristocracies were
+universally the depositaries and administrators of law. They seem to
+have succeeded to the prerogatives of the king, with the important
+difference, however, that they do not appear to have pretended to
+direct inspiration for each sentence. The connection of ideas which
+caused the judgments of the patriarchal chieftain to be attributed to
+superhuman dictation still shows itself here and there in the claim of
+a divine origin for the entire body of rules, or for certain parts of
+it, but the progress of thought no longer permits the solution of
+particular disputes to be explained by supposing an extra-human
+interposition. What the juristical oligarchy now claims is to
+monopolise the _knowledge_ of the laws, to have the exclusive
+possession of the principles by which quarrels are decided. We have in
+fact arrived at the epoch of Customary Law. Customs or Observances now
+exist as a substantive aggregate, and are assumed to be precisely
+known to the aristocratic order or caste. Our authorities leave us no
+doubt that the trust lodged with the oligarchy was sometimes abused,
+but it certainly ought not to be regarded as a mere usurpation or
+engine of tyranny. Before the invention of writing, and during the
+infancy of the art, an aristocracy invested with judicial privileges
+formed the only expedient by which accurate preservation of the
+customs of the race or tribe could be at all approximated to. Their
+genuineness was, so far as possible, insured by confiding them to the
+recollection of a limited portion of the community.
+
+The epoch of Customary Law, and of its custody by a privileged order,
+is a very remarkable one. The condition of the jurisprudence which it
+implies has left traces which may still be detected in legal and
+popular phraseology. The law, thus known exclusively to a privileged
+minority, whether a caste, an aristocracy, a priestly tribe, or a
+sacerdotal college is true unwritten law. Except this, there is no
+such thing as unwritten law in the world. English case-law is
+sometimes spoken of as unwritten, and there are some English theorists
+who assure us that if a code of English jurisprudence were prepared we
+should be turning unwritten law into written--a conversion, as they
+insist, if not of doubtful policy, at all events of the greatest
+seriousness. Now, it is quite true that there was once a period at
+which the English common law might reasonably have been termed
+unwritten. The elder English judges did really pretend to knowledge of
+rules, principles, and distinctions which were not entirely revealed
+to the bar and to the lay-public. Whether all the law which they
+claimed to monopolise was really unwritten, is exceedingly
+questionable; but at all events, on the assumption that there was once
+a large mass of civil and criminal rules known exclusively to the
+judges, it presently ceased to be unwritten law. As soon as the Courts
+at Westminster Hall began to base their judgments on cases recorded,
+whether in the year books or elsewhere, the law which they
+administered became written law. At the present moment a rule of
+English law has first to be disentangled from the recorded facts of
+adjudged printed precedents, then thrown into a form of words varying
+with the taste, precision, and knowledge of the particular judge, and
+then applied to the circumstances of the case for adjudication. But at
+no stage of this process has it any characteristic which distinguishes
+it from written law. It is written case-law, and only different from
+code-law because it is written in a different way.
+
+From the period of Customary Law we come to another sharply defined
+epoch in the history of jurisprudence. We arrive at the era of Codes,
+those ancient codes of which the Twelve Tables of Rome were the most
+famous specimen. In Greece, in Italy, on the Hellenised sea-board of
+Western Asia, these codes all made their appearance at periods much
+the same everywhere, not, I mean, at periods identical in point of
+time, but similar in point of the relative progress of each community.
+Everywhere, in the countries I have named, laws engraven on tablets
+and published to the people take the place of usages deposited with
+the recollection of a privileged oligarchy. It must not for a moment
+be supposed that the refined considerations now urged in favour of
+what is called codification had any part or place in the change I have
+described. The ancient codes were doubtless originally suggested by
+the discovery and diffusion of the art of writing. It is true that the
+aristocracies seem to have abused their monopoly of legal knowledge;
+and at all events their exclusive possession of the law was a
+formidable impediment to the success of those popular movements which
+began to be universal in the western world. But, though democratic
+sentiment may have added to their popularity, the codes were certainly
+in the main a direct result of the invention of writing. Inscribed
+tablets were seen to be a better depositary of law, and a better
+security for its accurate preservation, than the memory of a number of
+persons however strengthened by habitual exercise.
+
+The Roman code belongs to the class of codes I have been describing.
+Their value did not consist in any approach to symmetrical
+classifications, or to terseness and clearness of expression, but in
+their publicity, and in the knowledge which they furnished to
+everybody, as to what he was to do, and what not to do. It is, indeed,
+true that the Twelve Tables of Rome do exhibit some traces of
+systematic arrangement, but this is probably explained by the
+tradition that the framers of that body of law called in the
+assistance of Greeks who enjoyed the later Greek experience in the art
+of law-making. The fragments of the Attic Code of Solon show, however,
+that it had but little order, and probably the laws of Draco had even
+less. Quite enough too remains of these collections, both in the East
+and in the West, to show that they mingled up religious, civil, and
+merely moral ordinances, without any regard to differences in their
+essential character; and this is consistent with all we know of early
+thought from other sources, the severance of law from morality, and of
+religion from law, belonging very distinctly to the _later_ stages of
+mental progress.
+
+But, whatever to a modern eye are the singularities of these Codes,
+their importance to ancient societies was unspeakable. The
+question--and it was one which affected the whole future of each
+community--was not so much whether there should be a code at all, for
+the majority of ancient societies seem to have obtained them sooner or
+later, and, but for the great interruption in the history of
+jurisprudence created by feudalism, it is likely that all modern law
+would be distinctly traceable to one or more of these fountain-heads.
+But the point on which turned the history of the race was, at what
+period, at what stage of their social progress, they should have their
+laws put into writing. In the western world the plebeian or popular
+element in each state successfully assailed the oligarchical monopoly,
+and a code was nearly universally obtained _early_ in the history of
+the Commonwealth. But in the East, as I have before mentioned, the
+ruling aristocracies tended to become religious rather than military
+or political, and gained, therefore, rather than lost in power; while
+in some instances the physical conformation of Asiatic countries had
+the effect of making individual communities larger and more numerous
+than in the West; and it is a known social law that the larger the
+space over which a particular set of institutions is diffused, the
+greater is its tenacity and vitality. From whatever cause, the codes
+obtained by Eastern societies were obtained, relatively, much later
+than by Western, and wore a very different character. The religious
+oligarchies of Asia, either for their own guidance, or for the relief
+of their memory, or for the instruction of their disciples, seem in
+all cases to have ultimately embodied their legal learning in a code;
+but the opportunity of increasing and consolidating their influence
+was probably too tempting to be resisted. Their complete monopoly of
+legal knowledge appears to have enabled them to put off on the world
+collections, not so much of the rules actually observed as of the
+rules which the priestly order considered proper to be observed. The
+Hindoo code, called the Laws of Menu, which is certainly a Brahmin
+compilation, undoubtedly enshrines many genuine observances of the
+Hindoo race, but the opinion of the best contemporary orientalists is,
+that it does not, as a whole, represent a set of rules ever actually
+administered in Hindostan. It is, in great part, an ideal picture of
+that which, in the view of the Brahmins, _ought_ to be the law. It is
+consistent with human nature and with the special motives of their
+authors, that codes like that of Menu should pretend to the highest
+antiquity and claim to have emanated in their complete form from the
+Deity. Menu, according to Hindoo mythology, is an emanation from the
+supreme God; but the compilation which bears his name, though its
+exact date is not easily discovered, is, in point of the relative
+progress of Hindoo jurisprudence, a recent production.
+
+Among the chief advantages which the Twelve Tables and similar codes
+conferred on the societies which obtained them, was the protection
+which they afforded against the frauds of the privileged oligarchy and
+also against the spontaneous depravation and debasement of the
+national institutions. The Roman Code was merely an enunciation in
+words of the existing customs of the Roman people. Relatively to the
+progress of the Romans in civilisation, it was a remarkably early
+code, and it was published at a time when Roman society had barely
+emerged from that intellectual condition in which civil obligation and
+religious duty are inevitably confounded. Now a barbarous society
+practising a body of customs, is exposed to some especial dangers
+which may be absolutely fatal to its progress in civilisation. The
+usages which a particular community is found to have adopted in its
+infancy and in its primitive seats are generally those which are on
+the whole best suited to promote its physical and moral well-being;
+and, if they are retained in their integrity until new social wants
+have taught new practices, the upward march of society is almost
+certain. But unhappily there is a law of development which ever
+threatens to operate upon unwritten usage. The customs are of course
+obeyed by multitudes who are incapable of understanding the true
+ground of their expediency, and who are therefore left inevitably to
+invent superstitious reasons for their permanence. A process then
+commences which may be shortly described by saying that usage which is
+reasonable generates usage which is unreasonable. Analogy, the most
+valuable of instruments in the maturity of jurisprudence, is the most
+dangerous of snares in its infancy. Prohibitions and ordinances,
+originally confined, for good reasons, to a single description of
+acts, are made to apply to all acts of the same class, because a man
+menaced with the anger of the gods for doing one thing, feels a
+natural terror in doing any other thing which is remotely like it.
+After one kind of food has been interdicted for sanitary reasons, the
+prohibition is extended to all food resembling it, though the
+resemblance occasionally depends on analogies the most fanciful. So,
+again, a wise provision for insuring general cleanliness dictates in
+time long routines of ceremonial ablution; and that division into
+classes which at a particular crisis of social history is necessary
+for the maintenance of the national existence degenerates into the
+most disastrous and blighting of all human institutions--Caste. The
+fate of the Hindoo law is, in fact, the measure of the value of the
+Roman code. Ethnology shows us that the Romans and the Hindoos sprang
+from the same original stock, and there is indeed a striking
+resemblance between what appear to have been their original customs.
+Even now, Hindoo jurisprudence has a substratum of forethought and
+sound judgment, but irrational imitation has engrafted in it an
+immense apparatus of cruel absurdities. From these corruptions the
+Romans were protected by their code. It was compiled while the usage
+was still wholesome, and a hundred years afterwards it might have been
+too late. The Hindoo law has been to a great extent embodied in
+writing, but, ancient as in one sense are the compendia which still
+exist in Sanskrit, they contain ample evidence that they were drawn up
+after the mischief had been done. We are not of course entitled to say
+that if the Twelve Tables had not been published the Romans would have
+been condemned to a civilisation as feeble and perverted as that of
+the Hindoos, but thus much at least is certain, that _with_ their code
+they were exempt from the very chance of so unhappy a destiny.
+
+
+
+
+CHAPTER II
+
+LEGAL FICTIONS
+
+
+When primitive law has once been embodied in a Code, there is an end
+to what may be called its spontaneous development. Henceforward the
+changes effected in it, if effected at all, are effected deliberately
+and from without. It is impossible to suppose that the customs of any
+race or tribe remained unaltered during the whole of the long--in some
+instances the immense--interval between their declaration by a
+patriarchal monarch and their publication in writing. It would be
+unsafe too to affirm that no part of the alteration was effected
+deliberately. But from the little we know of the progress of law
+during this period, we are justified in assuming that set purpose had
+the very smallest share in producing change. Such innovations on the
+earliest usages as disclose themselves appear to have been dictated by
+feelings and modes of thought which, under our present mental
+conditions, we are unable to comprehend. A new era begins, however,
+with the Codes. Wherever, after this epoch, we trace the course of
+legal modification we are able to attribute it to the conscious desire
+of improvement, or at all events of compassing objects other than
+those which were aimed at in the primitive times.
+
+It may seem at first sight that no general propositions worth trusting
+can be elicited from the history of legal systems subsequent to the
+codes. The field is too vast. We cannot be sure that we have included
+a sufficient number of phenomena in our observations, or that we
+accurately understand those which we have observed. But the
+undertaking will be seen to be more feasible, if we consider that
+after the epoch of codes the distinction between stationary and
+progressive societies begins to make itself felt. It is only with the
+progressive that we are concerned, and nothing is more remarkable than
+their extreme fewness. In spite of overwhelming evidence, it is most
+difficult for a citizen of western Europe to bring thoroughly home to
+himself the truth that the civilisation which surrounds him is a rare
+exception in the history of the world. The tone of thought common
+among us, all our hopes, fears, and speculations, would be materially
+affected, if we had vividly before us the relation of the progressive
+races to the totality of human life. It is indisputable that much the
+greatest part of mankind has never shown a particle of desire that its
+civil institutions should be improved since the moment when external
+completeness was first given to them by their embodiment in some
+permanent record. One set of usages has occasionally been violently
+overthrown and superseded by another; here and there a primitive code,
+pretending to a supernatural origin, has been greatly extended, and
+distorted into the most surprising forms, by the perversity of
+sacerdotal commentators; but, except in a small section of the world,
+there has been nothing like the gradual amelioration of a legal
+system. There has been material civilisation, but, instead of the
+civilisation expanding the law, the law has limited the civilisation.
+The study of races in their primitive condition affords us some clue
+to the point at which the development of certain societies has
+stopped. We can see that Brahminical India has not passed beyond a
+stage which occurs in the history of all the families of mankind, the
+stage at which a rule of law is not yet discriminated from a rule of
+religion. The members of such a society consider that the
+transgression of a religious ordinance should be punished by civil
+penalties, and that the violation of a civil duty exposes the
+delinquent to divine correction. In China this point has been passed,
+but progress seems to have been there arrested, because the civil laws
+are coextensive with all the ideas of which the race is capable. The
+difference between the stationary and progressive societies is,
+however, one of the great secrets which inquiry has yet to penetrate.
+Among partial explanations of it I venture to place the considerations
+urged at the end of the last chapter. It may further be remarked that
+no one is likely to succeed in the investigation who does not clearly
+realise that the stationary condition of the human race is the rule,
+the progressive the exception. And another indispensable condition of
+success is an accurate knowledge of Roman law in all its principal
+stages. The Roman jurisprudence has the longest known history of any
+set of human institutions. The character of all the changes which it
+underwent is tolerably well ascertained. From its commencement to its
+close, it was progressively modified for the better, or for what
+the authors of the modification conceived to be the better, and the
+course of improvement was continued through periods at which all the
+rest of human thought and action materially slackened its pace, and
+repeatedly threatened to settle down into stagnation.
+
+I confine myself in what follows to the progressive societies. With
+respect to them it may be laid down that social necessities and social
+opinion are always more or less in advance of Law. We may come
+indefinitely near to the closing of the gap between them, but it has a
+perpetual tendency to reopen. Law is stable; the societies we are
+speaking of are progressive. The greater or less happiness of a people
+depends on the degree of promptitude with which the gulf is narrowed.
+
+A general proposition of some value may be advanced with respect to
+the agencies by which Law is brought into harmony with society. These
+instrumentalities seem to me to be three in number, Legal Fictions,
+Equity, and Legislation. Their historical order is that in which I
+have placed them. Sometimes two of them will be seen operating
+together, and there are legal systems which have escaped the influence
+of one or other of them. But I know of no instance in which the order
+of their appearance has been changed or inverted. The early history of
+one of them, Equity, is universally obscure, and hence it may be
+thought by some that certain isolated statutes, reformatory of the
+civil law, are older than any equitable jurisdiction. My own belief is
+that remedial Equity is everywhere older than remedial Legislation;
+but, should this be not strictly true, it would only be necessary to
+limit the proposition respecting their order of sequence to the
+periods at which they exercise a sustained and substantial influence
+in transforming the original law.
+
+I employ the word "fiction" in a sense considerably wider than that in
+which English lawyers are accustomed to use it, and with a meaning
+much more extensive than that which belonged to the Roman "fictiones."
+Fictio, in old Roman law, is properly a term of pleading, and
+signifies a false averment on the part of the plaintiff which the
+defendant was not allowed to traverse; such, for example, as an
+averment that the plaintiff was a Roman citizen, when in truth he was
+a foreigner. The object of these "fictiones" was, of course, to give
+jurisdiction, and they therefore strongly resembled the allegations
+in the writs of the English Queen's Bench, and Exchequer, by which
+those Courts contrived to usurp the jurisdiction of the Common
+Pleas:--the allegation that the defendant was in custody of the king's
+marshal, or that the plaintiff was the king's debtor, and could not
+pay his debt by reason of the defendant's default. But I now employ
+the expression "Legal Fiction" to signify any assumption which
+conceals, or affects to conceal, the fact that a rule of law has
+undergone alteration, its letter remaining unchanged, its operation
+being modified. The words, therefore, include the instances of
+fictions which I have cited from the English and Roman law, but they
+embrace much more, for I should speak both of the English Case-law and
+of the Roman Responsa Prudentum as resting on fictions. Both these
+examples will be examined presently. The _fact_ is in both cases that
+the law has been wholly changed; the _fiction_ is that it remains what
+it always was. It is not difficult to understand why fictions in all
+their forms are particularly congenial to the infancy of society. They
+satisfy the desire for improvement, which is not quite wanting, at the
+same time that they do not offend the superstitious disrelish for
+change which is always present. At a particular stage of social
+progress they are invaluable expedients for overcoming the rigidity of
+law, and, indeed, without one of them, the Fiction of Adoption which
+permits the family tie to be artificially created, it is difficult to
+understand how society would ever have escaped from its swaddling
+clothes, and taken its first steps towards civilisation. We must,
+therefore, not suffer ourselves to be affected by the ridicule which
+Bentham pours on legal fictions wherever he meets them. To revile them
+as merely fraudulent is to betray ignorance of their peculiar office
+in the historical development of law. But at the same time it would be
+equally foolish to agree with those theorists, who, discerning that
+fictions have had their uses, argue that they ought to be stereotyped
+in our system. They have had their day, but it has long since gone by.
+It is unworthy of us to effect an admittedly beneficial object by so
+rude a device as a legal fiction. I cannot admit any anomaly to be
+innocent, which makes the law either more difficult to understand or
+harder to arrange in harmonious order. Now legal fictions are the
+greatest of obstacles to symmetrical classification. The rule of law
+remains sticking in the system, but it is a mere shell. It has been
+long ago undermined, and a new rule hides itself under its cover.
+Hence there is at once a difficulty in knowing whether the rule which
+is actually operative should be classed in its true or in its apparent
+place, and minds of different casts will differ as to the branch of
+the alternative which ought to be selected. If the English law is ever
+to assume an orderly distribution, it will be necessary to prune away
+the legal fictions which, in spite of some recent legislative
+improvements, are still abundant in it.
+
+The next instrumentality by which the adaptation of law to social
+wants is carried on I call Equity, meaning by that word any body of
+rules existing by the side of the original civil law, founded on
+distinct principles and claiming incidentally to supersede the civil
+law in virtue of a superior sanctity inherent in those principles. The
+Equity whether of the Roman Prætors or of the English Chancellors,
+differs from the Fictions which in each case preceded it, in that the
+interference with law is open and avowed. On the other hand, it
+differs from Legislation, the agent of legal improvement which comes
+after it, in that its claim to authority is grounded, not on the
+prerogative of any external person or body, not even on that of the
+magistrate who enunciates it, but on the special nature of its
+principles, to which it is alleged that all law ought to conform. The
+very conception of a set of principles, invested with a higher
+sacredness than those of the original law and demanding application
+independently of the consent of any external body, belongs to a much
+more advanced stage of thought than that to which legal fictions
+originally suggested themselves.
+
+Legislation, the enactments of a legislature which, whether it take
+the form of an autocratic prince or of a parliamentary assembly, is
+the assumed organ of the entire society, is the last of the
+ameliorating instrumentalities. It differs from Legal Fictions just as
+Equity differs from them, and it is also distinguished from Equity, as
+deriving its authority from an external body or person. Its obligatory
+force is independent of its principles. The legislature, whatever be
+the actual restraints imposed on it by public opinion, is in theory
+empowered to impose what obligations it pleases on the members of the
+community. There is nothing to prevent its legislating in the
+wantonness of caprice. Legislation may be dictated by equity, if that
+last word be used to indicate some standard of right and wrong to
+which its enactments happen to be adjusted; but then these enactments
+are indebted for their binding force to the authority of the
+legislature and not to that of the principles on which the legislature
+acted; and thus they differ from rules of Equity, in the technical
+sense of the word, which pretend to a paramount sacredness entitling
+them at once to the recognition of the courts even without the
+concurrence of prince or parliamentary assembly. It is the more
+necessary to note these differences, because a student of Bentham
+would be apt to confound Fictions, Equity, and Statute law under the
+single head of legislation. They all, he would say, involve
+_law-making_; they differ only in respect of the machinery by which
+the new law is produced. That is perfectly true, and we must never
+forget it; but it furnishes no reason why we should deprive ourselves
+of so convenient a term as Legislation in the special sense.
+Legislation and Equity are disjoined in the popular mind and in the
+minds of most lawyers; and it will never do to neglect the distinction
+between them, however conventional, when important practical
+consequences follow from it.
+
+It would be easy to select from almost any regularly developed body of
+rules examples of _legal fictions_, which at once betray their true
+character to the modern observer. In the two instances which I proceed
+to consider, the nature of the expedient employed is not so readily
+detected. The first authors of these fictions did not perhaps intend
+to innovate, certainly did not wish to be suspected of innovating.
+There are, moreover, and always have been, persons who refuse to see
+any fiction in the process, and conventional language bears out their
+refusal. No examples, therefore, can be better calculated to
+illustrate the wide diffusion of legal fictions, and the efficiency
+with which they perform their two-fold office of transforming a system
+of laws and of concealing the transformation.
+
+We in England are well accustomed to the extension, modification, and
+improvement of law by a machinery which, in theory, is incapable of
+altering one jot or one line of existing jurisprudence. The process by
+which this virtual legislation is effected is not so much insensible
+as unacknowledged. With respect to that great portion of our legal
+system which is enshrined in cases and recorded in law reports, we
+habitually employ a double language and entertain, as it would
+appear, a double and inconsistent set of ideas. When a group of facts
+come before an English Court for adjudication, the whole course of the
+discussion between the judge and the advocate assumes that no question
+is, or can be, raised which will call for the application of any
+principles but old ones, or any distinctions but such as have long
+since been allowed. It is taken absolutely for granted that there is
+somewhere a rule of known law which will cover the facts of the
+dispute now litigated, and that, if such a rule be not discovered, it
+is only that the necessary patience, knowledge, or acumen is not
+forthcoming to detect it. Yet the moment the judgment has been
+rendered and reported, we slide unconsciously or unavowedly into a new
+language and a new train of thought. We now admit that the new
+decision _has_ modified the law. The rules applicable have, to use the
+very inaccurate expression sometimes employed, become more elastic. In
+fact they have been changed. A clear addition has been made to the
+precedents, and the canon of law elicited by comparing the precedents
+is not the same with that which would have been obtained if the series
+of cases had been curtailed by a single example. The fact that the old
+rule has been repealed, and that a new one has replaced it, eludes us,
+because we are not in the habit of throwing into precise language the
+legal formulas which we derive from the precedents, so that a change
+in their tenor is not easily detected unless it is violent and
+glaring. I shall not now pause to consider at length the causes which
+have led English lawyers to acquiesce in these curious anomalies.
+Probably it will be found that originally it was the received doctrine
+that somewhere, _in nubibus_ or _in gremio magistratuum_, there
+existed a complete, coherent, symmetrical body of English law, of an
+amplitude sufficient to furnish principles which would apply to any
+conceivable combination of circumstances. The theory was at first much
+more thoroughly believed in than it is now, and indeed it may have had
+a better foundation. The judges of the thirteenth century may have
+really had at their command a mine of law unrevealed to the bar and to
+the lay-public, for there is some reason for suspecting that in secret
+they borrowed freely, though not always wisely, from current compendia
+of the Roman and Canon laws. But that storehouse was closed so soon as
+the points decided at Westminster Hall became numerous enough to
+supply a basis for a substantive system of jurisprudence; and now for
+centuries English practitioners have so expressed themselves as to
+convey the paradoxical proposition that, except by Equity and Statute
+law, nothing has been added to the basis since it was first
+constituted. We do not admit that our tribunals legislate; we imply
+that they have never legislated; and yet we maintain that the rules of
+the English common law, with some assistance from the Court of
+Chancery and from Parliament, are coextensive with the complicated
+interests of modern society.
+
+A body of law bearing a very close and very instructive resemblance to
+our case-law in those particulars which I have noticed, was known to
+the Romans under the name of the Responsa Prudentum, the "answers of
+the learned in the law." The form of these Responses varied a good
+deal at different periods of the Roman jurisprudence, but throughout
+its whole course they consisted of explanatory glosses on
+authoritative written documents, and at first they were exclusively
+collections of opinions interpretative of the Twelve Tables. As with
+us, all legal language adjusted itself to the assumption that the text
+of the old Code remained unchanged. There was the express rule. It
+overrode all glosses and comments, and no one openly admitted that any
+interpretation of it, however eminent the interpreter, was safe from
+revision on appeal to the venerable texts. Yet in point of fact, Books
+of Responses bearing the names of leading jurisconsults obtained an
+authority at least equal to that of our reported cases, and constantly
+modified, extended, limited or practically overruled the provisions of
+the Decemviral law. The authors of the new jurisprudence during the
+whole progress of its formation professed the most sedulous respect
+for the letter of the Code. They were merely explaining it,
+deciphering it, bringing out its full meaning; but then, in the
+result, by piecing texts together, by adjusting the law to states of
+fact which actually presented themselves and by speculating on its
+possible application to others which might occur, by introducing
+principles of interpretation derived from the exegesis of other
+written documents which fell under their observation, they educed a
+vast variety of canons which had never been dreamed of by the
+compilers of the Twelve Tables and which were in truth rarely or never
+to be found there. All these treatises of the jurisconsults claimed
+respect on the ground of their assumed conformity with the Code, but
+their comparative authority depended on the reputation of the
+particular jurisconsults who gave them to the world. Any name of
+universally acknowledged greatness clothed a Book of Responses with a
+binding force hardly less than that which belonged to enactments of
+the legislature; and such a book in its turn constituted a new
+foundation on which a further body of jurisprudence might rest. The
+Responses of the early lawyers were not however published, in the
+modern sense, by their author. They were recorded and edited by his
+pupils, and were not therefore in all probability arranged according
+to any scheme of classification. The part of the students in these
+publications must be carefully noted, because the service they
+rendered to their teacher seems to have been generally repaid by his
+sedulous attention to the pupils' education. The educational treatises
+called Institutes or Commentaries, which are a later fruit of the duty
+then recognised, are among the most remarkable features of the Roman
+system. It was apparently in these Institutional works, and not in the
+books intended for trained lawyers, that the jurisconsults gave to the
+public their classifications and their proposals for modifying and
+improving the technical phraseology.
+
+In comparing the Roman Responsa Prudentum with their nearest English
+counterpart, it must be carefully borne in mind that the authority by
+which this part of the Roman jurisprudence was expounded was not the
+_bench_, but the _bar_. The decision of a Roman tribunal, though
+conclusive in the particular case, had no ulterior authority except
+such as was given by the professional repute of the magistrate who
+happened to be in office for the time. Properly speaking, there was no
+institution at Rome during the republic analogous to the English
+Bench, the Chambers of Imperial Germany, or the Parliaments of
+Monarchical France. There were magistrates indeed, invested with
+momentous judicial functions in their several departments, but the
+tenure of the magistracies was but for a single year, so that they are
+much less aptly compared to a permanent judicature than to a cycle of
+offices briskly circulating among the leaders of the bar. Much might
+be said on the origin of a condition of things which looks to us like
+a startling anomaly, but which was in fact much more congenial than
+our own system to the spirit of ancient societies, tending, as they
+always did, to split into distinct orders which, however exclusive
+themselves, tolerated no professional hierarchy above them.
+
+It is remarkable that this system did not produce certain effects
+which might on the whole have been expected from it. It did not, for
+example, _popularise_ the Roman law--it did not, as in some of the
+Greek republics, lessen the effort of intellect required for the
+mastery of the science, although its diffusion and authoritative
+exposition were opposed by no artificial barriers. On the contrary, if
+it had not been for the operation of a separate set of causes, there
+were strong probabilities that the Roman jurisprudence would have
+become as minute, technical, and difficult as any system which has
+since prevailed. Again, a consequence which might still more naturally
+have been looked for, does not appear at any time to have exhibited
+itself. The jurisconsults, until the liberties of Rome were
+overthrown, formed a class which was quite undefined and must have
+fluctuated greatly in numbers; nevertheless, there does not seem to
+have existed a doubt as to the particular individuals whose opinion,
+in their generation, was conclusive on the cases submitted to them.
+The vivid pictures of a leading jurisconsult's daily practice which
+abound in Latin literature--the clients from the country flocking to
+his antechamber in the early morning, and the students standing round
+with their note-books to record the great lawyer's replies--are seldom
+or never identified at any given period with more than one or two
+conspicuous names. Owing too to the direct contact of the client and
+the advocate, the Roman people itself seems to have been always alive
+to the rise and fall of professional reputation, and there is
+abundance of proof, more particularly in the well-known oration of
+Cicero, _Pro Muræna_, that the reverence of the commons for forensic
+success was apt to be excessive rather than deficient.
+
+We cannot doubt that the peculiarities which have been noted in the
+instrumentality by which the development of the Roman law was first
+effected, were the source of its characteristic excellence, its early
+wealth in principles. The growth and exuberance of principle was
+fostered, in part, by the competition among the expositors of the law,
+an influence wholly unknown where there exists a Bench, the
+depositaries intrusted by king or commonwealth with the prerogative
+of justice. But the chief agency, no doubt, was the uncontrolled
+multiplication of cases for legal decision. The state of facts which
+caused genuine perplexity to a country client was not a whit more
+entitled to form the basis of the jurisconsult's Response, or legal
+decision, than a set of hypothetical circumstances propounded by an
+ingenious pupil. All combinations of fact were on precisely the same
+footing, whether they were real or imaginary. It was nothing to the
+jurisconsult that his opinion was overruled for the moment by the
+magistrate who adjudicated on his client's case, unless that
+magistrate happened to rank above him in legal knowledge or the esteem
+of his profession. I do not, indeed, mean it to be inferred that he
+would wholly omit to consider his client's advantage, for the client
+was in earlier times the great lawyer's constituent and at a later
+period his paymaster, but the main road to the rewards of ambition lay
+through the good opinion of his order, and it is obvious that under
+such a system as I have been describing this was much more likely to
+be secured by viewing each case as an illustration of a great
+principle, or an exemplification of a broad rule, than by merely
+shaping it for an insulated forensic triumph. A still more powerful
+influence must have been exercised by the want of any distinct check
+on the suggestion or invention of possible questions. Where the data
+can be multiplied at pleasure, the facilities for evolving a general
+rule are immensely increased. As the law is administered among
+ourselves, the judge cannot travel out of the sets of facts exhibited
+before him or before his predecessors. Accordingly each group of
+circumstances which is adjudicated upon receives, to employ a
+Gallicism, a sort of consecration. It acquires certain qualities which
+distinguish it from every other case genuine or hypothetical. But at
+Rome, as I have attempted to explain, there was nothing resembling a
+Bench or Chamber of judges; and therefore no combination of facts
+possessed any particular value more than another. When a difficulty
+came for opinion before the jurisconsult, there was nothing to prevent
+a person endowed with a nice perception of analogy from at once
+proceeding to adduce and consider an entire class of supposed
+questions with which a particular feature connected it. Whatever were
+the practical advice given to the client, the _responsum_ treasured up
+in the note-books of listening pupils would doubtless contemplate the
+circumstances as governed by a great principle, or included in a
+sweeping rule. Nothing like this has ever been possible among
+ourselves, and it should be acknowledged that in many criticisms
+passed on the English law the manner in which it has been enunciated
+seems to have been lost sight of. The hesitation of our courts in
+declaring principles may be much more reasonably attributed to the
+comparative scantiness of our precedents, voluminous as they appear to
+him who is acquainted with no other system, than to the temper of our
+judges. It is true that in the wealth of legal principle we are
+considerably poorer than several modern European nations, But they, it
+must be remembered, took the Roman jurisprudence for the foundation of
+their civil institutions. They built the _débris_ of the Roman law
+into their walls; but in the materials, and workmanship of the residue
+there is not much which distinguishes it favourably from the structure
+erected by the English judicature.
+
+The period of Roman freedom was the period during which the stamp of a
+distinctive character was impressed on the Roman jurisprudence; and
+through all the earlier part of it, it was by the Responses of the
+jurisconsults that the development of the law was mainly carried on.
+But as we approach the fall of the republic there are signs that the
+Responses are assuming a form which must have been fatal to their
+farther expansion. They are becoming systematised and reduced into
+compendia. Q. Mucius Scævola, the Pontifex, is said to have published
+a manual of the entire Civil Law, and there are traces in the writings
+of Cicero of growing disrelish for the old methods, as compared with
+the more active instruments of legal innovation. Other agencies had in
+fact by this time been brought to bear on the law. The Edict, or
+annual proclamation of the Prætor, had risen into credit as the
+principal engine of law reform, and L. Cornelius Sylla, by causing to
+be enacted the great group of statutes called the _Leges Corneliæ_,
+had shown what rapid and speedy improvements can be effected by direct
+legislation. The final blow to the Responses was dealt by Augustus,
+who limited to a few leading jurisconsults the right of giving binding
+opinions on cases submitted to them, a change which, though it brings
+us nearer the ideas of the modern world, must obviously have altered
+fundamentally the characteristics of the legal profession and the
+nature of its influence on Roman law. At a later period another
+school of jurisconsults arose, the great lights of jurisprudence for
+all time. But Ulpian and Paulus, Gaius and Papinian, were not authors
+of Responses. Their works were regular treatises on particular
+departments of the law, more especially on the Prætor's Edict.
+
+The _Equity_ of the Romans and the Prætorian Edict by which it was
+worked into their system, will be considered in the next chapter. Of
+the Statute Law it is only necessary to say that it was scanty during
+the republic, but became very voluminous under the empire. In the
+youth and infancy of a nation it is a rare thing for the legislature
+to be called into action for the general reform of private law. The
+cry of the people is not for change in the laws, which are usually
+valued above their real worth, but solely for their pure, complete,
+and easy administration; and recourse to the legislative body is
+generally directed to the removal of some great abuse, or the decision
+of some incurable quarrel between classes and dynasties. There seems
+in the minds of the Romans to have been some association between the
+enactment of a large body of statutes and the settlement of society
+after a great civil commotion. Sylla signalised his reconstitution of
+the republic by the Leges Corneliæ; Julius Cæsar contemplated vast
+additions to the Statute Law; Augustus caused to be passed the
+all-important group of Leges Juliæ; and among later emperors the most
+active promulgators of constitutions are princes who, like
+Constantine, have the concerns of the world to readjust. The true
+period of Roman Statute Law does not begin till the establishment of
+the empire. The enactments of the emperors, clothed at first in the
+pretence of popular sanction, but afterwards emanating undisguisedly
+from the imperial prerogative, extend in increasing massiveness from
+the consolidation of Augustus's power to the publication of the Code
+of Justinian. It will be seen that even in the reign of the second
+emperor a considerable approximation is made to that condition of the
+law and that mode of administering it with which we are all familiar.
+A statute law and a limited board of expositors have risen into being;
+a permanent court of appeal and a collection of approved commentaries
+will very shortly be added; and thus we are brought close on the ideas
+of our own day.
+
+
+
+
+CHAPTER III
+
+LAW OF NATURE AND EQUITY
+
+
+The theory of a set of legal principles, entitled by their intrinsic
+superiority to supersede the older law, very early obtained currency
+both in the Roman state and in England. Such a body of principles,
+existing in any system, has in the foregoing chapters been denominated
+Equity, a term which, as will presently be seen, was one (though only
+one) of the designations by which this agent of legal change was known
+to the Roman jurisconsults. The jurisprudence of the Court of
+Chancery, which bears the name of Equity in England, could only be
+adequately discussed in a separate treatise. It is extremely complex
+in its texture and derives its materials from several heterogeneous
+sources. The early ecclesiastical chancellors contributed to it, from
+the Canon Law, many of the principles which lie deepest in its
+structure. The Roman law, more fertile than the Canon Law in rules
+applicable to secular disputes, was not seldom resorted to by a later
+generation of Chancery judges, amid whose recorded dicta we often find
+entire texts from the _Corpus Juris Civilis_ imbedded, with their
+terms unaltered, though their origin is never acknowledged. Still more
+recently, and particularly at the middle and during the latter half of
+the eighteenth century, the mixed systems of jurisprudence and morals
+constructed by the publicists of the Low Countries appear to have been
+much studied by English lawyers, and from the chancellorship of Lord
+Talbot to the commencement of Lord Eldon's chancellorship these works
+had considerable effect on the rulings of the Court of Chancery. The
+system, which obtained its ingredients from these various quarters,
+was greatly controlled in its growth by the necessity imposed on it of
+conforming itself to the analogies of the common law, but it has
+always answered the description of a body of comparatively novel legal
+principles claiming to override the older jurisprudence of the country
+on the strength of an intrinsic ethical superiority.
+
+The Equity of Rome was a much simpler structure, and its development
+from its first appearance can be much more easily traced. Both its
+character and its history deserve attentive examination. It is the
+root of several conceptions which have exercised profound influence on
+human thought, and through human thought have seriously affected the
+destinies of mankind.
+
+The Romans described their legal system as consisting of two
+ingredients. "All nations," says the Institutional Treatise published
+under the authority of the Emperor Justinian, "who are ruled by laws
+and customs, are governed partly by their own particular laws, and
+partly by those laws which are common to all mankind. The law which a
+people enacts is called the Civil Law of that people, but that which
+natural reason appoints for all mankind is called the Law of Nations,
+because all nations use it." The part of the law "which natural reason
+appoints for all mankind" was the element which the Edict of the
+Prætor was supposed to have worked into Roman jurisprudence. Elsewhere
+it is styled more simply Jus Naturale, or the Law of Nature; and its
+ordinances are said to be dictated by Natural Equity (_naturalis
+æquitas_) as well as by natural reason. I shall attempt to discover
+the origin of these famous phrases, Law of Nations, Law of Nature,
+Equity, and to determine how the conceptions which they indicate are
+related to one another.
+
+The most superficial student of Roman history must be struck by the
+extraordinary degree in which the fortunes of the republic were
+affected by the presence of foreigners, under different names, on her
+soil. The causes of this immigration are discernible enough at a later
+period, for we can readily understand why men of all races should
+flock to the mistress of the world; but the same phenomenon of a large
+population of foreigners and denizens meets us in the very earliest
+records of the Roman State. No doubt, the instability of society in
+ancient Italy, composed as it was in great measure of robber tribes,
+gave men considerable inducement to locate themselves in the territory
+of any community strong enough to protect itself and them from
+external attack, even though protection should be purchased at the
+cost of heavy taxation, political disfranchisement, and much social
+humiliation. It is probable, however, that this explanation is
+imperfect, and that it could only be completed by taking into account
+those active commercial relations which, though they are little
+reflected in the military traditions of the republic, Rome appears
+certainly to have had with Carthage and with the interior of Italy in
+pre-historic times. Whatever were the circumstances to which it was
+attributable, the foreign element in the commonwealth determined the
+whole course of its history, which, at all its stages, is little more
+than a narrative of conflicts between a stubborn nationality and an
+alien population. Nothing like this has been seen in modern times; on
+the one hand, because modern European communities have seldom or never
+received any accession of foreign immigrants which was large enough to
+make itself felt by the bulk of the native citizens, and on the other,
+because modern states, being held together by allegiance to a king or
+political superior, absorb considerable bodies of immigrant settlers
+with a quickness unknown to the ancient world, where the original
+citizens of a commonwealth always believed themselves to be united by
+kinship in blood, and resented a claim to equality of privilege as a
+usurpation of their birthright. In the early Roman republic the
+principle of the absolute exclusion of foreigners pervaded the Civil
+Law no less than the Constitution. The alien or denizen could have no
+share in any institution supposed to be coeval with the State. He
+could not have the benefit of Quiritarian law. He could not be a party
+to the _nexum_ which was at once the conveyance and the contract of
+the primitive Romans. He could not sue by the Sacramental Action, a
+mode of litigation of which the origin mounts up to the very infancy
+of civilisation. Still, neither the interest nor the security of Rome
+permitted him to be quite outlawed. All ancient communities ran the
+risk of being overthrown by a very slight disturbance of equilibrium,
+and the mere instinct of self-preservation would force the Romans to
+devise some method of adjusting the rights and duties of foreigners,
+who might otherwise--and this was a danger of real importance in the
+ancient world--have decided their controversies by armed strife.
+Moreover, at no period of Roman history was foreign trade entirely
+neglected. It was therefore probably half as a measure of police and
+half in furtherance of commerce that jurisdiction was first assumed in
+disputes to which the parties were either foreigners or a native and a
+foreigner. The assumption of such a jurisdiction brought with it the
+immediate necessity of discovering some principles on which the
+questions to be adjudicated upon could be settled, and the principles
+applied to this object by the Roman lawyers were eminently
+characteristic of the time. They refused, as I have said before, to
+decide the new cases by pure Roman Civil Law. They refused, no doubt
+because it seemed to involve some kind of degradation, to apply the
+law of the particular State from which the foreign litigant came. The
+expedient to which they resorted was that of selecting the rules of
+law common to Rome and to the different Italian communities in which
+the immigrants were born. In other words, they set themselves to form
+a system answering to the primitive and literal meaning of Jus
+Gentium, that is, Law common to all Nations. Jus Gentium was, in fact,
+the sum of the common ingredients in the customs of the old Italian
+tribes, for they were _all the nations_ whom the Romans had the means
+of observing, and who sent successive swarms of immigrants to Roman
+soil. Whenever a particular usage was seen to be practised by a large
+number of separate races in common it was set down as part of the Law
+common to all Nations, or Jus Gentium. Thus, although the conveyance
+of property was certainly accompanied by very different forms in the
+different commonwealths surrounding Rome, the actual transfer,
+tradition, or delivery of the article intended to be conveyed was a
+part of the ceremonial in all of them. It was, for instance, a part,
+though a subordinate part, in the Mancipation or conveyance peculiar
+to Rome. Tradition, therefore, being in all probability the only
+common ingredient in the modes of conveyance which the jurisconsults
+had the means of observing, was set down as an institution Juris
+Gentium, or rule of the Law common to all Nations. A vast number of
+other observances were scrutinised with the same result. Some common
+characteristic was discovered in all of them, which had a common
+object, and this characteristic was classed in the Jus Gentium. The
+Jus Gentium was accordingly a collection of rules and principles,
+determined by observation to be common to the institutions which
+prevailed among the various Italian tribes.
+
+The circumstances of the origin of the Jus Gentium are probably a
+sufficient safeguard against the mistake of supposing that the Roman
+lawyers had any special respect for it. It was the fruit in part of
+their disdain for all foreign law, and in part of their disinclination
+to give the foreigner the advantage of their own indigenous Jus
+Civile. It is true that we, at the present day, should probably take a
+very different view of the Jus Gentium, if we were performing the
+operation which was effected by the Roman jurisconsults. We should
+attach some vague superiority or precedence to the element which we
+had thus discerned underlying and pervading so great a variety of
+usage. We should have a sort of respect for rules and principles so
+universal. Perhaps we should speak of the common ingredient as being
+of the essence of the transaction into which it entered, and should
+stigmatise the remaining apparatus of ceremony, which varied in
+different communities, as adventitious and accidental. Or it may be,
+we should infer that the races which we were comparing had once obeyed
+a great system of common institutions of which the Jus Gentium was the
+reproduction, and that the complicated usages of separate
+commonwealths were only corruptions and depravations of the simpler
+ordinances which had once regulated their primitive state. But the
+results to which modern ideas conduct the observer are, as nearly as
+possible, the reverse of those which were instinctively brought home
+to the primitive Roman. What we respect or admire, he disliked or
+regarded with jealous dread. The parts of jurisprudence which he
+looked upon with affection were exactly those which a modern theorist
+leaves out of consideration as accidental and transitory; the solemn
+gestures of the mancipation; the nicely adjusted questions and answers
+of the verbal contract; the endless formalities of pleading and
+procedure. The Jus Gentium was merely a system forced on his attention
+by a political necessity. He loved it as little as he loved the
+foreigners from whose institutions it was derived and for whose
+benefit it was intended. A complete revolution in his ideas was
+required before it could challenge his respect, but so complete was it
+when it did occur, that the true reason why our modern estimate of the
+Jus Gentium differs from that which has just been described, is that
+both modern jurisprudence and modern philosophy have inherited the
+matured views of the later jurisconsults on this subject. There did
+come a time, when from an ignoble appendage of the Jus Civile, the Jus
+Gentium came to be considered a great though as yet imperfectly
+developed model to which all law ought as far as possible to conform.
+This crisis arrived when the Greek theory of a Law of Nature was
+applied to the practical Roman administration of the Law common to
+all Nations.
+
+The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law
+of Nations seen in the light of a peculiar theory. An unfortunate
+attempt to discriminate them was made by the jurisconsult Ulpian, with
+the propensity to distinguish characteristic of a lawyer, but the
+language of Gaius, a much higher authority, and the passage quoted
+before from the Institutes leave no room for doubt, that the
+expressions were practically convertible. The difference between them
+was entirely historical, and no distinction in essence could ever be
+established between them. It is almost unnecessary to add that the
+confusion between Jus Gentium, or Law common to all Nations, and
+_international law_ is entirely modern. The classical expression for
+international law is Jus Feciale or the law of negotiation and
+diplomacy. It is, however, unquestionable that indistinct impressions
+as to the meaning of Jus Gentium had considerable share in producing
+the modern theory that the relations of independent states are
+governed by the Law of Nature.
+
+It becomes necessary to investigate the Greek conceptions of nature
+and her law. The word [Greek: physis], which was rendered in the Latin
+_natura_ and our _nature_, denoted beyond all doubt originally the
+material universe, but it was the material universe contemplated under
+an aspect which--such is our intellectual distance from those
+times--it is not very easy to delineate in modern language. Nature
+signified the physical world regarded as the result of some primordial
+element or law. The oldest Greek philosophers had been accustomed to
+explain the fabric of creation as the manifestation of some single
+principle which they variously asserted to be movement, force, fire,
+moisture, or generation. In its simplest and most ancient sense,
+Nature is precisely the physical universe looked upon in this way as
+the manifestation of a principle. Afterwards, the later Greek sects,
+returning to a path from which the greatest intellects of Greece had
+meanwhile strayed, added the _moral_ to the _physical_ world in the
+conception of Nature. They extended the term till it embraced not
+merely the visible creation, but the thoughts, observances, and
+aspirations of mankind. Still, as before, it was not solely the moral
+phenomena of human society which they understood by _Nature_, but
+these phenomena considered as resolvable into some general and simple
+laws.
+
+Now, just as the oldest Greek theorists supposed that the sports of
+chance had changed the material universe from its simple primitive
+form into its present heterogeneous condition, so their intellectual
+descendants imagined that but for untoward accident the human race
+would have conformed itself to simpler rules of conduct and a less
+tempestuous life. To live according to _nature_ came to be considered
+as the end for which man was created, and which the best men were
+bound to compass. To live according to _nature_ was to rise above the
+disorderly habits and gross indulgences of the vulgar to higher laws
+of action which nothing but self-denial and self-command would enable
+the aspirant to observe. It is notorious that this proposition--live
+according to nature--was the sum of the tenets of the famous Stoic
+philosophy. Now on the subjugation of Greece that philosophy made
+instantaneous progress in Roman society. It possessed natural
+fascinations for the powerful class who, in theory at least, adhered
+to the simple habits of the ancient Italian race, and disdained to
+surrender themselves to the innovations of foreign fashions. Such
+persons began immediately to affect the Stoic precepts of life
+according to nature--an affectation all the more grateful, and, I may
+add, all the more noble, from its contrast with the unbounded
+profligacy which was being diffused through the imperial city by the
+pillage of the world and by the example of its most luxurious races.
+In the front of the disciples of the new Greek school, we might be
+sure, even if we did not know it historically, that the Roman lawyers
+figured. We have abundant proof that, there being substantially but
+two professions in the Roman republic, the military men were generally
+identified with the party of movement, but the lawyers were universally
+at the head of the party of resistance.
+
+The alliance of the lawyers with the Stoic philosophers lasted through
+many centuries. Some of the earliest names in the series of renowned
+jurisconsults are associated with Stoicism, and ultimately we have the
+golden age of Roman jurisprudence fixed by general consent at the era
+of the Antonine Cæsars, the most famous disciples to whom that
+philosophy has given a rule of life. The long diffusion of these
+doctrines among the members of a particular profession was sure to
+affect the art which they practised and influenced. Several positions
+which we find in the remains of the Roman jurisconsults are scarcely
+intelligible, unless we use the Stoic tenets as our key; but at the
+same time it is a serious, though a very common, error to measure the
+influence of Stoicism on Roman law by counting up the number of legal
+rules which can be confidently affiliated on Stoical dogmas. It has
+often been observed that the strength of Stoicism resided not in its
+canons of conduct, which were often repulsive or ridiculous, but in
+the great though vague principle which it inculcated of resistance to
+passion. Just in the same way the influence on jurisprudence of the
+Greek theories, which had their most distinct expression in Stoicism,
+consisted not in the number of specific positions which they
+contributed to Roman law, but in the single fundamental assumption
+which they lent to it. After nature had become a household word in the
+mouths of the Romans, the belief gradually prevailed among the Roman
+lawyers that the old Jus Gentium was in fact the lost code of Nature,
+and that the Prætor in framing an Edictal jurisprudence on the
+principles of the Jus Gentium was gradually restoring a type from
+which law had only departed to deteriorate. The inference from this
+belief was immediate, that it was the Prætor's duty to supersede the
+Civil Law as much as possible by the Edict, to revive as far as might
+be the institutions by which Nature had governed man in the primitive
+state. Of course, there were many impediments to the amelioration of
+law by this agency. There may have been prejudices to overcome even in
+the legal profession itself, and Roman habits were far too tenacious
+to give way at once to mere philosophical theory. The indirect methods
+by which the Edict combated certain technical anomalies, show the
+caution which its authors were compelled to observe, and down to the
+very days of Justinian there was some part of the old law which had
+obstinately resisted its influence. But, on the whole, the progress of
+the Romans in legal improvement was astonishingly rapid as soon as
+stimulus was applied to it by the theory of Natural Law. The ideas of
+simplification and generalisation had always been associated with the
+conception of Nature; simplicity, symmetry, and intelligibility came
+therefore to be regarded as the characteristics of a good legal
+system, and the taste for involved language, multiplied ceremonials,
+and useless difficulties disappeared altogether. The strong will, and
+unusual opportunities of Justinian were needed to bring the Roman law
+to its existing shape, but the ground plan of the system had been
+sketched long before the imperial reforms were effected.
+
+What was the exact point of contact between the old Jus Gentium and
+the Law of Nature? I think that they touch and blend through Æquitas,
+or Equity in its original sense; and here we seem to come to the first
+appearance in jurisprudence of this famous term, Equity. In examining
+an expression which has so remote an origin and so long a history as
+this, it is always safest to penetrate, if possible, to the simple
+metaphor or figure which at first shadowed forth the conception. It
+has generally been supposed that Æquitas is the equivalent of the
+Greek [Greek: isotês], _i.e._ the principle of equal or proportionate
+distribution. The equal division of numbers or physical magnitudes is
+doubtless closely entwined with our perceptions of justice; there are
+few associations which keep their ground in the mind so stubbornly or
+are dismissed from it with such difficulty by the deepest thinkers.
+Yet in tracing the history of this association, it certainly does not
+seem to have suggested itself to very early thought, but is rather the
+offspring of a comparatively late philosophy. It is remarkable too
+that the "equality" of laws on which the Greek democracies prided
+themselves--that equality which, in the beautiful drinking song of
+Callistratus, Harmodius and Aristogiton are said to have given to
+Athens--had little in common with the "equity" of the Romans. The
+first was an equal administration of civil laws among the citizens,
+however limited the class of citizens might be; the last implied the
+applicability of a law, which was not civil law, to a class which did
+not necessarily consist of citizens. The first excluded a despot; the
+last included foreigners, and for some purposes slaves. On the whole,
+I should be disposed to look in another direction for the germ of the
+Roman "Equity." The Latin word "æquus" carries with it more distinctly
+than the Greek "[Greek: isos]" the sense of _levelling_. Now its
+levelling tendency was exactly the characteristic of the Jus Gentium,
+which would be most striking to a primitive Roman. The pure
+Quiritarian law recognised a multitude of arbitrary distinctions
+between classes of men and kinds of property; the Jus Gentium,
+generalised from a comparison of various customs, neglected the
+Quiritarian divisions. The old Roman law established, for example, a
+fundamental difference between "Agnatic" and "Cognatic" relationship,
+that is, between the Family considered as based upon common subjection
+to patriarchal authority and the Family considered (in conformity with
+modern ideas) as united through the mere fact of a common descent.
+This distinction disappears in the "law common to all nations," as
+also does the difference between the archaic forms of property, Things
+"Mancipi" and Things "nec Mancipi." The neglect of demarcations and
+boundaries seems to me, therefore, the feature of the Jus Gentium
+which was depicted in Æquitas. I imagine that the word was at first a
+mere description of that constant _levelling_ or removal of
+irregularities which went on wherever the prætorian system was applied
+to the cases of foreign litigants. Probably no colour of ethical
+meaning belonged at first to the expression; nor is there any reason
+to believe that the process which it indicated was otherwise than
+extremely distasteful to the primitive Roman mind.
+
+On the other hand, the feature of the Jus Gentium which was presented
+to the apprehension of a Roman by the word Equity, was exactly the
+first and most vividly realised characteristic of the hypothetical
+state of nature. Nature implied symmetrical order, first in the
+physical world, and next in the moral, and the earliest notion of
+order doubtless involved straight lines, even surfaces, and measured
+distances. The same sort of picture or figure would be unconsciously
+before the mind's eye, whether it strove to form the outlines of the
+supposed natural state, or whether it took in at a glance the actual
+administration of the "law common to all nations"; and all we know of
+primitive thought would lead us to conclude that this ideal similarity
+would do much to encourage the belief in an identity of the two
+conceptions. But then, while the Jus Gentium had little or no
+antecedent credit at Rome, the theory of a Law of Nature came in
+surrounded with all the prestige of philosophical authority, and
+invested with the charms of association with an elder and more
+blissful condition of the race. It is easy to understand how the
+difference in the point of view would affect the dignity of the term
+which at once described the operation of the old principles and the
+results of the new theory. Even to modern ears it is not at all the
+same thing to describe a process as one of "levelling" and to call it
+the "correction of anomalies," though the metaphor is precisely the
+same. Nor do I doubt that, when once Æquitas was understood to convey
+an allusion to the Greek theory, associations which grew out of the
+Greek notion of [Greek: isotês] began to cluster round it. The
+language of Cicero renders it more than likely that this was so, and
+it was the first stage of a transmutation of the conception of Equity,
+which almost every ethical system which has appeared since those days
+has more or less helped to carry on.
+
+Something must be said of the formal instrumentality by which the
+principles and distinctions associated, first with the Law common to
+all Nations, and afterwards with the Law of Nature, were gradually
+incorporated with the Roman law. At the crisis of primitive Roman
+history which is marked by the expulsion of the Tarquins, a change
+occurred which has its parallel in the early annals of many ancient
+states, but which had little in common with those passages of
+political affairs which we now term revolutions. It may best be
+described by saying that the monarchy was put into commission. The
+powers heretofore accumulated in the hands of a single person were
+parcelled out among a number of elective functionaries, the very name
+of the kingly office being retained and imposed on a personage known
+subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the
+change, the settled duties of the supreme judicial office devolved on
+the Prætor, at the time the first functionary in the commonwealth, and
+together with these duties was transferred the undefined supremacy
+over law and legislation which always attached to ancient sovereigns
+and which is not obscurely related to the patriarchal and heroic
+authority they had once enjoyed. The circumstances of Rome gave great
+importance to the more indefinite portion of the functions thus as
+transferred, as with the establishment of the republic began that
+series of recurrent trials which overtook the state, in the difficulty
+of dealing with a multitude of persons who, not coming within the
+technical description of indigenous Romans, were nevertheless
+permanently located within Roman jurisdiction. Controversies between
+such persons, or between such persons and native-born citizens, would
+have remained without the pale of the remedies provided by Roman law,
+if the Prætor had not undertaken to decide them, and he must soon
+have addressed himself to the more critical disputes which in the
+extension of commerce arose between Roman subjects and avowed
+foreigners. The great increase of such cases in the Roman Courts about
+the period of the first Punic War is marked by the appointment of a
+special Prætor, known subsequently as the Prætor Peregrinus, who gave
+them his undivided attention. Meantime, one precaution of the Roman
+people against the revival of oppression, had consisted in obliging
+every magistrate whose duties had any tendency to expand their sphere,
+to publish, on commencing his year of office, an Edict or
+proclamation, in which he declared the manner in which he intended to
+administer his department. The Prætor fell under the rule with other
+magistrates; but as it was necessarily impossible to construct each
+year a separate system of principles, he seems to have regularly
+republished his predecessor's Edict with such additions and changes as
+the exigency of the moment or his own views of the law compelled him
+to introduce. The Prætor's proclamation, thus lengthened by a new
+portion every year, obtained the name of the Edictum Perpetuum, that
+is, the _continuous_ or _unbroken_ edict. The immense length to which
+it extended, together perhaps with some distaste for its necessarily
+disorderly texture, caused the practice of increasing it to be stopped
+in the year of Salvius Julianus, who occupied the magistracy in the
+reign of the Emperor Hadrian. The edict of that Prætor embraced
+therefore the whole body of equity jurisprudence, which it probably
+disposed in new and symmetrical order, and the perpetual edict is
+therefore often cited in Roman law merely as the Edict of Julianus.
+
+Perhaps the first inquiry which occurs to an Englishman who considers
+the peculiar mechanism of the Edict is, what were the limitations by
+which these extensive powers of the Prætor were restrained? How was
+authority so little definite reconciled with a settled condition of
+society and of law? The answer can only be supplied by careful
+observation of the conditions under which our own English law is
+administered. The Prætor, it should be recollected, was a jurisconsult
+himself, or a person entirely in the hands of advisers who were
+jurisconsults, and it is probable that every Roman lawyer waited
+impatiently for the time when he should fill or control the great
+judicial magistracy. In the interval, his tastes, feelings,
+prejudices, and degree of enlightenment were inevitably those of his
+own order, and the qualifications which he ultimately brought to
+office were those which he had acquired in the practice and study of
+his profession. An English Chancellor goes through precisely the same
+training, and carries to the woolsack the same qualifications. It is
+certain when he assumes office that he will have, to some extent,
+modified the law before he leaves it; but until he has quitted his
+seat, and the series of his decisions in the Law Reports has been
+completed, we cannot discover how far he has elucidated or added to
+the principles which his predecessors bequeathed to him. The influence
+of the Prætor on Roman jurisprudence differed only in respect of the
+period at which its amount was ascertained. As was before stated, he
+was in office but for a year, and his decisions rendered during his
+year, though of course irreversible as regarded the litigants, were of
+no ulterior value. The most natural moment for declaring the changes
+he proposed to effect occurred therefore at his entrance on the
+prætorship, and hence, when commencing his duties, he did openly and
+avowedly that which in the end his English representative does
+insensibly and sometimes unconsciously. The checks on this apparent
+liberty are precisely those imposed on an English judge. Theoretically
+there seems to be hardly any limit to the powers of either of them,
+but practically the Roman Prætor, no less than the English Chancellor,
+was kept within the narrowest bounds by the prepossessions imbibed
+from early training and by the strong restraints of professional
+opinion, restraints of which the stringency can only be appreciated by
+those who have personally experienced them. It may be added that the
+lines within which movement is permitted, and beyond which there is to
+be no travelling, were chalked with as much distinctness in the one
+case as in the other. In England the judge follows the analogies of
+reported decisions on insulated groups of facts. At Rome, as the
+intervention of the Prætor was at first dictated by simple concern for
+the safety of the state, it is likely that in the earliest times it
+was proportioned to the difficulty which it attempted to get rid of.
+Afterwards, when the taste for principle had been diffused by the
+Responses, he no doubt used the Edict as the means of giving a wider
+application to those fundamental principles, which he and the other
+practising jurisconsults, his contemporaries, believed themselves
+to have detected underlying the law. Latterly he acted wholly under
+the influence of Greek philosophical theories, which at once tempted
+him to advance and confined him to a particular course of progress.
+
+The nature of the measures attributed to Salvius Julianus has been
+much disputed. Whatever they were, their effects on the Edict are
+sufficiently plain. It ceased to be extended by annual additions, and
+henceforward the equity jurisprudence of Rome was developed by the
+labours of a succession of great jurisconsults who fill with their
+writings the interval between the reign of Hadrian and the reign of
+Alexander Severus. A fragment of the wonderful system which they built
+up survives in the Pandects of Justinian, and supplies evidence that
+their works took the form of treatises on all parts of Roman Law, but
+chiefly that of commentaries on the Edict. Indeed, whatever be the
+immediate subject of a jurisconsult of this epoch, he may always be
+called an expositor of Equity. The principles of the Edict had, before
+the epoch of its cessation, made their way into every part of Roman
+jurisprudence. The Equity of Rome, it should be understood, even when
+most distinct from the Civil Law, was always administered by the same
+tribunals. The Prætor was the chief equity judge as well as the great
+common law magistrate, and as soon as the Edict had evolved an
+equitable rule the Prætor's court began to apply it in place of or by
+the side of the old rule of the Civil Law, which was thus directly or
+indirectly repealed without any express enactment of the legislature.
+The result, of course, fell considerably short of a complete fusion of
+law and equity, which was not carried out till the reforms of
+Justinian. The technical severance of the two elements of
+jurisprudence entailed some confusion and some inconvenience, and
+there were certain of the stubborner doctrines of the Civil Law with
+which neither the authors nor the expositors of the Edict had ventured
+to interfere. But at the same time there was no corner of the field of
+jurisprudence which was not more or less swept over by the influence
+of Equity. It supplied the jurist with all his materials for
+generalisation, with all his methods of interpretation, with his
+elucidations of first principles, and with that great mass of limiting
+rules which are rarely interfered with by the legislator, but which
+seriously control the application of every legislative act.
+
+The period of jurists ends with Alexander Severus. From Hadrian to
+that emperor the improvement of law was carried on, as it is at the
+present moment in most continental countries, partly by approved
+commentaries and partly by direct legislation. But in the reign of
+Alexander Severus the power of growth in Roman Equity seems to be
+exhausted, and the succession of jurisconsults comes to a close. The
+remaining history of the Roman law is the history of the imperial
+constitutions, and, at the last, of attempts to codify what had now
+become the unwieldy body of Roman jurisprudence. We have the latest
+and most celebrated experiment of this kind in the _Corpus Juris_ of
+Justinian.
+
+It would be wearisome to enter on a detailed comparison or contrast of
+English and Roman Equity, but it may be worth while to mention two
+features which they have in common. The first may be stated as
+follows. Each of them tended, and all such systems tend, to exactly
+the same state in which the old common law was when Equity first
+interfered with it. A time always comes at which the moral principles
+originally adopted have been carried out to all their legitimate
+consequences, and then the system founded on them becomes as rigid, as
+unexpansive, and as liable to fall behind moral progress as the
+sternest code of rules avowedly legal. Such an epoch was reached at
+Rome in the reign of Alexander Severus; after which, though the whole
+Roman world was undergoing a moral revolution, the Equity of Rome
+ceased to expand. The same point of legal history was attained in
+England under the chancellorship of Lord Eldon, the first of our
+equity judges who, instead of enlarging the jurisprudence of his court
+by indirect legislation, devoted himself through life to explaining
+and harmonising it. If the philosophy of legal history were better
+understood in England, Lord Eldon's services would be less exaggerated
+on the one hand and better appreciated on the other than they appear
+to be among contemporary lawyers. Other misapprehensions too, which
+bear some practical fruit, would perhaps be avoided. It is easily seen
+by English lawyers that English Equity is a system founded on moral
+rules; but it is forgotten that these rules are the morality of past
+centuries--not of the present--that they have received nearly as much
+application as they are capable of, and that though of course they do
+not differ largely from the ethical creed of our own day, they are not
+necessarily on a level with it. The imperfect theories of the subject
+which are commonly adopted have generated errors of opposite sorts.
+Many writers of treatises on Equity, struck with the completeness of
+the system in its present state, commit themselves expressly or
+implicitly to the paradoxical assertion that the founders of the
+chancery jurisprudence contemplated its present fixity of form when
+they were settling its first bases. Others, again, complain--and this
+is a grievance frequently observed upon in forensic arguments--that
+the moral rules enforced by the Court of Chancery fall short of the
+ethical standard of the present day. They would have each Lord
+Chancellor perform precisely the same office for the jurisprudence
+which he finds ready to his hand, which was performed for the old
+common law by the fathers of English equity. But this is to invert the
+order of the agencies by which the improvement of the law is carried
+on. Equity has its place and its time; but I have pointed out that
+another instrumentality is ready to succeed it when its energies are
+spent.
+
+Another remarkable characteristic of both English and Roman Equity is
+the falsehood of the assumptions upon which the claim of the equitable
+to superiority over the legal rule is originally defended. Nothing is
+more distasteful to men, either as individuals or as masses, than the
+admission of their moral progress as a substantive reality. This
+unwillingness shows itself, as regards individuals, in the exaggerated
+respect which is ordinarily paid to the doubtful virtue of
+consistency. The movement of the collective opinion of a whole society
+is too palpable to be ignored, and is generally too visible for the
+better to be decried; but there is the greatest disinclination to
+accept it as a primary phenomenon, and it is commonly explained as the
+recovery of a lost perfection--the gradual return to a state from
+which the race has lapsed. This tendency to look backward instead of
+forward for the goal of moral progress produced anciently, as we have
+seen, on Roman jurisprudence effects the most serious and permanent.
+The Roman jurisconsults, in order to account for the improvement of
+their jurisprudence by the Prætor, borrowed from Greece the doctrine
+of a Natural state of man--a Natural society--anterior to the
+organisation of commonwealths governed by positive laws. In England,
+on the other hand, a range of ideas especially congenial to Englishmen
+of that day, explained the claim of Equity to override the common law
+by supposing a general right to superintend the administration of
+justice which was assumed to be vested in the king as a natural result
+of his paternal authority. The same view appears in a different and a
+quainter form in the old doctrine that Equity flowed from the king's
+conscience--the improvement which had in fact taken place in the moral
+standard of the community being thus referred to an inherent elevation
+in the moral sense of the sovereign. The growth of the English
+constitution rendered such a theory unpalatable after a time; but, as
+the jurisdiction of the Chancery was then firmly established, it was
+not worth while to devise any formal substitute for it. The theories
+found in modern manuals of Equity are very various, but all are alike
+in their untenability. Most of them are modifications of the Roman
+doctrine of a natural law, which is indeed adopted in tenour by those
+writers who begin a discussion of the jurisdiction of the Court of
+Chancery by laying down a distinction between natural justice and
+civil.
+
+
+
+
+CHAPTER IV
+
+THE MODERN HISTORY OF THE LAW OF NATURE
+
+
+It will be inferred from what has been said that the theory which
+transformed the Roman jurisprudence had no claim to philosophical
+precision. It involved, in fact, one of those "mixed modes of thought"
+which are now acknowledged to have characterised all but the highest
+minds during the infancy of speculation, and which are far from
+undiscoverable even in the mental efforts of our own day. The Law of
+Nature confused the Past and the Present. Logically, it implied a
+state of Nature which had once been regulated by natural law; yet the
+jurisconsults do not speak clearly or confidently of the existence of
+such a state, which indeed is little noticed by the ancients except
+where it finds a poetical expression in the fancy of a golden age.
+Natural law, for all practical purposes, was something belonging to
+the present, something entwined with existing institutions, something
+which could be distinguished from them by a competent observer. The
+test which separated the ordinances of Nature from the gross
+ingredients with which they were mingled was a sense of simplicity and
+harmony; yet it was not on account of their simplicity and harmony
+that these finer elements were primarily respected, but on the score
+of their descent from the aboriginal reign of Nature. This confusion
+has not been successfully explained away by the modern disciples of
+the jurisconsults, and in truth modern speculations on the Law of
+Nature betray much more indistinctness of perception and are vitiated
+by much more hopeless ambiguity of language than the Roman lawyers can
+be justly charged with. There are some writers on the subject who
+attempt to evade the fundamental difficulty by contending that the
+code of Nature exists in the future and is the goal to which all civil
+laws are moving, but this is to reverse the assumptions on which the
+old theory rested, or rather perhaps to mix together two inconsistent
+theories. The tendency to look not to the past but to the future for
+types of perfection was brought into the world by Christianity.
+Ancient literature gives few or no hints of a belief that the progress
+of society is necessarily from worse to better.
+
+But the importance of this theory to mankind has been very much
+greater than its philosophical deficiencies would lead us to expect.
+Indeed, it is not easy to say what turn the history of thought, and
+therefore, of the human race, would have taken, if the belief in a law
+natural had not become universal in the ancient world.
+
+There are two special dangers to which law, and society which is held
+together by law, appear to be liable in their infancy. One of them is
+that law may be too rapidly developed. This occurred with the codes of
+the more progressive Greek communities, which disembarrassed
+themselves with astonishing facility from cumbrous forms of procedure
+and needless terms of art, and soon ceased to attach any superstitious
+value to rigid rules and prescriptions. It was not for the ultimate
+advantage of mankind that they did so, though the immediate benefit
+conferred on their citizens may have been considerable. One of the
+rarest qualities of national character is the capacity for applying
+and working out the law, as such, at the cost of constant miscarriages
+of abstract justice, without at the same time losing the hope or the
+wish that law may be conformed to a higher ideal. The Greek intellect,
+with all its nobility and elasticity, was quite unable to confine
+itself within the strait waistcoat of a legal formula; and, if we may
+judge them by the popular courts of Athens, of whose working we possess
+accurate knowledge, the Greek tribunals exhibited the strongest
+tendency to confound law and fact. The remains of the Orators and the
+forensic commonplaces preserved by Aristotle in his Treatise on
+Rhetoric, show that questions of pure law were constantly argued on
+every consideration which could possibly influence the mind of the
+judges. No durable system of jurisprudence could be produced in this
+way. A community which never hesitated to relax rules of written law
+whenever they stood in the way of an ideally perfect decision on the
+facts of particular cases, would only, if it bequeathed any body of
+judicial principles to posterity, bequeath one consisting of the ideas
+of right and wrong which happened to be prevalent at the time. Such a
+jurisprudence would contain no framework to which the more advanced
+conceptions of subsequent ages could be fitted. It would amount at
+best to a philosophy marked with the imperfections of the civilisation
+under which it grew up.
+
+Few national societies have had their jurisprudence menaced by this
+peculiar danger of precocious maturity and untimely disintegration. It
+is certainly doubtful whether the Romans were ever seriously
+threatened by it, but at any rate they had adequate protection in
+their theory of Natural Law. For the Natural Law of the jurisconsults
+was distinctly conceived by them as a system which ought gradually to
+absorb civil laws, without superseding them so long as they remained
+unrepealed. There was no such impression of its sanctity abroad, that
+an appeal to it would be likely to overpower the mind of a judge who
+was charged with the superintendence of a particular litigation. The
+value and serviceableness of the conception arose from its keeping
+before the mental vision a type of perfect law, and from its inspiring
+the hope of an indefinite approximation to it, at the same time that
+it never tempted the practitioner or the citizen to deny the
+obligation of existing laws which had not yet been adjusted to the
+theory. It is important too to observe that this model system, unlike
+many of those which have mocked men's hopes in later days, was not
+entirely the product of imagination. It was never thought of as
+founded on quite untested principles. The notion was that it underlay
+existing law and must be looked for through it. Its functions were in
+short remedial, not revolutionary or anarchical. And this,
+unfortunately, is the exact point at which the modern view of a Law of
+Nature has often ceased to resemble the ancient.
+
+The other liability to which the infancy of society is exposed has
+prevented or arrested the progress of far the greater part of mankind.
+The rigidity of primitive law, arising chiefly from its early
+association and identification with religion, has chained down the
+mass of the human race to those views of life and conduct which they
+entertained at the time when their usages were first consolidated into
+a systematic form. There were one or two races exempted by a
+marvellous fate from this calamity, and grafts from these stocks have
+fertilised a few modern societies, but it is still true that, over the
+larger part of the world, the perfection of law has always been
+considered as consisting in adherence to the ground plan supposed to
+have been marked out by the original legislator. If intellect has in
+such cases been exercised on jurisprudence, it has uniformly prided
+itself on the subtle perversity of the conclusions it could build on
+ancient texts, without discoverable departure from their literal
+tenour. I know no reason why the law of the Romans should be superior
+to the laws of the Hindoos, unless the theory of Natural Law had given
+it a type of excellence different from the usual one. In this one
+exceptional instance, simplicity and symmetry were kept before the
+eyes of a society whose influence on mankind was destined to be
+prodigious from other causes, as the characteristics of an ideal and
+absolutely perfect law. It is impossible to overrate the importance to
+a nation or profession of having a distinct object to aim at in the
+pursuit of improvement. The secret of Bentham's immense influence in
+England during the past thirty years is his success in placing such an
+object before the country. He gave us a clear rule of reform. English
+lawyers of the last century were probably too acute to be blinded by
+the paradoxical commonplace that English law was the perfection of
+human reason, but they acted as if they believed it for want of any
+other principle to proceed upon. Bentham made the good of the
+community take precedence of every other object, and thus gave escape
+to a current which had long been trying to find its way outwards.
+
+It is not an altogether fanciful comparison if we call the assumptions
+we have been describing the ancient counterpart of Benthamism. The
+Roman theory guided men's efforts in the same direction as the theory
+put into shape by the Englishman; its practical results were not
+widely different from those which would have been attained by a sect
+of law-reformers who maintained a steady pursuit of the general good
+of the community. It would be a mistake, however, to suppose it a
+conscious anticipation of Bentham's principles. The happiness of
+mankind is, no doubt, sometimes assigned, both in the popular and in
+the legal literature of the Romans, as the proper object of remedial
+legislation, but it is very remarkable how few and faint are the
+testimonies to this principle compared with the tributes which are
+constantly offered to the overshadowing claims of the Law of Nature.
+It was not to anything resembling philanthropy, but to their sense of
+simplicity and harmony--of what they significantly termed
+"elegance"--that the Roman jurisconsults freely surrendered
+themselves. The coincidence of their labours with those which a more
+precise philosophy would have counselled has been part of the good
+fortune of mankind.
+
+Turning to the modern history of the law of nature, we find it easier
+to convince ourselves of the vastness of its influence than to
+pronounce confidently whether that influence has been exerted for good
+or for evil. The doctrines and institutions which may be attributed to
+it are the material of some of the most violent controversies debated
+in our time, as will be seen when it is stated that the theory of
+Natural Law is the source of almost all the special ideas as to law,
+politics, and society which France during the last hundred years has
+been the instrument of diffusing over the western world. The part
+played by jurists in French history, and the sphere of jural
+conceptions in French thought, have always been remarkably large. It
+was not indeed in France, but in Italy, that the juridical science of
+modern Europe took its rise, but of the schools founded by emissaries
+of the Italian universities in all parts of the continent, and
+attempted (though vainly) to be set up in our island, that established
+in France produced the greatest effect on the fortunes of the country.
+The lawyers of France immediately formed a strict alliance with the
+kings of the house of Capet, and it was as much through their
+assertions of royal prerogative, and through their interpretations of
+the rules of feudal succession, as by the power of the sword, that the
+French monarchy at last grew together out of the agglomeration of
+provinces and dependencies. The enormous advantage which their
+understanding with the lawyers conferred on the French kings in the
+prosecution of their struggle with the great feudatories, the
+aristocracy, and the church, can only be appreciated if we take into
+account the ideas which prevailed in Europe far down into the middle
+ages. There was, in the first place, a great enthusiasm for
+generalisation and a curious admiration for all general propositions,
+and consequently, in the field of law, an involuntary reverence for
+every general formula which seemed to embrace and sum up a number of
+the insulated rules which were practised as usages in various
+localities. Such general formulas it was, of course, not difficult for
+practitioners familiar with the Corpus Juris or the Glosses to supply
+in almost any quantity. There was, however, another cause which added
+yet more considerably to the lawyers' power. At the period of which we
+are speaking, there was universal vagueness of ideas as to the degree
+and nature of the authority residing in written texts of law. For the
+most part, the peremptory preface, _Ita scriptum est_, seems to have
+been sufficient to silence all objections. Where a mind of our own day
+would jealously scrutinise the formula which had been quoted, would
+inquire its source, and would (if necessary) deny that the body of law
+to which it belonged had any authority to supersede local customs, the
+elder jurist would not probably have ventured to do more than question
+the applicability of the rule, or at best cite some counter
+proposition from the Pandects or the Canon Law. It is extremely
+necessary to bear in mind the uncertainty of men's notions on this
+most important side of juridical controversies, not only because it
+helps to explain the weight which the lawyers threw into the
+monarchical scale, but on account of the light which it sheds on
+several curious historical problems. The motives of the author of the
+Forged Decretals and his extraordinary success are rendered more
+intelligible by it. And, to take a phenomenon of smaller interest, it
+assists us, though only partially, to understand the plagiarisms of
+Bracton. That an English writer of the time of Henry III. should have
+been able to put off on his countrymen as a compendium of pure English
+law a treatise of which the entire form and a third of the contents
+were directly borrowed from the Corpus Juris, and that he should have
+ventured on this experiment in a country where the systematic study of
+the Roman law was formally proscribed, will always be among the most
+hopeless enigmas in the history of jurisprudence; but still it is
+something to lessen our surprise when we comprehend the state of
+opinion at the period as to the obligatory force of written texts,
+apart from all consideration of the source whence they were derived.
+
+When the kings of France had brought their long struggle for supremacy
+to a successful close, an epoch which may be placed roughly at the
+accession of the branch of Valois-Angoulême to the throne, the
+situation of the French jurists was peculiar and continued to be so
+down to the outbreak of the revolution. On the one hand, they formed
+the best instructed and nearly the most powerful class in the nation.
+They had made good their footing as a privileged order by the side of
+the feudal aristocracy, and they had assured their influence by an
+organisation which distributed their profession over France in great
+chartered corporations possessing large defined powers and still
+larger indefinite claims. In all the qualities of the advocate, the
+judge, and the legislator, they far excelled their compeers throughout
+Europe. Their juridical tact, their ease of expression, their fine
+sense of analogy and harmony, and (if they may be judged by the
+highest names among them) their passionate devotion to their
+conceptions of justice, were as remarkable as the singular variety of
+talent which they included, a variety covering the whole ground
+between the opposite poles of Cujas and Montesquieu, of D'Aguesseau
+and Dumoulin. But, on the other hand, the system of laws which they
+had to administer stood in striking contrast with the habits of mind
+which they had cultivated. The France which had been in great part
+constituted by their efforts was smitten with the curse of an
+anomalous and dissonant jurisprudence beyond every other country in
+Europe. One great division ran through the country and separated it
+into _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, the first
+acknowledging the written Roman law as the basis of their
+jurisprudence, the last admitting it only so far as it supplied
+general forms of expression, and courses of juridical reasoning which
+were reconcileable with the local usages. The sections thus formed
+were again variously subdivided. In the _Pays du Droit Coutumier_
+province differed from province, county from county, municipality from
+municipality, in the nature of its customs. In the _Pays du Droit
+Ecrit_ the stratum of feudal rules which overlay the Roman law was of
+the most miscellaneous composition. No such confusion as this ever
+existed in England. In Germany it did exist, but was too much in
+harmony with the deep political and religious divisions of the country
+to be lamented or even felt. It was the special peculiarity of France
+that an extraordinary diversity of laws continued without sensible
+alteration while the central authority of the monarchy was constantly
+strengthening itself, while rapid approaches were being made to
+complete administrative unity, and while a fervid national spirit had
+been developed among the people. The contrast was one which fructified
+in many serious results, and among them we must rank the effect which
+it produced on the minds of the French lawyers. Their speculative
+opinions and their intellectual bias were in the strongest opposition
+to their interests and professional habits. With the keenest sense and
+the fullest recognition of those perfections of jurisprudence which
+consist in simplicity and uniformity, they believed, or seemed to
+believe, that the vices which actually infested French law were
+ineradicable; and in practice they often resisted the reformation of
+abuses with an obstinacy which was not shown by many among their less
+enlightened countrymen. But there was a way to reconcile these
+contradictions. They became passionate enthusiasts for Natural Law.
+The Law of Nature overleapt all provincial and municipal boundaries;
+it disregarded all distinctions between noble and burgess, between
+burgess and peasant; it gave the most exalted place to lucidity,
+simplicity and system; but it committed its devotees to no specific
+improvement, and did not directly threaten any venerable or lucrative
+technicality. Natural law may be said to have become the common law of
+France, or, at all events, the admission of its dignity and claims was
+the one tenet which all French practitioners alike subscribed to. The
+language of the præ-revolutionary jurists in its eulogy is singularly
+unqualified, and it is remarkable that the writers on the Customs, who
+often made it their duty to speak disparagingly of the pure Roman law,
+speak even more fervidly of Nature and her rules than the civilians
+who professed an exclusive respect for the Digest and the Code.
+Dumoulin, the highest of all authorities on old French Customary Law,
+has some extravagant passages on the Law of Nature; and his panegyrics
+have a peculiar rhetorical turn which indicated a considerable
+departure from the caution of the Roman jurisconsults. The hypothesis
+of a Natural Law had become not so much a theory guiding practice as
+an article of speculative faith, and accordingly we shall find that,
+in the transformation which it more recently underwent, its weakest
+parts rose to the level of its strongest in the esteem of its
+supporters.
+
+The eighteenth century was half over when the most critical period in
+the history of Natural Law was reached. Had the discussion of the
+theory and of its consequences continued to be exclusively the
+employment of the legal profession, there would possibly have been an
+abatement of the respect which it commanded; for by this time the
+_Esprit des Lois_ had appeared. Bearing in some exaggerations the
+marks of the excessive violence with which its author's mind had
+recoiled from assumptions usually suffered to pass without scrutiny,
+yet showing in some ambiguities the traces of a desire to compromise
+with existing prejudice, the book of Montesquieu, with all its
+defects, still proceeded on that Historical Method before which the
+Law of Nature has never maintained its footing for an instant. Its
+influence on thought ought to have been as great as its general
+popularity; but, in fact, it was never allowed time to put it forth,
+for the counter-hypothesis which it seemed destined to destroy passed
+suddenly from the forum to the street, and became the key-note of
+controversies far more exciting than are ever agitated in the courts
+or the schools. The person who launched it on its new career was that
+remarkable man who, without learning, with few virtues, and with no
+strength of character, has nevertheless stamped himself ineffaceably
+on history by the force of a vivid imagination, and by the help of a
+genuine and burning love for his fellow-men, for which much will
+always have to be forgiven him. We have never seen in our own
+generation--indeed the world has not seen more than once or twice in
+all the course of history--a literature which has exercised such
+prodigious influence over the minds of men, over every cast and shade
+of intellect, as that which emanated from Rousseau between 1749 and
+1762. It was the first attempt to re-erect the edifice of human belief
+after the purely iconoclastic efforts commenced by Bayle, and in part
+by our own Locke, and consummated by Voltaire; and besides the
+superiority which every constructive effort will always enjoy over one
+that is merely destructive, it possessed the immense advantage of
+appearing amid an all but universal scepticism as to the soundness of
+all foregone knowledge in matters speculative. Now, in all the
+speculations of Rousseau, the central figure, whether arrayed in an
+English dress as the signatory of a social compact, or simply stripped
+naked of all historical qualities, is uniformly Man, in a supposed
+state of nature. Every law or institution which would misbeseem this
+imaginary being under these ideal circumstances is to be condemned as
+having lapsed from an original perfection; every transformation of
+society which would give it a closer resemblance to the world over
+which the creature of Nature reigned, is admirable and worthy to be
+effected at any apparent cost. The theory is still that of the Roman
+lawyers, for in the phantasmagoria with which the Natural Condition is
+peopled, every feature and characteristic eludes the mind except the
+simplicity and harmony which possessed such charms for the
+jurisconsult; but the theory is, as it were, turned upside down. It is
+not the Law of Nature, but the State of Nature, which is now the
+primary subject of contemplation. The Roman had conceived that by
+careful observation of existing institutions parts of them could be
+singled out which either exhibited already, or could by judicious
+purification be made to exhibit, the vestiges of that reign of nature
+whose reality he faintly affirmed. Rousseau's belief was that a
+perfect social order could be evolved from the unassisted
+consideration of the natural state, a social order wholly irrespective
+of the actual condition of the world and wholly unlike it. The great
+difference between the views is that one bitterly and broadly condemns
+the present for its unlikeness to the ideal past; while the other,
+assuming the present to be as necessary as the past, does not affect
+to disregard or censure it. It is not worth our while to analyse with
+any particularity that philosophy of politics, art, education, ethics,
+and social relation which was constructed on the basis of a state of
+nature. It still possesses singular fascination for the looser
+thinkers of every country, and is no doubt the parent, more or less
+remote, of almost all the prepossessions which impede the employment
+of the Historical Method of inquiry, but its discredit with the higher
+minds of our day is deep enough to astonish those who are familiar
+with the extraordinary vitality of speculative error. Perhaps the
+question most frequently asked nowadays is not what is the value of
+these opinions, but what were the causes which gave them such
+overshadowing prominence a hundred years ago. The answer is, I
+conceive, a simple one. The study which in the last century would best
+have corrected the misapprehensions into which an exclusive attention
+to legal antiquities is apt to betray was the study of religion. But
+Greek religion, as then understood, was dissipated in imaginative
+myths. The Oriental religions, if noticed at all, appeared to be lost
+in vain cosmogonies. There was but one body of primitive records which
+was worth studying--the early history of the Jews. But resort to this
+was prevented by the prejudices of the time. One of the few
+characteristics which the school of Rousseau had in common with the
+school of Voltaire was an utter disdain of all religious antiquities;
+and, more than all, of those of the Hebrew race. It is well known that
+it was a point of honour with the reasoners of that day to assume not
+merely that the institutions called after Moses were not divinely
+dictated, nor even that they were codified at a later date than that
+attributed to them, but that they and the entire Pentateuch were a
+gratuitous forgery, executed after the return from the Captivity.
+Debarred, therefore, from one chief security against speculative
+delusion, the philosophers of France, in their eagerness to escape
+from what they deemed a superstition of the priests, flung themselves
+headlong into a superstition of the lawyers.
+
+But though the philosophy founded on the hypothesis of a state of
+nature has fallen low in general esteem, in so far as it is looked
+upon under its coarser and more palpable aspect, it does not follow
+that in its subtler disguises it has lost plausibility, popularity, or
+power. I believe, as I have said, that it is still the great
+antagonist of the Historical Method; and whenever (religious
+objections apart) any mind is seen to resist or contemn that mode of
+investigation, it will generally be found under the influence of a
+prejudice or vicious bias traceable to a conscious or unconscious
+reliance on a non-historic, natural, condition of society or the
+individual. It is chiefly, however, by allying themselves with
+political and social tendencies that the doctrines of Nature and her
+law have preserved their energy. Some of these tendencies they have
+stimulated, others they have actually created, to a great number they
+have given expression and form. They visibly enter largely into the
+ideas which constantly radiate from France over the civilised world,
+and thus become part of the general body of thought by which its
+civilisation is modified. The value of the influence which they thus
+exercise over the fortunes of the race is of course one of the points
+which our age debates most warmly, and it is beside the purpose of
+this treatise to discuss it. Looking back, however, to the period at
+which the theory of the state of nature acquired the maximum of
+political importance, there are few who will deny that it helped most
+powerfully to bring about the grosser disappointments of which the
+first French Revolution was fertile. It gave birth, or intense
+stimulus, to the vices of mental habit all but universal at the time,
+disdain of positive law, impatience of experience, and the preference
+of _à priori_ to all other reasoning. In proportion too as this
+philosophy fixes its grasp on minds which have thought less than
+others and fortified themselves with smaller observation, its tendency
+is to become distinctly anarchical. It is surprising to note how many
+of the _Sophismes Anarchiques_ which Dumont published for Bentham, and
+which embody Bentham's exposure of errors distinctively French, are
+derived from the Roman hypothesis in its French transformation, and
+are unintelligible unless referred to it. On this point too it is a
+curious exercise to consult the _Moniteur_ during the principal eras
+of the Revolution. The appeals to the Law and State of Nature become
+thicker as the times grow darker. They are comparatively rare in the
+Constituent Assembly; they are much more frequent in the Legislative;
+in the Convention, amid the din of debate on conspiracy and war, they
+are perpetual.
+
+There is a single example which very strikingly illustrates the
+effects of the theory of natural law on modern society, and indicates
+how very far are those effects from being exhausted. There cannot, I
+conceive, be any question that to the assumption of a Law Natural we
+owe the doctrine of the fundamental equality of human beings. That
+"all men are equal" is one of a large number of legal propositions
+which, in progress of time, have become political. The Roman
+jurisconsults of the Antonine era lay down that "omnes homines naturâ
+æquales sunt," but in their eyes this is a strictly juridical axiom.
+They intend to affirm that, under the hypothetical Law of Nature, and
+in so far as positive law approximates to it, the arbitrary
+distinctions which the Roman Civil Law maintained between classes of
+persons cease to have a legal existence. The rule was one of
+considerable importance to the Roman practitioner, who required to be
+reminded that, wherever Roman jurisprudence was assumed to conform
+itself exactly to the code of Nature, there was no difference in the
+contemplation of the Roman tribunals between citizen and foreigner,
+between freeman and slave, between Agnate and Cognate. The
+jurisconsults who thus expressed themselves most certainly never
+intended to censure the social arrangements under which civil law fell
+somewhat short of its speculative type; nor did they apparently
+believe that the world would ever see human society completely
+assimilated to the economy of nature. But when the doctrine of human
+equality makes its appearance in a modern dress it has evidently
+clothed itself with a new shade of meaning. Where the Roman
+jurisconsult had written "æquales sunt," meaning exactly what he said,
+the modern civilian wrote "all men are equal" in the sense of "all men
+ought to be equal." The peculiar Roman idea that natural law coexisted
+with civil law and gradually absorbed it, had evidently been lost
+sight of, or had become unintelligible, and the words which had at
+most conveyed a theory concerning the origin, composition, and
+development of human institutions, were beginning to express the sense
+of a great standing wrong suffered by mankind. As early as the
+beginning of the fourteenth century, the current language concerning
+the birth-state of men, though visibly intended to be identical with
+that of Ulpian and his contemporaries, has assumed an altogether
+different form and meaning. The preamble to the celebrated ordinance
+of King Louis Hutin enfranchising the serfs of the royal domains would
+have sounded strangely to Roman ears. "Whereas, according to natural
+law, everybody ought to be born free; and by some usages and customs
+which, from long antiquity, have been introduced and kept until now in
+our realm, and peradventure by reason of the misdeeds of their
+predecessors, many persons of our common people have fallen into
+servitude, therefore, We, etc." This is the enunciation not of a legal
+rule but of a political dogma; and from this time the equality of men
+is spoken of by the French lawyers just as if it were a political
+truth which happened to have been preserved among the archives of
+their science. Like all other deductions from the hypothesis of a Law
+Natural, and like the belief itself in a Law of Nature, it was
+languidly assented to and suffered to have little influence on opinion
+and practice until it passed out of the possession of the lawyers into
+that of the literary men of the eighteenth century and of the public
+which sat at their feet. With them it became the most distinct tenet
+of their creed, and was even regarded as a summary of all the others.
+It is probable, however, that the power which it ultimately acquired
+over the events of 1789 was not entirely owing to its popularity in
+France, for in the middle of the century it passed over to America.
+The American lawyers of the time, and particularly those of Virginia,
+appear to have possessed a stock of knowledge which differed chiefly
+from that of their English contemporaries in including much which
+could only have been derived from the legal literature of continental
+Europe. A very few glances at the writings of Jefferson will show how
+strongly his mind was affected by the semi-juridical, semi-popular
+opinions which were fashionable in France, and we cannot doubt that it
+was sympathy with the peculiar ideas of the French jurists which led
+him and the other colonial lawyers who guided the course of events in
+America to join the specially French assumption that "all men are born
+equal" with the assumption, more familiar to Englishmen, that "all men
+are born free," in the very first lines of their Declaration of
+Independence. The passage was one of great importance to the history
+of the doctrine before us. The American lawyers, in thus prominently
+and emphatically affirming the fundamental equality of human beings,
+gave an impulse to political movements in their own country, and in a
+less degree in Great Britain, which is far from having yet spent
+itself; but besides this they returned the dogma they had adopted to
+its home in France, endowed with vastly greater energy and enjoying
+much greater claims on general reception and respect. Even the more
+cautious politicians of the first Constituent Assembly repeated
+Ulpian's proposition as if it at once commended itself to the
+instincts and intuitions of mankind; and of all the "principles of
+1789" it is the one which has been least strenuously assailed, which
+has most thoroughly leavened modern opinion, and which promises to
+modify most deeply the constitution of societies and the politics of
+states.
+
+The grandest function of the Law of Nature was discharged in giving
+birth to modern International Law and to the modern Law of War, but
+this part of its effects must here be dismissed with consideration
+very unequal to its importance.
+
+Among the postulates which form the foundation of International Law,
+or of so much of it as retains the figure which it received from its
+original architects, there are two or three of pre-eminent importance.
+The first of all is expressed in the position that there is a
+determinable Law of Nature. Grotius and his successors took the
+assumption directly from the Romans, but they differed widely from the
+Roman jurisconsults and from each other in their ideas as to the mode
+of determination. The ambition of almost every Publicist who has
+flourished since the revival of letters has been to provide new and
+more manageable definitions of Nature and of her law, and it is
+indisputable that the conception in passing through the long series of
+writers on Public Law has gathered round it a large accretion,
+consisting of fragments of ideas derived from nearly every theory of
+ethics which has in its turn taken possession of the schools. Yet it
+is a remarkable proof of the essentially historical character of the
+conception that, after all the efforts which have been made to evolve
+the code of nature from the necessary characteristics of the natural
+state, so much of the result is just what it would have been if men
+had been satisfied to adopt the dicta of the Roman lawyers without
+questioning or reviewing them. Setting aside the Conventional or
+Treaty Law of Nations, it is surprising how large a part of the system
+is made up of pure Roman law. Wherever there is a doctrine of the
+jurisconsults affirmed by them to be in harmony with the Jus Gentium,
+the publicists have found a reason for borrowing it, however plainly
+it may bear the marks of a distinctively Roman origin. We may observe
+too that the derivative theories are afflicted with the weakness of
+the primary notion. In the majority of the Publicists, the mode of
+thought is still "mixed." In studying these writers, the great
+difficulty is always to discover whether they are discussing law or
+morality--whether the state of international relations they describe
+is actual or ideal--whether they lay down that which is, or that
+which, in their opinion, ought to be.
+
+The assumption that Natural Law is binding on states _inter se_ is the
+next in rank of those which underlie International Law. A series of
+assertions or admissions of this principle may be traced up to the
+very infancy of modern juridical science, and at first sight it seems
+a direct inference from the teaching of the Romans. The civil
+condition of society being distinguished from the natural by the fact
+that in the first there is a distinct author of law, while in the last
+there is none, it appears as if the moment a number of _units_ were
+acknowledged to obey no common sovereign or political superior they
+were thrown back on the ulterior behests of the Law Natural. States
+are such units; the hypothesis of their independence excludes the
+notion of a common lawgiver, and draws with it, therefore, according
+to a certain range of ideas, the notion of subjection to the primeval
+order of nature. The alternative is to consider independent
+communities as not related to each other by any law, but this
+condition of lawlessness is exactly the vacuum which the Nature of the
+jurisconsults abhorred. There is certainly apparent reason for
+thinking that if the mind of a Roman lawyer rested on any sphere from
+which civil law was banished, it would instantly fill the void with
+the ordinances of Nature. It is never safe, however, to assume that
+conclusions, however certain and immediate in our own eyes, were
+actually drawn at any period of history. No passage has ever been
+adduced from the remains of Roman law which, in my judgment, proves
+the jurisconsults to have believed natural law to have obligatory
+force between independent commonwealths; and we cannot but see that to
+citizens of the Roman empire who regarded their sovereign's dominions
+as conterminous with civilisation, the equal subjection of states to
+the Law of Nature, if contemplated at all, must have seemed at most an
+extreme result of curious speculation. The truth appears to be that
+modern International Law, undoubted as is its descent from Roman law,
+is only connected with it by an irregular filiation. The early modern
+interpreters of the jurisprudence of Rome, misconceiving the meaning
+of Jus Gentium, assumed without hesitation that the Romans had
+bequeathed to them a system of rules for the adjustment of
+international transactions. This "Law of Nations" was at first an
+authority which had formidable competitors to strive with, and the
+condition of Europe was long such as to preclude its universal
+reception. Gradually, however, the western world arranged itself in a
+form more favourable to the theory of the civilians; circumstances
+destroyed the credit of rival doctrines; and at last, at a peculiarly
+felicitous conjuncture, Ayala and Grotius were able to obtain for it
+the enthusiastic assent of Europe, an assent which has been over and
+over again renewed in every variety of solemn engagement. The great
+men to whom its triumph is chiefly owing attempted, it need scarcely
+be said, to place it on an entirely new basis, and it is
+unquestionable that in the course of this displacement they altered
+much of its structure, though far less of it than is commonly
+supposed. Having adopted from the Antonine jurisconsults the position
+that the Jus Gentium and the Jus Naturæ were identical, Grotius, with
+his immediate predecessors and his immediate successors, attributed to
+the Law of Nature an authority which would never perhaps have been
+claimed for it, if "Law of Nations" had not in that age been an
+ambiguous expression. They laid down unreservedly that Natural Law is
+the code of states, and thus put in operation a process which has
+continued almost down to our own day, the process of engrafting on the
+international system rules which are supposed to have been evolved
+from the unassisted contemplation of the conception of Nature. There
+is too one consequence of immense practical importance to mankind
+which, though not unknown during the early modern history of Europe,
+was never clearly or universally acknowledged till the doctrines of
+the Grotian school had prevailed. If the society of nations is
+governed by Natural Law, the atoms which compose it must be absolutely
+equal. Men under the sceptre of Nature are all equal, and accordingly
+commonwealths are equal if the international state be one of nature.
+The proposition that independent communities, however different in
+size and power, are all equal in the view of the law of nations, has
+largely contributed to the happiness of mankind, though it is
+constantly threatened by the political tendencies of each successive
+age. It is a doctrine which probably would never have obtained a
+secure footing at all if International Law had not been entirely
+derived from the majestic claims of Nature by the Publicists who wrote
+after the revival of letters.
+
+On the whole, however, it is astonishing, as I have observed before,
+how small a proportion the additions made to International Law since
+Grotius's day bear to the ingredients which have been simply taken
+from the most ancient stratum of the Roman Jus Gentium. Acquisition of
+territory has always been the great spur of national ambition, and the
+rules which govern this acquisition, together with the rules which
+moderate the wars in which it too frequently results, are merely
+transcribed from the part of the Roman law which treats of the modes
+of acquiring property _jure gentium_. These modes of acquisition were
+obtained by the elder jurisconsults, as I have attempted to explain,
+by abstracting a common ingredient from the usages observed to prevail
+among the various tribes surrounding Rome; and, having been classed on
+account of their origin in the "law common to all nations," they were
+thought by the later lawyers to fit in, on the score of their
+simplicity, with the more recent conception of a Law Natural. They
+thus made their way into the modern Law of Nations, and the result is
+that those parts of the international system which refer to
+_dominion_, its nature, its limitations, the modes of acquiring and
+securing it, are pure Roman Property Law--so much, that is to say, of
+the Roman Law of Property as the Antonine jurisconsults imagined to
+exhibit a certain congruity with the natural state. In order that
+these chapters of International Law may be capable of application, it
+is necessary that sovereigns should be related to each other like the
+members of a group of Roman proprietors. This is another of the
+postulates which lie at the threshold of the International Code, and
+it is also one which could not possibly have been subscribed to during
+the first centuries of modern European history. It is resolvable into
+the double proposition that "sovereignty is territorial," _i.e._ that
+it is always associated with the proprietorship of a limited portion
+of the earth's surface, and that "sovereigns _inter se_ are to be
+deemed not _paramount_, but _absolute_, owners of the state's
+territory."
+
+Many contemporary writers on International Law tacitly assume that the
+doctrines of their system, founded on principles of equity and common
+sense, were capable of being readily reasoned out in every stage of
+modern civilisation. But this assumption, while it conceals some real
+defects of the international theory, is altogether untenable, so far
+as regards a large part of modern history. It is not true that the
+authority of the Jus Gentium in the concerns of nations was always
+uncontradicted; on the contrary, it had to struggle long against the
+claims of several competing systems. It is again not true that the
+territorial character of sovereignty was always recognised, for long
+after the dissolution of the Roman dominion the minds of men were
+under the empire of ideas irreconcileable with such a conception. An
+old order of things, and of views founded on it, had to decay--a new
+Europe, and an apparatus of new notions congenial to it, had to spring
+up--before two of the chiefest postulates of International Law could
+be universally conceded.
+
+It is a consideration well worthy to be kept in view, that during a
+large part of what we usually term modern history no such conception
+was entertained as that of "_territorial sovereignty_." Sovereignty
+was not associated with dominion over a portion or subdivision of the
+earth. The world had lain for so many centuries under the shadow of
+Imperial Rome as to have forgotten that distribution of the vast
+spaces comprised in the empire which had once parcelled them out into
+a number of independent commonwealths, claiming immunity from
+extrinsic interference, and pretending to equality of national rights.
+After the subsidence of the barbarian irruptions, the notion of
+sovereignty that prevailed seems to have been twofold. On the one hand
+it assumed the form of what may be called "_tribe_-sovereignty." The
+Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were
+masters, of course, of the territories which they occupied, and to
+which some of them have given a geographical appellation; but they
+based no claim of right upon the fact of territorial possession, and
+indeed attached no importance to it whatever. They appear to have
+retained the traditions which they brought with them from the forest
+and the steppe, and to have still been in their own view a patriarchal
+society, a nomad horde, merely encamped for the time upon the soil
+which afforded them sustenance. Part of Transalpine Gaul, with part of
+Germany, had now become the country _de facto_ occupied by the
+Franks--it was France; but the Merovingian line of chieftains, the
+descendants of Clovis, were not Kings of France, they were Kings of
+the Franks. The alternative to this peculiar notion of sovereignty
+appears to have been--and this is the important point--the idea of
+universal dominion. The moment a monarch departed from the special
+relation of chief to clansmen, and became solicitous, for purposes of
+his own, to invest himself with a novel form of sovereignty, the only
+precedent which suggested itself for his adoption was the domination
+of the Emperors of Rome. To parody a common quotation, he became "_aut
+Cæsar aut nullus_." Either he pretended to the full prerogative of the
+Byzantine Emperor, or he had no political status whatever. In our own
+age, when a new dynasty is desirous of obliterating the prescriptive
+title of a deposed line of sovereigns, it takes its designation from
+the _people_, instead of the _territory_. Thus we have Emperors and
+Kings of the French, and a King of the Belgians. At the period of
+which we have been speaking, under similar circumstances a different
+alternative presented itself. The Chieftain who would no longer call
+himself King of the tribe must claim to be Emperor of the world. Thus,
+when the hereditary Mayors of the Palace had ceased to compromise
+with the monarchs they had long since virtually dethroned, they soon
+became unwilling to call themselves Kings of the Franks, a title which
+belonged to the displaced Merovings; but they could not style
+themselves Kings of France, for such a designation, though apparently
+not unknown, was not a title of dignity. Accordingly they came forward
+as aspirants to universal empire. Their motive has been greatly
+misapprehended. It has been taken for granted by recent French writers
+that Charlemagne was far before his age, quite as much in the
+character of his designs as in the energy with which he prosecuted
+them. Whether it be true or not that anybody is at any time before his
+age, it is certainly true that Charlemagne, in aiming at an unlimited
+dominion, was emphatically taking the only course which the
+characteristic ideas of his age permitted him to follow. Of his
+intellectual eminence there cannot be a question, but it is proved by
+his acts and not by his theory.
+
+These singularities of view were not altered on the partition of the
+inheritance of Charlemagne among his three grandsons. Charles the
+Bald, Lewis, and Lothair were still theoretically--if it be proper to
+use the word--Emperors of Rome. Just as the Cæsars of the Eastern and
+Western Empires had each been _de jure_ emperor of the whole world,
+with _de facto_ control over half of it, so the three Carlovingians
+appear to have considered their power as limited, but their title as
+unqualified. The same speculative universality of sovereignty
+continued to be associated with the Imperial throne after the second
+division on the death of Charles the Fat, and, indeed, was never
+thoroughly dissociated from it so long as the empire of Germany
+lasted. Territorial sovereignty--the view which connects sovereignty
+with the possession of a limited portion of the earth's surface--was
+distinctly an offshoot, though a tardy one, of _feudalism_. This might
+have been expected _à priori_, for it was feudalism which for the
+first time linked personal duties, and by consequence personal rights,
+to the ownership of land. Whatever be the proper view of its origin
+and legal nature, the best mode of vividly picturing to ourselves the
+feudal organisation is to begin with the basis, to consider the
+relation of the tenant to the patch of soil which created and limited
+his services--and then to mount up, through narrowing circles of
+super-feudation, till we approximate to the apex of the system.
+Where that summit exactly was during the later portion of the dark
+ages it is not easy to decide. Probably, wherever the conception of
+tribe sovereignty had really decayed, the topmost point was always
+assigned to the supposed successor of the Cæsars of the West. But
+before long, when the actual sphere of Imperial authority had
+immensely contracted, and when the emperors had concentrated the
+scanty remains of their power upon Germany and North Italy, the
+highest feudal superiors in all the outlying portions of the former
+Carlovingian empire found themselves practically without a supreme
+head. Gradually they habituated themselves to the new situation, and
+the fact of immunity put at last out of sight the theory of
+dependence; but there are many symptoms that this change was not quite
+easily accomplished; and, indeed, to the impression that in the nature
+of things there must necessarily be a culminating domination
+somewhere, we may, no doubt, refer the increasing tendency to
+attribute secular superiority to the See of Rome. The completion of
+the first stage in the revolution of opinion is marked, of course, by
+the accession of the Capetian dynasty in France. When the feudal
+prince of a limited territory surrounding Paris began, from the
+accident of his uniting an unusual number of suzerainties in his own
+person, to call himself _King of France_, he became king in quite a
+new sense, a sovereign standing in the same relation to the soil of
+France as the baron to his estate, the tenant to his freehold. The
+precedent, however, was as influential as it was novel, and the form
+of the monarchy in France had visible effects in hastening changes
+which were elsewhere proceeding in the same direction. The kingship of
+our Anglo-Saxon regal houses was midway between the chieftainship of a
+tribe and a territorial supremacy; but the superiority of the Norman
+monarchs, imitated from that of the King of France, was distinctly a
+territorial sovereignty. Every subsequent dominion which was
+established or consolidated was formed on the later model. Spain,
+Naples, and the principalities founded on the ruins of municipal
+freedom in Italy, were all under rulers whose sovereignty was
+territorial. Few things, I may add, are more curious than the gradual
+lapse of the _Venetians_ from one view to the other. At the
+commencement of its foreign conquests, the republic regarded itself
+as an antitype of the Roman commonwealth, governing a number of
+subject provinces. Move a century onwards, and you find that it wishes
+to be looked upon as a corporate sovereign, claiming the rights of a
+feudal suzerain over its possessions in Italy and the Ægean.
+
+During the period through which the popular ideas on the subject of
+sovereignty were undergoing this remarkable change, the system which
+stood in the place of what we now call International Law, was
+heterogeneous in form and inconsistent in the principles to which it
+appealed. Over so much of Europe as was comprised in the Romano-German
+empire, the connection of the confederate states was regulated by the
+complex and as yet incomplete mechanism of the Imperial constitution;
+and, surprising as it may seem to us, it was a favourite notion of
+German lawyers that the relations of commonwealths, whether inside or
+outside the empire, ought to be regulated not by the _Jus Gentium_,
+but by the pure Roman jurisprudence, of which Cæsar was still the
+centre. This doctrine was less confidently repudiated in the outlying
+countries than we might have supposed antecedently; but,
+substantially, through the rest of Europe feudal subordinations
+furnished a substitute for a public law; and when those were
+undetermined or ambiguous, there lay behind, in theory at least, a
+supreme regulating force in the authority of the head of the Church.
+It is certain, however, that both feudal and ecclesiastical influences
+were rapidly decaying during the fifteenth, and even the fourteenth
+century; and if we closely examine the current pretexts of wars, and
+the avowed motives of alliances, it will be seen that, step by step
+with the displacement of the old principles, the views afterwards
+harmonised and consolidated by Ayala and Grotius were making
+considerable progress, though it was silent and but slow. Whether the
+fusion of all the sources of authority would ultimately have evolved a
+system of international relations, and whether that system would have
+exhibited material differences from the fabric of Grotius, is not now
+possible to decide, for as a matter of fact the Reformation
+annihilated all its potential elements except one. Beginning in
+Germany, it divided the princes of the empire by a gulf too broad to
+be bridged over by the Imperial supremacy, even if the Imperial
+superior had stood neutral. He, however, was forced to take colour
+with the church against the reformers; the Pope was, as a matter of
+course, in the same predicament; and thus the two authorities to whom
+belonged the office of mediation between combatants became themselves
+the chiefs of one great faction in the schism of the nations.
+Feudalism, already enfeebled and discredited as a principle of public
+relations, furnished no bond whatever which was stable enough to
+countervail the alliances of religion. In a condition, therefore, of
+public law which was little less than chaotic, those views of a state
+system to which the Roman jurisconsults were supposed to have given
+their sanction alone remained standing. The shape, the symmetry, and
+the prominence which they assumed in the hands of Grotius are known to
+every educated man; but the great marvel of the Treatise "De Jure
+Belli et Pacis," was its rapid, complete, and universal success. The
+horrors of the Thirty Years' War, the boundless terror and pity which
+the unbridled license of the soldiery was exciting, must, no doubt, be
+taken to explain that success in some measure, but they do not wholly
+account for it. Very little penetration into the ideas of that age is
+required to convince one that if the ground plan of the international
+edifice which was sketched in the great book of Grotius had not
+appeared to be theoretically perfect, it would have been discarded by
+jurists and neglected by statesmen and soldiers.
+
+It is obvious that the speculative perfection of the Grotian system is
+intimately connected with that conception of territorial sovereignty
+which we have been discussing. The theory of International Law assumes
+that commonwealths are, relatively to each other, in a state of
+nature; but the component atoms of a natural society must, by the
+fundamental assumption, be insulated and independent of each other. If
+there be a higher power connecting them, however slightly and
+occasionally by the claim of common supremacy, the very conception of
+a common superior introduces the notion of positive law, and excludes
+the idea of a law natural. It follows, therefore, that if the
+universal suzerainty of an Imperial head had been admitted even in
+bare theory, the labours of Grotius would have been idle. Nor is this
+the only point of junction between modern public law and those views
+of sovereignty of which I have endeavoured to describe the
+development. I have said that there are entire departments of
+international jurisprudence which consist of the Roman Law of
+Property. What then is the inference? It is, that if there had been no
+such change as I have described in the estimate of sovereignty--if
+sovereignty had not been associated with the proprietorship of a
+limited portion of the earth, had not, in other words, become
+territorial--three parts of the Grotian theory would have been
+incapable of application.
+
+
+
+
+CHAPTER V
+
+PRIMITIVE SOCIETY AND ANCIENT LAW
+
+
+The necessity of submitting the subject of jurisprudence to scientific
+treatment has never been entirely lost sight of in modern times, and
+the essays which the consciousness of this necessity has produced have
+proceeded from minds of very various calibre, but there is not much
+presumption, I think, in asserting that what has hitherto stood in the
+place of a science has for the most part been a set of guesses, those
+very guesses of the Roman lawyers which were examined in the two
+preceding chapters. A series of explicit statements, recognising and
+adopting these conjectural theories of a natural state, and of a
+system of principles congenial to it, has been continued with but
+brief interruption from the days of their inventors to our own. They
+appear in the annotations of the Glossators who founded modern
+jurisprudence, and in the writings of the scholastic jurists who
+succeeded them. They are visible in the dogmas of the canonists. They
+are thrust into prominence by those civilians of marvellous erudition,
+who flourished at the revival of ancient letters. Grotius and his
+successors invested them not less with brilliancy and plausibility
+than with practical importance. They may be read in the introductory
+chapters of our own Blackstone, who has transcribed them textually
+from Burlamaqui, and wherever the manuals published in the present day
+for the guidance of the student or the practitioner begin with any
+discussion of the first principles of law, it always resolves itself
+into a restatement of the Roman hypothesis. It is however from the
+disguises with which these conjectures sometimes clothe themselves,
+quite as much as from their native form, that we gain an adequate idea
+of the subtlety with which they mix themselves in human thought. The
+Lockeian theory of the origin of Law in a Social Compact scarcely
+conceals its Roman derivation, and indeed is only the dress by which
+the ancient views were rendered more attractive to a particular
+generation of the moderns; but on the other hand the theory of Hobbes
+on the same subject was purposely devised to repudiate the reality of
+a law of nature as conceived by the Romans and their disciples. Yet
+these two theories, which long divided the reflecting politicians of
+England into hostile camps, resemble each other strictly in their
+fundamental assumption of a non-historic, unverifiable, condition of
+the race. Their authors differed as to the characteristics of the
+præ-social state, and as to the nature of the abnormal action by which
+men lifted themselves out of it into that social organisation with
+which alone we are acquainted, but they agreed in thinking that a
+great chasm separated man in his primitive condition from man in
+society, and this notion we cannot doubt that they borrowed,
+consciously or unconsciously, from the Romans. If indeed the phenomena
+of law be regarded in the way in which these theorists regarded
+them--that is, as one vast complex whole--it is not surprising that
+the mind should often evade the task it has set to itself by falling
+back on some ingenious conjecture which (plausibly interpreted) will
+seem to reconcile everything, or else that it should sometimes abjure
+in despair the labour of systematization.
+
+From the theories of jurisprudence which have the same speculative
+basis as the Roman doctrine two of much celebrity must be excepted.
+The first of them is that associated with the great name of
+Montesquieu. Though there are some ambiguous expressions in the early
+part of the _Esprit des Lois_, which seem to show its writer's
+unwillingness to break quite openly with the views hitherto popular,
+the general drift of the book is certainly to indicate a very
+different conception of its subject from any which had been
+entertained before. It has often been noticed that, amidst the vast
+variety of examples which, in its immense width of survey, it sweeps
+together from supposed systems of jurisprudence, there is an evident
+anxiety to thrust into especial prominence those manners and
+institutions which astonish the civilised reader by their uncouthness,
+strangeness, or indecency. The inference constantly suggested is, that
+laws are the creatures of climate, local situation, accident, or
+imposture--the fruit of any causes except those which appear to
+operate with tolerable constancy. Montesquieu seems, in fact, to have
+looked on the nature of man as entirely plastic, as passively
+reproducing the impressions, and submitting implicitly to the
+impulses, which it receives from without. And here no doubt lies the
+error which vitiates his system as a system. He greatly underrates the
+stability of human nature. He pays little or no regard to the
+inherited qualities of the race, those qualities which each generation
+receives from its predecessors, and transmits but slightly altered to
+the generation which follows it. It is quite true, indeed, that no
+complete account can be given of social phenomena, and consequently of
+laws, till due allowance has been made for those modifying causes
+which are noticed in the _Esprit des Lois_; but their number and their
+force appear to have been overestimated by Montesquieu. Many of the
+anomalies which he parades have since been shown to rest on false
+report or erroneous construction, and of those which remain not a few
+prove the permanence rather than the variableness of man's nature,
+since they are relics of older stages of the race which have
+obstinately defied the influences that have elsewhere had effect. The
+truth is that the stable part of our mental, moral, and physical
+constitution is the largest part of it, and the resistance it opposes
+to change is such that, though the variations of human society in a
+portion of the world are plain enough, they are neither so rapid nor
+so extensive that their amount, character, and general direction
+cannot be ascertained. An approximation to truth may be all that is
+attainable with our present knowledge, but there is no reason for
+thinking that is so remote, or (what is the same thing) that it
+requires so much future correction, as to be entirely useless and
+uninstructive.
+
+The other theory which has been adverted to is the historical theory
+of Bentham. This theory which is obscurely (and, it might even be
+said, timidly) propounded in several parts of Bentham's works is quite
+distinct from that analysis of the conception of law which he
+commenced in the "Fragment on Government," and which was more recently
+completed by Mr. John Austin. The resolution of a law into a command
+of a particular nature, imposed under special conditions, does not
+affect to do more than protect us against a difficulty--a most
+formidable one certainly--of language. The whole question remains open
+as to the motives of societies in imposing these commands on
+themselves, as to the connection of these commands with each other, and
+the nature of their dependence on those which preceded them, and
+which they have superseded. Bentham suggests the answer that
+societies modify, and have always modified, their laws according to
+modifications of their views of general expediency. It is difficult to
+say that this proposition is false, but it certainly appears to be
+unfruitful. For that which seems expedient to a society, or rather to
+the governing part of it, when it alters a rule of law is surely the
+same thing as the object, whatever it may be, which it has in view
+when it makes the change. Expediency and the greatest good are nothing
+more than different names for the impulse which prompts the
+modification; and when we lay down expediency as the rule of change in
+law or opinion, all we get by the proposition is the substitution of
+an express term for a term which is necessarily implied when we say
+that a change takes place.
+
+There is such wide-spread dissatisfaction with existing theories of
+jurisprudence, and so general a conviction that they do not really
+solve the questions they pretend to dispose of, as to justify the
+suspicion that some line of inquiry necessary to a perfect result has
+been incompletely followed or altogether omitted by their authors. And
+indeed there is one remarkable omission with which all these
+speculations are chargeable, except perhaps those of Montesquieu. They
+take no account of what law has actually been at epochs remote from
+the particular period at which they made their appearance. Their
+originators carefully observed the institutions of their own age and
+civilisation, and those of other ages and civilisations with which
+they had some degree of intellectual sympathy, but, when they turned
+their attention to archaic states of society which exhibited much
+superficial difference from their own, they uniformly ceased to
+observe and began guessing. The mistake which they committed is
+therefore analogous to the error of one who, in investigating the laws
+of the material universe, should commence by contemplating the
+existing physical world as a whole, instead of beginning with the
+particles which are its simplest ingredients. One does not certainly
+see why such a scientific solecism should be more defensible in
+jurisprudence than in any other region of thought. It would seem
+antecedently that we ought to commence with the simplest social forms
+in a state as near as possible to their rudimentary condition. In
+other words, if we followed the course usual in such inquiries, we
+should penetrate as far up as we could in the history of primitive
+societies. The phenomena which early societies present us with are not
+easy at first to understand, but the difficulty of grappling with them
+bears no proportion to the perplexities which beset us in considering
+the baffling entanglement of modern social organisation. It is a
+difficulty arising from their strangeness and uncouthness, not from
+their number and complexity. One does not readily get over the
+surprise which they occasion when looked at from a modern point of
+view; but when that is surmounted they are few enough and simple
+enough. But even if they gave more trouble than they do, no pains
+would be wasted in ascertaining the germs out of which has assuredly
+been unfolded every form of moral restraint which controls our actions
+and shapes our conduct at the present moment.
+
+The rudiments of the social state, so far as they are known to us at
+all, are known through testimony of three sorts--accounts by
+contemporary observers of civilisations less advanced than their own,
+the records which particular races have preserved concerning their
+primitive history, and ancient law. The first kind of evidence is the
+best we could have expected. As societies do not advance concurrently,
+but at different rates of progress, there have been epochs at which
+men trained to habits of methodical observation have really been in a
+position to watch and describe the infancy of mankind. Tacitus made
+the most of such an opportunity; but the _Germany_, unlike most
+celebrated classical books, has not induced others to follow the
+excellent example set by its author, and the amount of this sort of
+testimony which we possess is exceedingly small. The lofty contempt
+which a civilised people entertains for barbarous neighbours has
+caused a remarkable negligence in observing them, and this
+carelessness has been aggravated at times by fear, by religious
+prejudice, and even by the use of these very terms--civilisation and
+barbarism--which convey to most persons the impression of a difference
+not merely in degree but in kind. Even the _Germany_ has been
+suspected by some critics of sacrificing fidelity to poignancy of
+contrast and picturesqueness of narrative. Other histories too, which
+have been handed down to us among the archives of the people to whose
+infancy they relate, have been thought distorted by the pride of race
+or by the religious sentiment of a newer age. It is important then to
+observe that these suspicions, whether groundless or rational, do not
+attach to a great deal of archaic law. Much of the old law which has
+descended to us was preserved merely because it was old. Those who
+practised and obeyed it did not pretend to understand it; and in some
+cases they even ridiculed and despised it. They offered no account of
+it except that it had come down to them from their ancestors. If we
+confine our attention, then, to those fragments of ancient
+institutions which cannot reasonably be supposed to have been tampered
+with, we are able to gain a clear conception of certain great
+characteristics of the society to which they originally belonged.
+Advancing a step further, we can apply our knowledge to systems of law
+which, like the Code of Menu, are as a whole of suspicious
+authenticity; and, using the key we have obtained, we are in a
+position to discriminate those portions of them which are truly
+archaic from those which have been affected by the prejudices,
+interests, or ignorance of the compiler. It will at least be
+acknowledged that, if the materials for this process are sufficient,
+and if the comparisons be accurately executed, the methods followed
+are as little objectionable as those which have led to such surprising
+results in comparative philology.
+
+The effect of the evidence derived from comparative jurisprudence is
+to establish that view of the primeval condition of the human race
+which is known as the Patriarchal Theory. There is no doubt, of
+course, that this theory was originally based on the Scriptural
+history of the Hebrew patriarchs in Lower Asia; but, as has been
+explained already, its connection with Scripture rather militated than
+otherwise against its reception as a complete theory, since the
+majority of the inquirers who till recently addressed themselves with
+most earnestness to the colligation of social phenomena, were either
+influenced by the strongest prejudice against Hebrew antiquities or by
+the strongest desire to construct their system without the assistance
+of religious records. Even now there is perhaps a disposition to
+undervalue these accounts, or rather to decline generalising from
+them, as forming part of the traditions of a Semitic people. It is to
+be noted, however, that the legal testimony comes nearly exclusively
+from the institutions of societies belonging to the Indo-European
+stock, the Romans, Hindoos, and Sclavonians supplying the greater part
+of it; and indeed the difficulty at the present stage of the inquiry,
+is to know where to stop, to say of what races of men it is _not_
+allowable to lay down that the society in which they are united was
+originally organised on the patriarchal model. The chief lineaments of
+such a society, as collected from the early chapters in Genesis, I
+need not attempt to depict with any minuteness, both because they are
+familiar to most of us from our earliest childhood, and because, from
+the interest once attaching to the controversy which takes its name
+from the debate between Locke and Filmer, they fill a whole chapter,
+though not a very profitable one, in English literature. The points
+which lie on the surface of the history are these:--The eldest male
+parent--the eldest ascendant--is absolutely supreme in his household.
+His dominion extends to life and death, and is as unqualified over his
+children and their houses as over his slaves; indeed the relations of
+sonship and serfdom appear to differ in little beyond the higher
+capacity which the child in blood possesses of becoming one day the
+head of a family himself. The flocks and herds of the children are the
+flocks and herds of the father, and the possessions of the parent,
+which he holds in a representative rather than in a proprietary
+character, are equally divided at his death among his descendants in
+the first degree, the eldest son sometimes receiving a double share
+under the name of birthright, but more generally endowed with no
+hereditary advantage beyond an honorary precedence. A less obvious
+inference from the Scriptural accounts is that they seem to plant us
+on the traces of the breach which is first effected in the empire of
+the parent. The families of Jacob and Esau separate and form two
+nations; but the families of Jacob's children hold together and become
+a people. This looks like the immature germ of a state or
+commonwealth, and of an order of rights superior to the claims of
+family relation.
+
+If I were attempting for the more special purposes of the jurist to
+express compendiously the characteristics of the situation in which
+mankind disclose themselves at the dawn of their history, I should be
+satisfied to quote a few verses from the _Odyssee_ of Homer:
+
+
+    [Greek: toisin d out agorai boulêphoroi oute themistes.
+              *       *       *      themisteuei de ekastos
+            paidôn êd alochôn, oud allêlôn alegousin.]
+
+
+"They have neither assemblies for consultation nor _themistes_, but
+every one exercises jurisdiction over his wives and his children, and
+they pay no regard to one another." These lines are applied to the
+Cyclops, and it may not perhaps be an altogether fanciful idea when I
+suggest that the Cyclops is Homer's type of an alien and less advanced
+civilisation; for the almost physical loathing which a primitive
+community feels for men of widely different manners from its own
+usually expresses itself by describing them as monsters, such as
+giants, or even (which is almost always the case in Oriental
+mythology) as demons. However that may be, the verses condense in
+themselves the sum of the hints which are given us by legal
+antiquities. Men are first seen distributed in perfectly insulated
+groups, held together by obedience to the parent. Law is the parent's
+word, but it is not yet in the condition of those _themistes_ which
+were analysed in the first chapter of this work. When we go forward to
+the state of society in which these early legal conceptions show
+themselves as formed, we find that they still partake of the mystery
+and spontaneity which must have seemed to characterise a despotic
+father's commands, but that at the same time, inasmuch as they proceed
+from a sovereign, they presuppose a union of family groups in some
+wider organisation. The next question is, what is the nature of this
+union and the degree of intimacy which it involves? It is just here
+that archaic law renders us one of the greatest of its services and
+fills up a gap which otherwise could only have been bridged by
+conjecture. It is full, in all its provinces, of the clearest
+indications that society in primitive times was not what it is assumed
+to be at present, a collection of _individuals_. In fact, and in the
+view of the men who composed it, it was _an aggregation of families_.
+The contrast may be most forcibly expressed by saying that the _unit_
+of an ancient society was the Family, of a modern society the
+Individual. We must be prepared to find in ancient law all the
+consequences of this difference. It is so framed as to be adjusted to
+a system of small independent corporations. It is therefore scanty,
+because it is supplemented by the despotic commands of the heads of
+households. It is ceremonious, because the transactions to which it
+pays regard resemble international concerns much more than the quick
+play of intercourse between individuals. Above all it has a
+peculiarity of which the full importance cannot be shown at present.
+It takes a view of _life_ wholly unlike any which appears in developed
+jurisprudence. Corporations _never die_, and accordingly primitive law
+considers the entities with which it deals, _i.e._ the patriarchal or
+family groups, as perpetual and inextinguishable. This view is closely
+allied to the peculiar aspect under which, in very ancient times,
+moral attributes present themselves. The moral elevation and moral
+debasement of the individual appear to be confounded with, or
+postponed to, the merits and offences of the group to which the
+individual belongs. If the community sins, its guilt is much more than
+the sum of the offences committed by its members; the crime is a
+corporate act, and extends in its consequences to many more persons
+than have shared in its actual perpetration. If, on the other hand,
+the individual is conspicuously guilty, it is his children, his
+kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him,
+and sometimes for him. It thus happens that the ideas of moral
+responsibility and retribution often seem to be more clearly realised
+at very ancient than at more advanced periods, for, as the family
+group is immortal, and its liability to punishment indefinite, the
+primitive mind is not perplexed by the questions which become
+troublesome as soon as the individual is conceived as altogether
+separate from the group. One step in the transition from the ancient
+and simple view of the matter to the theological or metaphysical
+explanations of later days is marked by the early Greek notion of an
+inherited curse. The bequest received by his posterity from the
+original criminal was not a liability to punishment, but a liability
+to the commission of fresh offences which drew with them a condign
+retribution; and thus the responsibility of the family was reconciled
+with the newer phase of thought which limited the consequences of
+crime to the person of the actual delinquent.
+
+It would be a very simple explanation of the origin of society if we
+could base a general conclusion on the hint furnished us by the
+scriptural example already adverted to, and could suppose that
+communities began to exist wherever a family held together instead of
+separating at the death of its patriarchal chieftain. In most of the
+Greek states and in Rome there long remained the vestiges of an
+ascending series of groups out of which the State was at first
+constituted. The Family, House, and Tribe of the Romans may be taken
+as the type of them, and they are so described to us that we can
+scarcely help conceiving them as a system of concentric circles which
+have gradually expanded from the same point. The elementary group is
+the Family, connected by common subjection to the highest male
+ascendant. The aggregation of Families forms the Gens or House. The
+aggregation of Houses makes the Tribe. The aggregation of Tribes
+constitutes the Commonwealth. Are we at liberty to follow these
+indications, and to lay down that the commonwealth is a collection of
+persons united by common descent from the progenitor of an original
+family? Of this we may at least be certain, that all ancient societies
+regarded themselves as having proceeded from one original stock, and
+even laboured under an incapacity for comprehending any reason except
+this for their holding together in political union. The history of
+political ideas begins, in fact, with the assumption that kinship in
+blood is the sole possible ground of community in political functions;
+nor is there any of those subversions of feeling, which we term
+emphatically revolutions, so startling and so complete as the change
+which is accomplished when some other principle--such as that, for
+instance, of _local contiguity_--establishes itself for the first time
+as the basis of common political action. It may be affirmed then of
+early commonwealths that their citizens considered all the groups in
+which they claimed membership to be founded on common lineage. What
+was obviously true of the Family was believed to be true first of the
+House, next of the Tribe, lastly of the State. And yet we find that
+along with this belief, or, if we may use the word, this theory, each
+community preserved records or traditions which distinctly showed that
+the fundamental assumption was false. Whether we look to the Greek
+states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which
+furnished Niebuhr with so many valuable illustrations, or to the
+Celtic clan associations, or to that strange social organisation of
+the Sclavonic Russians and Poles which has only lately attracted
+notice, everywhere we discover traces of passages in their history
+when men of alien descent were admitted to, and amalgamated with, the
+original brotherhood. Adverting to Rome singly, we perceive that the
+primary group, the Family, was being constantly adulterated by the
+practice of adoption, while stories seem to have been always current
+respecting the exotic extraction of one of the original Tribes and
+concerning a large addition to the houses made by one of the early
+kings. The composition of the state, uniformly assumed to be natural,
+was nevertheless known to be in great measure artificial. This
+conflict between belief or theory and notorious fact is at first sight
+extremely perplexing; but what it really illustrates is the efficiency
+with which Legal Fictions do their work in the infancy of society. The
+earliest and most extensively employed of legal fictions was that
+which permitted family relations to be created artificially, and there
+is none to which I conceive mankind to be more deeply indebted. If it
+had never existed, I do not see how any one of the primitive groups,
+whatever were their nature, could have absorbed another, or on what
+terms any two of them could have combined, except those of absolute
+superiority on one side and absolute subjection on the other. No
+doubt, when with our modern ideas we contemplate the union of
+independent communities, we can suggest a hundred modes of carrying it
+out, the simplest of all being that the individuals comprised in the
+coalescing groups shall vote or act together according to local
+propinquity; but the idea that a number of persons should exercise
+political rights in common simply because they happened to live within
+the same topographical limits was utterly strange and monstrous to
+primitive antiquity. The expedient which in those times commanded
+favour was that the incoming population should _feign themselves_ to
+be descended from the same stock as the people on whom they were
+engrafted; and it is precisely the good faith of this fiction, and the
+closeness with which it seemed to imitate reality, that we cannot now
+hope to understand. One circumstance, however, which it is important
+to recollect, is that the men who formed the various political groups
+were certainly in the habit of meeting together periodically, for the
+purpose of acknowledging and consecrating their association by common
+sacrifices. Strangers amalgamated with the brotherhood were doubtless
+admitted to these sacrifices; and when that was once done we can
+believe that it seemed equally easy, or not more difficult, to
+conceive them as sharing in the common lineage. The conclusion then
+which is suggested by the evidence is, not that all early societies
+were formed by descent from the same ancestor, but that all of them
+which had any permanence and solidity either were so descended or
+assumed that they were. An indefinite number of causes may have
+shattered the primitive groups, but wherever their ingredients
+recombined, it was on the model or principle of an association of
+kindred. Whatever were the fact, all thought, language, and law
+adjusted themselves to the assumption. But though all this seems to me
+to be established with reference to the communities with whose records
+we are acquainted, the remainder of their history sustains the
+position before laid down as to the essentially transient and
+terminable influence of the most powerful Legal Fictions. At some
+point of time--probably as soon as they felt themselves strong enough
+to resist extrinsic pressure--all these states ceased to recruit
+themselves by factitious extensions of consanguinity. They
+necessarily, therefore, became Aristocracies, in all cases where a
+fresh population from any cause collected around them which could put
+in no claim to community of origin. Their sternness in maintaining the
+central principle of a system under which political rights were
+attainable on no terms whatever except connection in blood, real or
+artificial, taught their inferiors another principle, which proved to
+be endowed with a far higher measure of vitality. This was the
+principle of _local contiguity_, now recognised everywhere as the
+condition of community in political functions. A new set of political
+ideas came at once into existence, which, being those of ourselves,
+our contemporaries, and in great measure of our ancestors, rather
+obscure our perception of the older theory which they vanquished and
+dethroned.
+
+The Family then is the type of an archaic society in all the
+modifications which it was capable of assuming; but the family here
+spoken of is not exactly the family as understood by a modern. In
+order to reach the ancient conception we must give to our modern ideas
+an important extension and an important limitation. We must look on
+the family as constantly enlarged by the absorption of strangers
+within its circle, and we must try to regard the fiction of adoption
+as so closely simulating the reality of kinship that neither law nor
+opinion makes the slightest difference between a real and an adoptive
+connection. On the other hand, the persons theoretically amalgamated
+into a family by their common descent are practically held together by
+common obedience to their highest living ascendant, the father,
+grandfather, or great-grandfather. The patriarchal authority of a
+chieftain is as necessary an ingredient in the notion of the family
+group as the fact (or assumed fact) of its having sprung from his
+loins; and hence we must understand that if there be any persons who,
+however truly included in the brotherhood by virtue of their
+blood-relationship, have nevertheless _de facto_ withdrawn themselves
+from the empire of its ruler, they are always, in the beginnings of
+law, considered as lost to the family. It is this patriarchal
+aggregate--the modern family thus cut down on one side and extended on
+the other--which meets us on the threshold of primitive jurisprudence.
+Older probably than the State, the Tribe, and the House, it left
+traces of itself on private law long after the House and the Tribe had
+been forgotten, and long after consanguinity had ceased to be
+associated with the composition of States. It will be found to have
+stamped itself on all the great departments of jurisprudence, and may
+be detected, I think, as the true source of many of their most
+important and most durable characteristics. At the outset, the
+peculiarities of law in its most ancient state lead us irresistibly to
+the conclusion that it took precisely the same view of the family
+group which is taken of individual men by the systems of rights and
+duties now prevalent throughout Europe. There are societies open to
+our observation at this very moment whose laws and usages can scarcely
+be explained unless they are supposed never to have emerged from this
+primitive condition; but in communities more fortunately circumstanced
+the fabric of jurisprudence fell gradually to pieces, and if we
+carefully observe the disintegration we shall perceive that it took
+place principally in those portions of each system which were most
+deeply affected by the primitive conception of the family. In one
+all-important instance, that of the Roman law, the change was effected
+so slowly, that from epoch to epoch we can observe the line and
+direction which it followed, and can even give some idea of the
+ultimate result to which it was tending. And, in pursuing this last
+inquiry, we need not suffer ourselves to be stopped by the imaginary
+barrier which separates the modern from the ancient world. For one
+effect of that mixture of refined Roman law with primitive barbaric
+usage, which is known to us by the deceptive name of feudalism, was to
+revive many features of archaic jurisprudence which had died out of
+the Roman world, so that the decomposition which had seemed to be
+over commenced again, and to some extent is still proceeding.
+
+On a few systems of law the family organisation of the earliest
+society has left a plain and broad mark in the life-long authority of
+the Father or other ancestor over the person and property of his
+descendants, an authority which we may conveniently call by its later
+Roman name of Patria Potestas. No feature of the rudimentary
+associations of mankind is deposed to by a greater amount of evidence
+than this, and yet none seems to have disappeared so generally and so
+rapidly from the usages of advancing communities. Gaius, writing under
+the Antonines, describes the institution as distinctively Roman. It is
+true that, had he glanced across the Rhine or the Danube to those
+tribes of barbarians which were exciting the curiosity of some among
+his contemporaries, he would have seen examples of patriarchal power
+in its crudest form; and in the far East a branch of the same ethnical
+stock from which the Romans sprang was repeating their Patria Potestas
+in some of its most technical incidents. But among the races
+understood to be comprised within the Roman empire, Gaius could find
+none which exhibited an institution resembling the Roman "Power of the
+Father," except only the Asiatic Galatæ. There are reasons, indeed, as
+it seems to me, why the direct authority of the ancestor should, in
+the greater number of progressive societies, very shortly assume
+humbler proportions than belonged to it in their earliest state. The
+implicit obedience of rude men to their parent is doubtless a primary
+fact, which it would be absurd to explain away altogether by
+attributing to them any calculation of its advantages; but, at the
+same time, if it is natural in the sons to obey the father, it is
+equally natural that they should look to him for superior strength or
+superior wisdom. Hence, when societies are placed under circumstances
+which cause an especial value to be attached to bodily and mental
+vigour, there is an influence at work which tends to confine the
+Patria Potestas to the cases where its possessor is actually skilful
+and strong. When we obtain our first glimpse of organised Hellenic
+society, it seems as if supereminent wisdom would keep alive the
+father's power in persons whose bodily strength had decayed; but the
+relations of Ulysses and Laertes in the _Odyssee_ appear to show that,
+where extraordinary valour and sagacity were united in the son, the
+father in the decrepitude of age was deposed from the headship of the
+family. In the mature Greek jurisprudence, the rule advances a few
+steps on the practice hinted at in the Homeric literature; and though
+very many traces of stringent family obligation remain, the direct
+authority of the parent is limited, as in European codes, to the
+nonage or minority of the children, or, in other words, to the period
+during which their mental and physical inferiority may always be
+presumed. The Roman law, however, with its remarkable tendency to
+innovate on ancient usage only just so far as the exigency of the
+commonwealth may require, preserves both the primeval institution and
+the natural limitation to which I conceive it to have been subject. In
+every relation of life in which the collective community might have
+occasion to avail itself of his wisdom and strength, for all purposes
+of counsel or of war, the filius familias, or Son under Power, was as
+free as his father. It was a maxim of Roman jurisprudence that the
+Patria Potestas did not extend to the Jus Publicum. Father and son
+voted together in the city, and fought side by side in the field;
+indeed, the son, as general, might happen to command the father, or,
+as magistrate, decide on his contracts and punish his delinquencies.
+But in all the relations created by Private Law, the son lived under a
+domestic despotism which, considering the severity it retained to the
+last, and the number of centuries through which it endured,
+constitutes one of the strangest problems in legal history.
+
+The Patria Potestas of the Romans, which is necessarily our type of
+the primeval paternal authority, is equally difficult to understand as
+an institution of civilised life, whether we consider its incidence on
+the person or its effects on property. It is to be regretted that a
+chasm which exists in its history cannot be more completely filled. So
+far as regards the person, the parent, when our information commences,
+has over his children the _jus vitæ necisque_, the power of life and
+death, and _à fortiori_ of uncontrolled corporal chastisement; he can
+modify their personal condition at pleasure; he can give a wife to his
+son; he can give his daughter in marriage; he can divorce his children
+of either sex; he can transfer them to another family by adoption; and
+he can sell them. Late in the Imperial period we find vestiges of all
+these powers, but they are reduced within very narrow limits. The
+unqualified right of domestic chastisement has become a right of
+bringing domestic offences under the cognisance of the civil
+magistrate; the privilege of dictating marriage has declined into a
+conditional veto; the liberty of selling has been virtually abolished,
+and adoption itself, destined to lose almost all its ancient
+importance in the reformed system of Justinian, can no longer be
+effected without the assent of the child transferred to the adoptive
+parentage. In short, we are brought very close to the verge of the
+ideas which have at length prevailed in the modern world. But between
+these widely distant epochs there is an interval of obscurity, and we
+can only guess at the causes which permitted the Patria Potestas to
+last as long as it did by rendering it more tolerable than it appears.
+The active discharge of the most important among the duties which the
+son owed to the state must have tempered the authority of his parent
+if they did not annul it. We can readily persuade ourselves that the
+paternal despotism could not be brought into play without great
+scandal against a man of full age occupying a high civil office.
+During the earlier history, however, such cases of practical
+emancipation would be rare compared with those which must have been
+created by the constant wars of the Roman republic. The military
+tribune and the private soldier who were in the field three-quarters
+of a year during the earlier contests, at a later period the proconsul
+in charge of a province, and the legionaries who occupied it, cannot
+have had practical reason to regard themselves as the slaves of a
+despotic master; and all these avenues of escape tended constantly to
+multiply themselves. Victories led to conquests, conquests to
+occupations; the mode of occupation by colonies was exchanged for the
+system of occupying provinces by standing armies. Each step in advance
+was a call for the expatriation of more Roman citizens and a fresh
+draft on the blood of the failing Latin race. We may infer, I think,
+that a strong sentiment in favour of the relaxation of the Patria
+Potestas had become fixed by the time that the pacification of the
+world commenced on the establishment of the Empire. The first serious
+blows at the ancient institution are attributed to the earlier Cæsars,
+and some isolated interferences of Trajan and Hadrian seem to have
+prepared the ground for a series of express enactments which, though
+we cannot always determine their dates, we know to have limited the
+father's powers on the one hand, and on the other to have multiplied
+facilities for their voluntary surrender. The older mode of getting
+rid of the Potestas, by effecting a triple sale of the son's person,
+is evidence, I may remark, of a very early feeling against the
+unnecessary prolongation of the powers. The rule which declared that
+the son should be free after having been three times sold by his
+father seems to have been originally meant to entail penal
+consequences on a practice which revolted even the imperfect morality
+of the primitive Roman. But even before the publication of the Twelve
+Tables it had been turned, by the ingenuity of the jurisconsults, into
+an expedient for destroying the parental authority wherever the father
+desired that it should cease.
+
+Many of the causes which helped to mitigate the stringency of the
+father's power over the persons of his children are doubtless among
+those which do not lie upon the face of history. We cannot tell how
+far public opinion may have paralysed an authority which the law
+conferred, or how far natural affection may have rendered it
+endurable. But though the powers over the _person_ may have been
+latterly nominal, the whole tenour of the extant Roman jurisprudence
+suggests that the father's rights over the son's _property_ were
+always exercised without scruple to the full extent to which they were
+sanctioned by law. There is nothing to astonish us in the latitude of
+these rights when they first show themselves. The ancient law of Rome
+forbade the Children under Power to hold property apart from their
+parent, or (we should rather say) never contemplated the possibility
+of their claiming a separate ownership. The father was entitled to
+take the whole of the son's acquisitions, and to enjoy the benefit of
+his contracts without being entangled in any compensating liability.
+So much as this we should expect from the constitution of the earliest
+Roman society, for we can hardly form a notion of the primitive family
+group unless we suppose that its members brought their earnings of all
+kinds into the common stock while they were unable to bind it by
+improvident individual engagements. The true enigma of the Patria
+Potestas does not reside here, but in the slowness with which these
+proprietary privileges of the parent were curtailed, and in the
+circumstance that, before they were seriously diminished, the whole
+civilised world was brought within their sphere. No innovation of any
+kind was attempted till the first years of the Empire, when the
+acquisitions of soldiers on service were withdrawn from the operation
+of the Patria Potestas, doubtless as part of the reward of the armies
+which had overthrown the free commonwealth. Three centuries afterwards
+the same immunity was extended to the earnings of persons who were in
+the civil employment of the state. Both changes were obviously limited
+in their application, and they were so contrived in technical form as
+to interfere as little as possible with the principle of Patria
+Potestas. A certain qualified and dependent ownership had always been
+recognised by the Roman law in the perquisites and savings which
+slaves and sons under power were not compelled to include in the
+household accounts, and the special name of this permissive property,
+Peculium, was applied to the acquisitions newly relieved from Patria
+Potestas, which were called in the case of soldiers Castrense
+Peculium, and Quasi-castrense Peculium in the case of civil servants.
+Other modifications of the parental privileges followed, which showed
+a less studious outward respect for the ancient principle. Shortly
+after the introduction of the Quasi-castrense Peculium, Constantine
+the Great took away the father's absolute control over property which
+his children had inherited from their mother, and reduced it to a
+_usufruct_, or life-interest. A few more changes of slight importance
+followed in the Western Empire, but the furthest point reached was in
+the East, under Justinian, who enacted that unless the acquisitions of
+the child were derived from the parent's own property, the parent's
+rights over them should not extend beyond enjoying their produce for
+the period of his life. Even this, the utmost relaxation of the Roman
+Patria Potestas, left it far ampler and severer than any analogous
+institution of the modern world. The earliest modern writers on
+jurisprudence remark that it was only the fiercer and ruder of the
+conquerors of the empire, and notably the nations of Sclavonic origin,
+which exhibited a Patria Potestas at all resembling that which was
+described in the Pandects and the Code. All the Germanic immigrants
+seem to have recognised a corporate union of the family under the
+_mund_, or authority of a patriarchal chief; but his powers are
+obviously only the relics of a decayed Patria Potestas, and fell far
+short of those enjoyed by the Roman father. The Franks are
+particularly mentioned as not having the Roman Institution, and
+accordingly the old French lawyers, even when most busily engaged in
+filling the interstices of barbarous custom with rules of Roman law,
+were obliged to protect themselves against the intrusion of the
+Potestas by the express maxim, _Puyssance de père en France n'a lieu_.
+The tenacity of the Romans in maintaining this relic of their most
+ancient condition is in itself remarkable, but it is less remarkable
+than the diffusion of the Potestas over the whole of a civilisation
+from which it had once disappeared. While the Castrense Peculium
+constituted as yet the sole exception to the father's power over
+property, and while his power over his children's persons was still
+extensive, the Roman citizenship, and with it the Patria Potestas,
+were spreading into every corner of the empire. Every African or
+Spaniard, every Gaul, Briton, or Jew, who received this honour by
+gift, purchase, or inheritance, placed himself under the Roman Law of
+Persons, and, though our authorities intimate that children born
+before the acquisition of citizenship could not be brought under Power
+against their will, children born after it and all ulterior
+descendants were on the ordinary footing of a Roman _filius familias_.
+It does not fall within the province of this treatise to examine the
+mechanism of the later Roman society, but I may be permitted to remark
+that there is little foundation for the opinion which represents the
+constitution of Antoninus Caracalla conferring Roman citizenship on
+the whole of his subjects as a measure of small importance. However we
+may interpret it, it must have enormously enlarged the sphere of the
+Patria Potestas, and it seems to me that the tightening of family
+relations which it effected is an agency which ought to be kept in
+view more than it has been, in accounting for the great moral
+revolution which was transforming the world.
+
+Before this branch of our subject is dismissed, it should be observed
+that the Paterfamilias was answerable for the delicts (or _torts_) of
+his Sons under Power. He was similarly liable for the torts of his
+slaves; but in both cases he originally possessed the singular
+privilege of tendering the delinquent's person in full satisfaction of
+the damage. The responsibility thus incurred on behalf of sons,
+coupled with the mutual incapacity of parent and Child under Power to
+sue one another, has seemed to some jurists to be best explained by
+the assumption of a "unity of person" between the Paterfamilias and
+the Filius-familias. In the chapter on Successions I shall attempt
+to show in what sense, and to what extent, this "unity" can be
+accepted as a reality. I can only say at present that these
+responsibilities of the Paterfamilias, and other legal phenomena which
+will be discussed hereafter, appear to me to point at certain _duties_
+of the primitive Patriarchal chieftain which balanced his _rights_. I
+conceive that, if he disposed absolutely of the persons and fortune of
+his clansmen, this representative ownership was coextensive with a
+liability to provide for all members of the brotherhood out of the
+common fund. The difficulty is to throw ourselves out of our habitual
+associations sufficiently for conceiving the nature of his obligation.
+It was not a legal duty, for law had not yet penetrated into the
+precinct of the Family. To call it _moral_ is perhaps to anticipate
+the ideas belonging to a later stage of mental development; but the
+expression "moral obligation" is significant enough for our purpose,
+if we understand by it a duty semi-consciously followed and enforced
+rather by instinct and habit than by definite sanctions.
+
+The Patria Potestas, in its normal shape, has not been, and, as it
+seems to me, could not have been, a generally durable institution. The
+proof of its former universality is therefore incomplete so long as we
+consider it by itself; but the demonstration may be carried much
+further by examining other departments of ancient law which depend on
+it ultimately, but not by a thread of connection visible in all its
+parts or to all eyes. Let us turn for example to Kinship, or in other
+words, to the scale on which the proximity of relatives to each other
+is calculated in archaic jurisprudence. Here again it will be
+convenient to employ the Roman terms, Agnatic and Cognatic
+relationship. _Cognatic_ relationship is simply the conception of
+kinship familiar to modern ideas; it is the relationship arising
+through common descent from the same pair of married persons, whether
+the descent be traced through males or females. _Agnatic_ relationship
+is something very different: it excludes a number of persons whom we
+in our day should certainly consider of kin to ourselves, and it
+includes many more whom we should never reckon among our kindred. It
+is in truth the connection existing between the members of the Family,
+conceived as it was in the most ancient times. The limits of this
+connection are far from conterminous with those of modern
+relationship.
+
+Cognates then are all those persons who can trace their blood to a
+single ancestor and ancestress; or, if we take the strict technical
+meaning of the word in Roman law, they are all who trace their blood
+to the legitimate marriage of a common pair. "Cognation" is therefore
+a relative term, and the degree of connection in blood which it
+indicates depends on the particular marriage which is selected as the
+commencement of the calculation. If we begin with the marriage of
+father and mother, Cognation will only express the relationship of
+brothers and sisters; if we take that of the grandfather and
+grandmother, then uncles, aunts, and their descendants will also be
+included in the notion of Cognation, and following the same process a
+larger number of Cognates may be continually obtained by choosing the
+starting point higher and higher up in the line of ascent. All this is
+easily understood by a modern; but who are the Agnates? In the first
+place, they are all the Cognates who trace their connection exclusively
+through males. A table of Cognates is, of course, formed by taking
+each lineal ancestor in turn and including all his descendants of both
+sexes in the tabular view; if then, in tracing the various branches of
+such a genealogical table or tree, we stop whenever we come to the
+name of a female and pursue that particular branch or ramification no
+further, all who remain after the descendants of women have been
+excluded are Agnates, and their connection together is Agnatic
+Relationship. I dwell a little on the process which is practically
+followed in separating them from the Cognates, because it explains a
+memorable legal maxim, "Mulier est finis familiæ"--a woman is the
+terminus of the family. A female name closes the branch or twig of the
+genealogy in which it occurs. None of the descendants of a female are
+included in the primitive notion of family relationship.
+
+If the system of archaic law at which we are looking be one which
+admits Adoption, we must add to the Agnate thus obtained all persons,
+male or female, who have been brought into the Family by the
+artificial extension of its boundaries. But the descendants of such
+persons will only be Agnates, if they satisfy the conditions which
+have just been described.
+
+What then is the reason of this arbitrary inclusion and exclusion? Why
+should a conception of Kinship, so elastic as to include strangers
+brought into the family by adoption, be nevertheless so narrow as to
+shut out the descendants of a female member? To solve these
+questions, we must recur to the Patria Potestas. The foundation of
+Agnation is not the marriage of Father and Mother, but the authority
+of the Father. All persons are Agnatically connected together who are
+under the same Paternal Power, or who have been under it, or who might
+have been under it if their lineal ancestor had lived long enough to
+exercise his empire. In truth, in the primitive view, Relationship is
+exactly limited by Patria Potestas. Where the Potestas begins, Kinship
+begins; and therefore adoptive relatives are among the kindred. Where
+the Potestas ends, Kinship ends; so that a son emancipated by his
+father loses all rights of Agnation. And here we have the reason why
+the descendants of females are outside the limits of archaic kinship.
+If a woman died unmarried, she could have no legitimate descendants.
+If she married, her children fell under the Patria Potestas, not of
+her Father, but of her Husband, and thus were lost to her own family.
+It is obvious that the organisation of primitive societies would have
+been confounded, if men had called themselves relatives of their
+mother's relatives. The inference would have been that a person might
+be subject to two distinct Patriæ Potestates; but distinct Patriæ
+Potestates implied distinct jurisdictions, so that anybody amenable to
+two of them at the same time would have lived under two different
+dispensations. As long as the Family was an imperium in imperio, a
+community within the commonwealth, governed by its own institutions of
+which the parent was the source, the limitation of relationship to the
+Agnates was a necessary security against a conflict of laws in the
+domestic forum.
+
+The Parental Powers proper are extinguished by the death of the
+Parent, but Agnation is as it were a mould which retains their imprint
+after they have ceased to exist. Hence comes the interest of Agnation
+for the inquirer into the history of jurisprudence. The Powers
+themselves are discernible in comparatively few monuments of ancient
+law, but Agnatic Relationship, which implies their former existence,
+is discoverable almost everywhere. There are few indigenous bodies of
+law belonging to communities of the Indo-European stock, which do not
+exhibit peculiarities in the most ancient part of their structure
+which are clearly referable to Agnation. In Hindoo law, for example,
+which is saturated with the primitive notions of family dependency,
+kinship is entirely Agnatic, and I am informed that in Hindoo
+genealogies the names of women are generally omitted altogether. The
+same view of relationship pervades so much of the laws of the races
+who overran the Roman Empire as appears to have really formed part of
+their primitive usage, and we may suspect that it would have
+perpetuated itself even more than it has in modern European
+jurisprudence, if it had not been for the vast influence of the later
+Roman law on modern thought. The Prætors early laid hold on Cognation
+as the _natural_ form of kinship, and spared no pains in purifying
+their system from the older conception. Their ideas have descended to
+us, but still traces of Agnation are to be seen in many of the modern
+rules of succession after death. The exclusion of females and their
+children from governmental functions, commonly attributed to the usage
+of the Salian Franks, has certainly an agnatic origin, being descended
+from the ancient German rule of succession to allodial property. In
+Agnation too is to be sought the explanation of that extraordinary
+rule of English Law, only recently repealed, which prohibited brothers
+of the half-blood from succeeding to one another's lands. In the
+Customs of Normandy, the rule applies to _uterine_ brothers only, that
+is, to brothers by the same mother but not by the same father; and,
+limited in this way, it is a strict deduction from the system of
+Agnation, under which uterine brothers are no relations at all to one
+another. When it was transplanted to England, the English judges, who
+had no clue to its principle, interpreted it as a general prohibition
+against the succession of the half-blood, and extended it to
+_consanguineous_ brothers, that is to sons of the same father by
+different wives. In all the literature which enshrines the pretended
+philosophy of law, there is nothing more curious than the pages of
+elaborate sophistry in which Blackstone attempts to explain and
+justify the exclusion of the half-blood.
+
+It may be shown, I think, that the Family, as held together by the
+Patria Potestas, is the nidus out of which the entire Law of Persons
+has germinated. Of all the chapters of that Law the most important is
+that which is concerned with the status of Females. It has just been
+stated that Primitive Jurisprudence, though it does not allow a Woman
+to communicate any rights of Agnation to her descendants, includes
+herself nevertheless in the Agnatic bond. Indeed, the relation of a
+female to the family in which she was born is much stricter, closer,
+and more durable than that which unites her male kinsmen. We have
+several times laid down that early law takes notice of Families only;
+this is the same thing as saying that it only takes notice of persons
+exercising Patria Potestas, and accordingly the only principle on
+which it enfranchises a son or grandson at the death of his Parent, is
+a consideration of the capacity inherent in such son or grandson to
+become himself the head of a new family and the root of a new set of
+Parental Powers. But a woman, of course, has no capacity of the kind,
+and no title accordingly to the liberation which it confers. There is
+therefore a peculiar contrivance of archaic jurisprudence for
+retaining her in the bondage of the Family for life. This is the
+institution known to the oldest Roman law as the Perpetual Tutelage of
+Women, under which a Female, though relieved from her Parent's
+authority by his decease, continues subject through life to her
+nearest male relations as her Guardians. Perpetual Guardianship is
+obviously neither more nor less than an artificial prolongation of the
+Patria Potestas, when for other purposes it has been dissolved. In
+India, the system survives in absolute completeness, and its operation
+is so strict that a Hindoo Mother frequently becomes the ward of her
+own sons. Even in Europe, the laws of the Scandinavian nations
+respecting women preserved it until quite recently. The invaders of
+the Western Empire had it universally among their indigenous usages,
+and indeed their ideas on the subject of Guardianship, in all its
+forms, were among the most retrogressive of those which they
+introduced into the Western world. But from the mature Roman
+jurisprudence it had entirely disappeared. We should know almost
+nothing about it, if we had only the compilations of Justinian to
+consult; but the discovery of the manuscript of Gaius discloses it to
+us at a most interesting epoch, just when it had fallen into complete
+discredit and was verging on extinction. The great jurisconsult
+himself scouts the popular apology offered for it in the mental
+inferiority of the female sex, and a considerable part of his volume
+is taken up with descriptions of the numerous expedients, some of them
+displaying extraordinary ingenuity, which the Roman lawyers had
+devised for enabling Women to defeat the ancient rules. Led by their
+theory of Natural Law, the jurisconsults had evidently at this time
+assumed the equality of the sexes as a principle of their code of
+equity. The restrictions which they attacked were, it is to be
+observed, restrictions on the disposition of property, for which the
+assent of the woman's guardians was still formally required. Control
+of her person was apparently quite obsolete.
+
+Ancient Law subordinates the woman to her blood-relations, while a
+prime phenomenon of modern jurisprudence has been her subordination to
+her husband. The history of the change is remarkable. It begins far
+back in the annals of Rome. Anciently, there were three modes in which
+marriage might be contracted according to Roman usage, one involving a
+religious solemnity, the other two the observance of certain secular
+formalities. By the religious marriage or _Confarreation_; by the
+higher form of civil marriage, which was called _Coemption_; and by
+the lower form, which was termed _Usus_, the Husband acquired a number
+of rights over the person and property of his wife, which were on the
+whole in excess of such as are conferred on him in any system of
+modern jurisprudence. But in what capacity did he acquire them? Not as
+_Husband_, but as _Father_. By the Confarreation, Coemption, and Usus,
+the woman passed _in manum viri_, that is, in law she became the
+_Daughter_ of her husband. She was included in his Patria Potestas.
+She incurred all the liabilities springing out of it while it
+subsisted, and surviving it when it had expired. All her property
+became absolutely his, and she was retained in tutelage after his
+death to the guardian whom he had appointed by will. These three
+ancient forms of marriage fell, however, gradually into disuse, so
+that, at the most splendid period of Roman greatness, they had almost
+entirely given place to a fashion of wedlock--old apparently, but not
+hitherto considered reputable--which was founded on a modification of
+the lower form of civil marriage. Without explaining the technical
+mechanism of the institution now generally popular, I may describe it
+as amounting in law to little more than a temporary deposit of the
+woman by her family. The rights of the family remained unimpaired, and
+the lady continued in the tutelage of guardians whom her parents had
+appointed and whose privileges of control overrode, in many material
+respects, the inferior authority of her husband. The consequence was
+that the situation of the Roman female, whether married or unmarried,
+became one of great personal and proprietary independence, for the
+tendency of the later law, as I have already hinted, was to reduce
+the power of the guardian to a nullity, while the form of marriage in
+fashion conferred on the husband no compensating superiority. But
+Christianity tended somewhat from the very first to narrow this
+remarkable liberty. Led at first by justifiable disrelish for the
+loose practices of the decaying heathen world, but afterwards hurried
+on by a passion of asceticism, the professors of the new faith looked
+with disfavour on a marital tie which was in fact the laxest the
+Western world has seen. The latest Roman law, so far as it is touched
+by the constitutions of the Christian Emperors, bears some marks of a
+reaction against the liberal doctrines of the great Antonine
+jurisconsults. And the prevalent state of religious sentiment may
+explain why it is that modern jurisprudence, forged in the furnace of
+barbarian conquest, and formed by the fusion of Roman jurisprudence
+with patriarchal usage, has absorbed, among its rudiments, much more
+than usual of those rules concerning the position of women which
+belong peculiarly to an imperfect civilisation. During the troubled
+era which begins modern history, and while the laws of the Germanic
+and Sclavonic immigrants remained superposed like a separate layer
+above the Roman jurisprudence of their provincial subjects, the women
+of the dominant races are seen everywhere under various forms of
+archaic guardianship, and the husband who takes a wife from any family
+except his own pays a money-price to her relations for the tutelage
+which they surrender to him. When we move onwards, and the code of the
+middle ages has been formed by the amalgamation of the two systems,
+the law relating to women carries the stamp of its double origin. The
+principle of the Roman jurisprudence is so far triumphant that
+unmarried females are generally (though there are local exceptions to
+the rule) relieved from the bondage of the family; but the archaic
+principle of the barbarians has fixed the position of married women,
+and the husband has drawn to himself in his marital character the
+powers which had once belonged to his wife's male kindred, the only
+difference being that he no longer purchases his privileges. At this
+point therefore the modern law of Western and Southern Europe begins
+to be distinguished by one of its chief characteristics, the
+comparative freedom it allows to unmarried women and widows, the heavy
+disabilities it imposes on wives. It was very long before the
+subordination entailed on the other sex by marriage was sensibly
+diminished. The principal and most powerful solvent of the revived
+barbarism of Europe was always the codified jurisprudence of
+Justinian, wherever it was studied with that passionate enthusiasm
+which it seldom failed to awaken. It covertly but most efficaciously
+undermined the customs which it pretended merely to interpret. But the
+Chapter of law relating to married women was for the most part read by
+the light, not of Roman, but of Canon Law, which in no one particular
+departs so widely from the spirit of the secular jurisprudence as in
+the view it takes of the relations created by marriage. This was in
+part inevitable, since no society which preserves any tincture of
+Christian institution is likely to restore to married women the
+personal liberty conferred on them by the middle Roman law, but the
+proprietary disabilities of married females stand on quite a different
+basis from their personal incapacities, and it is by keeping alive and
+consolidating the former that the expositors of the Canon Law have
+deeply injured civilisation. There are many vestiges of a struggle
+between the secular and ecclesiastical principles, but the Canon Law
+nearly everywhere prevailed. In some of the French provinces married
+women, of a rank below nobility, obtained all the powers of dealing
+with property which Roman jurisprudence had allowed, and this local
+law has been largely followed by the Code Napoléon; but the state of
+the Scottish law shows that scrupulous deference to the doctrines of
+the Roman jurisconsults did not always extend to mitigating the
+disabilities of wives. The systems however which are least indulgent
+to married women are invariably those which have followed the Canon
+Law exclusively, or those which, from the lateness of their contact
+with European civilisation, have never had their archaisms weeded out.
+The Scandinavian laws, harsh till lately to all females, are still
+remarkable for their severity to wives. And scarcely less stringent in
+the proprietary incapacities it imposes is the English Common Law,
+which borrows far the greatest number of its fundamental principles
+from the jurisprudence of the Canonists. Indeed, the part of the
+Common Law which prescribes the legal situation of married women may
+serve to give an Englishman clear notions of the great institution
+which has been the principal subject of this chapter. I do not know
+how the operation and nature of the ancient Patria Potestas can be
+brought so vividly before the mind as by reflecting on the
+prerogatives attached to the husband by the pure English Common Law,
+and by recalling the rigorous consistency with which the view of a
+complete legal subjection on the part of the wife is carried by it,
+where it is untouched by equity or statutes, through every department
+of rights, duties, and remedies. The distance between the eldest and
+latest Roman law on the subject of Children under Power may be
+considered as equivalent to the difference between the Common Law and
+the jurisprudence of the Court of Chancery in the rules which they
+respectively apply to wives.
+
+If we were to lose sight of the true origin of Guardianship in both
+its forms and were to employ the common language on these topics, we
+should find ourselves remarking that, while the Tutelage of Women is
+an instance in which systems of archaic law push to an extravagant
+length the fiction of suspended rights, the rules which they lay down
+for the Guardianship of Male Orphans are an example of a fault in
+precisely the opposite direction. All such systems terminate the
+Tutelage of males at an extraordinary early period. Under the ancient
+Roman law, which may be taken as their type, the son who was delivered
+from Patria Potestas by the death of his Father or Grandfather
+remained under guardianship till an epoch which for general purposes
+may be described as arriving with his fifteenth year; but the arrival
+of that epoch placed him at once in the full enjoyment of personal and
+proprietary independence. The period of minority appears therefore to
+have been as unreasonably short as the duration of the disabilities of
+women was preposterously long. But, in point of fact, there was no
+element either of excess or of shortcoming in the circumstances which
+gave their original form to the two kinds of guardianship. Neither the
+one nor the other of them was based on the slightest consideration of
+public or private convenience. The guardianship of male orphans was no
+more designed originally to shield them till the arrival of years of
+discretion than the tutelage of women was intended to protect the
+other sex against its own feebleness. The reason why the death of the
+father delivered the son from the bondage of the family was the son's
+capacity for becoming himself the head of a new family and the founder
+of a new Patria Potestas; no such capacity was possessed by the woman
+and therefore she was _never_ enfranchised. Accordingly the
+Guardianship of Male Orphans was a contrivance for keeping alive the
+semblance of subordination to the family of the Parent, up to the time
+when the child was supposed capable of becoming a parent himself. It
+was a prolongation of the Patria Potestas up to the period of bare
+physical manhood. It ended with puberty, for the rigour of the theory
+demanded that it should do so. Inasmuch, however, as it did not
+profess to conduct the orphan ward to the age of intellectual maturity
+or fitness for affairs, it was quite unequal to the purposes of
+general convenience; and this the Romans seem to have discovered at a
+very early stage of their social progress. One of the very oldest
+monuments of Roman legislation is the _Lex Lætoria_ or _Plætoria_
+which placed all free males who were of full years and rights under
+the temporary control of a new class of guardians, called _Curatores_,
+whose sanction was required to validate their acts or contracts. The
+twenty-sixth year of the young man's age was the limit of this
+statutory supervision; and it is exclusively with reference to the age
+of twenty-five that the terms "majority" and "minority" are employed
+in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had
+adjusted itself with tolerable regularity to the simple principle of
+protection to the immaturity of youth both bodily and mental. It has
+its natural termination with years of discretion. But for protection
+against physical weakness and for protection against intellectual
+incapacity, the Romans looked to two different institutions, distinct
+both in theory and design. The ideas attendant on both are combined in
+the modern idea of guardianship.
+
+The Law of Persons contains but one other chapter which can be
+usefully cited for our present purpose. The legal rules by which
+systems of nature jurisprudence regulate the connection of _Master and
+Slave_, present no very distinct traces of the original condition
+common to ancient societies. But there are reasons for this exception.
+There seems to be something in the institution of Slavery which has at
+all times either shocked or perplexed mankind, however little
+habituated to reflection, and however slightly advanced in the
+cultivation of its moral instincts. The compunction which ancient
+communities almost unconsciously experienced appears to have always
+resulted in the adoption of some imaginary principle upon which a
+defence, or at least a rationale, of slavery could be plausibly
+founded. Very early in their history the Greeks explained the
+institution as grounded on the intellectual inferiority of certain
+races and their consequent natural aptitude for the servile condition.
+The Romans, in a spirit equally characteristic, derived it from a
+supposed agreement between the victor and the vanquished in which the
+first stipulated for the perpetual services of his foe; and the other
+gained in consideration the life which he had legitimately forfeited.
+Such theories were not only unsound but plainly unequal to the case
+for which they affected to account. Still they exercised powerful
+influence in many ways. They satisfied the conscience of the Master.
+They perpetuated and probably increased the debasement of the Slave.
+And they naturally tended to put out of sight the relation in which
+servitude had originally stood to the rest of the domestic system. The
+relation, though not clearly exhibited, is casually indicated in many
+parts of primitive law, and more particularly in the typical
+system--that of ancient Rome.
+
+Much industry and some learning have been bestowed in the United
+States of America on the question whether the Slave was in the early
+stages of society a recognised member of the Family. There is a sense
+in which an affirmative answer must certainly be given. It is clear,
+from the testimony both of ancient law and of many primeval histories,
+that the Slave might under certain conditions be made the Heir, or
+Universal Successor, of the Master, and this significant faculty, as I
+shall explain in the Chapter on Succession, implies that the
+government and representation of the Family might, in a particular
+state of circumstances, devolve on the bondman. It seems, however, to
+be assumed in the American arguments on the subject that, if we allow
+Slavery to have been a primitive Family institution, the
+acknowledgment is pregnant with an admission of the moral
+defensibility of Negro-servitude at the present moment. What then is
+meant by saying that the Slave was originally included in the Family?
+Not that his situation may not have been the fruit of the coarsest
+motives which can actuate man. The simple wish to use the bodily
+powers of another person as a means of ministering to one's own ease
+or pleasure is doubtless the foundation of Slavery, and as old as
+human nature. When we speak of the Slave as anciently included in the
+Family, we intend to assert nothing as to the motives of those who
+brought him into it or kept him there; we merely imply that the tie
+which bound him to his master was regarded as one of the same general
+character with that which united every other member of the group to
+its chieftain. This consequence is, in fact, carried in the general
+assertion already made that the primitive ideas of mankind were
+unequal to comprehending any basis of the connection _inter se_ of
+individuals, apart from the relations of family. The Family consisted
+primarily of those who belonged to it by consanguinity and next of
+those who had been engrafted on it by adoption; but there was still a
+third class of persons who were only joined to it by common subjection
+to its head, and these were the Slaves. The born and the adopted
+subjects of the chief were raised above the Slave by the certainty
+that in the ordinary course of events they would be relieved from
+bondage and entitled to exercise powers of their own; but that the
+inferiority of the Slave was not such as to place him outside the pale
+of the Family, or such as to degrade him to the footing of inanimate
+property, is clearly proved, I think, by the many traces which remain
+of his ancient capacity for inheritance in the last resort. It would,
+of course, be unsafe in the highest degree to hazard conjectures how
+far the lot of the Slave was mitigated, in the beginnings of society,
+by having a definite place reserved to him in the empire of the
+Father. It is, perhaps, more probable that the son was practically
+assimilated to the Slave, than that the Slave shared any of the
+tenderness which in later times was shown to the son. But it may be
+asserted with some confidence of advanced and matured codes that,
+wherever servitude is sanctioned, the Slave has uniformly greater
+advantages under systems which preserve some memento of his earlier
+condition than under those which have adopted some other theory of his
+civil degradation. The point of view from which jurisprudence regards
+the Slave is always of great importance to him. The Roman law was
+arrested in its growing tendency to look upon him more and more as an
+article of property by the theory of the Law of Nature; and hence it
+is that, wherever servitude is sanctioned by institutions which have
+been deeply affected by Roman jurisprudence, the servile condition is
+never intolerably wretched. There is a great deal of evidence that in
+those American States which have taken the highly Romanised code of
+Louisiana as the basis of their jurisprudence, the lot and prospects
+of the negro-population are better in many material respects than
+under institutions founded on the English Common Law, which, as
+recently interpreted, has no true place for the Slave, and can only
+therefore regard him as a chattel.
+
+We have now examined all parts of the ancient Law of Persons which
+fall within the scope of this treatise, and the result of the inquiry
+is, I trust, to give additional definiteness and precision to our view
+of the infancy of jurisprudence. The Civil laws of States first make
+their appearance as the Themistes of a patriarchal sovereign, and we
+can now see that these Themistes are probably only a developed form of
+the irresponsible commands which, in a still earlier condition of the
+race, the head of each isolated household may have addressed to his
+wives, his children, and his slaves. But, even after the State has
+been organised, the laws have still an extremely limited application.
+Whether they retain their primitive character as Themistes, or whether
+they advance to the condition of Customs or Codified Texts, they are
+binding not on individuals, but on Families. Ancient jurisprudence, if
+a perhaps deceptive comparison may be employed, may be likened to
+International Law, filling nothing, as it were, excepting the
+interstices between the great groups which are the atoms of society.
+In a community so situated, the legislation of assemblies and the
+jurisdiction of Courts reaches only to the heads of families, and to
+every other individual the rule of conduct is the law of his home, of
+which his Parent is the legislator. But the sphere of civil law, small
+at first, tends steadily to enlarge itself. The agents of legal
+change, Fictions, Equity, and Legislation, are brought in turn to bear
+on the primeval institutions, and at every point of the progress, a
+greater number of personal rights and a larger amount of property are
+removed from the domestic forum to the cognisance of the public
+tribunals. The ordinances of the government obtain gradually the same
+efficacy in private concerns as in matters of state, and are no longer
+liable to be overridden by the behests of a despot enthroned by each
+hearthstone. We have in the annals of Roman law a nearly complete
+history of the crumbling away of an archaic system, and of the
+formation of new institutions from the recombined materials,
+institutions some of which descended unimpaired to the modern world,
+while others, destroyed or corrupted by contact with barbarism in the
+dark ages, had again to be recovered by mankind. When we leave this
+jurisprudence at the epoch of its final reconstruction by Justinian,
+few traces of archaism can be discovered in any part of it except in
+the single article of the extensive powers still reserved to the
+living Parent. Everywhere else principles of convenience, or of
+symmetry, or of simplification--new principles at any rate--have
+usurped the authority of the jejune considerations which satisfied the
+conscience of ancient times. Everywhere a new morality has displaced
+the canons of conduct and the reasons of acquiescence which were in
+unison with the ancient usages, because in fact they were born of
+them.
+
+The movement of the progressive societies has been uniform in one
+respect. Through all its course it has been distinguished by the
+gradual dissolution of family dependency and the growth of individual
+obligation in its place. The Individual is steadily substituted for
+the Family, as the unit of which civil laws take account. The advance
+has been accomplished at varying rates of celerity, and there are
+societies not absolutely stationary in which the collapse of the
+ancient organisation can only be perceived by careful study of the
+phenomena they present. But, whatever its pace, the change has not
+been subject to reaction or recoil, and apparent retardations will be
+found to have been occasioned through the absorption of archaic ideas
+and customs from some entirely foreign source. Nor is it difficult to
+see what is the tie between man and man which replaces by degrees
+those forms of reciprocity in rights and duties which have their
+origin in the Family. It is Contract. Starting, as from one terminus
+of history, from a condition of society in which all the relations of
+Persons are summed up in the relations of Family, we seem to have
+steadily moved towards a phase of social order in which all these
+relations arise from the free agreement of Individuals. In Western
+Europe the progress achieved in this direction has been considerable.
+Thus the status of the Slave has disappeared--it has been superseded
+by the contractual relation of the servant to his master. The status
+of the Female under Tutelage, if the tutelage be understood of persons
+other than her husband, has also ceased to exist; from her coming of
+age to her marriage all the relations she may form are relations of
+contract. So too the status of the Son under Power has no true place
+in law of modern European societies. If any civil obligation binds
+together the Parent and the child of full age, it is one to which only
+contract gives its legal validity. The apparent exceptions are
+exceptions of that stamp which illustrate the rule. The child before
+years of discretion, the orphan under guardianship, the adjudged
+lunatic, have all their capacities and incapacities regulated by the
+Law of Persons. But why? The reason is differently expressed in the
+conventional language of different systems, but in substance it is
+stated to the same effect by all. The great majority of Jurists are
+constant to the principle that the classes of persons just mentioned
+are subject to extrinsic control on the single ground that they do not
+possess the faculty of forming a judgment on their own interests; in
+other words, that they are wanting in the first essential of an
+engagement by Contract.
+
+The word Status may be usefully employed to construct a formula
+expressing the law of progress thus indicated, which, whatever be its
+value, seems to me to be sufficiently ascertained. All the forms of
+Status taken notice of in the Law of Persons were derived from, and to
+some extent are still coloured by, the powers and privileges anciently
+residing in the Family. If then we employ Status, agreeably with the
+usage of the best writers, to signify these personal conditions only,
+and avoid applying the term to such conditions as are the immediate or
+remote result of agreement, we may say that the movement of the
+progressive societies has hitherto been a movement _from Status to
+Contract_.
+
+
+
+
+CHAPTER VI
+
+THE EARLY HISTORY OF TESTAMENTARY SUCCESSION
+
+
+If an attempt were made to demonstrate in England the superiority of
+the historical method of investigation to the modes of inquiry
+concerning Jurisprudence which are in fashion among us, no department
+of Law would better serve as an example than Testaments or Wills. Its
+capabilities it owes to its great length and great continuity. At the
+beginning of its history we find ourselves in the very infancy of the
+social state, surrounded by conceptions which it requires some effort
+of mind to realise in their ancient form; while here, at the other
+extremity of its line of progress, we are in the midst of legal
+notions which are nothing more than those same conceptions disguised
+by the phraseology and by the habits of thought which belong to modern
+times, and exhibiting therefore a difficulty of another kind, the
+difficulty of believing that ideas which form part of our everyday
+mental stock can really stand in need of analysis and examination. The
+growth of the Law of Wills between these extreme points can be traced
+with remarkable distinctness. It was much less interrupted at the
+epoch of the birth of feudalism, than the history of most other
+branches of law. It is, indeed, true that, as regards all provinces of
+jurisprudence, the break caused by the division between ancient and
+modern history, or in other words by the dissolution of the Roman
+empire, has been very greatly exaggerated. Indolence has disinclined
+many writers to be at the pains of looking for threads of connection
+entangled and obscured by the confusions of six troubled centuries,
+while other inquirers, not naturally deficient in patience and
+industry, have been misled by idle pride in the legal system of their
+country, and by consequent unwillingness to confess its obligations to
+the jurisprudence of Rome. But these unfavourable influences have had
+comparatively little effect on the province of Testamentary Law. The
+barbarians were confessedly strangers to any such conception as that
+of a Will. The best authorities agree that there is no trace of it in
+those parts of their written codes which comprise the customs
+practised by them in their original seats, and in their subsequent
+settlements on the edge of the Roman empire. But soon after they
+became mixed with the population of the Roman provinces they
+appropriated from the Imperial jurisprudence the conception of a Will,
+at first in part, and afterwards in all its integrity. The influence
+of the Church had much to do with this rapid assimilation. The
+ecclesiastical power had very early succeeded to those privileges of
+custody and registration of Testaments which several of the heathen
+temples had enjoyed; and even thus early it was almost exclusively to
+private bequests that the religious foundations owed their temporal
+possessions. Hence it is that the decrees of the earliest Provincial
+Councils perpetually contain anathemas against those who deny the
+sanctity of Wills. Here, in England, Church influence was certainly
+chief among the causes which by universal acknowledgment have
+prevented that discontinuity in the history of Testamentary Law, which
+is sometimes believed to exist in the history of other provinces of
+Jurisprudence. The jurisdiction over one class of Wills was delegated
+to the Ecclesiastical Courts, which applied to them, though not always
+intelligently, the principles of Roman jurisprudence; and, though
+neither the courts of Common Law nor the Court of Chancery owned any
+positive obligation to follow the Ecclesiastical tribunals, they could
+not escape the potent influence of a system of settled rules in course
+of application by their side. The English law of testamentary
+succession to personalty has become a modified form of the
+dispensation under which the inheritances of Roman citizens were
+administered.
+
+It is not difficult to point out the extreme difference of the
+conclusions forced on us by the historical treatment of the subject
+from those to which we are conducted when, without the help of
+history, we merely strive to analyse our _primâ facie_ impressions. I
+suppose there is nobody who, starting from the popular or even the
+legal conception of a Will, would not imagine that certain qualities
+are necessarily attached to it. He would say, for example, that a Will
+necessarily takes effect _at death only_--that it is _secret_, not
+known as a matter of course to persons taking interests under its
+provisions--that it is _revocable_, _i.e._ always capable of being
+superseded by a new act of testation. Yet I shall be able to show
+that there was a time when none of these characteristics belonged to a
+Will. The Testaments from which our Wills are directly descended at
+first took effect immediately on their execution; they were not
+secret; they were not revocable. Few legal agencies are, in fact, the
+fruit of more complex historical agencies than that by which a man's
+written intentions control the posthumous disposition of his goods.
+Testaments very slowly and gradually gathered round them the qualities
+I have mentioned; and they did this from causes and under pressure of
+events which may be called casual, or which at any rate have no
+interest for us at present, except so far as they have affected the
+history of law.
+
+At a time when legal theories were more abundant than at
+present--theories which, it is true, were for the most part gratuitous
+and premature enough, but which nevertheless rescued jurisprudence
+from that worse and more ignoble condition, not unknown to ourselves,
+in which nothing like a generalisation is aspired to, and law is
+regarded as a mere empirical pursuit--it was the fashion to explain
+the ready and apparently intuitive perception which we have of certain
+qualities in a Will, by saying that they were natural to it, or, as
+the phrase would run in full, attached to it by the Law of Nature.
+Nobody, I imagine, would affect to maintain such a doctrine, when once
+it was ascertained that all these characteristics had their origin
+within historical memory; at the same time, vestiges of the theory of
+which the doctrine is an offshoot, linger in forms of expression which
+we all of us use and perhaps scarcely know how to dispense with. I may
+illustrate this by mentioning a position common in the legal
+literature of the seventeenth century. The jurists of that period very
+commonly assert that the power of Testation itself is of Natural Law,
+that it is a right conferred by the Law of Nature. Their teaching,
+though all persons may not at once see the connection, is in substance
+followed by those who affirm that the right of dictating or
+controlling the posthumous disposal of property is a necessary or
+natural consequence of the proprietary rights themselves. And every
+student of technical jurisprudence must have come across the same
+view, clothed in the language of a rather different school, which, in
+its rationale of this department of law, treats succession _ex
+testamento_ as the mode of devolution which the property of deceased
+persons ought primarily to follow, and then proceeds to account for
+succession _ab intestato_ as the incidental provision of the lawgiver
+for the discharge of a function which was only left unperformed
+through the neglect or misfortune of the deceased proprietor. These
+opinions are only expanded forms of the more compendious doctrine that
+Testamentary disposition is an institution of the Law of Nature. It is
+certainly never quite safe to pronounce dogmatically as to the range
+of association embraced by modern minds, when they reflect on Nature
+and her Law; but I believe that most persons, who affirm that the
+Testamentary Power is of Natural Law, may be taken to imply either
+that, as a matter of fact, it is universal, or that nations are
+prompted to sanction it by an original instinct and impulse. With
+respect to the first of these positions, I think that, when explicitly
+set forth, it can never be seriously contended for in an age which has
+seen the severe restraints imposed on the Testamentary Power by the
+_Code Napoléon_, and has witnessed the steady multiplication of
+systems for which the French codes have served as a model. To the
+second assertion we must object that it is contrary to the
+best-ascertained facts in the early history of law, and I venture to
+affirm generally that, in all indigenous societies, a condition of
+jurisprudence in which Testamentary privileges are _not_ allowed, or
+rather not contemplated, has preceded that later stage of legal
+development in which the mere will of the proprietor is permitted
+under more or less of restriction to override the claims of his
+kindred in blood.
+
+The conception of a Will or Testament cannot be considered by itself.
+It is a member, and not the first, of a series of conceptions. In
+itself a Will is simply the instrument by which the intention of the
+testator is declared. It must be clear, I think, that before such an
+instrument takes its turn for discussion, there are several
+preliminary points to be examined--as, for example, what is it, what
+sort of right or interest, which passes from a dead man on his
+decease? to whom and in what form does it pass? and how came it that
+the dead were allowed to control the posthumous disposition of their
+property? Thrown into technical language, the dependence of the
+various conceptions which contribute to the notion of a Will is thus
+expressed. A Will or Testament is an instrument by which the
+devolution of an inheritance is prescribed. Inheritance is a form of
+universal succession. A universal succession is a succession to a
+_universitas juris_, or university of rights and duties. Inverting
+this order we have therefore to inquire what is a _universitas juris_;
+what is a universal succession; what is the form of universal
+succession which is called an inheritance? And there are also two
+further questions, independent to some extent of the points I have
+mooted, but demanding solution before the subject of Wills can be
+exhausted. These are, how came an inheritance to be controlled in any
+case by the testator's volition, and what is the nature of the
+instrument by which it came to be controlled?
+
+The first question relates to the _universitas juris_; that is, a
+university (or bundle) of rights and duties. A _universitas juris_ is
+a collection of rights and duties united by the single circumstance of
+their having belonged at one time to some one person. It is, as it
+were, the legal clothing of some given individual. It is not formed by
+grouping together _any_ rights and _any_ duties. It can only be
+constituted by taking all the rights and all the duties of a
+particular person. The tie which so connects a number of rights of
+property, rights of way, rights to legacies, duties of specific
+performance, debts, obligations to compensate wrongs--which so
+connects all these legal privileges and duties together as to
+constitute them a _universitas juris_, is the _fact_ of their having
+attached to some individual capable of exercising them. Without this
+_fact_ there is no university of rights and duties. The expression
+_universitas juris_ is not classical, but for the notion jurisprudence
+is exclusively indebted to Roman law; nor is it at all difficult to
+seize. We must endeavour to collect under one conception the whole set
+of legal relations in which each one of us stands to the rest of the
+world. These, whatever be their character and composition, make up
+together a _universitas juris_; and there is but little danger of
+mistake in forming the notion, if we are only careful to remember that
+duties enter into it quite as much as rights. Our duties may
+overbalance our rights. A man may owe more than he is worth, and
+therefore if a money value is set on his collective legal relations he
+may be what is called insolvent. But for all that the entire group of
+rights and duties which centres in him is not the less a "juris
+universitas."
+
+We come next to a "universal succession." A universal succession is a
+succession to a _universitas juris_. It occurs when one man is
+invested with the legal clothing of another, becoming at the same
+moment subject to all his liabilities and entitled to all his rights.
+In order that the universal succession may be true and perfect, the
+devolution must take place _uno ictu_, as the jurists phrase it. It is
+of course possible to conceive one man acquiring the whole of the
+rights and duties of another at different periods, as for example by
+successive purchases; or he might acquire them in different
+capacities, part as heir, part as purchaser, part as legatee. But
+though the group of rights and duties thus made up should in fact
+amount to the whole legal personality of a particular individual, the
+acquisition would not be a universal succession. In order that there
+may be a true universal succession, the transmission must be such as
+to pass the whole aggregate of rights and duties at the _same_ moment
+and in virtue of the _same_ legal capacity in the recipient. The
+notion of a universal succession, like that of a juris universitas, is
+permanent in jurisprudence, though in the English legal system it is
+obscured by the great variety of capacities in which rights are
+acquired, and, above all, by the distinction between the two great
+provinces of English property, "realty" and "personalty." The
+succession of an assignee in bankruptcy to the entire property of the
+bankrupt is, however, a universal succession, though as the assignee
+only pays debts to the extent of the assets, this is only a modified
+form of the primary notion. Were it common among us for persons to
+take assignments of _all_ a man's property on condition of paying
+_all_ his debts, such transfers would exactly resemble the universal
+successions known to the oldest Roman Law. When a Roman citizen
+_adrogated_ a son, _i.e._ took a man, not already under Patria
+Potestas, as his adoptive child, he succeeded _universally_ to the
+adoptive child's estate, _i.e._ he took all the property and became
+liable for all the obligations. Several other forms of universal
+succession appear in the primitive Roman Law, but infinitely the most
+important and the most durable of all was that one with which we are
+more immediately concerned, Hæreditas or Inheritance. Inheritance was
+a universal succession occurring at a death. The universal successor
+was Hæres or Heir. He stepped at once into all the rights and all the
+duties of the dead man. He was instantly clothed with his entire legal
+person, and I need scarcely add that the special character of the
+Hæres remained the same, whether he was named by a Will or whether he
+took on an Intestacy. The term Hæres is no more emphatically used of
+the Intestate than of the Testamentary Heir, for the manner in which a
+man became Hæres had nothing to do with the legal character he
+sustained. The dead man's universal successor, however he became so,
+whether by Will or by Intestacy, was his Heir. But the Heir was not
+necessarily a single person. A group of persons considered in law as a
+single unit, might succeed as _co-heirs_ to the Inheritance.
+
+Let me now quote the usual Roman definition of an Inheritance. The
+reader will be in a position to appreciate the full force of the
+separate terms. _Hæreditas est successio in universum jus quod
+defunctus habuit_ ("an inheritance is a succession to the entire legal
+position of a deceased man"). The notion was that, though the physical
+person of the deceased had perished, his legal personality survived
+and descended unimpaired on his Heir or Co-heirs, in whom his identity
+(so far as the law was concerned) was continued. Our own law, in
+constituting the Executor or Administrator the representative of the
+deceased to the extent of his personal assets, may serve as an
+illustration of the theory from which it emanated, but, although it
+illustrates, it does not explain it. The view of even the later Roman
+Law required a closeness of correspondence between the position of the
+deceased and of his Heir which is no feature of an English
+representation; and in the primitive jurisprudence everything turned
+on the continuity of succession. Unless provision was made in the will
+for the instant devolution of the testator's rights and duties on the
+Heir or Co-heirs, the testament lost all its effect.
+
+In modern Testamentary jurisprudence, as in the later Roman law, the
+object of first importance is the execution of the testator's
+intentions. In the ancient law of Rome the subject of corresponding
+carefulness was the bestowal of the Universal Succession. One of these
+rules seems to our eyes a principle dictated by common sense, while
+the other looks very much like an idle crotchet. Yet that without the
+second of them the first would never have come into being is as
+certain as any proposition of the kind can be.
+
+In order to solve this apparent paradox, and to bring into greater
+clearness the train of ideas which I have been endeavouring to
+indicate, I must borrow the results of the inquiry which was attempted
+in the earlier portion of the preceding chapter. We saw one
+peculiarity invariably distinguishing the infancy of society. Men are
+regarded and treated, not as individuals, but always as members of a
+particular group. Everybody is first a citizen, and then, as a
+citizen, he is a member of his order--of an aristocracy or a
+democracy, of an order of patricians or plebeians; or, in those
+societies which an unhappy fate has afflicted with a special
+perversion in their course of development, of a caste. Next, he is a
+member of a gens, house, or clan; and lastly, he is a member of his
+_family_. This last was the narrowest and most personal relation in
+which he stood; nor, paradoxical as it may seem, was he ever regarded
+as _himself_, as a distinct individual. His individuality was
+swallowed up in his family. I repeat the definition of a primitive
+society given before. It has for its units, not individuals, but
+groups of men united by the reality or the fiction of blood-relationship.
+
+It is in the peculiarities of an undeveloped society that we seize the
+first trace of a universal succession. Contrasted with the
+organisation of a modern state, the commonwealths of primitive times
+may be fairly described as consisting of a number of little despotic
+governments, each perfectly distinct from the rest, each absolutely
+controlled by the prerogative of a single monarch. But though the
+Patriarch, for we must not yet call him the Pater-familias, had rights
+thus extensive, it is impossible to doubt that he lay under an equal
+amplitude of obligations. If he governed the family, it was for its
+behoof. If he was lord of its possessions, he held them as trustee for
+his children and kindred. He had no privilege or position distinct
+from that conferred on him by his relation to the petty commonwealth
+which he governed. The Family, in fact, was a Corporation; and he was
+its representative or, we might almost say, its Public officer. He
+enjoyed rights and stood under duties, but the rights and the duties
+were, in the contemplation of his fellow-citizens and in the eye of
+the law, quite as much those of the collective body as his own. Let us
+consider for a moment the effect which would be produced by the death
+of such a representative. In the eye of the law, in the view of the
+civil magistrate, the demise of the domestic authority would be a
+perfectly immaterial event. The person representing the collective
+body of the family and primarily responsible to municipal jurisdiction
+would bear a different name; and that would be all. The rights and
+obligations which attached to the deceased head of the house would
+attach, without breach of continuity, to his successor; for, in point
+of fact, they would be the rights and obligations of the family, and
+the family had the distinctive characteristic of a corporation--that
+it never died. Creditors would have the same remedies against the new
+chieftain as against the old, for the liability being that of the
+still existing family would be absolutely unchanged. All rights
+available to the family would be as available after the demise of the
+headship as before it--except that the Corporation would be
+obliged--if indeed language so precise and technical can be properly
+used of these early times--would be obliged to _sue_ under a slightly
+modified name.
+
+The history of jurisprudence must be followed in its whole course, if
+we are to understand how gradually and tardily society dissolved
+itself into the component atoms of which it is now constituted--by
+what insensible gradations the relation of man to man substituted
+itself for the relation of the individual to his family and of
+families to each other. The point now to be attended to is that even
+when the revolution had apparently quite accomplished itself, even
+when the magistrate had in great measure assumed the place of the
+Pater-familias, and the civil tribunal substituted itself for the
+domestic forum, nevertheless the whole scheme of rights and duties
+administered by the judicial authorities remained shaped by the
+influence of the obsolete privileges and coloured in every part by
+their reflection. There seems little question that the devolution of
+the Universitas Juris, so strenuously insisted upon by the Roman Law
+as the first condition of a testamentary or intestate succession, was
+a feature of the older form of society which men's minds had been
+unable to dissociate from the new, though with that newer phase it had
+no true or proper connection. It seems, in truth, that the
+prolongation of a man's legal existence in his heir, or in a group of
+co-heirs, is neither more nor less than a characteristic of _the
+family_ transferred by a fiction to _the individual_. Succession in
+corporations is necessarily universal, and the family was a
+corporation. Corporations never die. The decease of individual members
+makes no difference to the collective existence of the aggregate body,
+and does not in any way affect its legal incidents, its faculties or
+liabilities. Now in the idea of a Roman universal succession all
+these qualities of a corporation seem to have been transferred to the
+individual citizen. His physical death is allowed to exercise no
+effect on the legal position which he filled, apparently on the
+principle that that position is to be adjusted as closely as possible
+to the analogies of a family, which, in its corporate character, was
+not of course liable to physical extinction.
+
+I observe that not a few continental jurists have much difficulty in
+comprehending the nature of the connection between the conceptions
+blended in a universal succession, and there is perhaps no topic in
+the philosophy of jurisprudence on which their speculations, as a
+general rule, possess so little value. But the student of English law
+ought to be in no danger of stumbling at the analysis of the idea
+which we are examining. Much light is cast upon it by a fiction in our
+own system with which all lawyers are familiar. English lawyers
+classify corporations as Corporations aggregate and Corporations sole.
+A Corporation aggregate is a true Corporation, but a Corporation sole
+is an individual, being a member of a series of individuals, who is
+invested by a fiction with the qualities of a Corporation. I need
+hardly cite the King or the Parson of a Parish as instances of
+Corporations sole. The capacity or office is here considered apart
+from the particular person who from time to time may occupy it, and,
+this capacity being perpetual, the series of individuals who fill it
+are clothed with the leading attribute of Corporations--Perpetuity.
+Now in the older theory of Roman Law the individual bore to the family
+precisely the same relation which in the rationale of English
+jurisprudence a Corporation sole bears to a Corporation aggregate. The
+derivation and association of ideas are exactly the same. In fact, if
+we say to ourselves that for purposes of Roman Testamentary
+Jurisprudence each individual citizen was a Corporation sole, we shall
+not only realise the full conception of an inheritance, but have
+constantly at command the clue to the assumption in which it
+originated. It is an axiom with us that the King never dies, being a
+Corporation sole. His capacities are instantly filled by his
+successor, and the continuity of dominion is not deemed to have been
+interrupted. With the Romans it seemed an equally simple and natural
+process, to eliminate the fact of death from the devolution of rights
+and obligations. The testator lived on in his heir or in the group of
+his co-heirs. He was in law the same person with them, and if any one
+in his testamentary dispositions had even constructively violated the
+principle which united his actual and his posthumous existence, the
+law rejected the defective instrument, and gave the inheritance to the
+kindred in blood, whose capacity to fulfil the conditions of heirship
+was conferred on them by the law itself, and not by any document which
+by possibility might be erroneously framed.
+
+When a Roman citizen died intestate or leaving no valid Will, his
+descendants or kindred became his heirs according to a scale which
+will be presently described. The person or class of persons who
+succeeded did not simply _represent_ the deceased, but, in conformity
+with the theory just delineated, they _continued_ his civil life, his
+legal existence. The same results followed when the order of
+succession was determined by a Will, but the theory of the identity
+between the dead man and his heirs was certainly much older than any
+form of Testament or phase of Testamentary jurisprudence. This indeed
+is the proper moment for suggesting a doubt which will press on us
+with greater force the further we plumb the depths of this
+subject,--whether _wills_ would ever have come into being at all if it
+had not been for these remarkable ideas connected with universal
+succession. Testamentary law is the application of a principle which
+may be explained on a variety of philosophical hypotheses as plausible
+as they are gratuitous; it is interwoven with every part of modern
+society, and it is defensible on the broadest grounds of general
+expediency. But the warning can never be too often repeated, that the
+grand source of mistake in questions of jurisprudence is the
+impression that those reasons which actuate us at the present moment,
+in the maintenance of an existing institution, have necessarily
+anything in common with the sentiment in which the institution
+originated. It is certain that, in the old Roman Law of Inheritance,
+the notion of a will or testament is inextricably mixed up, I might
+almost say confounded, with the theory of a man's posthumous existence
+in the person of his heir.
+
+The conception of a universal succession, firmly as it has taken root
+in jurisprudence, has not occurred spontaneously to the framers of
+every body of laws. Wherever it is now found, it may be shown to have
+descended from Roman law; and with it have come down a host of legal
+rules on the subject of Testaments and Testamentary gifts, which
+modern practitioners apply without discerning their relation to the
+parent theory. But, in the pure Roman jurisprudence, the principle
+that a man lives on in his Heir--the elimination, if we may so speak,
+of the fact of death--is too obviously for mistake the centre round
+which the whole Law of Testamentary and Intestate succession is
+circling. The unflinching sternness of the Roman law in enforcing
+compliance with the governing theory would in itself suggest that the
+theory grew out of something in the primitive constitution of Roman
+society; but we may push the proof a good way beyond the presumption.
+It happens that several technical expressions, dating from the
+earliest institution of Wills at Rome, have been accidentally
+preserved to us. We have in Gaius the formula of investiture by which
+the universal successor was created. We have the ancient name by which
+the person afterwards called Heir was at first designated. We have
+further the text of the celebrated clause in the Twelve Tables by
+which the Testamentary power was expressly recognised, and the clauses
+regulating Intestate Succession have also been preserved. All these
+archaic phrases have one salient peculiarity. They indicate that what
+passed from the Testator to the Heir was the _Family_, that is, the
+aggregate of rights and duties contained in the Patria Potestas and
+growing out of it. The material property is in three instances not
+mentioned at all; in two others, it is visibly named as an adjunct or
+appendage of the Family. The original Will or Testament was therefore
+an instrument, or (for it was probably not at first in writing) a
+proceeding, by which the devolution of the _Family_ was regulated. It
+was a mode of declaring who was to have the chieftainship, in
+succession to the Testator. When Wills are understood to have this for
+their original object, we see at once how it is that they came to be
+connected with one of the most curious relics of ancient religion and
+law, the _sacra_, or Family Rites. These _sacra_ were the Roman form
+of an institution which shows itself wherever society has not wholly
+shaken itself free from its primitive clothing. They are the
+sacrifices and ceremonies by which the brotherhood of the family is
+commemorated, the pledge and the witness of its perpetuity. Whatever
+be their nature,--whether it be true or not that in all cases they are
+the worship of some mythical ancestor,--they are everywhere employed
+to attest the sacredness of the family-relation; and therefore they
+acquire prominent significance and importance, whenever the continuous
+existence of the Family is endangered by a change in the person of its
+chief. Accordingly we hear most about them in connection with demises
+of domestic sovereignty. Among the Hindoos, the right to inherit a
+dead man's property is exactly co-extensive with the duty of
+performing his obsequies. If the rites are not properly performed or
+not performed by the proper person, no relation is considered as
+established between the deceased and anybody surviving him; the Law of
+Succession does not apply, and nobody can inherit the property. Every
+great event in the life of a Hindoo seems to be regarded as leading up
+to and bearing upon those solemnities. If he marries, it is to have
+children who may celebrate them after his death; if he has no
+children, he lies under the strongest obligation to adopt them from
+another family, "with a view," writes the Hindoo doctor, "to the
+funeral cake, the water, and the solemn sacrifice." The sphere
+preserved to the Roman _sacra_ in the time of Cicero, was not less in
+extent. It embraced Inheritances and Adoptions. No Adoption was
+allowed to take place without due provision for the _sacra_ of the
+family from which the adoptive son was transferred, and no Testament
+was allowed to distribute an Inheritance without a strict
+apportionment of the expenses of these ceremonies among the different
+co-heirs. The differences between the Roman law at this epoch, when we
+obtain our last glimpse of the _sacra_, and the existing Hindoo
+system, are most instructive. Among the Hindoos, the religious element
+in law has acquired a complete predominance. Family sacrifices have
+become the keystone of all the Law of Persons and much of the Law of
+Things. They have even received a monstrous extension, for it is a
+plausible opinion that the self-immolation of the widow at her
+husband's funeral, a practice continued to historical times by the
+Hindoos, and commemorated in the traditions of several Indo-European
+races, was an addition grafted on the primitive _sacra_, under the
+influence of the impression, which always accompanies the idea of
+sacrifice, that human blood is the most precious of all oblations.
+With the Romans, on the contrary, the legal obligation and the
+religious duty have ceased to be blended. The necessity of solemnising
+the _sacra_ forms no part of the theory of civil law, but they are
+under the separate jurisdiction of the College of Pontiffs. The
+letters of Cicero to Atticus, which are full of allusions to them,
+leave no doubt that they constituted an intolerable burden on
+Inheritances; but the point of development at which law breaks away
+from religion has been passed, and we are prepared for their entire
+disappearance from the later jurisprudence.
+
+In Hindoo law there is no such thing as a true Will. The place filled
+by Wills is occupied by Adoptions. We can now see the relation of the
+Testamentary Power to the Faculty of Adoption, and the reason why the
+exercise of either of them could call up a peculiar solicitude for the
+performance of the _sacra_. Both a Will and an Adoption threaten a
+distortion of the ordinary course of Family descent, but they are
+obviously contrivances for preventing the descent being wholly
+interrupted, when there is no succession of kindred to carry it on. Of
+the two expedients Adoption, the factitious creation of
+blood-relationship, is the only one which has suggested itself to the
+greater part of archaic societies. The Hindoos have indeed advanced
+one point on what was doubtless the antique practice, by allowing the
+widow to adopt when the father has neglected to do so, and there are
+in the local customs of Bengal some faint traces of the Testamentary
+powers. But to the Romans belongs pre-eminently the credit of
+inventing the Will, the institution which, next to the Contract, has
+exercised the greatest influence in transforming human society. We
+must be careful not to attribute to it in its earliest shape the
+functions which have attended it in more recent times. It was at
+first, not a mode of distributing a dead man's goods, but one among
+several ways of transferring the representation of the household to a
+new chief. The goods descend no doubt to the Heir, but that is only
+because the government of the family carries with it in its devolution
+the power of disposing of the common stock. We are very far as yet
+from that stage in the history of Wills in which they become powerful
+instruments in modifying society through the stimulus they give to the
+circulation of property and the plasticity they produce in proprietary
+rights. No such consequences as these appear in fact to have been
+associated with the Testamentary power even by the latest Roman
+lawyers. It will be found that Wills were never looked upon in the
+Roman community as a contrivance for parting Property and the Family,
+or for creating a variety of miscellaneous interests, but rather as a
+means of making a better provision for the members of a household than
+could be secured through the rules of Intestate succession. We may
+suspect indeed that the associations of a Roman with the practice of
+will-making were extremely different from those familiar to us
+nowadays. The habit of regarding Adoption and Testation as modes of
+continuing the Family cannot but have had something to do with the
+singular laxity of Roman notions as to the inheritance of sovereignty.
+It is impossible not to see that the succession of the early Roman
+Emperors to each other was considered reasonably regular, and that, in
+spite of all that had occurred, no absurdity attached to the
+pretension of such Princes as Theodosius or Justinian to style
+themselves Cæsar and Augustus.
+
+When the phenomena of primitive societies emerge into light, it seems
+impossible to dispute a proposition which the jurists of the
+seventeenth century considered doubtful, that Intestate Inheritance is
+a more ancient institution than Testamentary Succession. As soon as
+this is settled, a question of much interest suggests itself, how and
+under what conditions were the directions of a will first allowed to
+regulate the devolution of authority over the household, and
+consequently the posthumous distribution of property. The difficulty
+of deciding the point arises from the rarity of Testamentary power in
+archaic communities. It is doubtful whether a true power of testation
+was known to any original society except the Roman. Rudimentary forms
+of it occur here and there, but most of them are not exempt from the
+suspicion of a Roman origin. The Athenian will was, no doubt,
+indigenous, but then, as will appear presently, it was only an
+inchoate Testament. As to the Wills which are sanctioned by the bodies
+of law which have descended to us as the codes of the barbarian
+conquerors of Imperial Rome, they are almost certainly Roman. The most
+penetrating German criticism has recently been directed to these
+_leges Barbarorum_, the great object of investigation being to detach
+those portions of each system which formed the customs of the tribe in
+its original home from the adventitious ingredients which were
+borrowed from the laws of the Romans. In the course of this process,
+one result has invariably disclosed itself, that the ancient nucleus
+of the code contains no trace of a Will. Whatever testamentary law
+exists, has been taken from Roman jurisprudence. Similarly, the
+rudimentary Testament which (as I am informed) the Rabbinical Jewish
+law provides for, has been attributed to contact with the Romans. The
+only form of testament, not belonging to a Roman or Hellenic society,
+which can reasonably be supposed indigenous, is that recognised by the
+usages of the province of Bengal; and the testament of Bengal is only
+a rudimentary Will.
+
+The evidence, however, such as it is, seems to point to the conclusion
+that Testaments are at first only allowed to take effect on failure of
+the persons entitled to have the inheritance by right of blood genuine
+or fictitious. Thus, when Athenian citizens were empowered for the
+first time by the Laws of Solon to execute Testaments, they were
+forbidden to disinherit their direct male descendants. So, too, the
+Will of Bengal is only permitted to govern the succession so far as it
+is consistent with certain overriding claims of the family. Again, the
+original institutions of the Jews having provided nowhere for the
+privileges of Testatorship, the later Rabbinical jurisprudence, which
+pretends to supply the _casus omissi_ of the Mosaic law, allows the
+Power of Testation to attach when all the kindred entitled under the
+Mosaic system to succeed have failed or are undiscoverable. The
+limitations by which the ancient German codes hedge in the
+testamentary jurisprudence which has been incorporated with them are
+also significant, and point in the same direction. It is the
+peculiarity of most of these German laws, in the only shape in which
+we know them, that, besides the _allod_ or domain of each household,
+they recognise several subordinate kinds or orders of property, each
+of which probably represents a separate transfusion of Roman
+principles into the primitive body of Teutonic usage. The primitive
+German or allodial property is strictly reserved to the kindred. Not
+only is it incapable of being disposed of by testament but it is
+scarcely capable of being alienated by conveyance _inter vivos_. The
+ancient German law, like the Hindoo jurisprudence, makes the male
+children co-proprietors with their father, and the endowment of the
+family cannot be parted with except by the consent of all its members.
+But the other sorts of property, of more modern origin and lower
+dignity than the allodial possessions, are much more easily alienated
+than they, and follow much more lenient rules of devolution. Women
+and the descendants of women succeed to them, obviously on the
+principle that they lie outside the sacred precinct of the Agnatic
+brotherhood. Now, it is on these last descriptions of property, and on
+these only, that the Testaments borrowed from Rome were at first
+allowed to operate.
+
+These few indications may serve to lend additional plausibility to
+that which in itself appears to be the most probable explanation of an
+ascertained fact in the early history of Roman Wills. We have it
+stated on abundant authority that Testaments, during the primitive
+period of the Roman State, were executed in the Comitia Calata, that
+is, in the Comitia Curiata, or Parliament of the Patrician Burghers of
+Rome, when assembled for Private Business. This mode of execution has
+been the source of the assertion, handed down by one generation of
+civilians to another, that every Will at one era of Roman history was
+a solemn legislative enactment. But there is no necessity whatever for
+resorting to an explanation which has the defect of attributing far
+too much precision to the proceedings of the ancient assembly. The
+proper key to the story concerning the execution of Wills in the
+Comitia Calata must no doubt be sought in the oldest Roman Law of
+_intestate_ succession. The canons of primitive Roman jurisprudence
+regulating the inheritance of relations from each other were, so long
+as they remained unmodified by the Edictal Law of the Prætor, to the
+following effect:--First, the _sui_ or direct descendants who had
+never been emancipated succeeded. On the failure of the _sui_, the
+Nearest Agnate came into their place, that is, the nearest person or
+class of the kindred who was or might have been under the same Patria
+Potestas with the deceased. The third and last degree came next, in
+which the inheritance devolved on the _gentiles_, that is on the
+collective members of the dead man's _gens_ or _House_. The House, I
+have explained already, was a fictitious extension of the family,
+consisting of all Roman Patrician citizens who bore the same name, and
+who, on the ground of bearing the same name, were supposed to be
+descended from a common ancestor. Now the Patrician Assembly called
+the Comitia Curiata was a Legislature in which Gentes or Houses were
+exclusively represented. It was a representative assembly of the Roman
+people, constituted on the assumption that the constituent unit of the
+state was the Gens. This being so, the inference seems inevitable,
+that the cognizance of Wills by the Comitia was connected with the
+rights of the Gentiles, and was intended to secure them in their
+privilege of ultimate inheritance. The whole apparent anomaly is
+removed, if we suppose that a Testament could only be made when the
+testator had no _gentiles_ discoverable, or when they waived their
+claims, and that every Testament was submitted to the General Assembly
+of the Roman Gentes, in order that those aggrieved by its dispositions
+might put their veto upon it if they pleased, or by allowing it to
+pass might be presumed to have renounced their reversion. It is
+possible that on the eve of the publication of the Twelve Tables this
+vetoing power may have been greatly curtailed or only occasionally and
+capriciously exercised. It is much easier, however, to indicate the
+meaning and origin of the jurisdiction confided to the Comitia Calata,
+than to trace its gradual development or progressive decay.
+
+The Testament to which the pedigree of all modern Wills may be traced
+is not, however, the Testament executed in the Calata Comitia, but
+another Testament designed to compete with it and destined to
+supersede it. The historical importance of this early Roman Will, and
+the light it casts on much of ancient thought, will excuse me for
+describing it at some length.
+
+When the Testamentary power first discloses itself to us in legal
+history, there are signs that, like almost all the great Roman
+institutions, it was the subject of contention between the Patricians
+and the Plebeians. The effect of the political maxim, _Plebs Gentem
+non habet_, "a Plebeian cannot be a member of a House," was entirely
+to exclude the Plebeians from the Comitia Curiata. Some critics have
+accordingly supposed that a Plebeian could not have his Will read or
+recited to the Patrician Assembly, and was thus deprived of
+Testamentary privileges altogether. Others have been satisfied to
+point out the hardships of having to submit a proposed Will to the
+unfriendly jurisdiction of an assembly in which the Testator was not
+represented. Whatever be the true view, a form of Testament came into
+use, which has all the characteristics of a contrivance intended to
+evade some distasteful obligation. The Will in question was a
+conveyance _inter vivos_, a complete and irrevocable alienation of the
+Testator's family and substance to the person whom he meant to be his
+heir. The strict rules of Roman law must always have permitted such an
+alienation, but, when the transaction was intended to have a
+posthumous effect, there may have been disputes whether it was valid
+for Testamentary purposes without the formal assent of the Patrician
+Parliament. If a difference of opinion existed on the point between
+the two classes of the Roman population, it was extinguished, with
+many other sources of heartburning, by the great Decemviral
+compromise. The text of the Twelve Tables is still extant which says,
+"_Pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jus
+esto_"--a law which can hardly have had any other object than the
+legalisation of the Plebeian Will.
+
+It is well known to scholars that, centuries after the Patrician
+Assembly had ceased to be the legislature of the Roman State, it still
+continued to hold formal sittings for the convenience of private
+business. Consequently, at a period long subsequent to the publication
+of the Decemviral Law, there is reason to believe that the Comitia
+Calata still assembled for the validation of Testaments. Its probable
+functions may be best indicated by saying that it was a Court of
+Registration, with the understanding however that the Wills exhibited
+were not _enrolled_, but simply recited to the members, who were
+supposed to take note of their tenor and to commit them to memory. It
+is very likely that this form of Testament was never reduced to
+writing at all, but at all events if the Will had been originally
+written, the office of the Comitia was certainly confined to hearing
+it read aloud, the document being retained afterwards in the custody
+of the Testator, or deposited under the safeguard of some religious
+corporation. This publicity may have been one of the incidents of the
+Testament executed in the Comitia Calata which brought it into popular
+disfavour. In the early years of the Empire the Comitia still held its
+meetings, but they seem to have lapsed into the merest form, and few
+Wills, or none, were probably presented at the periodical sitting.
+
+It is the ancient Plebeian Will--the alternative of the Testament just
+described--which in its remote effects has deeply modified the
+civilisation of the modern world. It acquired at Rome all the
+popularity which the Testament submitted to the Calata Comitia appears
+to have lost. The key to all its characteristics lies in its descent
+from the _mancipium_, or ancient Roman conveyance, a proceeding to
+which we may unhesitatingly assign the parentage of two great
+institutions without which modern society can scarcely be supposed
+capable of holding together, the Contract and the Will. The
+_mancipium_, or as the word would exhibit itself in later Latinity,
+the Mancipation, carries us back by its incidents to the infancy of
+civil society. As it sprang from times long anterior, if not to the
+invention, at all events to the popularisation, of the art of writing,
+gestures, symbolical acts, and solemn phrases take the place of
+documentary forms, and a lengthy and intricate ceremonial is intended
+to call the attention of the parties to the importance of the
+transaction, and to impress it on the memory of the witnesses. The
+imperfection too of oral, as compared with written, testimony
+necessitates the multiplication of the witnesses and assistants beyond
+what in later times would be reasonable or intelligible limits.
+
+The Roman Mancipation required the presence first of all of the
+parties, the vendor and vendee, or we should perhaps rather say, if we
+are to use modern legal language, the grantor and grantee. There were
+also no less than _five_ witnesses; and an anomalous personage, the
+Libripens, who brought with him a pair of scales to weigh the uncoined
+copper money of ancient Rome. The Testament we are considering--the
+Testament _per æs et libram_, "with the copper and the scales," as it
+long continued to be technically called--was an ordinary Mancipation
+with no change in the form and hardly any in words. The Testator was
+the grantor; the five witnesses and the libripens were present; and
+the place of grantee was taken by a person known technically as the
+_familiæ emptor_, the Purchaser of the Family. The ordinary ceremony
+of a Mancipation was then proceeded with. Certain formal gestures were
+made and sentences pronounced. The _Emptor familiæ_ simulated the
+payment of a price by striking the scales with a piece of money, and
+finally the Testator ratified what had been done in a set form of
+words called the "Nuncupatio" or publication of the transaction, a
+phrase which, I need scarcely remind the lawyer, has had a long
+history in Testamentary jurisprudence. It is necessary to attend
+particularly to the character of the person called _familiæ emptor_.
+There is no doubt that at first he was the Heir himself. The Testator
+conveyed to him outright his whole "familia," that is, all the rights
+he enjoyed over and through the family; his property, his slaves, and
+all his ancestral privileges, together, on the other hand, with all
+his duties and obligations.
+
+With these data before us, we are able to note several remarkable
+points in which the Mancipatory Testament, as it may be called,
+differed in its primitive form from a modern will. As it amounted to a
+conveyance _out-and-out_ of the Testator's estate, it was not
+_revocable_. There could be no new exercise of a power which had been
+exhausted.
+
+Again, it was not secret. The Familiæ Emptor, being himself the Heir,
+knew exactly what his rights were, and was aware that he was
+irreversibly entitled to the inheritance; a knowledge which the
+violences inseparable from the best-ordered ancient society rendered
+extremely dangerous. But perhaps the most surprising consequence of
+this relation of Testaments to Conveyances was the immediate vesting
+of the inheritance in the Heir. This has seemed so incredible to not a
+few civilians, that they have spoken of the Testator's estate as
+vesting conditionally on the Testator's death or as granted to him
+from a time uncertain, _i.e._ the death of the grantor. But down to
+the latest period of Roman jurisprudence there was a certain class of
+transactions which never admitted of being directly modified by a
+condition, or of being limited to or from a point of time. In
+technical language they did not admit _conditio_ or _dies_.
+Mancipation was one of them, and therefore, strange as it may seem, we
+are forced to conclude that the primitive Roman Will took effect at
+once, even though the Testator survived his act of Testation. It is
+indeed likely that Roman citizens originally made their Wills only in
+the article of death, and that a provision for the continuance of the
+Family effected by a man in the flower of life would take the form
+rather of an Adoption than of a Will. Still we must believe that, if
+the Testator did recover, he could only continue to govern his
+household by the sufferance of his Heir.
+
+Two or three remarks should be made before I explain how these
+inconveniences were remedied, and how Testaments came to be invested
+with the characteristics now universally associated with them. The
+Testament was not necessarily written: at first, it seems to have been
+invariably oral, and, even in later times, the instrument declaratory
+of the bequests was only incidentally connected with the Will and
+formed no essential part of it. It bore in fact exactly the same
+relation to the Testament, which the deed leading the uses bore to the
+Fines and Recoveries of old English law, or which the charter of
+feoffment bore to the feoffment itself. Previously, indeed, to the
+Twelve Tables, no writing would have been of the slightest use, for
+the Testator had no power of giving legacies, and the only persons who
+could be advantaged by a will were the Heir or Co-heirs. But the
+extreme generality of the clause in the Twelve Tables soon produced
+the doctrine that the Heir must take the inheritance burdened by any
+directions which the Testator might give him, or in other words, take
+it subject to legacies. Written testamentary instruments assumed
+thereupon a new value, as a security against the fraudulent refusal of
+the heir to satisfy the legatees; but to the last it was at the
+Testator's pleasure to rely exclusively on the testimony of the
+witnesses, and to declare by word of mouth the legacies which the
+_familiæ emptor_ was commissioned to pay.
+
+The terms of the expression _Emptor familiæ_ demand notice. "Emptor"
+indicates that the Will was literally a sale, and the word "familiæ,"
+when compared with the phraseology in the Testamentary clause in the
+Twelve Tables, leads us to some instructive conclusions. "Familia," in
+classical Latinity, means always a man's slaves. Here, however, and
+generally in the language of ancient Roman law, it includes all
+persons under his Potestas, and the Testator's material property or
+substance is understood to pass as an adjunct or appendage of his
+household. Turning to the law of the Twelve Tables, it will be seen
+that it speaks of _tutela rei suæ_, "the guardianship of his
+substance," a form of expression which is the exact reverse of the
+phrase just examined. There does not therefore appear to be any mode
+of escaping from the conclusion, that, even at an era so comparatively
+recent as that of the Decemviral compromise, terms denoting
+"household" and "property" were blended in the current phraseology. If
+a man's household had been spoken of as his property we might have
+explained the expression as pointing to the extent of the Patria
+Potestas, but, as the interchange is reciprocal, we must allow that
+the form of speech carries us back to that primeval period in which
+property is owned by the family, and the family is governed by the
+citizen, so that the members of the community do not own their
+property _and_ their family, but rather own their property _through_
+their family.
+
+At an epoch not easy to settle with precision, the Roman Prætors fell
+into the habit of acting upon Testaments solemnised in closer
+conformity with the spirit than the letter of the law. Casual
+dispensations became insensibly the established practice, till at
+length a wholly new form of Will was matured and regularly engrafted
+on the Edictal Jurisprudence. The new or _Prætorian_ Testament derived
+the whole of its impregnability from the _Jus Honorarium_ or Equity of
+Rome. The Prætor of some particular year must have inserted a clause
+in his inaugural Proclamation declaratory of his intention to sustain
+all Testaments which should have been executed with such and such
+solemnities; and, the reform having been found advantageous, the
+article relating to it must have been again introduced by the Prætor's
+successor, and repeated by the next in office, till at length it
+formed a recognised portion of that body of jurisprudence which from
+these successive incorporations was styled the Perpetual or Continuous
+Edict. On examining the conditions of a valid Prætorian Will they will
+be plainly seen to have been determined by the requirements of the
+Mancipatory Testament, the innovating Prætor having obviously
+prescribed to himself the retention of the old formalities just so far
+as they were warrants of genuineness or securities against fraud. At
+the execution of the Mancipatory Testament seven persons had been
+present besides the Testator. Seven witnesses were accordingly
+essential to the Prætorian Will: two of them corresponding to the
+_libripens_ and _familiæ emptor_, who were now stripped of their
+symbolical character, and were merely present for the purpose of
+supplying their testimony. No emblematic ceremony was gone through;
+the Will was merely recited; but then it is probable (though not
+absolutely certain) that a written instrument was necessary to
+perpetuate the evidence of the Testator's dispositions. At all events,
+whenever a writing was read or exhibited as a person's last Will, we
+know certainly that the Prætorian Court would not sustain it by
+special intervention, unless each of the seven witnesses had severally
+affixed his seal to the outside. This is the first appearance of
+_sealing_ in the history of jurisprudence, considered as a mode of
+authentication. It is to be observed that the seals of Roman Wills,
+and other documents of importance, did not simply serve as the index
+of the presence or assent of the signatory, but were literally
+fastenings which had to be broken before the writing could be
+inspected.
+
+The Edictal Law would therefore enforce the dispositions of a
+Testator, when, instead of being symbolised through the forms of
+mancipation, they were simply evidenced by the seals of seven
+witnesses. But it may be laid down as a general proposition, that the
+principal qualities of Roman property were incommunicable except
+through processes which were supposed to be coeval with the origin of
+the Civil Law. The Prætor therefore could not confer an _Inheritance_
+on anybody. He could not place the Heir or Co-heirs in that very
+relation in which the Testator had himself stood to his own rights and
+obligations. All he could do was to confer on the person designated as
+Heir the practical enjoyment of the property bequeathed, and to give
+the force of legal acquittances to his payments of the Testator's
+debts. When he exerted his powers to these ends, the Prætor was
+technically said to communicate the _Bonorum Possessio_. The Heir
+specially inducted under these circumstances, or _Bonorum Possessor_,
+had every proprietary privilege of the Heir by the Civil Law. He took
+the profits and he could alienate, but then, for all his remedies for
+redress against wrong, he must go, as we should phrase it, not to the
+Common Law, but to the Equity side of the Prætorian Court. No great
+chance of error would be incurred by describing him as having an
+_equitable_ estate in the inheritance; but then, to secure ourselves
+against being deluded by the analogy, we must always recollect that in
+one year the _Bonorum Possessio_ was operated upon a principle of
+Roman Law known as Usucapion, and the Possessor became Quiritarian
+owner of all the property comprised in the inheritance.
+
+We know too little of the older law of Civil Process to be able to
+strike the balance of advantage and disadvantage between the different
+classes of remedies supplied by the Prætorian Tribunal. It is certain,
+however, that, in spite of its many defects, the Mancipatory Testament
+by which the _universitas juris_ devolved at once and unimpaired was
+never entirely superseded by the new Will; and at a period less
+bigoted to antiquarian forms, and perhaps not quite alive to their
+significance, all the ingenuity of the Jurisconsults seems to have
+been expended on the improvement of the more venerable instrument. At
+the era of Gaius, which is that of the Antonine Cæsars, the great
+blemishes of the Mancipatory Will had been removed. Originally, as we
+have seen, the essential character of the formalities had required
+that the Heir himself should be the Purchaser of the Family, and the
+consequence was that he not only instantly acquired a vested interest
+in the Testator's Property, but was formally made aware of his rights.
+But the age of Gaius permitted some unconcerned person to officiate as
+Purchaser of the Family. The heir, therefore, was not necessarily
+informed of the succession to which he was destined; and Wills
+thenceforward acquired the property of _secrecy_. The substitution of
+a stranger for the actual Heir in the functions of "Familiæ Emptor"
+had other ulterior consequences. As soon as it was legalised, a Roman
+Testament came to consist of two parts or stages--a conveyance, which
+was a pure form, and a Nuncupatio, or Publication. In this latter
+passage of the proceeding, the Testator either orally declared to the
+assistants the wishes which were to be executed after his death, or
+produced a written document in which his wishes were embodied. It was
+not probably till attention had been quite drawn off from the
+imaginary Conveyance, and concentrated on the Nuncupation as the
+essential part of the transaction, that Wills were allowed to become
+_revocable_.
+
+I have thus carried the pedigree of Wills some way down in legal
+history. The root of it is the old Testament "with the copper and the
+scales," founded on a Mancipation or Conveyance. This ancient Will
+has, however, manifold defects, which are remedied, though only
+indirectly, by the Prætorian law. Meantime the ingenuity of the
+Jurisconsults effects, in the Common-Law Will or Mancipatory
+Testament, the very improvements which the Prætor may have
+concurrently carried out in Equity. These last ameliorations depend,
+however, on mere legal dexterity, and we see accordingly that the
+Testamentary Law of the day of Gaius or Ulpian is only transitional.
+What changes next ensued we know not; but at length, just before the
+reconstruction of the jurisprudence by Justinian, we find the subjects
+of the Eastern Roman Empire employing a form of Will of which the
+pedigree is traceable to the Prætorian Testament on one side, and to
+the Testament "with the copper and the scales" on the other. Like the
+Testament of the Prætor, it required no Mancipation, and was invalid
+unless sealed by seven witnesses. Like the Mancipatory Will, it passed
+the Inheritance and not merely a _Bonorum Possessio_. Several,
+however, of its most important features were annexed by positive
+enactments, and it is out of regard to this threefold derivation from
+the Prætorian Edict, from the Civil Law, and from the Imperial
+Constitutions, that Justinian speaks of the Law of Wills in his own
+day as _Jus Tripertitum_. The new Testament thus described is the one
+generally known as the Roman Will. But it was the Will of the Eastern
+Empire only; and the researches of Savigny have shown that in Western
+Europe the old Mancipatory Testament, with all its apparatus of
+conveyance, copper, and scales, continued to be the form in use far
+down in the Middle Ages.
+
+
+
+
+CHAPTER VII
+
+ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS
+
+
+Although there is much in the modern European Law of Wills which is
+intimately connected with the oldest rules of Testamentary disposition
+practised among men, there are nevertheless some important differences
+between ancient and modern ideas on the subject of Wills and
+Successions. Some of the points of difference I shall endeavour to
+illustrate in this chapter.
+
+At a period, removed several centuries from the era of the Twelve
+Tables, we find a variety of rules engrafted on the Roman Civil Law
+with the view of limiting the disinherison of children; we have the
+jurisdiction of the Prætor very actively exerted in the same interest;
+and we are also presented with a new remedy, very anomalous in
+character and of uncertain origin, called the Querela Inofficiosi
+Testamenti, "the Plaint of an Unduteous Will," directed to the
+reinstatement of the issue in inheritances from which they had been
+unjustifiably excluded by a father's Testament. Comparing this
+condition of the law with the text of the Twelve Tables which concedes
+in terms the utmost liberty of Testation, several writers have been
+tempted to interweave a good deal of dramatic incident into their
+history of the Law Testamentary. They tell us of the boundless license
+of disinherison in which the heads of families instantly began to
+indulge, of the scandal and injury to public morals which the new
+practices engendered, and of the applause of all good men which hailed
+the courage of the Prætor in arresting the progress of paternal
+depravity. This story, which is not without some foundation for the
+principal fact it relates, is often so told as to disclose very
+serious misconceptions of the principles of legal history. The Law of
+the Twelve Tables is to be explained by the character of the age in
+which it was enacted. It does not license a tendency which a later era
+thought itself bound to counteract, but it proceeds on the assumption
+that no such tendency exists, or, perhaps we should say, in ignorance
+of the possibility of its existence. There is no likelihood that Roman
+citizens began immediately to avail themselves freely of the power to
+disinherit. It is against all reason and sound appreciation of history
+to suppose that the yoke of family bondage, still patiently submitted
+to, as we know, where its pressure galled most cruelly, would be cast
+off in the very particular in which its incidence in our own day is
+not otherwise than welcome. The Law of the Twelve Tables permitted the
+execution of Testaments in the only case in which it was thought
+possible that they could be executed, viz. on failure of children and
+proximate kindred. It did not forbid the disinherison of direct
+descendants, inasmuch as it did not legislate against a contingency
+which no Roman lawgiver of that era could have contemplated. No doubt,
+as the offices of family affection progressively lost the aspect of
+primary personal duties, the disinherison of children was occasionally
+attempted. But the interference of the Prætor, so far from being
+called for by the universality of the abuse, was doubtless first
+prompted by the fact that such instances of unnatural caprice were few
+and exceptional, and at conflict with the current morality.
+
+The indications furnished by this part of Roman Testamentary Law are
+of a very different kind. It is remarkable that a Will never seems to
+have been regarded by the Romans as a means of _disinheriting_ a
+Family, or of effecting the unequal distribution of a patrimony. The
+rules of law preventing its being turned to such a purpose, increase
+in number and stringency as the jurisprudence unfolds itself; and
+these rules correspond doubtless with the abiding sentiment of Roman
+society, as distinguished from occasional variations of feeling in
+individuals. It would rather seem as if the Testamentary Power were
+chiefly valued for the assistance it gave in _making provision_ for a
+Family, and in dividing the inheritance more evenly and fairly than
+the Law of Intestate Succession would have divided it. If this be the
+true reading of the general sentiment on the point, it explains to
+some extent the singular horror of Intestacy which always
+characterised the Roman. No evil seems to have been considered a
+heavier visitation than the forfeiture of Testamentary privileges; no
+curse appears to have been bitterer than that which imprecated on an
+enemy that he might die without a Will. The feeling has no
+counterpart, or none that is easily recognisable, in the forms of
+opinion which exist at the present day. All men at all times will
+doubtless prefer chalking out the destination of their substance to
+having that office performed for them by the law; but the Roman
+passion for Testacy is distinguished from the mere desire to indulge
+caprice by its intensity; and it has of course nothing whatever in
+common with that pride of family, exclusively the creation of
+feudalism, which accumulates one description of property in the hands
+of a single representative. It is probable, _à priori_, that it was
+something in the rules of Intestate Succession which caused this
+vehement preference for the distribution of property under a Testament
+over its distribution by law. The difficulty, however, is, that on
+glancing at the Roman Law of Intestate Succession, in the form which
+it wore for many centuries before Justinian shaped it into that scheme
+of inheritance which has been almost universally adopted by modern
+lawgivers, it by no means strikes one as remarkably unreasonable or
+inequitable. On the contrary, the distribution it prescribes is so
+fair and rational, and differs so little from that with which modern
+society has been generally contented, that no reason suggests itself
+why it should have been regarded with extraordinary distaste,
+especially under a jurisprudence which pared down to a narrow compass
+the testamentary privileges of persons who had children to provide
+for. We should rather have expected that, as in France at this moment,
+the heads of families would generally save themselves the trouble of
+executing a Will, and allow the Law to do as it pleased with their
+assets. I think, however, if we look a little closely at the
+pre-Justinianean scale of Intestate Succession, we shall discover the
+key to the mystery. The texture of the law consists of two distinct
+parts. One department of rules comes from the Jus Civile, the
+Common-Law of Rome; the other from the Edict of the Prætor. The Civil
+Law, as I have already stated for another purpose, calls to the
+inheritance only three orders of successors in their turn; the
+Unemancipated children, the nearest class of Agnatic kindred, and the
+Gentiles. Between these three orders, the Prætor interpolates various
+classes of relatives, of whom the Civil Law took no notice whatever.
+Ultimately, the combination of the Edict and of the Civil Law forms a
+table of succession not materially different from that which has
+descended to the generality of modern codes.
+
+The point for recollection is that there must anciently have been a
+time at which the rules of the Civil Law determined the scheme of
+Intestate Succession exclusively, and at which the arrangements of the
+Edict were non-existent, or not consistently carried out. We cannot
+doubt that, in its infancy, the Prætorian jurisprudence had to contend
+with formidable obstructions, and it is more than probable that, long
+after popular sentiment and legal opinion had acquiesced in it, the
+modifications which it periodically introduced were governed by no
+certain principles, and fluctuated with the varying bias of successive
+magistrates. The rules of Intestate Succession, which the Romans must
+at this period have practised, account, I think--and more than
+account--for that vehement distaste for an Intestacy to which Roman
+society during so many ages remained constant. The order of succession
+was this: on the death of a citizen, having no will or no valid will,
+his Unemancipated children became his Heirs. His _emancipated_ sons
+had no share in the inheritance. If he left no direct descendants
+living at his death, the nearest grade of the Agnatic kindred
+succeeded, but no part of the inheritance was given to any relative
+united (however closely) with the dead man through female descents.
+All the other branches of the family were excluded, and the
+inheritance escheated to the _Gentiles_, or entire body of Roman
+citizens bearing the same name with the deceased. So that on failing
+to execute an operative Testament, a Roman of the era under
+examination left his emancipated children absolutely without
+provision, while, on the assumption that he died childless, there was
+imminent risk that his possessions would escape from the family
+altogether, and devolve on a number of persons with whom he was merely
+connected by the sacerdotal fiction that assumed all members of the
+same _gens_ to be descended from a common ancestor. The prospect of
+such an issue is in itself a nearly sufficient explanation of the
+popular sentiment; but, in point of fact, we shall only half
+understand it, if we forget that the state of things I have been
+describing is likely to have existed at the very moment when Roman
+society was in the first stage of its transition from its primitive
+organisation in detached families. The empire of the father had indeed
+received one of the earliest blows directed at it through the
+recognition of Emancipation as a legitimate usage, but the law, still
+considering the Patria Potestas to be the root of family connection,
+persevered in looking on the emancipated children as strangers to the
+rights of Kinship and aliens from the blood. We cannot, however, for a
+moment suppose that the limitations of the family imposed by legal
+pedantry had their counterpart in the natural affection of parents.
+Family attachments must still have retained that nearly inconceivable
+sanctity and intensity which belonged to them under the Patriarchal
+system; and, so little are they likely to have been extinguished by
+the act of emancipation, that the probabilities are altogether the
+other way. It may be unhesitatingly taken for granted that
+enfranchisement from the father's power was a demonstration, rather
+than a severance, of affection--a mark of grace and favour accorded to
+the best-beloved and most esteemed of the children. If sons thus
+honoured above the rest were absolutely deprived of their heritage by
+an Intestacy, the reluctance to incur it requires no farther
+explanation. We might have assumed _à priori_ that the passion for
+Testacy was generated by some moral injustice entailed by the rules of
+Intestate succession; and here we find them at variance with the very
+instinct by which early society was cemented together. It is possible
+to put all that has been urged in a very succinct form. Every dominant
+sentiment of the primitive Romans was entwined with the relations of
+the family. But what was the Family? The Law defined it one
+way--natural affection another. In the conflict between the two, the
+feeling we would analyse grew up, taking the form of an enthusiasm for
+the institution by which the dictates of affection were permitted to
+determine the fortunes of its objects.
+
+I regard, therefore, the Roman horror of Intestacy as a monument of a
+very early conflict between ancient law and slowly changing ancient
+sentiment on the subject of the Family. Some passages in the Roman
+Statute-Law, and one statute in particular which limited the capacity
+for inheritance possessed by women, must have contributed to keep
+alive the feeling; and it is the general belief that the system of
+creating Fidei-Commissa, or bequests in trust, was devised to evade
+the disabilities imposed by those statutes. But the feeling itself, in
+its remarkable intensity, seems to point back to some deeper
+antagonism between law and opinion; nor is it at all wonderful that
+the improvements of jurisprudence by the Prætor should not have
+extinguished it. Everybody conversant with the philosophy of opinion
+is aware that a sentiment by no means dies out, of necessity, with the
+passing away of the circumstances which produced it. It may long
+survive them; nay, it may afterwards attain to a pitch and climax of
+intensity which it never attained during their actual continuance.
+
+The view of a Will which regards it as conferring the power of
+diverting property from the Family, or of distributing it in such
+uneven proportions as the fancy or good sense of the Testator may
+dictate, is not older than that later portion of the Middle Ages in
+which Feudalism had completely consolidated itself. When modern
+jurisprudence first shows itself in the rough, Wills are rarely
+allowed to dispose with absolute freedom of a dead man's assets.
+Wherever at this period the descent of property was regulated by
+Will--and over the greater part of Europe moveable or personal
+property was the subject of Testamentary disposition--the exercise of
+the Testamentary power was seldom allowed to interfere with the right
+of the widow to a definite share, and of the children to certain fixed
+proportions, of the devolving inheritance. The shares of the children,
+as their amount shows, were determined by the authority of Roman law.
+The provision for the widow was attributable to the exertions of the
+Church, which never relaxed its solicitude for the interest of wives
+surviving their husbands--winning, perhaps, one of the most arduous of
+its triumphs when, after exacting for two or three centuries an
+express promise from the husband at marriage to endow his wife, it at
+length succeeded in engrafting the principle of Dower on the Customary
+Law of all Western Europe. Curiously enough, the dower of lands proved
+a more stable institution than the analogous and more ancient
+reservation of certain shares of the personal property to the widow
+and children. A few local customs in France maintained the right down
+to the Revolution, and there are traces of similar usages in England;
+but on the whole the doctrine prevailed that moveables might be freely
+disposed of by Will, and, even when the claims of the widow continued
+to be respected, the privileges of the children were obliterated from
+jurisprudence. We need not hesitate to attribute the change to the
+influence of Primogeniture. As the Feudal law of land practically
+disinherited all the children in favour of one, the equal
+distribution even of those sorts of property which might have been
+equally divided ceased to be viewed as a duty. Testaments were the
+principal instruments employed in producing inequality, and in this
+condition of things originated the shade of difference which shows
+itself between the ancient and the modern conception of a Will. But,
+though the liberty of bequest, enjoyed through Testaments, was thus an
+accidental fruit of Feudalism, there is no broader distinction than
+that which exists between a system of free Testamentary disposition
+and a system, like that of the Feudal land-law, under which property
+descends compulsorily in prescribed lines of devolution. This truth
+appears to have been lost sight of by the authors of the French Codes.
+In the social fabric which they determined to destroy, they saw
+Primogeniture resting chiefly on Family settlements, but they also
+perceived that Testaments were frequently employed to give the eldest
+son precisely the same preference which was reserved to him under the
+strictest of entails. In order, therefore, to make sure of their work,
+they not only rendered it impossible to prefer the eldest son to the
+rest in marriage-arrangements, but they almost expelled Testamentary
+succession from the law, lest it should be used to defeat their
+fundamental principle of an equal distribution of property among
+children at the parent's death. The result is that they have
+established a system of small perpetual entails, which is infinitely
+nearer akin to the system of feudal Europe than would be a perfect
+liberty of bequest. The land-law of England, "the Herculaneum of
+Feudalism," is certainly much more closely allied to the land-law of
+the Middle Ages than that of any Continental country, and Wills with
+us are frequently used to aid or imitate that preference of the eldest
+son and his line which is a nearly universal feature in marriage
+settlements of real property. But nevertheless feeling and opinion in
+this country have been profoundly affected by the practice of free
+Testamentary disposition; and it appears to me that the state of
+sentiment in a great part of French society, on the subject of the
+conservation of property in families, is much liker that which
+prevailed through Europe two or three centuries ago than are the
+current opinions of Englishmen.
+
+The mention of Primogeniture introduces one of the most difficult
+problems of historical jurisprudence. Though I have not paused to
+explain my expressions, it may have been noticed that I have
+frequently spoken of a number of "co-heirs" as placed by the Roman Law
+of Succession on the same footing with a single Heir. In point of
+fact, we know of no period of Roman jurisprudence at which the place
+of the Heir, or Universal Successor, might not have been taken by a
+group of co-heirs. This group succeeded as a single unit, and the
+assets were afterwards divided among them in a separate legal
+proceeding. When the Succession was _ab intestato_, and the group
+consisted of the children of the deceased, they each took an equal
+share of the property; nor, though males had at one time some
+advantages over females, is there the faintest trace of Primogeniture.
+The mode of distribution is the same throughout archaic jurisprudence.
+It certainly seems that, when civil society begins and families cease
+to hold together through a series of generations, the idea which
+spontaneously suggests itself is to divide the domain equally among
+the members of each successive generation, and to reserve no privilege
+to the eldest son or stock. Some peculiarly significant hints as to
+the close relation of this phenomenon to primitive thought are
+furnished by systems yet more archaic than the Roman. Among the
+Hindoos, the instant a son is born, he acquires a vested right in his
+father's property, which cannot be sold without recognition of his
+joint ownership. On the son's attaining full age, he can sometimes
+compel a partition of the estate even against the consent of the
+parent; and, should the parent acquiesce, one son can always have a
+partition even against the will of the others. On such partition
+taking place, the father has no advantage over his children, except
+that he has two of the shares instead of one. The ancient law of the
+German tribes was exceedingly similar. The _allod_ or domain of the
+family was the joint-property of the father and his sons. It does not,
+however, appear to have been habitually divided even at the death of
+the parent, and in the same way the possessions of a Hindoo, however
+divisible theoretically, are so rarely distributed in fact, that many
+generations constantly succeed each other without a partition taking
+place, and thus the Family in India has a perpetual tendency to expand
+into the Village Community, under conditions which I shall hereafter
+attempt to elucidate. All this points very clearly to the absolutely
+equal division of assets among the male children at death as the
+practice most usual with society at the period when family-dependency
+is in the first stages of disintegration. Here then emerges the
+historical difficulty of Primogeniture. The more clearly we perceive
+that, when the Feudal institutions were in process of formation, there
+was no source in the world whence they could derive their elements but
+the Roman law of the provincials on the one hand and the archaic
+customs of the barbarians on the other, the more are we perplexed at
+first sight by our knowledge that neither Roman nor barbarian was
+accustomed to give any preference to the eldest son or his line in the
+succession to property.
+
+Primogeniture did not belong to the Customs which the barbarians
+practised on their first establishment within the Roman Empire. It is
+known to have had its origin in the _benefices_ or beneficiary gifts
+of the invading chieftains. These benefices, which were occasionally
+conferred by the earlier immigrant kings, but were distributed on a
+great scale by Charlemagne, were grants of Roman provincial land to be
+holden by the beneficiary on condition of military service. The
+_allodial_ proprietors do not seem to have followed their sovereign on
+distant or difficult enterprises, and all the grander expeditions of
+the Frankish chiefs and of Charlemagne were accomplished with forces
+composed of soldiers either personally dependent on the royal house or
+compelled to serve it by the tenure of their land. The benefices,
+however, were not at first in any sense hereditary. They were held at
+the pleasure of the grantor, or at most for the life of the grantee;
+but still, from the very outset, no effort seems to have been spared
+by the beneficiaries to enlarge the tenure, and to continue their
+lands in their family after death. Through the feebleness of
+Charlemagne's successors these attempts were universally successful,
+and the Benefice gradually transformed itself into the hereditary
+Fief. But, though the fiefs were hereditary, they did not necessarily
+descend to the eldest son. The rules of succession which they followed
+were entirely determined by the terms agreed upon between the grantor
+and the beneficiary, or imposed by one of them on the weakness of the
+other. The original tenures were therefore extremely various; not
+indeed so capriciously various as is sometimes asserted, for all which
+have hitherto been described present some combination of the modes of
+succession familiar to Romans and to barbarians, but still exceedingly
+miscellaneous. In some of them, the eldest son and his stock
+undoubtedly succeeded to the fief before the others, but such
+successions, so far from being universal, do not even appear to have
+been general. Precisely the same phenomena recur during that more
+recent transmutation of European society which entirely substituted
+the feudal form of property for the domainial (or Roman) and the
+allodial (or German). The allods were wholly absorbed by the fiefs.
+The greater allodial proprietors transformed themselves into feudal
+lords by conditional alienations of portions of their land to
+dependants; the smaller sought an escape from the oppressions of that
+terrible time by surrendering their property to some powerful
+chieftain, and receiving it back at his hands on condition of service
+in his wars. Meantime, that vast mass of the population of Western
+Europe whose condition was servile or semi-servile--the Roman and
+German personal slaves, the Roman _coloni_ and the German _lidi_--were
+concurrently absorbed by the feudal organisation, a few of them
+assuming a menial relation to the lords, but the greater part
+receiving land on terms which in those centuries were considered
+degrading. The tenures created during this era of universal
+infeudation were as various as the conditions which the tenants made
+with their new chiefs or were forced to accept from them. As in the
+case of the benefices, the succession to some, but by no means to all,
+of the estates followed the rule of Primogeniture. No sooner, however,
+has the feudal system prevailed throughout the West, than it becomes
+evident that Primogeniture has some great advantage over every other
+mode of succession. It spread over Europe with remarkable rapidity,
+the principal instrument of diffusion being Family Settlements, the
+Pactes de Famille of France and Haus-Gesetze of Germany, which
+universally stipulated that lands held by knightly service should
+descend to the eldest son. Ultimately the law resigned itself to
+follow inveterate practice, and we find that in all the bodies of
+Customary Law, which were gradually built up, the eldest son and stock
+are preferred in the succession to estates of which the tenure is free
+and military. As to lands held by servile tenures (and originally all
+tenures were servile which bound the tenant to pay money or bestow
+manual labour), the system of succession prescribed by custom differed
+greatly in different countries and different provinces. The more
+general rule was that such lands were divided equally at death among
+all the children, but still in some instances the eldest son was
+preferred, in some the youngest. But Primogeniture usually governed
+the inheritance of that class of estates, in some respects the most
+important of all, which were held by tenures that, like the English
+Socage, were of later origin than the rest, and were neither
+altogether free nor altogether servile.
+
+The diffusion of Primogeniture is usually accounted for by assigning
+what are called Feudal reasons for it. It is asserted that the feudal
+superior had a better security for the military service he required
+when the fief descended to a single person, instead of being
+distributed among a number on the decease of the last holder. Without
+denying that this consideration may partially explain the favour
+gradually acquired by Primogeniture, I must point out that
+Primogeniture became a custom of Europe much more through its
+popularity with the tenants than through any advantage it conferred on
+the lords. For its origin, moreover, the reason given does not account
+at all. Nothing in law springs entirely from a sense of convenience.
+There are always certain ideas existing antecedently on which the
+sense of convenience works, and of which it can do no more than form
+some new combination; and to find these ideas in the present case is
+exactly the problem.
+
+A valuable hint is furnished to us from a quarter fruitful of such
+indications. Although in India the possessions of a parent are
+divisible at his death, and may be divisible during his life, among
+all his male children in equal shares, and though this principle of
+the equal distribution of _property_ extends to every part of the
+Hindoo institutions, yet wherever _public office_ or _political power_
+devolves at the decease of the last Incumbent, the succession is
+nearly universally according to the rules of Primogeniture.
+Sovereignties descend therefore to the eldest son, and where the
+affairs of the Village Community, the corporate unit of Hindoo
+society, are confided to a single manager, it is generally the eldest
+son who takes up the administration at his parent's death. All
+offices, indeed, in India, tend to become hereditary, and, when their
+nature permits it, to vest in the eldest member of the oldest stock.
+Comparing these Indian successions with some of the ruder social
+organisations which have survived in Europe almost to our own day, the
+conclusion suggests itself that, when Patriarchal power is not only
+_domestic_ but _political_, it is not distributed among all the
+issue at the parent's death, but is the birthright of the eldest
+son. The chieftainship of a Highland clan, for example, followed
+the order of Primogeniture. There seems, in truth, to be a form of
+family-dependency still more archaic than any of those which we know
+from the primitive records of organised civil societies. The Agnatic
+Union of the kindred in ancient Roman law, and a multitude of similar
+indications, point to a period at which all the ramifying branches of
+the family tree held together in one organic whole; and it is no
+presumptuous conjecture, that, when the corporation thus formed by the
+kindred was in itself an independent society, it was governed by the
+eldest male of the oldest line. It is true that we have no actual
+knowledge of any such society. Even in the most elementary
+communities, family-organisations, as we know them, are at most
+_imperia in imperio_. But the position of some of them, of the Celtic
+clans in particular, was sufficiently near independence within
+historical times to force on us the conviction that they were once
+separate _imperia_, and that Primogeniture regulated the succession to
+the chieftainship. It is, however, necessary to be on our guard
+against modern associations with the term of law. We are speaking of a
+family-connection still closer and more stringent than any with which
+we are made acquainted by Hindoo society or ancient Roman law. If the
+Roman Paterfamilias was visibly steward of the family possessions, if
+the Hindoo father is only joint-sharer with his sons, still more
+emphatically must the true patriarchal chieftain be merely the
+administrator of a common fund.
+
+The examples of succession by Primogeniture which were found among the
+Benefices may, therefore, have been imitated from a system of
+family-government known to the invading races, though not in general
+use. Some ruder tribes may have still practised it, or, what is still
+more probable, society may have been so slightly removed from its more
+archaic condition that the minds of some men spontaneously recurred to
+it, when they were called upon to settle the rules of inheritance for
+a new form of property. But there is still the question, Why did
+Primogeniture gradually supersede every other principle of succession?
+The answer, I think, is, that European society decidedly retrograded
+during the dissolution of the Carlovingian empire. It sank a point or
+two back even from the miserably low degree which it had marked during
+the early barbarian monarchies. The great characteristic of the
+period was the feebleness, or rather the abeyance, of kingly and
+therefore of civil authority; and hence it seems as if, civil society
+no longer cohering, men universally flung themselves back on a social
+organisation older than the beginnings of civil communities. The lord
+with his vassals, during the ninth and tenth centuries, may be
+considered as a patriarchal household, recruited, not as in the
+primitive times by Adoption, but by Infeudation; and to such a
+confederacy, succession by Primogeniture was a source of strength and
+durability. So long as the land was kept together on which the entire
+organisation rested, it was powerful for defence and attack; to divide
+the land was to divide the little society, and voluntarily to invite
+aggression in an era of universal violence. We may be perfectly
+certain that into this preference for Primogeniture there entered no
+idea of disinheriting the bulk of the children in favour of one.
+Everybody would have suffered by the division of the fief. Everybody
+was a gainer by its consolidation. The Family grew stronger by the
+concentration of power in the same hands; nor is it likely that the
+lord who was invested with the inheritance had any advantage over his
+brethren and kinsfolk in occupations, interests, or indulgences. It
+would be a singular anachronism to estimate the privileges succeeded
+to by the heir of a fief, by the situation in which the eldest son is
+placed under an English strict settlement.
+
+I have said that I regard the early feudal confederacies as descended
+from an archaic form of the Family, and as wearing a strong
+resemblance to it. But then in the ancient world, and in the societies
+which have not passed through the crucible of feudalism, the
+Primogeniture which seems to have prevailed never transformed itself
+into the Primogeniture of the later feudal Europe. When the group of
+kinsmen ceased to be governed through a series of generations by a
+hereditary chief, the domain which had been managed for all appears to
+have been equally divided among all. Why did this not occur in the
+feudal world? If during the confusions of the first feudal period the
+eldest son held the land for the behoof of the whole family, why was
+it that when feudal Europe had consolidated itself, and regular
+communities were again established, the whole family did not resume
+that capacity for equal inheritance which had belonged to Roman and
+German alike? The key which unlocks this difficulty has rarely been
+seized by the writers who occupy themselves in tracing the genealogy
+of Feudalism. They perceive the materials of the feudal institutions,
+but they miss the cement. The ideas and social forms which contributed
+to the formation of the system were unquestionably barbarian and
+archaic, but, as soon as Courts and lawyers were called in to
+interpret and define it, the principles of interpretation which they
+applied to it were those of the latest Roman jurisprudence, and were
+therefore excessively refined and matured. In a patriarchally governed
+society, the eldest son may succeed to the government of the Agnatic
+group, and to the absolute disposal of its property. But he is not
+therefore a true proprietor. He has correlative duties not involved in
+the conception of proprietorship, but quite undefined and quite
+incapable of definition. The later Roman jurisprudence, however, like
+our own law, looked upon uncontrolled power over property as
+equivalent to ownership, and did not, and, in fact, could not, take
+notice of liabilities of such a kind, that the very conception of them
+belonged to a period anterior to regular law. The contact of the
+refined and the barbarous notion had inevitably for its effect the
+conversion of the eldest son into legal proprietor of the inheritance.
+The clerical and secular lawyers so defined his position from the
+first; but it was only by insensible degrees that the younger brother,
+from participating on equal terms in all the dangers and enjoyments of
+his kinsman, sank into the priest, the soldier of fortune, or the
+hanger-on of the mansion. The legal revolution was identical with that
+which occurred on a smaller scale, and in quite recent times, through
+the greater part of the Highlands of Scotland. When called in to
+determine the legal powers of the chieftain over the domains which
+gave sustenance to the clan, Scottish jurisprudence had long since
+passed the point at which it could take notice of the vague
+limitations on completeness of dominion imposed by the claims of the
+clansmen, and it was inevitable therefore that it should convert the
+patrimony of many into the estate of one.
+
+For the sake of simplicity I have called the mode of succession
+Primogeniture whenever a single son or descendant succeeds to the
+authority over a household or society. It is remarkable, however, that
+in the few very ancient examples which remain to us of this sort of
+succession, it is not always the eldest son, in the sense familiar to
+us, who takes up the representation. The form of Primogeniture which
+has spread over Western Europe has also been perpetuated among the
+Hindoos, and there is every reason to believe that it is the normal
+form. Under it, not only the eldest son, but the eldest line is always
+preferred. If the eldest son fails, his eldest son has precedence not
+only over brothers but over uncles; and, if he too fails, the same
+rule is followed in the next generation. But when the succession is
+not merely to _civil_ but to _political_ power, a difficulty may
+present itself which will appear of greater magnitude according as the
+cohesion of society is less perfect. The chieftain who last exercised
+authority may have outlived his eldest son, and the grandson who is
+primarily entitled to succeed may be too young and immature to
+undertake the actual guidance of the community, and the administration
+of its affairs. In such an event, the expedient which suggests itself
+to the more settled societies is to place the infant heir under
+guardianship till he reaches the age of fitness for government. The
+guardianship is generally that of the male Agnates; but it is
+remarkable that the contingency supposed is one of the rare cases in
+which ancient societies have consented to the exercise of power by
+women, doubtless out of respect to the overshadowing claims of the
+mother. In India, the widow of a Hindoo sovereign governs in the name
+of her infant son, and we cannot but remember that the custom
+regulating succession to the throne of France--which, whatever be its
+origin, is doubtless of the highest antiquity--preferred the
+queen-mother to all other claimants for the Regency, at the same time
+that it rigorously excluded all females from the throne. There is,
+however, another mode of obviating the inconvenience attending the
+devolution of sovereignty on an infant heir, and it is one which would
+doubtless occur spontaneously to rudely organised communities. This is
+to set aside the infant heir altogether, and confer the chieftainship
+on the eldest surviving male of the first generation. The Celtic
+clan-associations, among the many phenomena which they have preserved
+of an age in which civil and political society were not yet even
+rudimentarily separated, have brought down this rule of succession to
+historical times. With them, it seems to have existed in the form of a
+positive canon, that, failing the eldest son, his next brother
+succeeds in priority to all grandsons, whatever be their age at the
+moment when the sovereignty devolves. Some writers have explained the
+principle by assuming that the Celtic customs took the last chieftain
+as a sort of root or stock, and then gave the succession to the
+descendant who should be least remote from him; the uncle thus being
+preferred to the grandson as being nearer to the common root. No
+objection can be taken to this statement if it be merely intended as a
+description of the system of succession; but it would be a serious
+error to conceive the men who first adopted the rule as applying a
+course of reasoning which evidently dates from the time when feudal
+schemes of succession begun to be debated among lawyers. The true
+origin of the preference of the uncle to the grandson is doubtless a
+simple calculation on the part of rude men in a rude society that it
+is better to be governed by a grown chieftain than by a child, and
+that the younger son is more likely to have come to maturity than any
+of the eldest son's descendants. At the same time, we have some
+evidence that the form of Primogeniture with which we are best
+acquainted is the primary form, in the tradition that the assent of
+the clan was asked when an infant heir was passed over in favour of
+his uncle. There is a tolerably well authenticated instance of this
+ceremony in the annals of the Macdonalds.
+
+Under Mahometan law, which has probably preserved an ancient Arabian
+custom, inheritances of property are divided equally among sons, the
+daughters taking a half share; but if any of the children die before
+the division of the inheritance, leaving issue behind, these
+grandchildren are entirely excluded by their uncles and aunts.
+Consistently with this principle, the succession, when political
+authority devolves, is according to the form of Primogeniture which
+appears to have obtained among the Celtic societies. In the two great
+Mahometan families of the West, the rule is believed to be, that the
+uncle succeeds to the throne in preference to the nephew, though the
+latter be the son of an elder brother; but though this rule has been
+followed quite recently in Egypt, I am informed that there is some
+doubt as to its governing the devolution of the Turkish sovereignty.
+The policy of the Sultans has in fact hitherto prevented cases for its
+application from occurring, and it is possible that their wholesale
+massacres of their younger brothers may have been perpetuated quite as
+much in the interest of their children as for the sake of making away
+with dangerous competitors for the throne. It is evident, however,
+that in polygamous societies the form of Primogeniture will always
+tend to vary. Many considerations may constitute a claim on the
+succession, the rank of the mother, for example, or her degree in the
+affections of the father. Accordingly, some of the Indian Mahometan
+sovereigns, without pretending to any distinct testamentary power,
+claim the right of nominating the son who is to succeed. The
+_blessing_ mentioned in the Scriptural history of Isaac and his sons
+has sometimes been spoken of as a will, but it seems rather to have
+been a mode of naming an eldest son.
+
+
+
+
+CHAPTER VIII
+
+THE EARLY HISTORY OF PROPERTY
+
+
+The Roman Institutional Treatises, after giving their definition of
+the various forms and modifications of ownership, proceed to discuss
+the Natural Modes of Acquiring Property. Those who are unfamiliar with
+the history of jurisprudence are not likely to look upon these
+"natural modes" of acquisition as possessing, at first sight, either
+much speculative or much practical interest. The wild animal which is
+snared or killed by the hunter, the soil which is added to our field
+by the imperceptible deposits of a river, the tree which strikes its
+roots into our ground, are each said by the Roman lawyers to be
+acquired by us _naturally_. The older jurisconsults had doubtless
+observed that such acquisitions were universally sanctioned by the
+usages of the little societies around them, and thus the lawyers of a
+later age, finding them classed in the ancient Jus Gentium, and
+perceiving them to be of the simplest description, allotted them a
+place among the ordinances of Nature. The dignity with which they were
+invested has gone on increasing in modern times till it is quite out
+of proportion to their original importance. Theory has made them its
+favourite food, and has enabled them to exercise the most serious
+influence on practice.
+
+It will be necessary for us to attend to one only among these "natural
+modes of acquisition," Occupatio or Occupancy. Occupancy is the
+advisedly taking possession of that which at the moment is the
+property of no man, with the view (adds the technical definition) of
+acquiring property in it for yourself. The objects which the Roman
+lawyers called _res nullius_--things which have not or have never had
+an owner--can only be ascertained by enumerating them. Among things
+which _never had_ an owner are wild animals, fishes, wild fowl, jewels
+disinterred for the first time, and lands newly discovered or never
+before cultivated. Among things which _have not_ an owner are
+moveables which have been abandoned, lands which have been deserted,
+and (an anomalous but most formidable item) the property of an enemy.
+In all these objects the full rights of dominion were acquired by the
+_Occupant_ who first took possession of them with the intention of
+keeping them as his own--an intention which, in certain cases, had to
+be manifested by specific acts. It is not difficult, I think, to
+understand the universality which caused the practice of Occupancy to
+be placed by one generation of Roman lawyers in the Law common to all
+Nations, and the simplicity which occasioned its being attributed by
+another to the Law of Nature. But for its fortunes in modern legal
+history we are less prepared by _à priori_ considerations. The Roman
+principle of Occupancy, and the rules into which the jurisconsults
+expanded it, are the source of all modern International Law on the
+subject of Capture in War and of the acquisition of sovereign rights
+in newly discovered countries. They have also supplied a theory of the
+Origin of Property, which is at once the popular theory, and the
+theory which, in one form or another, is acquiesced in by the great
+majority of speculative jurists.
+
+I have said that the Roman principle of Occupancy has determined the
+tenor of that chapter of International Law which is concerned with
+Capture in War. The Law of Warlike Capture derives its rules from the
+assumption that communities are remitted to a state of nature by the
+outbreak of hostilities, and that, in the artificial natural condition
+thus produced, the institution of private property falls into abeyance
+so far as concerns the belligerents. As the later writers on the Law
+of Nature have always been anxious to maintain that private property
+was in some sense sanctioned by the system which they were expounding,
+the hypothesis that an enemy's property is _res nullius_ has seemed to
+them perverse and shocking, and they are careful to stigmatise it as a
+mere fiction of jurisprudence. But, as soon as the Law of Nature is
+traced to its source in the Jus Gentium, we see at once how the goods
+of an enemy came to be looked upon as nobody's property, and therefore
+as capable of being acquired by the first occupant. The idea would
+occur spontaneously to persons practising the ancient forms of
+Warfare, when victory dissolved the organisation of the conquering
+army and dismissed the soldiers to indiscriminate plunder. It is
+probable, however, that originally it was only moveable property which
+was thus permitted to be acquired by the Captor. We know on
+independent authority that a very different rule prevailed in ancient
+Italy as to the acquisition of ownership in the soil of a conquered
+country, and we may therefore suspect that the application of the
+principle of occupancy to land (always a matter of difficulty) dates
+from the period when the Jus Gentium was becoming the Code of Nature,
+and that it is the result of a generalisation effected by the
+jurisconsults of the golden age. Their dogmas on the point are
+preserved in the Pandects of Justinian, and amount to an unqualified
+assertion that enemy's property of every sort is _res nullius_ to the
+other belligerent, and that Occupancy, by which the Captor makes them
+his own, is an institution of Natural Law. The rules which
+International jurisprudence derives from these positions have
+sometimes been stigmatised as needlessly indulgent to the ferocity and
+cupidity of combatants, but the charge has been made, I think, by
+persons who are unacquainted with the history of wars, and who are
+consequently ignorant how great an exploit it is to command obedience
+for a rule of any kind. The Roman principle of Occupancy, when it was
+admitted into the modern law of Capture in War, drew with it a number
+of subordinate canons, limiting and giving precision to its operation,
+and if the contests which have been waged since the treatise of
+Grotius became an authority, are compared with those of an earlier
+date, it will be seen that, as soon as the Roman maxims were received,
+Warfare instantly assumed a more tolerable complexion. If the Roman
+law of Occupancy is to be taxed with having had pernicious influence
+on any part of the modern Law of Nations, there is another chapter in
+it which may be said, with some reason, to have been injuriously
+affected. In applying to the discovery of new countries the same
+principles which the Romans had applied to the finding of a jewel, the
+Publicists forced into their service a doctrine altogether unequal to
+the task expected from it. Elevated into extreme importance by the
+discoveries of the great navigators of the fifteenth and sixteenth
+centuries, it raised more disputes than it solved. The greatest
+uncertainty was very shortly found to exist on the very two points on
+which certainty was most required, the extent of the territory which
+was acquired for his sovereign by the discoverer, and the nature of
+the acts which were necessary to complete the _adprehensio_ or
+assumption of sovereign possession. Moreover, the principle
+itself, conferring as it did such enormous advantages as the
+consequence of a piece of good luck, was instinctively mutinied
+against by some of the most adventurous nations in Europe, the Dutch,
+the English, and the Portuguese. Our own countrymen, without expressly
+denying the rule of International Law, never did, in practice, admit
+the claim of the Spaniards to engross the whole of America south of
+the Gulf of Mexico, or that of the King of France to monopolise the
+valleys of the Ohio and the Mississippi. From the accession of
+Elizabeth to the accession of Charles the Second, it cannot be said
+that there was at any time thorough peace in the American waters, and
+the encroachments of the New England Colonists on the territory of the
+French King continued for almost a century longer. Bentham was so
+struck with the confusion attending the application of the legal
+principle, that he went out of his way to eulogise the famous Bull of
+Pope Alexander the Sixth, dividing the undiscovered countries of the
+world between the Spaniards and Portuguese by a line drawn one hundred
+leagues West of the Azores; and, grotesque as his praises may appear
+at first sight, it may be doubted whether the arrangement of Pope
+Alexander is absurder in principle than the rule of Public law, which
+gave half a continent to the monarch whose servants had fulfilled the
+conditions required by Roman jurisprudence for the acquisition of
+property in a valuable object which could be covered by the hand.
+
+To all who pursue the inquiries which are the subject of this volume,
+Occupancy is pre-eminently interesting on the score of the service it
+has been made to perform for speculative jurisprudence, in furnishing
+a supposed explanation of the origin of private property. It was once
+universally believed that the proceeding implied in Occupancy was
+identical with the process by which the earth and its fruits, which
+were at first in common, became the allowed property of individuals.
+The course of thought which led to this assumption is not difficult to
+understand, if we seize the shade of difference which separates the
+ancient from the modern conception of Natural Law. The Roman lawyers
+had laid down that Occupancy was one of the Natural modes of acquiring
+property, and they undoubtedly believed that, were mankind living
+under the institutions of Nature, Occupancy would be one of their
+practices. How far they persuaded themselves that such a condition of
+the race had ever existed, is a point, as I have already stated, which
+their language leaves in much uncertainty; but they certainly do seem
+to have made the conjecture, which has at all times possessed much
+plausibility, that the institution of property was not so old as the
+existence of mankind. Modern jurisprudence, accepting all their dogmas
+without reservation, went far beyond them in the eager curiosity with
+which it dwelt on the supposed state of Nature. Since then it had
+received the position that the earth and its fruits were once _res
+nullius_, and since its peculiar view of Nature led it to assume
+without hesitation that the human race had actually practised the
+Occupancy of _res nullius_ long before the organisation of civil
+societies, the inference immediately suggested itself that Occupancy
+was the process by which the "no man's goods" of the primitive world
+became the private property of individuals in the world of history. It
+would be wearisome to enumerate the jurists who have subscribed to
+this theory in one shape or another, and it is the less necessary to
+attempt it because Blackstone, who is always a faithful index of the
+average opinions of his day, has summed them up in his 2nd book and
+1st chapter.
+
+"The earth," he writes, "and all things therein were the general
+property of mankind from the immediate gift of the Creator. Not that
+the communion of goods seems ever to have been applicable, even in the
+earliest ages, to aught but the substance of the thing; nor could be
+extended to the use of it. For, by the law of nature and reason he who
+first began to use it acquired therein a kind of transient property
+that lasted so long as he was using it, and no longer; or to speak
+with greater precision, the right of possession continued for the same
+time only that the act of possession lasted. Thus the ground was in
+common, and no part was the permanent property of any man in
+particular; yet whoever was in the occupation of any determined spot
+of it, for rest, for shade, or the like, acquired for the time a sort
+of ownership, from which it would have been unjust and contrary to the
+law of nature to have driven him by force, but the instant that he
+quitted the use of occupation of it, another might seize it without
+injustice." He then proceeds to argue that "when mankind increased in
+number, it became necessary to entertain conceptions of more permanent
+dominion, and to appropriate to individuals not the immediate use
+only, but the very substance of the thing to be used."
+
+Some ambiguities of expression in this passage lead to the suspicion
+that Blackstone did not quite understand the meaning of the
+proposition which he found in his authorities, that property in the
+earth's surface was first acquired, under the law of Nature, by the
+_occupant_; but the limitation which designedly or through
+misapprehension he has imposed on the theory brings it into a form
+which it has not infrequently assumed. Many writers more famous than
+Blackstone for precision of language have laid down that, in the
+beginning of things, Occupancy first gave a right against the world to
+an exclusive but temporary enjoyment, and that afterwards this right,
+while it remained exclusive, became perpetual. Their object in so
+stating their theory was to reconcile the doctrine that in the state
+of Nature _res nullius_ became property through Occupancy, with the
+inference which they drew from the Scriptural history that the
+Patriarchs did not at first permanently appropriate the soil which had
+been grazed over by their flocks and herds.
+
+The only criticism which could be directly applied to the theory of
+Blackstone would consist in inquiring whether the circumstances which
+make up his picture of a primitive society are more or less probable
+than other incidents which could be imagined with equal readiness.
+Pursuing this method of examination, we might fairly ask whether the
+man who had _occupied_ (Blackstone evidently uses this word with its
+ordinary English meaning) a particular spot of ground for rest or
+shade would be permitted to retain it without disturbance. The chances
+surely are that his right to possession would be exactly coextensive
+with his power to keep it, and that he would be constantly liable to
+disturbance by the first comer who coveted the spot and thought
+himself strong enough to drive away the possessor. But the truth is
+that all such cavil at these positions is perfectly idle from the very
+baselessness of the positions themselves. What mankind did in the
+primitive state may not be a hopeless subject of inquiry, but of their
+motives for doing it it is impossible to know anything. These sketches
+of the plight of human beings in the first ages of the world are
+effected by first supposing mankind to be divested of a great part
+of the circumstances by which they are now surrounded, and by
+then assuming that, in the condition thus imagined, they would
+preserve the same sentiments and prejudices by which they are now
+actuated,--although, in fact, these sentiments may have been created
+and engendered by those very circumstances of which, by the
+hypothesis, they are to be stripped.
+
+There is an aphorism of Savigny which has been sometimes thought to
+countenance a view of the origin of property somewhat similar to the
+theories epitomised by Blackstone. The great German jurist has laid
+down that all Property is founded on Adverse Possession ripened by
+Prescription. It is only with respect to Roman law that Savigny makes
+this statement, and before it can fully be appreciated much labour
+must be expended in explaining and defining the expressions employed.
+His meaning will, however, be indicated with sufficient accuracy if we
+consider him to assert that, how far soever we carry our inquiry into
+the ideas of property received among the Romans, however closely we
+approach in tracing them to the infancy of law, we can get no farther
+than a conception of ownership involving the three elements in the
+canon--Possession, Adverseness of Possession, that is a holding not
+permissive or subordinate, but exclusive against the world, and
+Prescription, or a period of time during which the Adverse Possession
+has uninterruptedly continued. It is exceedingly probable that this
+maxim might be enunciated with more generality than was allowed to it
+by its author, and that no sound or safe conclusion can be looked for
+from investigations into any system of laws which are pushed farther
+back than the point at which these combined ideas constitute the
+notion of proprietary right. Meantime, so far from bearing out the
+popular theory of the origin of property, Savigny's canon is
+particularly valuable as directing our attention to its weakest point.
+In the view of Blackstone and those whom he follows, it was the mode
+of assuming the exclusive enjoyment which mysteriously affected the
+minds of the fathers of our race. But the mystery does not reside
+here. It is not wonderful that property began in adverse possession.
+It is not surprising that the first proprietor should have been the
+strong man armed who kept his goods in peace. But why it was that
+lapse of time created a sentiment of respect for his possession--which
+is the exact source of the universal reverence of mankind for that
+which has for a long period _de facto_ existed--are questions really
+deserving the profoundest examination, but lying far beyond the
+boundary of our present inquiries.
+
+Before pointing out the quarter in which we may hope to glean some
+information, scanty and uncertain at best, concerning the early
+history of proprietary right, I venture to state my opinion that the
+popular impression in reference to the part played by Occupancy in the
+first stages of civilisation directly reverses the truth. Occupancy is
+the advised assumption of physical possession; and the notion that an
+act of this description confers a title to "res nullius," so far from
+being characteristic of very early societies, is in all probability
+the growth of a refined jurisprudence and of a settled condition of
+the laws. It is only when the rights of property have gained a
+sanction from long practical inviolability and when the vast majority
+of the objects of enjoyment have been subjected to private ownership,
+that mere possession is allowed to invest the first possessor with
+dominion over commodities in which no prior proprietorship has been
+asserted. The sentiment in which this doctrine originated is
+absolutely irreconcilable with that infrequency and uncertainty of
+proprietary rights which distinguish the beginnings of civilisation.
+Its true basis seems to be, not an instinctive bias towards the
+institution of Property, but a presumption arising out of the long
+continuance of that institution, that _everything ought to have an
+owner_. When possession is taken of a "res nullius," that is, of an
+object which _is_ not, or has _never_ been, reduced to dominion, the
+possessor is permitted to become proprietor from a feeling that all
+valuable things are naturally the subjects of an exclusive enjoyment,
+and that in the given case there is no one to invest with the right of
+property except the Occupant. The Occupant in short, becomes the
+owner, because all things are presumed to be somebody's property and
+because no one can be pointed out as having a better right than he to
+the proprietorship of this particular thing.
+
+Even were there no other objection to the descriptions of mankind in
+their natural state which we have been discussing, there is one
+particular in which they are fatally at variance with the authentic
+evidence possessed by us. It will be observed that the acts and
+motives which these theories suppose are the acts and motives of
+Individuals. It is each Individual who for himself subscribes the
+Social Compact. It is some shifting sandbank in which the grains are
+Individual men, that according to the theory of Hobbes is hardened
+into the social rock by the wholesome discipline of force. It is an
+Individual who, in the picture drawn by Blackstone, "is in the
+occupation of a determined spot of ground for rest, for shade, or the
+like." The vice is one which necessarily afflicts all the theories
+descended from the Natural Law of the Romans, which differed
+principally from their Civil Law in the account which it took of
+Individuals, and which has rendered precisely its greatest service to
+civilisation in enfranchising the individual from the authority of
+archaic society. But Ancient Law, it must again be repeated, knows
+next to nothing of Individuals. It is concerned not with Individuals,
+but with Families, not with single human beings, but groups. Even when
+the law of the State has succeeded in permeating the small circles of
+kindred into which it had originally no means of penetrating, the view
+it takes of Individuals is curiously different from that taken by
+jurisprudence in its maturest stage. The life of each citizen is not
+regarded as limited by birth and death; it is but a continuation of
+the existence of his forefathers, and it will be prolonged in the
+existence of his descendants.
+
+The Roman distinction between the Law of Persons and the Law of
+Things, which though extremely convenient is entirely artificial, has
+evidently done much to divert inquiry on the subject before us from
+the true direction. The lessons learned in discussing the Jus
+Personarum have been forgotten where the Jus Rerum is reached, and
+Property, Contract, and Delict, have been considered as if no hints
+concerning their original nature were to be gained from the facts
+ascertained respecting the original condition of Persons. The futility
+of this method would be manifest if a system of pure archaic law could
+be brought before us, and if the experiment could be tried of applying
+to it the Roman classifications. It would soon be seen that the
+separation of the Law of Persons from that of Things has no meaning in
+the infancy of law, that the rules belonging to the two departments
+are inextricably mingled together, and that the distinctions of the
+later jurists are appropriate only to the later jurisprudence. From
+what has been said in the earlier portions of this treatise, it will
+be gathered that there is a strong _à priori_ improbability of our
+obtaining any clue to the early history of property, if we confine our
+notice to the proprietary rights of individuals. It is more than
+likely that joint-ownership, and not separate ownership, is the really
+archaic institution, and that the forms of property which will afford
+us instruction will be those which are associated with the rights of
+families and of groups of kindred. The Roman jurisprudence will not
+here assist in enlightening us, for it is exactly the Roman
+jurisprudence which, transformed by the theory of Natural Law, has
+bequeathed to the moderns the impression that individual ownership is
+the normal state of proprietary right, and that ownership in common by
+groups of men is only the exception to a general rule. There is,
+however, one community which will always be carefully examined by the
+inquirer who is in quest of any lost institution of primeval society.
+How far soever any such institution may have undergone change among
+the branch of the Indo-European family which has been settled for ages
+in India, it will seldom be found to have entirely cast aside the
+shell in which it was originally reared. It happens that, among the
+Hindoos, we do find a form of ownership which ought at once to rivet
+our attention from its exactly fitting in with the ideas which our
+studies in the Law of Persons would lead us to entertain respecting
+the original condition of property. The Village Community of India is
+at once an organised patriarchal society and an assemblage of
+co-proprietors. The personal relations to each other of the men who
+compose it are indistinguishably confounded with their proprietary
+rights, and to the attempts of English functionaries to separate the
+two may be assigned some of the most formidable miscarriages of
+Anglo-Indian administration. The Village Community is known to be of
+immense antiquity. In whatever direction research has been pushed into
+Indian history, general or local, it has always found the Community in
+existence at the farthest point of its progress. A great number of
+intelligent and observant writers, most of whom had no theory of any
+sort to support concerning its nature and origin, agree in considering
+it the least destructible institution of a society which never
+willingly surrenders any one of its usages to innovation. Conquests
+and revolutions seem to have swept over it without disturbing or
+displacing it, and the most beneficent systems of government in India
+have always been those which have recognised it as the basis of
+administration.
+
+The mature Roman law, and modern jurisprudence following in its wake,
+look upon co-ownership as an exceptional and momentary condition of
+the rights of property. This view is clearly indicated in the maxim
+which obtains universally in Western Europe, _Nemo in communione
+potest invitus detineri_ ("No one can be kept in co-proprietorship
+against his will"). But in India this order of ideas is reversed, and
+it may be said that separate proprietorship is always on its way to
+become proprietorship in common. The process has been adverted to
+already. As soon as a son is born, he acquires a vested interest in
+his father's substance, and on attaining years of discretion he is
+even, in certain contingencies, permitted by the letter of the law to
+call for a partition of the family estate. As a fact, however, a
+division rarely takes place even at the death of the father, and the
+property constantly remains undivided for several generations, though
+every member of every generation has a legal right to an undivided
+share in it. The domain thus held in common is sometimes administered
+by an elected manager, but more generally, and in some provinces
+always, it is managed by the eldest agnate, by the eldest
+representative of the eldest line of the stock. Such an assemblage of
+joint proprietors, a body of kindred holding a domain in common, is
+the simplest form of an Indian Village Community, but the Community is
+more than a brotherhood of relatives and more than an association of
+partners. It is an organised society, and besides providing for the
+management of the common fund, it seldom fails to provide, by a
+complete staff of functionaries, for internal government, for police,
+for the administration of justice, and for the apportionment of taxes
+and public duties.
+
+The process which I have described as that under which a Village
+Community is formed, may be regarded as typical. Yet it is not to be
+supposed that every Village Community in India drew together in so
+simple a manner. Although, in the North of India, the archives, as I
+am informed, almost invariably show that the Community was founded by
+a single assemblage of blood-relations, they also supply information
+that men of alien extraction have always, from time to time, been
+engrafted on it, and a mere purchaser of a share may generally, under
+certain conditions, be admitted to the brotherhood. In the South of
+the Peninsula there are often Communities which appear to have sprung
+not from one but from two or more families; and there are some whose
+composition is known to be entirely artificial; indeed, the occasional
+aggregation of men of different castes in the same society is fatal to
+the hypothesis of a common descent. Yet in all these brotherhoods
+either the tradition is preserved, or the assumption made, of an
+original common parentage. Mountstuart Elphinstone, who writes more
+particularly of the Southern Village Communities, observes of them
+(_History of India_, i. 126): "The popular notion is that the Village
+landholders are all descended from one or more individuals who settled
+the village; and that the only exceptions are formed by persons who
+have derived their rights by purchase or otherwise from members of the
+original stock. The supposition is confirmed by the fact that, to this
+day, there are only single families of landholders in small villages
+and not many in large ones; but each has branched out into so many
+members that it is not uncommon for the whole agricultural labour to
+be done by the landholders, without the aid either of tenants or of
+labourers. The rights of the landholders are theirs collectively and,
+though they almost always have a more or less perfect partition of
+them, they never have an entire separation. A landholder, for
+instance, can sell or mortgage his rights; but he must first have the
+consent of the Village, and the purchaser steps exactly into his place
+and takes up all his obligations. If a family becomes extinct, its
+share returns to the common stock."
+
+Some considerations which have been offered in the fifth chapter of
+this volume will assist the reader, I trust, in appreciating the
+significance of Elphinstone's language. No institution of the
+primitive world is likely to have been preserved to our day, unless it
+has acquired an elasticity foreign to its original nature through some
+vivifying legal fiction. The Village Community then is not necessarily
+an assemblage of blood-relations, but it is _either_ such an
+assemblage _or_ a body of co-proprietors formed on the model of an
+association of kinsmen. The type with which it should be compared is
+evidently not the Roman Family, but the Roman Gens or House. The Gens
+was also a group on the model of the family; it was the family
+extended by a variety of fictions of which the exact nature was lost
+in antiquity. In historical times, its leading characteristics were
+the very two which Elphinstone remarks in the Village Community. There
+was always the assumption of a common origin, an assumption sometimes
+notoriously at variance with fact; and, to repeat the historian's
+words, "if a family became extinct, its share returned to the common
+stock." In old Roman law, unclaimed inheritances escheated to the
+Gentiles. It is further suspected by all who have examined their
+history that the Communities, like the Gentes, have been very
+generally adulterated by the admission of strangers, but the exact
+mode of absorption cannot now be ascertained. At present, they are
+recruited, as Elphinstone tells us, by the admission of purchasers,
+with the consent of the brotherhood. The acquisition of the adopted
+member is, however, of the nature of a universal succession; together
+with the share he has bought, he succeeds to the liabilities which the
+vendor had incurred towards the aggregate group. He is an Emptor
+Familiæ, and inherits the legal clothing of the person whose place he
+begins to fill. The consent of the whole brotherhood required for his
+admission may remind us of the consent which the Comitia Curiata, the
+Parliament of that larger brotherhood of self-styled kinsmen, the
+ancient Roman commonwealth, so strenuously insisted on as essential to
+the legalisation of an Adoption or the confirmation of a Will.
+
+The tokens of an extreme antiquity are discoverable in almost every
+single feature of the Indian Village Communities. We have so many
+independent reasons for suspecting that the infancy of law is
+distinguished by the prevalence of co-ownership by the intermixture of
+personal with proprietary rights, and by the confusion of public with
+private duties, that we should be justified in deducing many important
+conclusions from our observation of these proprietary brotherhoods,
+even if no similarly compounded societies could be detected in any
+other part of the world. It happens, however, that much earnest
+curiosity has been very recently attracted to a similar set of
+phenomena in those parts of Europe which have been most slightly
+affected by the feudal transformation of property, and which in many
+important particulars have as close an affinity with the Eastern as
+with the Western world. The researches of M. de Haxthausen, M.
+Tengoborski, and others, have shown us that the Russian villages are
+not fortuitous assemblages of men, nor are they unions founded on
+contract; they are naturally organised communities like those of
+India. It is true that these villages are always in theory the
+patrimony of some noble proprietor and the peasants have within
+historical times been converted into the predial, and to a great
+extent into the personal, serfs of the seignior. But the pressure of
+this superior ownership has never crushed the ancient organisation of
+the village, and it is probable that the enactment of the Czar of
+Russia, who is supposed to have introduced serfdom, was really
+intended to prevent the peasants from abandoning that co-operation
+without which the old social order could not long be maintained. In
+the assumption of an agnatic connection between the villagers, in the
+blending of personal rights with privileges of ownership, and in a
+variety of spontaneous provisions for internal administration, the
+Russian Village appears to be a nearly exact repetition of the Indian
+Community; but there is one important difference which we note with
+the greatest interest. The co-owners of an Indian village, though
+their property is blended, have their rights distinct, and this
+separation of rights is complete and continues indefinitely. The
+severance of rights is also theoretically complete in a Russian
+village, but there it is only temporary. After the expiration of a
+given, but not in all cases of the same, period separate ownerships
+are extinguished, the land of the village is thrown into a mass, and
+then it is re-distributed among the families composing the community,
+according to their number. This repartition having been effected, the
+rights of families and of individuals are again allowed to branch out
+into various lines, which they continue to follow till another period
+of division comes round. An even more curious variation from this type
+of ownership occurs in some of those countries which long formed a
+debateable land between the Turkish empire and the possessions of the
+House of Austria. In Servia, in Croatia, and the Austrian Sclavonia,
+the villages are also brotherhoods of persons who are at once
+co-owners and kinsmen; but there the internal arrangements of the
+community differ from those adverted to in the last two examples. The
+substance of the common property is in this case neither divided in
+practice nor considered in theory as divisible, but the entire land is
+cultivated by the combined labour of all the villagers, and the
+produce is annually distributed among the households, sometimes
+according to their supposed wants, sometimes according to rules which
+give to particular persons a fixed share of the usufruct. All these
+practices are traced by the jurists of the East of Europe to a
+principle which is asserted to be found in the earliest Sclavonian
+laws, the principle that the property of families cannot be divided
+for a perpetuity.
+
+The great interest of these phenomena in an inquiry like the present
+arises from the light they throw on the development of distinct
+proprietary rights _inside_ the groups by which property seems to have
+been originally held. We have the strongest reason for thinking that
+property once belonged not to individuals nor even to isolated
+families, but to larger societies composed on the patriarchal model;
+but the mode of transition from ancient to modern ownerships, obscure
+at best, would have been infinitely obscurer if several
+distinguishable forms of Village Communities had not been discovered
+and examined. It is worth while to attend to the varieties of internal
+arrangement within the patriarchal groups which are, or were till
+recently, observable among races of Indo-European blood. The chiefs of
+the ruder Highland clans used, it is said, to dole out food to the
+heads of the households under their jurisdiction at the very shortest
+intervals, and sometimes day by day. A periodical distribution is also
+made to the Sclavonian villagers of the Austrian and Turkish provinces
+by the elders of their body, but then it is a distribution once for
+all of the total produce of the year. In the Russian villages,
+however, the substance of the property ceases to be looked upon as
+indivisible, and separate proprietary claims are allowed freely to
+grow up, but then the progress of separation is peremptorily arrested
+after it has continued a certain time. In India, not only is there no
+indivisibility of the common fund, but separate proprietorship in
+parts of it may be indefinitely prolonged and may branch out into any
+number of derivative ownerships, the _de facto_ partition of the stock
+being, however, checked by inveterate usage, and by the rule against
+the admission of strangers without the consent of the brotherhood. It
+is not of course intended to insist that these different forms of the
+Village Community represent distinct stages in a process of
+transmutation which has been everywhere accomplished in the same
+manner. But, though the evidence does not warrant our going so far as
+this, it renders less presumptuous the conjecture that private
+property, in the shape in which we know it, was chiefly formed by the
+gradual disentanglement of the separate rights of individuals
+from the blended rights of a community. Our studies in the Law of
+Persons seemed to show us the Family expanding into the Agnatic group
+of kinsmen, then the Agnatic group dissolving into separate
+households; lastly the household supplanted by the individual; and it
+is now suggested that each step in the change corresponds to an
+analogous alteration in the nature of Ownership. If there be any truth
+in the suggestion, it is to be observed that it materially affects the
+problem which theorists on the origin of Property have generally
+proposed to themselves. The question--perhaps an insoluble one--which
+they have mostly agitated is, what were the motives which first
+induced men to respect each other's possessions? It may still be put,
+without much hope of finding an answer to it, in the form of any
+inquiry into the reasons which led one composite group to keep aloof
+from the domain of another. But, if it be true that far the most
+important passage in the history of Private Property is its gradual
+elimination from the co-ownership of kinsmen, then the great point of
+inquiry is identical with that which lies on the threshold of all
+historical law--what were the motives which originally prompted men to
+hold together in the family union? To such a question, Jurisprudence,
+unassisted by other sciences, is not competent to give a reply. The
+fact can only be noted.
+
+The undivided state of property in ancient societies is consistent
+with a peculiar sharpness of division, which shows itself as soon as
+any single share is completely separated from the patrimony of the
+group. This phenomenon springs, doubtless, from the circumstance that
+the property is supposed to become the domain of a new group, so that
+any dealing with it, in its divided state, is a transaction between
+two highly complex bodies. I have already compared Ancient Law to
+Modern International Law, in respect of the size and complexity of the
+corporate associations, whose rights and duties it settles. As the
+contracts and conveyances known to ancient law are contracts and
+conveyances to which not single individuals, but organised companies
+of men, are parties, they are in the highest degree ceremonious; they
+require a variety of symbolical acts and words intended to impress the
+business on the memory of all who take part in it; and they demand the
+presence of an inordinate number of witnesses. From these
+peculiarities, and others allied to them, springs the universally
+unmalleable character of the ancient forms of property. Sometimes the
+patrimony of the family is absolutely inalienable, as was the case
+with the Sclavonians, and still oftener, though alienations may not be
+entirely illegitimate, they are virtually impracticable, as among most
+of the Germanic tribes, from the necessity of having the consent of a
+large number of persons to the transfer. Where these impediments do
+not exist, or can be surmounted, the act of conveyance itself is
+generally burdened with a perfect load of ceremony, in which not one
+iota can be safely neglected. Ancient law uniformly refuses to
+dispense with a single gesture, however grotesque; with a single
+syllable, however its meaning may have been forgotten; with a single
+witness, however superfluous may be his testimony. The entire
+solemnities must be scrupulously completed by persons legally entitled
+to take part in them, or else the conveyance is null, and the seller
+is re-established in the rights of which he had vainly attempted to
+divest himself.
+
+These various obstacles to the free circulation of the objects of use
+and enjoyment, begin of course to make themselves felt as soon as
+society has acquired even a slight degree of activity, and the
+expedients by which advancing communities endeavour to overcome them
+form the staple of the history of Property. Of such expedients there
+is one which takes precedence of the rest from its antiquity and
+universality. The idea seems to have spontaneously suggested itself to
+a great number of early societies, to classify property into kinds.
+One kind or sort of property is placed on a lower footing of dignity
+than the others, but at the same time is relieved from the fetters
+which antiquity has imposed on them. Subsequently, the superior
+convenience of the rules governing the transfer and descent of the
+lower order of property becomes generally recognised, and by a gradual
+course of innovation the plasticity of the less dignified class of
+valuable objects is communicated to the classes which stand
+conventionally higher. The history of Roman Property Law is the
+history of the assimilation of Res Mancipi to Res Nec Mancipi. The
+history of Property on the European Continent is the history of the
+subversion of the feudalised law of land by the Romanised law of
+moveables; and, though the history of ownership in England is not
+nearly completed, it is visibly the law of personalty which threatens
+to absorb and annihilate the law of realty.
+
+The only _natural_ classification of the objects of enjoyment, the
+only classification which corresponds with an essential difference in
+the subject-matter, is that which divides them into Moveables and
+Immoveables. Familiar as is this classification to jurisprudence, it
+was very slowly developed by Roman law, from which we inherit it, and
+was only finally adopted by it in its latest stage. The
+classifications of Ancient Law have sometimes a superficial
+resemblance to this. They occasionally divide property into
+categories, and place immoveables in one of them; but then it is found
+that they either class along with immoveables a number of objects
+which have no sort of relation with them, or else divorce them from
+various rights to which they have a close affinity. Thus, the Res
+Mancipi of Roman Law included not only land, but slaves, horses, and
+oxen. Scottish law ranks with land a certain class of securities, and
+Hindoo law associates it with slaves. English law, on the other hand,
+parts leases of land for years from other interests in the soil, and
+joins them to personalty under the name of chattels real. Moreover,
+the classifications of Ancient Law are classifications implying
+superiority and inferiority; while the distinction between moveables
+and immoveables, so long at least as it was confined to Roman
+jurisprudence, carried with it no suggestion whatever of a difference
+in dignity. The Res Mancipi, however, did certainly at first enjoy a
+precedence over the Res Nec Mancipi, as did heritable property in
+Scotland and realty in England, over the personalty to which they were
+opposed. The lawyers of all systems have spared no pains in striving
+to refer these classifications to some intelligible principle; but the
+reasons of the severance must ever be vainly sought for in the
+philosophy of law: they belong not to its philosophy, but to its
+history. The explanation which appears to cover the greatest number of
+instances is, that the objects of enjoyment honoured above the rest
+were the forms of property known first and earliest to each particular
+community, and dignified therefore emphatically with the designation
+of _Property_. On the other hand, the articles not enumerated among
+the favoured objects seem to have been placed on a lower standing,
+because the knowledge of their value was posterior to the epoch at
+which the catalogue of superior property was settled. They were at
+first unknown, rare, limited in their uses, or else regarded as mere
+appendages to the privileged objects. Thus, though the Roman Res
+Mancipi included a number of moveable articles of great value, still
+the most costly jewels were never allowed to take rank as Res Mancipi,
+because they were unknown to the early Romans. In the same way
+chattels real in England are said to have been degraded to the footing
+of personalty, from the infrequency and valuelessness of such estates
+under the feudal land-law. But the grand point of interest is, the
+continued degradation of these commodities when their importance had
+increased and their number had multiplied. Why were they not
+successively included among the favoured objects of enjoyment? One
+reason is found in the stubbornness with which Ancient Law adheres to
+its classifications. It is a characteristic both of uneducated minds
+and of early societies, that they are little able to conceive a
+general rule apart from the particular applications of it with which
+they are practically familiar. They cannot dissociate a general term
+or maxim from the special examples which meet them in daily
+experience; and in this way the designation covering the best-known
+forms of property is denied to articles which exactly resemble them in
+being objects of enjoyment and subjects of right. But to these
+influences, which exert peculiar force in a subject-matter so stable
+as that of law, are afterwards added others more consistent with
+progress in enlightenment and in the conceptions of general
+expediency. Courts and lawyers become at last alive to the
+inconvenience of the embarrassing formalities required for the
+transfer, recovery, or devolution of the favoured commodities, and
+grow unwilling to fetter the newer descriptions of property with the
+technical trammels which characterised the infancy of law. Hence
+arises a disposition to keep these last on a lower grade in the
+arrangements of Jurisprudence, and to permit their transfer by simpler
+processes than those which, in archaic conveyances, serve as
+stumbling-blocks to good faith and stepping-stones to fraud. We are
+perhaps in some danger of underrating the inconveniences of the
+ancient modes of transfer. Our instruments of conveyance are written,
+so that their language, well pondered by the professional draftsman,
+is rarely defective in accuracy. But an ancient conveyance was not
+written, but _acted_. Gestures and words took the place of written
+technical phraseology, and any formula mispronounced, or symbolical
+act omitted, would have vitiated the proceeding as fatally as a
+material mistake in stating the uses or setting out the remainders
+would, two hundred years ago, have vitiated an English deed. Indeed,
+the mischiefs of the archaic ceremonial are even thus only half
+stated. So long as elaborate conveyances, written or acted, are
+required for the alienation of _land_ alone, the chances of mistake
+are not considerable in the transfer of a description of property
+which is seldom got rid of with much precipitation. But the higher
+class of property in the ancient world comprised not only land but
+several of the commonest and several of the most valuable moveables.
+When once the wheels of society had begun to move quickly, there must
+have been immense inconvenience in demanding a highly intricate form
+of transfer for a horse or an ox, or for the most costly chattel of
+the old world--the Slave. Such commodities must have been constantly
+and even ordinarily conveyed with incomplete forms, and held,
+therefore, under imperfect titles.
+
+The Res Mancipi of old Roman law were land--in historical times, land
+on Italian soil,--slaves and beasts of burden, such as horses and
+oxen. It is impossible to doubt that the objects which make up the
+class are the instruments of agricultural labour, the commodities of
+first consequence to a primitive people. Such commodities were at
+first, I imagine, called emphatically Things or Property, and the mode
+of conveyance by which they were transferred was called a Mancipium or
+Mancipation; but it was not probably till much later that they
+received the distinctive appellation of Res Mancipi, "Things which
+require a Mancipation." By their side there may have existed or grown
+up a class of objects, for which it was not worth while to insist upon
+the full ceremony of Mancipation. It would be enough if, in
+transferring these last from owner to owner, a part only of the
+ordinary formalities were proceeded with, namely, that actual
+delivery, physical transfer, or _tradition_, which is the most obvious
+index of a change of proprietorship. Such commodities were the Res Nec
+Mancipi of the ancient jurisprudence, "things which did not require a
+Mancipation," little prized probably at first, and not often passed
+from one group of proprietors to another, While, however, the list of
+the Res Mancipi was irrevocably closed; that of the Res Nec Mancipi
+admitted of indefinite expansion; and hence every fresh conquest of
+man over material nature added an item to the Res Nec Mancipi, or
+effected an improvement in those already recognised. Insensibly,
+therefore, they mounted to an equality with the Res Mancipi, and the
+impression of an intrinsic inferiority being thus dissipated, men
+began to observe the manifold advantages of the simple formality which
+accompanied their transfer over the more intricate and more venerable
+ceremonial. Two of the agents of legal amelioration, Fictions and
+Equity, were assiduously employed by the Roman lawyers to give the
+practical effects of a Mancipation to a Tradition: and, though Roman
+legislators long shrank from enacting that the right of property in a
+Res Mancipi should be immediately transferred by bare delivery of the
+article, yet even this step was at last ventured upon by Justinian, in
+whose jurisprudence the difference between Res Mancipi and Res Nec
+Mancipi disappears, and Tradition or Delivery becomes the one great
+conveyance known to the law. The marked preference which the Roman
+lawyers very early gave to Tradition caused them to assign it a place
+in their theory which has helped to blind their modern disciples to
+its true history. It was classed among the "natural" modes of
+acquisition, both because it was generally practised among the Italian
+tribes, and because it was a process which attained its object by the
+simplest mechanism. If the expressions of the jurisconsults be
+pressed, they undoubtedly imply that Tradition, which belongs to the
+Law Natural, is more ancient than Mancipation, which is an institution
+of Civil Society; and this, I need not say, is the exact reverse of
+the truth.
+
+The distinction between Res Mancipi and Res Nec Mancipi is the type of
+a class of distinctions to which civilisation is much indebted,
+distinctions which run through the whole mass of commodities, placing
+a few of them in a class by themselves, and relegating the others to a
+lower category. The inferior kinds of property are first, from disdain
+and disregard, released from the perplexed ceremonies in which
+primitive law delights, and thus afterwards, in another state of
+intellectual progress, the simple methods of transfer and recovery
+which have been allowed to come into use serve as a model which
+condemns by its convenience and simplicity the cumbrous solemnities
+inherited from ancient days. But, in some societies, the trammels in
+which Property is tied up are much too complicated and stringent to be
+relaxed in so easy a manner. Whenever male children have been born to
+a Hindoo, the law of India, as I have stated, gives them all an
+interest in his property, and makes their consent a necessary
+condition of its alienation. In the same spirit, the general usage of
+the old Germanic peoples--it is remarkable that the Anglo-Saxon
+customs seem to have been an exception--forbade alienations without
+the consent of the male children; and the primitive law of the
+Sclavonians even prohibited them altogether. It is evident that such
+impediments as these cannot be overcome by a distinction between kinds
+of property, inasmuch as the difficulty extends to commodities of all
+sorts; and accordingly, Ancient Law, when once launched on a course of
+improvement, encounters them with a distinction of another character,
+a distinction classifying property, not according to its nature but
+according to its origin. In India, where there are traces of both
+systems of classification, the one which we are considering is
+exemplified in the difference which Hindoo law establishes between
+Inheritances and Acquisitions. The inherited property of the father is
+shared by the children as soon as they are born; but according to the
+custom of most provinces, the acquisitions made by him during his
+lifetime are wholly his own, and can be transferred by him at
+pleasure. A similar distinction was not unknown to Roman law, in which
+the earliest innovation on the Parental Powers took the form of a
+permission given to the son to keep for himself whatever he might have
+acquired in military service. But the most extensive use ever made of
+this mode of classification appears to have been among the Germans. I
+have repeatedly stated that the _allod_, though not inalienable, was
+commonly transferable with the greatest difficulty; and moreover, it
+descended exclusively to the agnatic kindred. Hence an extraordinary
+variety of distinctions came to be recognised, all intended to
+diminish the inconveniences inseparable from allodial property. The
+_wehrgeld_, for example, or composition for the homicide of a
+relative, which occupies so large a space in German jurisprudence,
+formed no part of the family domain, and descended according to rules
+of succession altogether different. Similarly, the _reipus_, or fine
+leviable on the re-marriage of a widow, did not enter into the
+_allod_ of the person to whom it was paid, and followed a line of
+devolution in which the privileges of the agnates were neglected. The
+law, too, as among the Hindoos, distinguished the Acquisitions of the
+chief of the household from his Inherited property, and permitted him
+to deal with them under much more liberal conditions. Classifications
+of the other sort were also admitted, and the familiar distinction
+drawn between land and moveables; but moveable property was divided
+into several subordinate categories, to each of which different rules
+applied. This exuberance of classification, which may strike us as
+strange in so rude a people as the German conquerors of the Empire, is
+doubtless to be explained by the presence in their systems of a
+considerable element of Roman law, absorbed by them during their long
+sojourn on the confines of the Roman dominion. It is not difficult to
+trace a great number of the rules governing the transfer and
+devolution of the commodities which lay outside the _allod_, to their
+source in Roman jurisprudence, from which they were probably borrowed
+at widely distant epochs, and in fragmentary importations. How far the
+obstacles to the free circulation of property were surmounted by such
+contrivances, we have not the means even of conjecturing, for the
+distinctions adverted to have no modern history. As I before
+explained, the allodial form of property was entirely lost in the
+feudal, and when the consolidation of feudalism was once completed,
+there was practically but one distinction left standing of all those
+which had been known to the western world--the distinction between
+land and goods, immoveables and moveables. Externally this distinction
+was the same with that which Roman law had finally accepted, but the
+law of the middle ages differed from that of Rome in distinctly
+considering immoveable property to be more dignified than moveable.
+Yet this one sample is enough to show the importance of the class of
+expedients to which it belongs. In all the countries governed by
+systems based on the French codes, that is, through much the greatest
+part of the Continent of Europe, the law of moveables, which was
+always Roman law, has superseded and annulled the feudal law of land.
+England is the only country of importance in which this transmutation,
+though it has gone some way, is not nearly accomplished. Our own, too,
+it may be added, is the only considerable European country in which
+the separation of moveables from immoveables has been somewhat
+disturbed by the same influences which caused the ancient
+classifications to depart from the only one which is countenanced by
+nature. In the main, the English distinction has been between land and
+goods; but a certain class of goods have gone as heir-looms with the
+land, and a certain description of interests in land have from
+historical causes been ranked with personalty. This is not the only
+instance in which English jurisprudence, standing apart from the main
+current of legal modification, has reproduced phenomena of archaic
+law.
+
+I proceed to notice one or two more contrivances by which the ancient
+trammels of proprietary right were more or less successfully relaxed,
+premising that the scheme of this treatise only permits me to mention
+those which are of great antiquity. On one of them in particular it is
+necessary to dwell for a moment or two, because persons unacquainted
+with the early history of law will not be easily persuaded that a
+principle, of which modern jurisprudence has very slowly and with the
+greatest difficulty obtained the recognition, was really familiar to
+the very infancy of legal science. There is no principle in all law
+which the moderns, in spite of its beneficial character, have been so
+loath to adopt and to carry to its legitimate consequences as that
+which was known to the Romans as Usucapion, and which has descended to
+modern jurisprudence under the name of Prescription. It was a positive
+rule of the oldest Roman law, a rule older than the Twelve Tables,
+that commodities which had been uninterruptedly possessed for a
+certain period became the property of the possessor. The period of
+possession was exceedingly short--one or two years according to the
+nature of the commodities--and in historical times Usucapion was only
+allowed to operate when possession had commenced in a particular way;
+but I think it likely that at a less advanced epoch possession was
+converted into ownership under conditions even less severe than we
+read of in our authorities. As I have said before, I am far from
+asserting that the respect of men for _de facto_ possession is a
+phenomenon which jurisprudence can account for by itself, but it is
+very necessary to remark that primitive societies, in adopting the
+principle of Usucapion, were not beset with any of the speculative
+doubts and hesitations which have impeded its reception among the
+moderns. Prescriptions were viewed by the modern lawyers, first with
+repugnance, afterwards with reluctant approval. In several countries,
+including our own, legislation long declined to advance beyond the
+rude device of barring all actions based on a wrong which had been
+suffered earlier than a fixed point of time in the past, generally the
+first year of some preceding reign; nor was it till the middle ages
+had finally closed, and James the First had ascended the throne of
+England, that we obtained a true statute of limitation of a very
+imperfect kind. This tardiness in copying one of the most famous
+chapters of Roman law, which was no doubt constantly read by the
+majority of European lawyers, the modern world owes to the influence
+of the Canon Law. The ecclesiastical customs out of which the Canon
+Law grew, concerned as they were with sacred or quasi-sacred
+interests, very naturally regarded the privileges which they conferred
+as incapable of being lost through disuse however prolonged; and in
+accordance with this view, the spiritual jurisprudence, when
+afterwards consolidated, was distinguished by a marked leaning against
+Prescriptions. It was the fate of the Canon Law, when held up by the
+clerical lawyers as a pattern to secular legislation, to have a
+peculiar influence on first principles. It gave to the bodies of
+custom which were formed throughout Europe far fewer express rules
+than did the Roman law, but then it seems to have communicated a bias
+to professional opinion on a surprising number of fundamental points,
+and the tendencies thus produced progressively gained strength as each
+system was developed. One of the dispositions it produced was a
+disrelish for Prescriptions; but I do not know that this prejudice
+would have operated as powerfully as it has done, if it had not fallen
+in with the doctrine of the scholastic jurists of the realist sect,
+who taught that, whatever turn actual legislation might take, a
+_right_, how long soever neglected, was in point of fact
+indestructible. The remains of this state of feeling still exist.
+Wherever the philosophy of law is earnestly discussed, questions
+respecting the speculative basis of Prescription are always hotly
+disputed; and it is still a point of the greatest interest in France
+and Germany, whether a person who has been out of possession for a
+series of years is deprived of his ownership as a penalty for his
+neglect, or loses it through the summary interposition of the law in
+its desire to have a _finis litium_. But no such scruples troubled the
+mind of early Roman society. Their ancient usages directly took away
+the ownership of everybody who had been out of possession, under
+certain circumstances, during one or two years. What was the exact
+tenor of the rule of Usucapion in its earliest shape, it is not easy
+to say; but, taken with the limitations which we find attending it in
+the books, it was a most useful security against the mischiefs of a
+too cumbrous system of conveyance. In order to have the benefit of
+Usucapion, it was necessary that the adverse possession should have
+begun in good faith, that is, with belief on the part of the possessor
+that he was lawfully acquiring the property, and it was farther
+required that the commodity should have been transferred to him by
+some mode of alienation which, however unequal to conferring a
+complete title in the particular case, was at least recognised by the
+law. In the case therefore of a Mancipation, however slovenly the
+performance might have been, yet if it had been carried so far as to
+involve a Tradition or Delivery, the vice of the title would be cured
+by Usucapion in two years at most. I know nothing in the practice of
+the Romans which testifies so strongly to their legal genius as the
+use which they made of Usucapion. The difficulties which beset them
+were nearly the same with those which embarrassed and still embarrass
+the lawyers of England. Owing to the complexity of their system, which
+as yet they had neither the courage nor the power to reconstruct,
+actual right was constantly getting divorced from technical right, the
+equitable ownership from the legal. But Usucapion, as manipulated by
+the jurisconsults, supplied a self-acting machinery, by which the
+defects of titles to property were always in course of being cured,
+and by which the ownerships that were temporarily separated were again
+rapidly cemented together with the briefest possible delay. Usucapion
+did not lose its advantages till the reforms of Justinian. But as soon
+as law and equity had been completely fused, and when Mancipation
+ceased to be the Roman conveyance, there was no further necessity for
+the ancient contrivance, and Usucapion, with its periods of time
+considerably lengthened, became the Prescription which has at length
+been adopted by nearly all systems of modern law.
+
+I pass by with brief mention another expedient having the same object
+with the last, which, though it did not immediately make its
+appearance in English legal history, was of immemorial antiquity in
+Roman law; such indeed is its apparent age that some German civilians,
+not sufficiently aware of the light thrown on the subject by the
+analogies of English law, have thought it even older than the
+Mancipation. I speak of the Cessio in Jure, a collusive recovery, in a
+Court of law, of property sought to be conveyed. The plaintiff claimed
+the subject of this proceeding with the ordinary forms of a
+litigation; the defendant made default; and the commodity was of
+course adjudged to the plaintiff. I need scarcely remind the English
+lawyer that this expedient suggested itself to our forefathers, and
+produced those famous Fines and Recoveries which did so much to undo
+the harshest trammels of the feudal land-law. The Roman and English
+contrivances have very much in common and illustrate each other most
+instructively, but there is this difference between them, that the
+object of the English lawyers was to remove complications already
+introduced into the title, while the Roman jurisconsults sought to
+prevent them by substituting a mode of transfer necessarily
+unimpeachable for one which too often miscarried. The device is, in
+fact, one which suggests itself as soon as Courts of Law are in steady
+operation, but are nevertheless still under the empire of primitive
+notions. In an advanced state of legal opinion, tribunals regard
+collusive litigation as an abuse of their procedure; but there has
+always been a time when, if their forms were scrupulously complied
+with, they never dreamed of looking further.
+
+The influence of Courts of Law and of their procedure upon Property
+has been most extensive, but the subject is too large for the
+dimensions of this treatise, and would carry us further down the
+course of legal history than is consistent with its scheme. It is
+desirable, however, to mention, that to this influence we must
+attribute the importance of the distinction between Property and
+Possession--not, indeed, the distinction itself, which (in the
+language of an eminent English civilian) is the same thing as the
+distinction between the legal right to act upon a thing and the
+physical power to do so--but the extraordinary importance which the
+distinction has obtained in the philosophy of law. Few educated
+persons are so little versed in legal literature as not to have heard
+that the language of the Roman jurisconsults on the subject of
+Possession long occasioned the greatest possible perplexity, and that
+the genius of Savigny is supposed to have chiefly proved itself by the
+solution which he discovered for the enigma. Possession, in fact, when
+employed by the Roman lawyers, appears to have contracted a shade of
+meaning not easily accounted for. The word, as appears from its
+etymology, must have originally denoted physical contact or physical
+contact resumeable at pleasure; but, as actually used without any
+qualifying epithet, it signifies not simply physical detention, but
+physical detention coupled with the intention to hold the thing
+detained as one's own. Savigny, following Niebuhr, perceived that for
+this anomaly there could only be a historical origin. He pointed out
+that the Patrician burghers of Rome, who had become tenants of the
+greatest part of the public domain at nominal rents, were, in the view
+of the old Roman law, mere possessors, but then they were possessors
+intending to keep their land against all comers. They, in truth, put
+forward a claim almost identical with that which has recently been
+advanced in England by the lessees of Church lands. Admitting that in
+theory they were the tenants-at-will of the state, they contended that
+time and undisturbed enjoyment had ripened their holding into a
+species of ownership, and that it would be unjust to eject them for
+the purpose of redistributing the domain. The association of this
+claim with the Patrician tenancies, permanently influenced the sense
+of "possession." Meanwhile the only legal remedies of which the
+tenants could avail themselves, if ejected or threatened with
+disturbance, were the Possessory Interdicts, summary processes of
+Roman law which were either expressly devised by the Prætor for their
+protection, or else, according to another theory, had in older times
+been employed for the provisional maintenance of possessions pending
+the settlement of questions of legal right. It came, therefore, to be
+understood that everybody who possessed property _as his own_ had the
+power of demanding the Interdicts, and, by a system of highly
+artificial pleading, the Interdictal process was moulded into a shape
+fitted for the trial of conflicting claims to a disputed possession.
+Then commenced a movement which, as Mr. John Austin pointed out,
+exactly reproduced itself in English law. Proprietors, _domini_, began
+to prefer the simpler forms or speedier course of the Interdict to the
+lagging and intricate formalities of the Real Action, and for the
+purpose of availing themselves of the possessory remedy fell back
+upon the possession which was supposed to be involved in their
+proprietorship. The liberty conceded to persons who were not true
+Possessors, but Owners, to vindicate their rights by possessory
+remedies, though it may have been at first a boon, had ultimately the
+effect of seriously deteriorating both English and Roman
+jurisprudence. The Roman law owes to it those subtleties on the
+subject of Possession which have done so much to discredit it, while
+English law, after the actions which it appropriated to the recovery
+of real property had fallen into the most hopeless confusion, got rid
+at last of the whole tangled mass by a heroic remedy. No one can doubt
+that the virtual abolition of the English real actions which took
+place nearly thirty years since was a public benefit, but still
+persons sensitive to the harmonies of jurisprudence will lament that,
+instead of cleansing, improving, and simplifying the true proprietary
+actions, we sacrificed them all to the possessory action of ejectment,
+thus basing our whole system of land recovery upon a legal fiction.
+
+Legal tribunals have also powerfully assisted to shape and modify
+conceptions of proprietary right by means of the distinction between
+Law and Equity, which always makes its first appearance as a
+distinction between jurisdictions. Equitable property in England is
+simply property held under the jurisdiction of the Court of Chancery.
+At Rome, the Prætor's Edict introduced its novel principles in the
+guise of a promise that under certain circumstances a particular
+action or a particular plea would be granted; and, accordingly, the
+property _in bonis_, or Equitable Property, of Roman law was property
+exclusively protected by remedies which had their source in the Edict.
+The mechanism by which equitable rights were saved from being
+overridden by the claims of the legal owner was somewhat different in
+the two systems. With us their independence is secured by the
+Injunction of the Court of Chancery. Since however Law and Equity,
+while not as yet consolidated, were administered under the Roman
+system by the same Court, nothing like the Injunction was required,
+and the Magistrate took the simpler course of refusing to grant to the
+Civil Law Owner those actions and pleas by which alone he could obtain
+the property that belonged in equity to another. But the practical
+operation of both systems was nearly the same. Both, by means of a
+distinction in procedure, were able to preserve new forms of property
+in a sort of provisional existence, until the time should come when
+they were recognised by the whole law. In this way, the Roman Prætor
+gave an immediate right of property to the person who had acquired a
+Res Mancipi by mere delivery, without waiting for the ripening of
+Usucapion. Similarly he in time recognised an ownership in the
+Mortgagee who had at first been a mere "bailee" or depositary, and in
+the Emphyteuta, or tenant of land which was subject to a fixed
+perpetual rent. Following a parallel line of progress, the English
+Court of Chancery created a special proprietorship for the Mortgagor,
+for the Cestui que Trust, for the Married Woman who had the advantage
+of a particular kind of settlement, and for the Purchaser who had not
+yet acquired a complete legal ownership. All these are examples in
+which forms of proprietory right, distinctly new, were recognised and
+preserved. But indirectly Property has been affected in a thousand
+ways by equity both in England and at Rome. Into whatever corner of
+jurisprudence its authors pushed the powerful instrument in their
+command, they were sure to meet, and touch, and more or less
+materially modify the law of property. When in the preceding pages I
+have spoken of certain ancient legal distinctions and expedients as
+having powerfully affected the history of ownership, I must be
+understood to mean that the greatest part of their influence has
+arisen from the hints and suggestions of improvement infused by them
+into the mental atmosphere which was breathed by the fabricators of
+equitable systems.
+
+But to describe the influence of Equity on Ownership would be to write
+its history down to our own days. I have alluded to it principally
+because several esteemed contemporary writers have thought that in the
+Roman severance of Equitable from Legal property we have the clue to
+that difference in the conception of Ownership, which apparently
+distinguishes the law of the middle ages from the law of the Roman
+Empire. The leading characteristic of the feudal conception is its
+recognition of a double proprietorship, the superior ownership of the
+lord of the fief co-existing with the inferior property or estate of
+the tenant. Now, this duplication of proprietary right looks, it is
+urged, extremely like a generalised form of the Roman distribution of
+rights over property into _Quiritarian_ or legal, and (to use a word
+of late origin) _Bonitarian_ or equitable. Gaius himself
+observes upon the splitting of _dominion_ into two parts as a
+singularity of Roman law, and expressly contrasts it with the entire
+or allodial ownership to which other nations were accustomed.
+Justinian, it is true, re-consolidated dominion into one, but then it
+was the partially reformed system of the Western Empire, and not
+Justinian's jurisprudence, with which the barbarians were in contact
+during so many centuries. While they remained poised on the edge of
+the Empire, it may well be that they learned this distinction, which
+afterwards bore remarkable fruit. In favour of this theory, it must at
+all events be admitted that the element of Roman law in the various
+bodies of barbarian custom has been very imperfectly examined. The
+erroneous or insufficient theories which have served to explain
+Feudalism resemble each other in their tendency to draw off attention
+from this particular ingredient in its texture. The older
+investigators, who have been mostly followed in this country, attached
+an exclusive importance to the circumstances of the turbulent period
+during which the Feudal system grew to maturity; and in later times a
+new source of error has been added to those already existing, in that
+pride of nationality which has led German writers to exaggerate the
+completeness of the social fabric which their forefathers had built up
+before their appearance in the Roman world. One or two English
+inquirers who looked in the right quarter for the foundations of the
+feudal system, failed nevertheless to conduct their investigations to
+any satisfactory result, either from searching too exclusively for
+analogies in the compilations of Justinian, or from confining their
+attention to the compendia of Roman law which are found appended to
+some of the extant barbarian codes. But, if Roman jurisprudence had
+any influence on the barbarous societies, it had probably produced the
+greatest part of its effects before the legislation of Justinian, and
+before the preparation of these compendia. It was not the reformed and
+purified jurisprudence of Justinian, but the undigested system which
+prevailed in the Western Empire, and which the Eastern _Corpus Juris_
+never succeeded in displacing, that I conceive to have clothed with
+flesh and muscle the scanty skeleton of barbarous usage. The change
+must be supposed to have taken place before the Germanic tribes had
+distinctly appropriated, as conquerors, any portion of the Roman
+dominions, and therefore long before Germanic monarchs had ordered
+breviaries of Roman law to be drawn up for the use of their Roman
+subjects. The necessity for some such hypothesis will be felt by
+everybody who can appreciate the difference between archaic and
+developed law. Rude as are the _Leges Barbarorum_ which remain to us,
+they are not rude enough to satisfy the theory of their purely
+barbarous origin; nor have we any reason for believing that we have
+received, in written records, more than a fraction of the fixed rules
+which were practised among themselves by the members of the conquering
+tribes. If we can once persuade ourselves that a considerable element
+of debased Roman law already existed in the barbarian systems, we
+shall have done something to remove a grave difficulty. The German law
+of the conquerors and the Roman law of their subjects would not have
+combined if they had not possessed more affinity for each other than
+refined jurisprudence has usually for the customs of savages. It is
+extremely likely that the codes of the barbarians, archaic as they
+seem, are only a compound of true primitive usage with half-understood
+Roman rules, and that it was the foreign ingredient which enabled them
+to coalesce with a Roman jurisprudence that had already receded
+somewhat from the comparative finish which it had acquired under the
+Western Emperors.
+
+But, though all this must be allowed, there are several considerations
+which render it unlikely that the feudal form of ownership was
+directly suggested by the Roman duplication of domainial rights. The
+distinction between legal and equitable property strikes one as a
+subtlety little likely to be appreciated by barbarians; and, moreover,
+it can scarcely be understood unless Courts of Law are contemplated in
+regular operation. But the strongest reason against this theory is the
+existence in Roman Law of a form of property--a creation of Equity, it
+is true--which supplies a much simpler explanation of the transition
+from one set of ideas to the other. This is the Emphyteusis, upon
+which the Fief of the middle ages has often been fathered, though
+without much knowledge of the exact share which it had in bringing
+feudal ownership into the world. The truth is that the Emphyteusis,
+not probably as yet known by its Greek designation, marks one stage in
+a current of ideas which led ultimately to feudalism. The first
+mention in Roman history of estates larger than could be farmed by a
+Paterfamilias, with his household of sons and slaves, occurs when we
+come to the holdings of the Roman patricians. These great proprietors
+appear to have had no idea of any system of farming by free tenants.
+Their _latifundia_ seem to have been universally cultivated by
+slave-gangs, under bailiffs who were themselves slaves or freedmen;
+and the only organisation attempted appears to have consisted in
+dividing the inferior slaves into small bodies, and making them the
+_peculium_ of the better and trustier sort, who thus acquired a kind
+of interest in the efficiency of their labour. This system was,
+however, especially disadvantageous to one class of estated
+proprietors, the Municipalities. Functionaries in Italy were changed
+with the rapidity which often surprises us in the administration of
+Rome herself; so that the superintendence of a large landed domain by
+an Italian corporation must have been excessively imperfect.
+Accordingly, we are told that with the municipalities began the
+practice of letting out _agri vectigules_, that is, of leasing land
+for a perpetuity to a free tenant, at a fixed rent, and under certain
+conditions. The plan was afterwards extensively imitated by individual
+proprietors, and the tenant, whose relation to the owner had
+originally been determined by his contract, was subsequently
+recognised by the Prætor as having himself a qualified proprietorship,
+which in time became known as an Emphyteusis. From this point the
+history of tenure parts into two branches. In the course of that long
+period during which our records of the Roman Empire are most
+incomplete, the slave-gangs of the great Roman families became
+transformed into the _coloni_, whose origin and situation constitute
+one of the obscurest questions in all history. We may suspect that
+they were formed partly by the elevation of the slaves, and partly by
+the degradation of the free farmers; and that they prove the richer
+classes of the Roman Empire to have become aware of the increased
+value which landed property obtains when the cultivator had an
+interest in the produce of the land. We know that their servitude was
+predial; that it wanted many of the characteristics of absolute
+slavery, and that they acquitted their service to the landlord in
+rendering to him a fixed portion of the annual crop. We know further
+that they survived all the mutations of society in the ancient and
+modern worlds. Though included in the lower courses of the feudal
+structure, they continued in many countries to render to the landlord
+precisely the same dues which they had paid to the Roman _dominus_,
+and from a particular class among them, the _coloni medietarii_ who
+reserved half the produce for the owner, are descended the _metayer_
+tenantry, who still conduct the cultivation of the soil in almost all
+the South of Europe. On the other hand, the Emphyteusis, if we may so
+interpret the allusions to it in the _Corpus Juris_, became a
+favourite and beneficial modification of property; and it may be
+conjectured that wherever free farmers existed, it was this tenure
+which regulated their interest in the land. The Prætor, as has been
+said, treated the Emphyteuta as a true proprietor. When ejected, he
+was allowed to reinstate himself by a Real Action, the distinctive
+badge of proprietory right, and he was protected from disturbance by
+the author of his lease so long as the _canon_, or quit-rent, was
+punctually paid. But at the same time it must not be supposed that the
+ownership of the author of the lease was either extinct or dormant. It
+was kept alive by a power of re-entry on nonpayment of the rent, a
+right of pre-emption in case of sale, and a certain control over the
+mode of cultivation. We have, therefore, in the Emphyteusis a striking
+example of the double ownership which characterised feudal property,
+and one, moreover, which is much simpler and much more easily imitated
+than the juxtaposition of legal and equitable rights. The history of
+the Roman tenure does not end, however, at this point. We have clear
+evidence that between the great fortresses which, disposed along the
+line of the Rhine and Danube, long secured the frontier of the Empire
+against its barbarian neighbours, there extended a succession of
+strips of land, the _agri limitrophi_, which were occupied by veteran
+soldiers of the Roman army on the terms of an Emphyteusis. There was a
+double ownership. The Roman State was landlord of the soil, but the
+soldiers cultivated it without disturbance so long as they held
+themselves ready to be called out for military service whenever the
+state of the border should require it. In fact, a sort of
+garrison-duty, under a system closely resembling that of the military
+colonies on the Austro-Turkish border, had taken the place of the
+quit-rent which was the service of the ordinary Emphyteuta. It seems
+impossible to doubt that this was the precedent copied by the
+barbarian monarchs who founded feudalism. It had been within their
+view for some hundred years, and many of the veterans who guarded the
+border were, it is to be remembered, themselves of barbarian
+extraction, who probably spoke the Germanic tongues. Not only does the
+proximity of so easily followed a model explain whence the Frankish
+and Lombard Sovereigns got the idea of securing the military service
+of their followers by granting away portions of their public domain;
+but it perhaps explains the tendency which immediately showed itself
+in the Benefices to become hereditary, for an Emphyteusis, though
+capable of being moulded to the terms of the original contract,
+nevertheless descended as a general rule to the heirs of the grantee.
+It is true that the holder of a benefice, and more recently the lord
+of one of those fiefs into which the benefices were transformed,
+appears to have owed certain services which were not likely to have
+been rendered by the military colonist, and were certainly not
+rendered by the Emphyteuta. The duty of respect and gratitude to the
+feudal superior, the obligation to assist in endowing his daughter and
+equipping his son, the liability to his guardianship in minority, and
+many other similar incidents of tenure, must have been literally
+borrowed from the relations of Patron and Freedman under Roman law,
+that is, of quondam-master and quondam-slave. But then it is known
+that the earliest beneficiaries were the personal companions of the
+sovereign, and it is indisputable that this position, brilliant as it
+seems, was at first attended by some shade of servile debasement. The
+person who ministered to the Sovereign in his Court had given up
+something of that absolute personal freedom which was the proudest
+privilege of the allodial proprietor.
+
+
+
+
+CHAPTER IX
+
+THE EARLY HISTORY OF CONTRACT
+
+
+There are few general propositions concerning the age to which we
+belong which seem at first sight likely to be received with readier
+concurrence than the assertion that the society of our day is mainly
+distinguished from that of preceding generations by the largeness of
+the sphere which is occupied in it by Contract. Some of the phenomena
+on which this proposition rests are among those most frequently
+singled out for notice, for comment, and for eulogy. Not many of us
+are so unobservant as not to perceive that in innumerable cases where
+old law fixed a man's social position irreversibly at his birth,
+modern law allows him to create it for himself by convention; and
+indeed several of the few exceptions which remain to this rule are
+constantly denounced with passionate indignation. The point, for
+instance, which is really debated in the vigorous controversy still
+carried on upon the subject of negro servitude, is whether the status
+of the slave does not belong to bygone institutions, and whether the
+only relation between employer and labourer which commends itself to
+modern morality be not a relation determined exclusively by contract.
+The recognition of this difference between past ages and the present
+enters into the very essence of the most famous contemporary
+speculations. It is certain that the science of Political Economy, the
+only department of moral inquiry which has made any considerable
+progress in our day, would fail to correspond with the facts of life
+if it were not true that Imperative Law had abandoned the largest part
+of the field which it once occupied, and had left men to settle rules
+of conduct for themselves with a liberty never allowed to them till
+recently. The bias indeed of most persons trained in political economy
+is to consider the general truth on which their science reposes as
+entitled to become universal, and, when they apply it as an art, their
+efforts are ordinarily directed to enlarging the province of Contract
+and to curtailing that of Imperative Law, except so far as law is
+necessary to enforce the performance of Contracts. The impulse given
+by thinkers who are under the influence of these ideas is beginning to
+be very strongly felt in the Western world. Legislation has nearly
+confessed its inability to keep pace with the activity of man in
+discovery, in invention, and in the manipulation of accumulated
+wealth; and the law even of the least advanced communities tends more
+and more to become a mere surface-stratum having under it an
+ever-changing assemblage of contractual rules with which it rarely
+interferes except to compel compliance with a few fundamental
+principles or unless it be called in to punish the violation of good
+faith.
+
+Social inquiries, so far as they depend on the consideration of legal
+phenomena, are in so backward a condition that we need not be
+surprised at not finding these truths recognised in the commonplaces
+which pass current concerning the progress of society. These
+commonplaces answer much more to our prejudices than to our
+convictions. The strong disinclination of most men to regard morality
+as advancing seems to be especially powerful when the virtues on which
+Contract depends are in question, and many of us have almost
+instinctive reluctance to admitting that good faith and trust in our
+fellows are more widely diffused than of old, or that there is
+anything in contemporary manners which parallels the loyalty of the
+antique world. From time to time, these prepossessions are greatly
+strengthened by the spectacle of frauds, unheard of before the period
+at which they were observed, and astonishing from their complication
+as well as shocking from criminality. But the very character of these
+frauds shows clearly that, before they became possible, the moral
+obligations of which they are the breach must have been more than
+proportionately developed. It is the confidence reposed and deserved
+by the many which affords facilities for the bad faith of the few, so
+that, if colossal examples of dishonesty occur, there is no surer
+conclusion than that scrupulous honesty is displayed in the average of
+the transactions which, in the particular case, have supplied the
+delinquent with his opportunity. If we insist on reading the history
+of morality as reflected in jurisprudence, by turning our eyes not on
+the law of Contract but on the law of Crime, we must be careful that
+we read it aright. The only form of dishonesty treated of in the most
+ancient Roman law is Theft. At the moment at which I write, the
+newest chapter in the English criminal law is one which attempts to
+prescribe punishment for the frauds of Trustees. The proper inference
+from this contrast is not that the primitive Romans practised a higher
+morality than ourselves. We should rather say that, in the interval
+between their days and ours, morality has advanced from a very rude to
+a highly refined conception--from viewing the rights of property as
+exclusively sacred, to looking upon the rights growing out of the mere
+unilateral reposal of confidence as entitled to the protection of the
+penal law.
+
+The definite theories of jurists are scarcely nearer the truth in this
+point than the opinions of the multitude. To begin with the views of
+the Roman lawyers, we find them inconsistent with the true history of
+moral and legal progress. One class of contracts, in which the
+plighted faith of the contracting parties was the only material
+ingredient, they specifically denominated Contracts _juris gentium_,
+and though these contracts were undoubtedly the latest born into the
+Roman system, the expression employed implies, if a definite meaning
+be extracted from it, that they were more ancient than certain other
+forms of engagement treated of in Roman law, in which the neglect of a
+mere technical formality was as fatal to the obligation as
+misunderstanding or deceit. But then the antiquity to which they were
+referred was vague, shadowy, and only capable of being understood
+through the Present; nor was it until the language of the Roman
+lawyers became the language of an age which had lost the key to their
+mode of thought that a "Contract of the Law of Nations" came to be
+distinctly looked upon as a Contract known to man in a State of
+Nature. Rousseau adopted both the juridical and the popular error. In
+the Dissertation on the effects of Art and Science upon Morals, the
+first of his works which attracted attention and the one in which he
+states most unreservedly the opinions which made him the founder of a
+sect, the veracity and good faith attributed to the ancient Persians
+are repeatedly pointed out as traits of primitive innocence which have
+been gradually obliterated by civilisation; and at a later period he
+found a basis for all his speculations in the doctrine of an original
+Social Contract. The Social Contract or Compact is the most systematic
+form which has ever been assumed by the error we are discussing. It
+is a theory which, though nursed into importance by political
+passions, derived all its sap from the speculations of lawyers. True
+it certainly is that the famous Englishmen, for whom it had first had
+attraction, valued it chiefly for its political serviceableness, but,
+as I shall presently attempt to explain, they would never have arrived
+at it, if politicians had not long conducted their controversies in
+legal phraseology. Nor were the English authors of the theory blind to
+that speculative amplitude which recommended it so strongly to the
+Frenchmen who inherited it from them. Their writings show they
+perceived that it could be made to account for all social, quite as
+well as for all political phenomena. They had observed the fact,
+already striking in their day, that of the positive rules obeyed by
+men, the greater part were created by Contract, the lesser by
+Imperative Law. But they were ignorant or careless of the historical
+relation of these two constituents of jurisprudence. It was for the
+purpose, therefore, of gratifying their speculative tastes by
+attributing all jurisprudence to a uniform source, as much as with the
+view of eluding the doctrines which claimed a divine parentage for
+Imperative Law, that they devised the theory that all Law had its
+origin in Contract. In another stage of thought, they would have been
+satisfied to leave their theory in the condition of an ingenious
+hypothesis or a convenient verbal formula. But that age was under the
+dominion of legal superstitions. The State of Nature had been talked
+about till it had ceased to be regarded as paradoxical, and hence it
+seemed easy to give a fallacious reality and definiteness to the
+contractual origin of Law by insisting on the Social Compact as a
+historical fact.
+
+Our own generation has got rid of these erroneous juridical theories,
+partly by outgrowing the intellectual state to which they belong, and
+partly by almost ceasing to theorise on such subjects altogether. The
+favourite occupation of active minds at the present moment, and the
+one which answers to the speculations of our forefathers on the origin
+of the social state, is the analysis of society as it exists and moves
+before our eyes; but, through omitting to call in the assistance of
+history, this analysis too often degenerates into an idle exercise of
+curiosity, and is especially apt to incapacitate the inquirer for
+comprehending states of society which differ considerably from that to
+which he is accustomed. The mistake of judging the men of other
+periods by the morality of our own day has its parallel in the mistake
+of supposing that every wheel and bolt in the modern social machine
+had its counterpart in more rudimentary societies. Such impressions
+ramify very widely, and masque themselves very subtly, in historical
+works written in the modern fashion; but I find the trace of their
+presence in the domain of jurisprudence in the praise which is
+frequently bestowed on the little apologue of Montesquieu concerning
+the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes
+were a people who systematically violated their Contracts, and so
+perished utterly. If the story bears the moral which its author
+intended, and is employed to expose an anti-social heresy by which
+this century and the last have been threatened, it is most
+unexceptionable; but if the inference be obtained from it that society
+could not possibly hold together without attaching a sacredness to
+promises and agreements which should be on something like a par with
+the respect that is paid to them by a mature civilisation, it involves
+an error so grave as to be fatal to all sound understanding of legal
+history. The fact is that the Troglodytes have flourished and founded
+powerful states with very small attention to the obligations of
+Contract. The point which before all others has to be apprehended in
+the constitution of primitive societies is that the individual creates
+for himself few or no rights, and few or no duties. The rules which he
+obeys are derived first from the station into which he is born, and
+next from the imperative commands addressed to him by the chief of the
+household of which he forms part. Such a system leaves the very
+smallest room for Contract. The members of the same family (for so we
+may interpret the evidence) are wholly incapable of contracting with
+each other, and the family is entitled to disregard the engagements by
+which any one of its subordinate members has attempted to bind it.
+Family, it is true, may contract with family, chieftain with
+chieftain, but the transaction is one of the same nature, and
+encumbered by as many formalities, as the alienation of property, and
+the disregard of one iota of the performance is fatal to the
+obligation. The positive duty resulting from one man's reliance on the
+word of another is among the slowest conquests of advancing
+civilisation.
+
+Neither Ancient Law nor any other source of evidence discloses to us
+society entirely destitute of the conception of Contract. But the
+conception, when it first shows itself, is obviously rudimentary. No
+trustworthy primitive record can be read without perceiving that the
+habit of mind which induces us to make good a promise is as yet
+imperfectly developed, and that acts of flagrant perfidy are often
+mentioned without blame and sometimes described with approbation. In
+the Homeric literature, for instance, the deceitful cunning of Ulysses
+appears as a virtue of the same rank with the prudence of Nestor, the
+constancy of Hector, and the gallantry of Achilles. Ancient law is
+still more suggestive of the distance which separates the crude form
+of Contract from its maturity. At first, nothing is seen like the
+interposition of law to compel the performance of a promise. That
+which the law arms with its sanctions is not a promise, but a promise
+accompanied with a solemn ceremonial. Not only are formalities of
+equal importance with the promise itself, but they are, if anything,
+of greater importance; for that delicate analysis which mature
+jurisprudence applies to the conditions of mind under which a
+particular verbal assent is given appears, in ancient law, to be
+transferred to the words and gestures of the accompanying performance.
+No pledge is enforced if a single form be omitted or misplaced, but,
+on the other hand, if the forms can be shown to have been accurately
+proceeded with, it is of no avail to plead that the promise was made
+under duress or deception. The transmutation of this ancient view into
+the familiar notion of a Contract is plainly seen in the history of
+jurisprudence. First one or two steps in the ceremonial are dispensed
+with; then the others are simplified or permitted to be neglected on
+certain conditions; lastly, a few specific contracts are separated
+from the rest and allowed to be entered into without form, the
+selected contracts being those on which the activity and energy of
+social intercourse depends. Slowly, but most distinctly, the mental
+engagement isolates itself amid the technicalities, and gradually
+becomes the sole ingredient on which the interest of the jurisconsult
+is concentrated. Such a mental engagement, signified through external
+acts, the Romans called a Pact or Convention; and when the Convention
+has once been conceived as the nucleus of a Contract, it soon becomes
+the tendency of advancing jurisprudence to break away the external
+shell of form and ceremony. Forms are thenceforward only retained so
+far as they are guarantees of authenticity, and securities for
+caution and deliberation. The idea of a Contract is fully developed,
+or, to employ the Roman phrase, Contracts are absorbed in Pacts.
+
+The history of this course of change in Roman law is exceedingly
+instructive. At the earliest dawn of the jurisprudence, the term in
+use for a Contract was one which is very familiar to the students of
+historical Latinity. It was _nexum_, and the parties to the contract
+were said to be _nexi_, expressions which must be carefully attended
+to on account of the singular durableness of the metaphor on which
+they are founded. The notion that persons under a contractual
+engagement are connected together by a strong _bond_ or _chain_,
+continued till the last to influence the Roman jurisprudence of
+Contract; and flowing thence it has mixed itself with modern ideas.
+What then was involved in this nexum or bond? A definition which has
+descended to us from one of the Latin antiquarians describes _nexum_
+as _omne quod geritur per æs et libram_, "every transaction with the
+copper and the balance," and these words have occasioned a good deal
+of perplexity. The copper and the balance are the well-known
+accompaniments of the Mancipation, the ancient solemnity described in
+a former chapter, by which the right of ownership in the highest form
+of Roman Property was transferred from one person to another.
+Mancipation was a _conveyance_, and hence has arisen the difficulty,
+for the definition thus cited appears to confound Contracts and
+Conveyances, which in the philosophy of jurisprudence are not simply
+kept apart, but are actually opposed to each other. The _jus in re_,
+right _in rem_, right "availing against all the world," or Proprietary
+Right, is sharply distinguished by the analyst of mature jurisprudence
+from the _jus ad rem_, right _in personam_, right "availing a single
+individual or group," or obligation. Now Conveyances transfer
+Proprietary Rights, Contracts create Obligations--how then can the two
+be included under the same name or same general conception? This, like
+many similar embarrassments, has been occasioned by the error of
+ascribing to the mental condition of an unformed society a faculty
+which pre-eminently belongs to an advanced stage of intellectual
+development, the faculty of distinguishing in speculation ideas which
+are blended in practice. We have indications not to be mistaken of a
+state of social affairs in which Conveyances and Contracts were
+practically confounded; nor did the discrepance of the conceptions
+become perceptible till men had begun to adopt a distinct practice in
+contracting and conveying.
+
+It may here be observed that we know enough of ancient Roman law to
+give some idea of the mode of transformation followed by legal
+conceptions and by legal phraseology in the infancy of Jurisprudence.
+The change which they undergo appears to be a change from general to
+special; or, as we might otherwise express it, the ancient conceptions
+and the ancient terms are subjected to a process of gradual
+specialisation. An ancient legal conception corresponds not to one but
+to several modern conceptions. An ancient technical expression serves
+to indicate a variety of things which in modern law have separate
+names allotted to them. If however we take up the history of
+Jurisprudence at the next stage, we find that the subordinate
+conceptions have gradually disengaged themselves and that the old
+general names are giving way to special appellations. The old general
+conception is not obliterated, but it has ceased to cover more than
+one or a few of the notions which it first included. So too the old
+technical name remains, but it discharges only one of the functions
+which it once performed. We may exemplify this phenomenon in various
+ways. Patriarchal Power of all sorts appears, for instance, to have
+been once conceived as identical in character, and it was doubtless
+distinguished by one name. The Power exercised by the ancestor was the
+same whether it was exercised over the family or the material
+property--over flocks, herds, slaves, children, or wife. We cannot be
+absolutely certain of its old Roman name, but there is very strong
+reason for believing, from the number of expressions indicating shades
+of the notion of _power_ into which the word _manus_ enters, that the
+ancient general term was _manus_. But, when Roman law has advanced a
+little, both the name and the idea have become specialised. Power is
+discriminated, both in word and in conception, according to the
+object over which it is exerted. Exercised over material commodities
+or slaves, it has become _dominium_--over children, it is
+_Potestas_--over free persons whose services have been made away to
+another by their own ancestor, it is _mancipium_--over a wife, it is
+still _manus_. The old word, it will be perceived, has not altogether
+fallen into desuetude, but is confined to one very special exercise
+of the authority it had formerly denoted. This example will enable us
+to comprehend the nature of the historical alliance between Contracts
+and Conveyances. There seems to have been one solemn ceremonial at
+first for all solemn transactions, and its name at Rome appears to
+have been _nexum_. Precisely the same forms which were in use when a
+conveyance of property was effected seem to have been employed in the
+making of a contract. But we have not very far to move onwards before
+we come to a period at which the notion of a Contract has disengaged
+itself from the notion of a Conveyance. A double change has thus taken
+place. The transaction "with the copper and the balance," when
+intended to have for its office the transfer of property, is known by
+the new and special name of Mancipation. The ancient Nexum still
+designates the same ceremony, but only when it is employed for the
+special purpose of solemnising a contract.
+
+When two or three legal conceptions are spoken of as anciently blended
+in one, it is not intended to imply that some one of the included
+notions may not be older than the others, or, when those others have
+been formed, may not greatly predominate over and take precedence over
+them. The reason why one legal conception continues so long to cover
+several conceptions, and one technical phrase to do instead of
+several, is doubtless that practical changes are accomplished in the
+law of primitive societies long before men see occasion to notice or
+name them. Though I have said that Patriarchal Power was not at first
+distinguished according to the objects over which it was exercised, I
+feel sure that Power over Children was the root of the old conception
+of Power; and I cannot doubt that the earliest use of the Nexum, and
+the one primarily regarded by those who resorted to it, was to give
+proper solemnity to the alienation of property. It is likely that a
+very slight perversion of the Nexum from its original functions first
+gave rise to its employment in Contracts, and that the very slightness
+of the change long prevented its being appreciated or noticed. The old
+name remained because men had not become conscious that they wanted a
+new one; the old notion clung to the mind because nobody had seen
+reason to be at the pains of examining it. We have had the process
+clearly exemplified in the history of Testaments. A Will was at first
+a simple conveyance of property. It was only the enormous practical
+difference that gradually showed itself between this particular
+conveyance and all others which caused it to be regarded separately,
+and even as it was, centuries elapsed before the ameliorators of law
+cleared away the useless encumbrance of the nominal mancipation, and
+consented to care for nothing in the Will but the expressed intentions
+of the Testator. It is unfortunate that we cannot track the early
+history of Contracts with the same absolute confidence as the early
+history of Wills, but we are not quite without hints that contracts
+first showed themselves through the _nexum_ being put to a new use and
+afterwards obtained recognition as distinct transactions through the
+important practical consequences of the experiment. There is some, but
+not very violent, conjecture in the following delineation of the
+process. Let us conceive a sale for ready money as the normal type of
+the Nexum. The seller brought the property of which he intended to
+dispose--a slave, for example--the purchaser attended with the rough
+ingots of copper which served for money--and an indispensable
+assistant, the _libripens_, presented himself with a pair of scales.
+The slave with certain fixed formalities was handed over to the
+vendee--the copper was weighed by the _libripens_ and passed to the
+vendor. So long as the business lasted it was a _nexum_, and the
+parties were _nexi_; but the moment it was completed, the _nexum_
+ended, and the vendor and purchaser ceased to bear the name derived
+from their momentary relation. But now, let us move a step onward in
+commercial history. Suppose the slave transferred, but the money not
+paid. In _that_ case, the _nexum_ is finished, so far as the seller is
+concerned, and when he has once handed over his property, he is no
+longer _nexus_; but, in regard to the purchaser, the _nexum_
+continues. The transaction, as to his part of it, is incomplete, and
+he is still considered to be _nexus_. It follows, therefore, that the
+same term described the Conveyance by which the right of property was
+transmitted, and the personal obligation of the debtor for the unpaid
+purchase-money. We may still go forward, and picture to ourselves a
+proceeding wholly formal, in which _nothing_ is handed over and
+_nothing_ paid; we are brought at once to a transaction indicative of
+much higher commercial activity, an _executory Contract of Sale_.
+
+If it be true that, both in the popular and in the professional view,
+a _Contract_ was long regarded as an _incomplete Conveyance_, the
+truth has importance for many reasons. The speculations of the last
+century concerning mankind in a state of nature, are not unfairly
+summed up in the doctrine that "in the primitive society property was
+nothing, and obligation everything;" and it will now be seen that, if
+the proposition were reversed, it would be nearer the reality. On the
+other hand, considered historically, the primitive association of
+Conveyances and Contracts explains something which often strikes the
+scholar and jurist as singularly enigmatical, I mean the extraordinary
+and uniform severity of very ancient systems of law to _debtors_, and
+the extravagant powers which they lodge with _creditors_. When once we
+understand that the _nexum_ was artificially prolonged to give time to
+the debtor, we can better comprehend his position in the eye of the
+public and of the law. His indebtedness was doubtless regarded as an
+anomaly, and suspense of payment in general as an artifice and a
+distortion of strict rule. The person who had duly consummated his
+part in the transaction must, on the contrary, have stood in peculiar
+favour; and nothing would seem more natural than to arm him with
+stringent facilities for enforcing the completion of a proceeding
+which, of strict right, ought never to have been extended or deferred.
+
+Nexum, therefore, which originally signified a Conveyance of property,
+came insensibly to denote a Contract also, and ultimately so constant
+became the association between this word and the notion of a Contract,
+that a special term, Mancipium or Mancipatio, had to be used for the
+purpose of designating the true nexum or transaction in which the
+property was really transferred. Contracts are therefore now severed
+from Conveyances, and the first stage in their history is
+accomplished, but still they are far enough from that epoch of their
+development when the promise of the contractor has a higher sacredness
+than the formalities with which it is coupled. In attempting to
+indicate the character of the changes passed through in this interval,
+it is necessary to trespass a little on a subject which lies properly
+beyond the range of these pages, the analysis of Agreement effected by
+the Roman jurisconsults. Of this analysis, the most beautiful monument
+of their sagacity, I need not say more than that it is based on the
+theoretical separation of the Obligation from the Convention or Pact.
+Bentham and Mr. Austin have laid down that the "two main essentials of
+a contract are these: first, a signification by the promising party of
+his _intention_ to do the acts or to observe the forbearances which he
+promises to do or to observe. Secondly, a signification by the
+promisee that he _expects_ the promising party will fulfil the
+proffered promise." This is virtually identical with the doctrine of
+the Roman lawyers, but then, in their view, the result of these
+"significations" was not a Contract, but a Convention or Pact. A Pact
+was the utmost product of the engagements of individuals agreeing
+among themselves, and it distinctly fell short of a Contract. Whether
+it ultimately became a Contract depended on the question whether the
+law annexed an Obligation to it. A Contract was a Pact (or Convention)
+_plus_ an Obligation. So long as the Pact remained unclothed with the
+Obligation, it was called _nude_ or _naked_.
+
+What was an Obligation? It is defined by the Roman lawyers as "Juris
+vinculum, quo necessitate adstringimur alicujus solvendæ rei." This
+definition connects the Obligation with the Nexum through the common
+metaphor on which they are founded, and shows us with much clearness
+the pedigree of a peculiar conception. The Obligation is the "bond" or
+"chain" with which the law joins together persons or groups of
+persons, in consequence of certain voluntary acts. The acts which have
+the effect of attracting an Obligation are chiefly those classed under
+the heads of Contract and Delict, of Agreement and Wrong; but a
+variety of other acts have a similar consequence which are not capable
+of being comprised in an exact classification. It is to be remarked,
+however, that the act does not draw to itself the Obligation in
+consequence of any moral necessity; it is the law which annexes it in
+the plenitude of its power, a point the more necessary to be noted,
+because a different doctrine has sometimes been propounded by modern
+interpreters of the Civil Law who had moral or metaphysical theories
+of their own to support. The image of a _vinculum juris_ colours and
+pervades every part of the Roman law of Contract and Delict. The law
+bound the parties together, and the _chain_ could only be undone by
+the process called _solutio_, an expression still figurative, to which
+our word "payment" is only occasionally and incidentally equivalent.
+The consistency with which the figurative image was allowed to present
+itself, explains an otherwise puzzling peculiarity of Roman legal
+phraseology, the fact that "Obligation" signified rights as well as
+duties, the right, for example, to have a debt paid as well as the
+duty of paying it. The Romans kept in fact the entire picture of the
+"legal chain" before their eyes, and regarded one end of it no more
+and no less than the other.
+
+In the developed Roman law, the Convention, as soon as it was
+completed, was, in almost all cases, at once crowned with the
+Obligation, and so became a Contract; and this was the result to which
+contract-law was surely tending. But for the purpose of this inquiry,
+we must attend particularly to the intermediate stage--that in which
+something more than a perfect agreement was required to attract the
+Obligation. This epoch is synchronous with the period at which the
+famous Roman classification of Contracts into four sorts--the Verbal,
+the Literal, the Real, and the Consensual--had come into use, and
+during which these four orders of Contracts constituted the only
+descriptions of engagement which the law would enforce. The meaning of
+the fourfold distribution is readily understood as soon as we
+apprehend the theory which severed the Obligation from the Convention.
+Each class of contracts was in fact named from certain formalities
+which were required over and above the mere agreement of the
+contracting parties. In the Verbal Contract, as soon as the Convention
+was effected, a form of words had to be gone through before the
+vinculum juris was attached to it. In the Literal Contract, an entry
+in a ledger or table-book had the effect of clothing the Convention
+with the Obligation, and the same result followed, in the case of the
+Real Contract, from the delivery of the Res or Thing which was the
+subject of the preliminary engagement. The contracting parties came,
+in short, to an understanding in each case; but, if they went no
+further, they were not _obliged_ to one another, and could not compel
+performance or ask redress for a breach of faith. But let them comply
+with certain prescribed formalities, and the Contract was immediately
+complete, taking its name from the particular form which it had suited
+them to adopt. The exceptions to this practice will be noticed
+presently.
+
+I have enumerated the four Contracts in their historical order, which
+order, however, the Roman Institutional writers did not invariably
+follow. There can be no doubt that the Verbal Contract was the most
+ancient of the four, and that it is the eldest known descendant of the
+primitive Nexum. Several species of Verbal Contract were anciently in
+use, but the most important of all, and the only one treated of by our
+authorities, was effected by means of a _stipulation_, that is, a
+Question and Answer; a question addressed by the person who exacted
+the promise, and an answer given by the person who made it. This
+question and answer constituted the additional ingredient which, as I
+have just explained, was demanded by the primitive notion over and
+above the mere agreement of the persons interested. They formed the
+agency by which the Obligation was annexed. The old Nexum has now
+bequeathed to maturer jurisprudence first of all the conception of a
+chain uniting the contracting parties, and this has become the
+Obligation. It has further transmitted the notion of a ceremonial
+accompanying and consecrating the engagement, and this ceremonial has
+been transmuted into the Stipulation. The conversion of the solemn
+conveyance, which was the prominent feature of the original Nexum,
+into a mere question and answer, would be more of a mystery than it is
+if we had not the analogous history of Roman Testaments to enlighten
+us. Looking to that history, we can understand how the formal
+Conveyance was first separated from the part of the proceeding which
+had immediate reference to the business in hand, and how afterwards it
+was omitted altogether. As then the question and answer of the
+Stipulation were unquestionably the Nexum in a simplified shape, we
+are prepared to find that they long partook of the nature of a
+technical form. It would be a mistake to consider them as exclusively
+recommending themselves to the older Roman lawyers through their
+usefulness in furnishing persons meditating an agreement with an
+opportunity for consideration and reflection. It is not to be disputed
+that they had a value of this kind, which was gradually recognised;
+but there is proof that their function in respect to Contracts was at
+first formal and ceremonial in the statement of our authorities, that
+not every question and answer was of old sufficient to constitute a
+Stipulation, but only a question and answer couched in technical
+phraseology specially appropriated to the particular occasion.
+
+But although it is essential for the proper appreciation of the
+history of contract-law that the Stipulation should be understood to
+have been looked upon as a solemn form before it was recognised as a
+useful security, it would be wrong on the other hand to shut our eyes
+to its real usefulness. The Verbal Contract, though it had lost much
+of its ancient importance, survived to the latest period of Roman
+jurisprudence; and we may take it for granted that no institution of
+Roman law had so extended a longevity unless it served some practical
+advantage. I observe in an English writer some expressions of surprise
+that the Romans even of the earliest times were content with so meagre
+a protection against haste and irreflection. But on examining the
+Stipulation closely, and remembering that we have to do with a state
+of society in which written evidence was not easily procurable, I
+think we must admit that this Question and Answer, had it been
+expressly devised to answer the purpose which it served, would have
+been justly designated a highly ingenious expedient. It was the
+_promisee_ who, in the character of stipulator, put all the terms of
+the contract into the form of a question, and the answer was given by
+the _promisor_. "Do you promise that you will deliver me such and such
+a slave, at such and such a place, on such and such a day?" "I do
+promise." Now, if we reflect for a moment, we shall see that this
+obligation to put the promise interrogatively inverts the natural
+position of the parties, and, by effectually breaking the tenor of the
+conversation, prevents the attention from gliding over a dangerous
+pledge. With us, a verbal promise is, generally speaking, to be
+gathered exclusively from the words of the promisor. In old Roman law,
+another step was absolutely required; it was necessary for the
+promisee, after the agreement had been made, to sum up all its terms
+in a solemn interrogation; and it was of this interrogation, of
+course, and of the assent to it, that proof had to be given at the
+trial--_not_ of the promise, which was not in itself binding. How
+great a difference this seemingly insignificant peculiarity may make
+in the phraseology of contract-law is speedily realised by the
+beginner in Roman jurisprudence, one of whose first stumbling-blocks
+is almost universally created by it. When we in English have occasion,
+in mentioning a contract, to connect it for convenience' sake with one
+of the parties--for example, if we wished to speak generally of a
+contractor--it is always the _promisor_ at whom our words are
+pointing. But the general language of Roman law takes a different
+turn; it always regards the contract, if we may so speak, from the
+point of view of the _promisee_; in speaking of a party to a contract,
+it is always the Stipulator, the person who asks the question, who is
+primarily alluded to. But the serviceableness of the stipulation is
+most vividly illustrated by referring to the actual examples in the
+pages of the Latin comic dramatists. If the entire scenes are read
+down in which these passages occur (ex. gra. Plautus, _Pseudolus_, Act
+I. sc. i; Act IV. sc. 6; _Trinummus_, Act V. sc. 2), it will be
+perceived how effectually the attention of the person meditating the
+promise must have been arrested by the question, and how ample was the
+opportunity for withdrawal from an improvident undertaking.
+
+In the Literal or Written Contract, the formal act, by which an
+Obligation was superinduced on the Convention, was an entry of the sum
+due, where it could be specifically ascertained, on the debit side of
+a ledger. The explanation of this Contract turns on a point of Roman
+domestic manners, the systematic character and exceeding regularity of
+bookkeeping in ancient times. There are several minor difficulties of
+old Roman law, as, for example, the nature of the Slave's Peculium,
+which are only cleared up when we recollect that a Roman household
+consisted of a number of persons strictly accountable to its head, and
+that every single item of domestic receipt and expenditure, after
+being entered in waste books, was transferred at stated periods to a
+general household ledger. There are some obscurities, however, in the
+descriptions we have received of the Literal Contract, the fact being
+that the habit of keeping books ceased to be universal in later times,
+and the expression "Literal Contract" came to signify a form of
+engagement entirely different from that originally understood. We are
+not, therefore, in a position to say, with respect to the primitive
+Literal Contract, whether the obligation was created by a simple entry
+on the part of the creditor, or whether the consent of the debtor or a
+corresponding entry in his own books was necessary to give it legal
+effect. The essential point is however established that, in the case
+of this Contract, all formalities were dispensed with on a condition
+being complied with. This is another step downwards in the history of
+contract-law.
+
+The Contract which stands next in historical succession, the Real
+Contract, shows a great advance in ethical conceptions. Whenever any
+agreement had for its object the delivery of a specific thing--and
+this is the case with the large majority of simple engagements--the
+Obligation was drawn down as soon as the delivery had actually taken
+place. Such a result must have involved a serious innovation on the
+oldest ideas of Contract; for doubtless, in the primitive times, when
+a contracting party had neglected to clothe his agreement in a
+stipulation, nothing done in pursuance of the agreement would be
+recognised by the law. A person who had paid over money on loan would
+be unable to sue for its repayment unless he had formally _stipulated_
+for it. But, in the Real Contract, performance on one side is allowed
+to impose a legal duty on the other--evidently on ethical grounds. For
+the first time then moral considerations appear as an ingredient in
+Contract-law, and the Real Contract differs from its two predecessors
+in being founded on these, rather than on respect for technical forms
+or on deference to Roman domestic habits.
+
+We now reach the fourth class, or Consensual Contracts, the most
+interesting and important of all. Four specified Contracts were
+distinguished by this name: Mandatum, _i.e._ Commission or Agency;
+Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductio
+or Letting and Hiring. A few pages ago, after stating that a Contract
+consisted of a Pact or Convention to which an Obligation had been
+superadded, I spoke of certain acts or formalities by which the law
+permitted the Obligation to be attracted to the Pact. I used this
+language on account of the advantage of a general expression, but it
+is not strictly correct unless it be understood to include the
+negative as well as the positive. For, in truth, the peculiarity of
+these Consensual Contracts is that _no_ formalities, are required to
+create them out of the Pact. Much that is indefensible, and much more
+that is obscure, has been written about the Consensual Contracts, and
+it has even been asserted that in them the _consent_ of the Parties is
+more emphatically given than in any other species of agreement. But
+the term Consensual merely indicates that the Obligation is here
+annexed at once to the _Consensus_. The Consensus, or mutual assent of
+the parties, is the final and crowning ingredient in the Convention,
+and it is the special characteristic of agreements falling under one
+of the four heads of Sale, Partnership, Agency, and Hiring, that, as
+soon as the assent of the parties has supplied this ingredient, there
+is _at once_ a Contract. The Consensus draws with it the Obligation,
+performing, in transactions of the sort specified, the exact functions
+which are discharged, in the other contracts, by the _Res_ or Thing,
+by the _Verba_ stipulationis, and by the _Literæ_ or written entry in
+a ledger. Consensual is therefore a term which does not involve the
+slightest anomaly, but is exactly analogous to Real, Verbal, and
+Literal.
+
+In the intercourse of life the commonest and most important of all the
+contracts are unquestionably the four styled Consensual. The larger
+part of the collective existence of every community is consumed in
+transactions of buying and selling, of letting and hiring, of
+alliances between men for purposes of business, of delegation of
+business from one man to another; and this is no doubt the
+consideration which led the Romans, as it has led most societies, to
+relieve these transactions from technical incumbrance, to abstain as
+much as possible from clogging the most efficient springs of social
+movement. Such motives were not of course confined to Rome, and the
+commerce of the Romans with their neighbours must have given them
+abundant opportunities for observing that the contracts before us
+tended everywhere to become _Consensual_, obligatory on the mere
+signification of mutual assent. Hence, following their usual practice,
+they distinguished these contracts as contracts _Juris Gentium_. Yet I
+do not think that they were so named at a very early period. The first
+notions of a Jus Gentium may have been deposited in the minds of the
+Roman lawyers long before the appointment of a Prætor Peregrinus, but
+it would only be through extensive and regular trade that they would
+be familiarised with the contractual system of other Italian
+communities, and such a trade would scarcely attain considerable
+proportions before Italy had been thoroughly pacified, and the
+supremacy of Rome conclusively assured. Although, however, there is
+strong probability that the Consensual Contracts were the latest-born
+into the Roman system, and though it is likely that the qualification,
+_Juris Gentium_, stamps the recency of their origin, yet this very
+expression, which attributes them to the "Law of Nations," has in
+modern times produced the notion of their extreme antiquity. For,
+when the "Law of Nations" had been converted into the "Law of Nature,"
+it seemed to be implied that the Consensual Contracts were the type of
+the agreements most congenial to the natural state; and hence arose
+the singular belief that the younger the civilisation, the simpler
+must be its forms of contract.
+
+The Consensual Contracts, it will be observed, were extremely limited
+in number. But it cannot be doubted that they constituted the stage in
+the history of Contract-law from which all modern conceptions of
+contract took their start. The motion of the will which constitutes
+agreement was now completely insulated, and became the subject of
+separate contemplation; forms were entirely eliminated from the notion
+of contract, and external acts were only regarded as symbols of the
+internal act of volition. The Consensual Contracts had, moreover, been
+classed in the Jus Gentium, and it was not long before this
+classification drew with it the inference that they were the species
+of agreement which represented the engagements approved of by Nature
+and included in her code. This point once reached, we are prepared for
+several celebrated doctrines and distinctions of the Roman lawyers.
+One of them is the distinction between Natural and Civil Obligations.
+When a person of full intellectual maturity had deliberately bound
+himself by an engagement, he was said to be under a _natural
+obligation_, even though he had omitted some necessary formality, and
+even though through some technical impediment he was devoid of the
+formal capacity for making a valid contract. The law (and this is what
+the distinction implies) would not enforce the obligation, but it did
+not absolutely refuse to recognise it; and _natural obligations_
+differed in many respects from obligations which were merely null and
+void, more particularly in the circumstance that they could be civilly
+confirmed, if the capacity for contract were subsequently acquired.
+Another very peculiar doctrine of the jurisconsults could not have had
+its origin earlier than the period at which the Convention was severed
+from the technical ingredients of Contract. They taught that though
+nothing but a Contract could be the foundation of an _action_, a mere
+Pact or Convention could be the basis of a _plea_. It followed from
+this, that though nobody could sue upon an agreement which he had not
+taken the precaution to mature into a Contract by complying with the
+proper forms, nevertheless a claim arising out of a valid contract
+could be rebutted by proving a counter-agreement which had never got
+beyond the state of a simple convention. An action for the recovery of
+a debt could be met by showing a mere informal agreement to waive or
+postpone the payment.
+
+The doctrine just stated indicates the hesitation of the Prætors in
+making their advances towards the greatest of their innovations. Their
+theory of Natural law must have led them to look with especial favour
+on the Consensual Contracts and on those Pacts or Conventions of which
+the Consensual Contracts were only particular instances; but they did
+not at once venture on extending to all Conventions the liberty of the
+Consensual Contracts. They took advantage of that special
+superintendence over procedure which had been confided to them since
+the first beginnings of Roman law, and, while they still declined to
+permit a suit to be launched which was not based on a formal contract,
+they gave full play to their new theory of agreement in directing the
+ulterior stages of the proceeding. But, when they had proceeded thus
+far, it was inevitable that they should proceed farther. The
+revolution of the ancient law of Contract was consummated when the
+Prætor of some one year announced in his Edict that he would grant
+equitable actions upon Pacts which had never been matured at all into
+Contracts, provided only that the Pacts in question had been founded
+on a consideration (_causa_). Pacts of this sort are always enforced
+under the advanced Roman jurisprudence. The principle is merely the
+principle of the Consensual Contract carried to its proper
+consequence; and, in fact, if the technical language of the Romans had
+been as plastic as their legal theories, these Pacts enforced by the
+Prætor would have been styled new Contracts, new Consensual Contracts.
+Legal phraseology is, however, the part of the law which is the last
+to alter, and the Pacts equitably enforced continued to be designated
+simply Prætorian Pacts. It will be remarked that unless there were
+consideration for the Pact, it would continue _nude_ so far as the new
+jurisprudence was concerned; in order to give it effect, it would be
+necessary to convert it by a stipulation into a Verbal Contract.
+
+The extreme importance of this history of Contract, as a safeguard
+against almost innumerable delusions, must be my justification for
+discussing it at so considerable a length. It gives a complete account
+of the march of ideas from one great landmark of jurisprudence to
+another. We begin with Nexum, in which a Contract and a Conveyance are
+blended, and in which the formalities which accompany the agreement
+are even more important than the agreement itself. From the Nexum we
+pass to the Stipulation, which is a simplified form of the older
+ceremonial. The Literal Contract comes next, and here all formalities
+are waived, if proof of the agreement can be supplied from the rigid
+observances of a Roman household. In the Real Contract a moral duty is
+for the first time recognised, and persons who have joined or
+acquiesced in the partial performance of an engagement are forbidden
+to repudiate it on account of defects in form. Lastly, the Consensual
+Contracts emerge, in which the mental attitude of the contractors is
+solely regarded, and external circumstances have no title to notice
+except as evidence of the inward undertaking. It is of course
+uncertain how far this progress of Roman ideas from a gross to a
+refined conception exemplifies the necessary progress of human thought
+on the subject of Contract. The Contract-law of all other ancient
+societies but the Roman is either too scanty to furnish information,
+or else is entirely lost; and modern jurisprudence is so thoroughly
+leavened with the Roman notions that it furnishes us with no contrasts
+or parallels from which instruction can be gleaned. From the absence,
+however, of everything violent, marvellous, or unintelligible in the
+changes I have described, it may be reasonably believed that the
+history of ancient Roman Contracts is, up to a certain point, typical
+of the history of this class of legal conceptions in other ancient
+societies. But it is only up to a certain point that the progress of
+Roman law can be taken to represent the progress of other systems of
+jurisprudence. The theory of Natural law is exclusively Roman. The
+notion of the _vinculum juris_, so far as my knowledge extends, is
+exclusively Roman. The many peculiarities of the mature Roman law of
+Contract and Delict which are traceable to these two ideas, whether
+singly or in combination, are therefore among the exclusive products
+of one particular society. These later legal conceptions are
+important, not because they typify the necessary results of advancing
+thought under all conditions, but because they have exercised
+perfectly enormous influence on the intellectual diathesis of the
+modern world.
+
+I know nothing more wonderful than the variety of sciences to which
+Roman law, Roman Contract-law more particularly, has contributed modes
+of thought, courses of reasoning, and a technical language. Of the
+subjects which have whetted the intellectual appetite of the moderns,
+there is scarcely one, except Physics, which has not been filtered
+through Roman jurisprudence. The science of pure Metaphysics had,
+indeed, rather a Greek than a Roman parentage, but Politics, Moral
+Philosophy, and even Theology, found in Roman law not only a vehicle
+of expression, but a nidus in which some of their profoundest
+inquiries were nourished into maturity. For the purpose of accounting
+for this phenomenon, it is not absolutely necessary to discuss the
+mysterious relation between words and ideas, or to explain how it is
+that the human mind has never grappled with any subject of thought,
+unless it has been provided beforehand with a proper store of language
+and with an apparatus of appropriate logical methods. It is enough to
+remark, that, when the philosophical interests of the Eastern and
+Western worlds were separated, the founders of Western thought
+belonged to a society which spoke Latin and reflected in Latin. But in
+the Western provinces the only language which retained sufficient
+precision for philosophical purposes was the language of Roman law,
+which by a singular fortune had preserved nearly all the purity of the
+Augustan age, while vernacular Latin was degenerating into a dialect
+of portentous barbarism. And if Roman jurisprudence supplied the only
+means of exactness in speech, still more emphatically did it furnish
+the only means of exactness, subtlety, or depth in thought. For at
+least three centuries, philosophy and science were without a home in
+the West; and though metaphysics and metaphysical theology were
+engrossing the mental energies of multitudes of Roman subjects, the
+phraseology employed in these ardent inquiries was exclusively Greek,
+and their theatre was the Eastern half of the Empire. Sometimes,
+indeed, the conclusions of the Eastern disputants became so important
+that every man's assent to them, or dissent from them, had to be
+recorded, and then the West was introduced to the results of Eastern
+controversy, which it generally acquiesced in without interest and
+without resistance. Meanwhile, one department of inquiry, difficult
+enough for the most laborious, deep enough for the most subtle,
+delicate enough for the most refined, had never lost its attractions
+for the educated classes of the Western provinces. To the cultivated
+citizen of Africa, of Spain, of Gaul and of Northern Italy, it was
+jurisprudence, and jurisprudence only, which stood in the place of
+poetry and history, of philosophy and science. So far then from there
+being anything mysterious in the palpably legal complexion of the
+earliest efforts of Western thought it would rather be astonishing if
+it had assumed any other hue. I can only express my surprise at the
+scantiness of the attention which has been given to the difference
+between Western ideas and Eastern, between Western theology and
+Eastern, caused by the presence of a new ingredient. It is precisely
+because the influence of jurisprudence begins to be powerful that the
+foundation of Constantinople and the subsequent separation of the
+Western Empire from the Eastern, are epochs in philosophical history.
+But continental thinkers are doubtless less capable of appreciating
+the importance of this crisis by the very intimacy with which notions
+derived from Roman Law are mingled up with every-day ideas.
+Englishmen, on the other hand, are blind to it through the monstrous
+ignorance to which they condemn themselves of the most plentiful
+source of the stream of modern knowledge, of the one intellectual
+result of the Roman civilisation. At the same time, an Englishman, who
+will be at the pains to familiarise himself with the classical Roman
+law, is perhaps, from the very slightness of the interest which his
+countrymen have hitherto taken in the subject, a better judge than a
+Frenchman or a German of the value of the assertions I have ventured
+to make. Anybody who knows what Roman jurisprudence is, as actually
+practised by the Romans, and who will observe in what characteristics
+the earliest Western theology and philosophy differ from the phases of
+thought which preceded them, may be safely left to pronounce what was
+the new element which had begun to pervade and govern speculation.
+
+The part of Roman law which has had most extensive influence on
+foreign subjects of inquiry has been the law of Obligation, or what
+comes nearly to the same thing, of Contract and Delict. The Romans
+themselves were not unaware of the offices which the copious and
+malleable terminology belonging to this part of their system might be
+made to discharge, and this is proved by their employment of the
+peculiar adjunct _quasi_ in such expressions as Quasi-Contract and
+Quasi-Delict. "Quasi," so used, is exclusively a term of
+classification. It has been usual with English critics to identify the
+Quasi-contracts with _implied_ contracts, but this is an error, for
+implied contracts are true contracts, which quasi-contracts are not.
+In implied contracts, acts and circumstances are the symbols of the
+same ingredients which are symbolised, in express contracts, by words;
+and whether a man employs one set of symbols or the other must be a
+matter of indifference so far as concerns the theory of agreement. But
+a Quasi-Contract is not a contract at all. The commonest sample of the
+class is the relation subsisting between two persons one of whom has
+paid money to the other through mistake. The law, consulting the
+interests of morality, imposes an obligation on the receiver to
+refund, but the very nature of the transaction indicates that it is
+not a contract, inasmuch as the Convention, the most essential
+ingredient of Contract, is wanting. This word "quasi," prefixed to a
+term of Roman law, implies that the conception to which it serves as
+an index is connected with the conception with which the comparison is
+instituted by a strong superficial analogy or resemblance. It does not
+denote that the two conceptions are the same or that they belong to
+the same genus. On the contrary, it negatives the notion of an
+identity between them; but it points out that they are sufficiently
+similar for one to be classed as the sequel to the other, and that the
+phraseology taken from one department of law may be transferred to the
+other and employed without violent straining in the statement of rules
+which would otherwise be imperfectly expressed.
+
+It has been shrewdly remarked, that the confusion between Implied
+Contracts, which are true contracts, and Quasi Contracts, which are
+not contracts at all, has much in common with the famous error which
+attributed political rights and duties to an Original Compact between
+the governed and the governor. Long before this theory had clothed
+itself in definite shape, the phraseology of Roman contract-law had
+been largely drawn upon to describe that reciprocity of rights and
+duties which men had always conceived as existing between sovereigns
+and subjects. While the world was full of maxims setting forth with
+the utmost positiveness the claims of kings to implicit
+obedience--maxims which pretended to have had their origin in the New
+Testament, but which were really derived from indelible recollections
+of the Cæsarian despotism--the consciousness of correlative rights
+possessed by the governed would have been entirely without the means
+of expression if the Roman law of Obligation had not supplied a
+language capable of shadowing forth an idea which was as yet
+imperfectly developed. The antagonism between the privileges of kings
+and their duties to their subjects was never, I believe, lost sight of
+since Western history began, but it had interest for few except
+speculative writers so long as feudalism continued in vigour, for
+feudalism effectually controlled by express customs the exorbitant
+theoretical pretensions of most European sovereigns. It is notorious,
+however, that as soon as the decay of the Feudal System had thrown the
+mediæval constitutions out of working order, and when the Reformation
+had discredited the authority of the Pope, the doctrine of the divine
+right of Kings rose immediately into an importance which had never
+before attended it. The vogue which it obtained entailed still more
+constant resort to the phraseology of Roman law, and a controversy
+which had originally worn a theological aspect assumed more and more
+the air of a legal disputation. A phenomenon then appeared which has
+repeatedly shown itself in the history of opinion. Just when the
+argument for monarchical authority rounded itself into the definite
+doctrine of Filmer, the phraseology, borrowed from the Law of
+Contract, which had been used in defence of the rights of subjects,
+crystallised into the theory of an actual original compact between
+king and people, a theory which, first in English and afterwards, and
+more particularly, in French hands, expanded into a comprehensive
+explanation of all the phenomena of society and law. But the only real
+connection between political and legal science had consisted in the
+last giving to the first the benefit of its peculiarly plastic
+terminology. The Roman jurisprudence of Contract had performed for the
+relation of sovereign and subject precisely the same service which, in
+a humbler sphere, it rendered to the relation of persons bound
+together by an obligation of "quasi-contract." It had furnished a body
+of words and phrases which approximated with sufficient accuracy to
+the ideas which then were from time to time forming on the subject of
+political obligation. The doctrine of an Original Compact can never be
+put higher than it is placed by Dr. Whewell, when he suggests that,
+though unsound, "it may be a _convenient_ form for the expression of
+moral truths."
+
+The extensive employment of legal language on political subjects
+previously to the invention of the Original Compact, and the powerful
+influence which that assumption has exercised subsequently, amply
+account for the plentifulness in political science of words and
+conceptions, which were the exclusive creation of Roman jurisprudence.
+Of their plentifulness in Moral Philosophy a rather different
+explanation must be given, inasmuch as ethical writings have laid
+Roman law under contribution much more directly than political
+speculations, and their authors have been much more conscious of the
+extent of their obligation. In speaking of moral philosophy as
+extraordinarily indebted to Roman jurisprudence, I must be understood
+to intend moral philosophy as understood previously to the break in
+its history effected by Kant, that is, as the science of the rules
+governing human conduct, of their proper interpretation and of the
+limitations to which they are subject. Since the rise of the Critical
+Philosophy, moral science has almost wholly lost its older meaning,
+and, except where it is preserved under a debased form in the
+casuistry still cultivated by Roman Catholic theologians, it seems to
+be regarded nearly universally as a branch of ontological inquiry. I
+do not know that there is a single contemporary English writer, with
+the exception of Dr. Whewell, who understands moral philosophy as it
+was understood before it was absorbed by metaphysics and before the
+groundwork of its rules came to be a more important consideration than
+the rules themselves. So long, however, as ethical science had to do
+with the practical regimen of conduct, it was more or less saturated
+with Roman law. Like all the great subjects of modern thought, it was
+originally incorporated with theology. The science of Moral Theology,
+as it was at first called, and as it is still designated by the Roman
+Catholic divines, was undoubtedly constructed, to the full knowledge
+of its authors, by taking principles of conduct from the system of the
+Church, and by using the language and methods of jurisprudence for
+their expression and expansion. While this process went on, it was
+inevitable that jurisprudence, though merely intended to be the
+vehicle of thought, should communicate its colour to the thought
+itself. The tinge received through contact with legal conceptions is
+perfectly perceptible in the earliest ethical literature of the modern
+world, and it is evident, I think, that the Law of Contract, based as
+it is on the complete reciprocity and indissoluble connection of
+rights and duties, has acted as a wholesome corrective to the
+predispositions of writers who, if left to themselves, might have
+exclusively viewed a moral obligation as the public duty of a citizen
+in the Civitas Dei. But the amount of Roman Law in moral theology
+becomes sensibly smaller at the time of its cultivation by the great
+Spanish moralists. Moral theology, developed by the juridical method
+of doctor commenting on doctor, provided itself with a phraseology of
+its own, and Aristotelian peculiarities of reasoning and expression,
+imbibed doubtless in great part from the Disputations on Morals in the
+academical schools, take the place of that special turn of thought and
+speech which can never be mistaken by any person conversant with the
+Roman law. If the credit of the Spanish school of moral theologians
+had continued, the juridical ingredient in ethical science would have
+been insignificant, but the use made of their conclusions by the next
+generation of Roman Catholic writers on these subjects almost entirely
+destroyed their influence. Moral Theology, degraded into Casuistry,
+lost all interest for the leaders of European speculation; and the new
+science of Moral Philosophy, which was entirely in the hands of the
+Protestants, swerved greatly aside from the path which the moral
+theologians had followed. The effect was vastly to increase the
+influence of Roman law on ethical inquiry.
+
+Shortly[5] after the Reformation, we find two great schools of
+thought dividing this class of subjects between them. The most
+influential of the two was at first the sect of school known to us as
+the Casuists, all of them in spiritual communion with the Roman
+Catholic Church, and nearly all of them affiliated to one or other of
+her religious orders. On the other side were a body of writers
+connected with each other by a common intellectual descent from the
+great author of the treatise _De Jure Belli et Pacis_, Hugo Grotius.
+Almost all of the latter were adherents of the Reformation, and
+though it cannot be said that they were formally and avowedly at
+conflict with the Casuists, the origin and object of their system were
+nevertheless essentially different from those of Casuistry. It is
+necessary to call attention to this difference, because it involves
+the question of the influence of Roman law on that department of
+thought with which both systems are concerned. The book of Grotius,
+though it touches questions of pure Ethics in every page, and though
+it is the parent immediate or remote of innumerable volumes of formal
+morality, is not, as is well known, a professed treatise on Moral
+Philosophy; it is an attempt to determine the Law of Nature, or
+Natural Law. Now, without entering upon the question, whether the
+conception of a Law Natural be not exclusively a creation of the Roman
+jurisconsults, we may lay down that, even on the admission of Grotius
+himself, the dicta of the Roman jurisprudence as to what parts of
+known positive law must be taken to be parts of the Law of Nature,
+are, if not infallible, to be received at all events with the
+profoundest respect. Hence the system of Grotius is implicated with
+Roman law at its very foundation, and this connection rendered
+inevitable--what the legal training of the writer would perhaps have
+entailed without it--the free employment in every paragraph of
+technical phraseology, and of modes of reasoning, defining, and
+illustrating, which must sometimes conceal the sense, and almost
+always the force and cogency, of the argument from the reader who is
+unfamiliar with the sources whence they have been derived. On the
+other hand, Casuistry borrows little from Roman law, and the views of
+morality contended for have nothing whatever in common with the
+undertaking of Grotius. All that philosophy of right and wrong which
+has become famous, or infamous, under the name of Casuistry, had its
+origin in the distinction between Mortal and Venial Sin. A natural
+anxiety to escape the awful consequences of determining a particular
+act to be mortally sinful, and a desire, equally intelligible, to
+assist the Roman Catholic Church in its conflict with Protestantism by
+disburthening it of an inconvenient theory, were the motives which
+impelled the authors of the Casuistical philosophy to the invention of
+an elaborate system of criteria, intended to remove immoral actions,
+in as many cases as possible, out of the category of mortal offences,
+and to stamp them as venial sins. The fate of this experiment is
+matter of ordinary history. We know that the distinctions of
+Casuistry, by enabling the priesthood to adjust spiritual control to
+all the varieties of human character, did really confer on it an
+influence with princes, statesmen, and generals, unheard of in the
+ages before the Reformation, and did really contribute largely to that
+great reaction which checked and narrowed the first successes of
+Protestantism. But beginning in the attempt, not to establish, but to
+evade--not to discover a principle, but to escape a postulate--not to
+settle the nature of right and wrong, but to determine what was not
+wrong of a particular nature,--Casuistry went on with its dexterous
+refinements till it ended in so attenuating the moral features of
+actions, and so belying the moral instincts of our being, that at
+length the conscience of mankind rose suddenly in revolt against it,
+and consigned to one common ruin the system and its doctors. The blow,
+long pending, was finally struck in the _Provincial Letters_ of
+Pascal, and since the appearance of those memorable Papers, no
+moralist of the smallest influence or credit has ever avowedly
+conducted his speculations in the footsteps of the Casuists. The whole
+field of ethical science was thus left at the exclusive command of the
+writers who followed Grotius; and it still exhibits in an
+extraordinary degree the traces of that entanglement with Roman law
+which is sometimes imputed as a fault, and sometimes the highest of
+its recommendations, to the Grotian theory. Many inquirers since
+Grotius's day have modified his principles, and many, of course, since
+the rise of the Critical Philosophy, have quite deserted them; but
+even those who have departed most widely from his fundamental
+assumptions have inherited much of his method of statement, of his
+train of thought, and of his mode of illustration; and these have
+little meaning and no point to the person ignorant of Roman jurisprudence.
+
+I have already said that, with the exception of the physical sciences,
+there is no walk of knowledge which has been so slightly affected by
+Roman law as Metaphysics. The reason is that discussion on
+metaphysical subjects has always been conducted in Greek, first in
+pure Greek, and afterwards in a dialect of Latin expressly constructed
+to give expression to Greek conceptions. The modern languages have
+only been fitted to metaphysical inquiries by adopting this Latin
+dialect, or by imitating the process which was originally followed in
+its formation. The source of the phraseology which has been always
+employed for metaphysical discussion in modern times was the Latin
+translations of Aristotle, in which, whether derived or not from
+Arabic versions, the plan of the translator was not to seek for
+analogous expressions in any part of Latin literature, but to
+construct anew from Latin roots a set of phrases equal to the
+expression of Greek philosophical ideas. Over such a process the
+terminology of Roman law can have exercised little influence; at most,
+a few Latin law terms in a transmuted shape have made their way into
+metaphysical language. At the same time it is worthy of remark that
+whenever the problems of metaphysics are those which have been most
+strongly agitated in Western Europe, the thought, if not the language,
+betrays a legal parentage. Few things in the history of speculation
+are more impressive than the fact that no Greek-speaking people has
+ever felt itself seriously perplexed by the great question of
+Free-will and Necessity. I do not pretend to offer any summary
+explanation of this, but it does not seem an irrelevant suggestion
+that neither the Greeks, nor any society speaking and thinking in
+their language, ever showed the smallest capacity for producing a
+philosophy of law. Legal science is a Roman creation, and the problem
+of Free-will arises when we contemplate a metaphysical conception
+under a legal aspect. How came it to be a question whether invariable
+sequence was identical with necessary connection? I can only say that
+the tendency of Roman law, which became stronger as it advanced, was
+to look upon legal consequences as united to legal causes by an
+inexorable necessity, a tendency most markedly exemplified in the
+definition of Obligation which I have repeatedly cited, "Juris
+vinculum quo necessitate adstringimur alicujus solvendæ rei."
+
+But the problem of Free-will was theological before it became
+philosophical, and, if its terms have been affected by jurisprudence,
+it will be because Jurisprudence had made itself felt in Theology. The
+great point of inquiry which is here suggested has never been
+satisfactorily elucidated. What has to be determined, is whether
+jurisprudence has ever served as the medium through which theological
+principles have been viewed; whether, by supplying a peculiar
+language, a peculiar mode of reasoning, and a peculiar solution of
+many of the problems of life, it has ever opened new channels in
+which theological speculation could flow out and expand itself. For
+the purpose of giving an answer it is necessary to recollect what is
+already agreed upon by the best writers as to the intellectual food
+which theology first assimilated. It is conceded on all sides that the
+earliest language of the Christian Church was Greek, and that the
+problems to which it first addressed itself were those for which Greek
+philosophy in its later forms had prepared the way. Greek metaphysical
+literature contained the sole stock of words and ideas out of which
+the human mind could provide itself with the means of engaging in the
+profound controversies as to the Divine Persons, the Divine Substance,
+and the Divine Natures. The Latin language and the meagre Latin
+philosophy were quite unequal to the undertaking, and accordingly the
+Western or Latin-speaking provinces of the Empire adopted the
+conclusions of the East without disputing or reviewing them. "Latin
+Christianity," says Dean Milman, "accepted the creed which its narrow
+and barren vocabulary could hardly express in adequate terms. Yet,
+throughout, the adhesion of Rome and the West was a passive
+acquiescence in the dogmatic system which had been wrought out by the
+profounder theology of the Eastern divines, rather than a vigorous and
+original examination on her part of those mysteries. The Latin Church
+was the scholar as well as the loyal partizan of Athanasius." But when
+the separation of East and West became wider, and the Latin-speaking
+Western Empire began to live with an intellectual life of its own, its
+deference to the East was all at once exchanged for the agitation of a
+number of questions entirely foreign to Eastern speculation. "While
+Greek theology (Milman, _Latin Christianity_, Preface, 5) went on
+defining with still more exquisite subtlety the Godhead and the nature
+of Christ"--"while the interminable controversy still lengthened out
+and cast forth sect after sect from the enfeebled community"--the
+Western Church threw itself with passionate ardour into a new order of
+disputes, the same which from those days to this have never lost their
+interest for any family of mankind at any time included in the Latin
+communion. The nature of Sin and its transmission by inheritance--the
+debt owed by man and its vicarious satisfaction--the necessity and
+sufficiency of the Atonement--above all the apparent antagonism
+between Free-will and the Divine Providence--these were the points
+which the West began to debate as ardently as ever the East had
+discussed the articles of its more special creed. Why is it then that
+on the two sides of the line which divides the Greek-speaking from the
+Latin-speaking provinces there lie two classes of theological problems
+so strikingly different from one another? The historians of the Church
+have come close upon the solution when they remark that the new
+problems were more "practical," less absolutely speculative, than
+those which had torn Eastern Christianity asunder, but none of them,
+so far as I am aware, has quite reached it. I affirm without
+hesitation that the difference between the two theological systems is
+accounted for by the fact that, in passing from the East to the West,
+theological speculation had passed from a climate of Greek metaphysics
+to a climate of Roman law. For some centuries before these
+controversies rose into overwhelming importance, all the intellectual
+activity of the Western Romans had been expended on jurisprudence
+exclusively. They had been occupied in applying a peculiar set of
+principles to all the combinations in which the circumstances of life
+are capable of being arranged. No foreign pursuit or taste called off
+their attention from this engrossing occupation, and for carrying it
+on they possessed a vocabulary as accurate as it was copious, a strict
+method of reasoning, a stock of general propositions on conduct more
+or less verified by experience, and a rigid moral philosophy. It was
+impossible that they should not select from the questions indicated by
+the Christian records those which had some affinity with the order of
+speculations to which they were accustomed, and that their manner of
+dealing with them should borrow something from their forensic habits.
+Almost everybody who has knowledge enough of Roman law to appreciate
+the Roman penal system, the Roman theory of the obligations
+established by Contract or Delict, the Roman view of Debts and of the
+modes of incurring, extinguishing, and transmitting them, the Roman
+notion of the continuance of individual existence by Universal
+Succession, may be trusted to say whence arose the frame of mind to
+which the problems of Western theology proved so congenial, whence
+came the phraseology in which these problems were stated, and whence
+the description of reasoning employed in their solution. It must only
+be recollected that Roman law which had worked itself into Western
+thought was neither the archaic system of the ancient city, nor the
+pruned and curtailed jurisprudence of the Byzantine Emperors; still
+less, of course, was it the mass of rules, nearly buried in a
+parasitical overgrowth of modern speculative doctrine, which passes by
+the name of Modern Civil Law. I speak only of that philosophy of
+jurisprudence, wrought out by the great juridical thinkers of the
+Antonine age, which may still be partially reproduced from the
+Pandects of Justinian, a system to which few faults can be attributed
+except it perhaps aimed at a higher degree of elegance, certainty, and
+precision, than human affairs will permit to the limits within which
+human laws seek to confine them.
+
+It is a singular result of that ignorance of Roman law which
+Englishmen readily confess, and of which they are sometimes not
+ashamed to boast, that many English writers of note and credit have
+been led by it to put forward the most untenable of paradoxes
+concerning the condition of human intellect during the Roman Empire.
+It has been constantly asserted, as unhesitatingly as if there were no
+temerity in advancing the proposition, that from the close of the
+Augustan era to the general awakening of interest on the points of the
+Christian faith, the mental energies of the civilised world were
+smitten with a paralysis. Now there are two subjects of thought--the
+only two perhaps with the exception of physical science--which are
+able to give employment to all the powers and capacities which the
+mind possesses. One of them is Metaphysical inquiry, which knows no
+limits so long as the mind is satisfied to work on itself; the other
+is Law, which is as extensive as the concerns of mankind. It happens
+that, during the very period indicated, the Greek-speaking provinces
+were devoted to one, the Latin-speaking provinces to the other, of
+these studies. I say nothing of the fruits of speculation in
+Alexandria and the East, but I confidently affirm that Rome and the
+West had an occupation in hand fully capable of compensating them for
+the absence of every other mental exercise, and I add that the results
+achieved, so far as we know them, were not unworthy of the continuous
+and exclusive labour bestowed on producing them. Nobody except a
+professional lawyer is perhaps in a position completely to understand
+how much of the intellectual strength of individuals Law is capable of
+absorbing, but a layman has no difficulty in comprehending why it was
+that an unusual share of the collective intellect of Rome was
+engrossed by jurisprudence. "The proficiency[6] of a given community
+in jurisprudence depends in the long run on the same conditions as its
+progress in any other line of inquiry; and the chief of these are the
+proportion of the national intellect devoted to it, and the length of
+time during which it is so devoted. Now, a combination of all the
+causes, direct and indirect, which contribute to the advancing and
+perfecting of a science continued to operate on the jurisprudence of
+Rome through the entire space between the Twelve Tables and the
+severance of the two Empires,--and that not irregularly or at
+intervals, but in steadily increasing force and constantly augmenting
+number. We should reflect that the earliest intellectual exercise to
+which a young nation devotes itself is the study of its laws. As soon
+as the mind makes its first conscious efforts towards generalisation,
+the concerns of every-day life are the first to press for inclusion
+within general rules and comprehensive formulas. The popularity of the
+pursuit on which all the energies of the young commonwealth are bent
+is at the outset unbounded; but it ceases in time. The monopoly of
+mind by law is broken down. The crowd at the morning audience of the
+great Roman jurisconsult lessens. The students are counted by hundreds
+instead of thousands in the English Inns of Court. Art, Literature,
+Science, and Politics, claim their share of the national intellect;
+and the practice of jurisprudence is confined within the circle of a
+profession, never indeed limited or insignificant, but attracted as
+much by the rewards as by the intrinsic recommendations of their
+science. This succession of changes exhibited itself even more
+strikingly at Rome than in England. To the close of the Republic the
+law was the sole field for all ability except the special talent of a
+capacity for generalship. But a new stage of intellectual progress
+began with the Augustan age, as it did with our own Elizabethan era.
+We all know what were its achievements in poetry and prose; but there
+are some indications, it should be remarked, that, besides its
+efflorescence in ornamental literature, it was on the eve of throwing
+out new aptitudes for conquest in physical science. Here, however, is
+the point at which the history of mind in the Roman State ceases to
+be parallel to the routes which mental progress had since then
+pursued. The brief span of Roman literature, strictly so called, was
+suddenly closed under a variety of influences, which though they may
+partially be traced it would be improper in this place to analyse.
+Ancient intellect was forcibly thrust back into its old courses, and
+law again became no less exclusively the proper sphere for talent than
+it had been in the days when the Romans despised philosophy and poetry
+as the toys of a childish race. Of what nature were the external
+inducements which, during the Imperial period, tended to draw a man of
+inherent capacity to the pursuits of the jurisconsult may best be
+understood by considering the option which was practically before him
+in his choice of a profession. He might become a teacher of rhetoric,
+a commander of frontier-posts, or a professional writer of panegyrics.
+The only other walk of active life which was open to him was the
+practice of the law. Through _that_ lay the approach to wealth, to
+fame, to office, to the council-chamber of the monarch--it may be to
+the very throne itself."
+
+The premium on the study of jurisprudence was so enormous that there
+were schools of law in every part of the Empire, even in the very
+domain of Metaphysics. But, though the transfer of the seat of empire
+to Byzantium gave a perceptible impetus to its cultivation in the
+East, jurisprudence never dethroned the pursuits which there competed
+with it. Its language was Latin, an exotic dialect in the Eastern half
+of the Empire. It is only of the West that we can lay down that law
+was not only the mental food of the ambitious and aspiring, but the
+sole aliment of all intellectual activity. Greek philosophy had never
+been more than a transient fashionable taste with the educated class
+of Rome itself, and when the new Eastern capital had been created, and
+the Empire subsequently divided into two, the divorce of the Western
+provinces from Greek speculation, and their exclusive devotion to
+jurisprudence, became more decided than ever. As soon then as they
+ceased to sit at the feet of the Greeks and began to ponder out a
+theology of their own, the theology proved to be permeated with
+forensic ideas and couched in a forensic phraseology. It is certain
+that this substratum of law in Western theology lies exceedingly deep.
+A new set of Greek theories, the Aristotelian philosophy, made
+their way afterwards into the West and almost entirely buried its
+indigenous doctrines. But when at the Reformation it partially shook
+itself free from their influence, it instantly supplied their place
+with Law. It is difficult to say whether the religious system of
+Calvin or the religious system of the Arminians has the more markedly
+legal character.
+
+The vast influence of the specific jurisprudence of Contract produced
+by the Romans upon the corresponding department of modern Law belongs
+rather to the history of mature jurisprudence than to a treatise like
+the present. It did not make itself felt till the school of Bologna
+founded the legal science of modern Europe. But the fact that the
+Romans, before their Empire fell, had so fully developed the
+conception of Contract becomes of importance at a much earlier period
+than this. Feudalism, I have repeatedly asserted, was a compound of
+archaic barbarian usage with Roman law; no other explanation of it is
+tenable, or even intelligible. The earliest social forms of the feudal
+period differ in little from the ordinary associations in which the
+men of primitive civilisations are everywhere seen united. A Fief was
+an organically complete brotherhood of associates whose proprietary
+and personal rights were inextricably blended together. It had much in
+common with an Indian Village Community and much in common with a
+Highland clan. But still it presents some phenomena which we never
+find in the associations which are spontaneously formed by beginners
+in civilisation. True archaic communities are held together not by
+express rules, but by sentiment, or, we should perhaps say, by
+instinct; and new comers into the brotherhood are brought within the
+range of this instinct by falsely pretending to share in the
+blood-relationship from which it naturally springs. But the earliest
+feudal communities were neither bound together by mere sentiment nor
+recruited by a fiction. The tie which united them was Contract, and
+they obtained new associates by contracting with them. The relation of
+the lord to the vassals had originally been settled by express
+engagement, and a person wishing to engraft himself on the brotherhood
+by _commendation_ or _infeudation_ came to a distinct understanding as
+to the conditions on which he was to be admitted. It is therefore the
+sphere occupied in them by Contract which principally distinguishes
+the feudal institutions from the unadulterated usages of primitive
+races. The lord had many of the characteristics of a patriarchal
+chieftain, but his prerogative was limited by a variety of settled
+customs traceable to the express conditions which had been agreed upon
+when the infeudation took place. Hence flow the chief differences
+which forbid us to class the feudal societies with true archaic
+communities. They were much more durable and much more various; more
+durable, because express rules are less destructible than instinctive
+habits, and more various, because the contracts on which they were
+founded were adjusted to the minutest circumstances and wishes of the
+persons who surrendered or granted away their lands. This last
+consideration may serve to indicate how greatly the vulgar opinions
+current among us as to the origin of modern society stand in need of
+revision. It is often said that the irregular and various contour of
+modern civilisation is due to the exuberant and erratic genius of the
+Germanic races, and it is often contrasted with the dull routine of
+the Roman Empire. The truth is that the Empire bequeathed to modern
+society the legal conception to which all this irregularity is
+attributable; if the customs and institutions of barbarians have one
+characteristic more striking than another, it is their extreme
+uniformity.
+
+    [5] The passage quoted is transcribed with slight
+    alterations from a paper contributed by the author to
+    the _Cambridge Essays_ for 1856.
+
+    [6] _Cambridge Essays_, 1856.
+
+
+
+
+CHAPTER X
+
+THE EARLY HISTORY OF DELICT AND CRIME
+
+
+The Teutonic Codes, including those of our Anglo-Saxon ancestors, are
+the only bodies of archaic secular law which have come down to us in
+such a state that we can form an exact notion of their original
+dimensions. Although the extant fragments of Roman and Hellenic codes
+suffice to prove to us their general character, there does not remain
+enough of them for us to be quite sure of their precise magnitude or
+of the proportion of their parts to each other. But still on the whole
+all the known collections of ancient law are characterised by a
+feature which broadly distinguishes them from systems of mature
+jurisprudence. The proportion of criminal to civil law is exceedingly
+different. In the German codes, the civil part of the law has trifling
+dimensions as compared with the criminal. The traditions which speak
+of the sanguinary penalties inflicted by the code of Draco seem to
+indicate that it had the same characteristic. In the Twelve Tables
+alone, produced by a society of greater legal genius and at first of
+gentler manners, the civil law has something like its modern
+precedence; but the relative amount of space given to the modes of
+redressing wrong, though not enormous, appears to have been large. It
+may be laid down, I think, that the more archaic the code, the fuller
+and the minuter is its penal legislation. The phenomenon has often
+been observed, and has been explained, no doubt to a great extent
+correctly, by the violence habitual to the communities which for the
+first time reduced their laws to writing. The legislator, it is said,
+proportioned the divisions of his work to the frequency of a certain
+class of incidents in barbarian life. I imagine, however, that this
+account is not quite complete. It should be recollected that the
+comparative barrenness of civil law in archaic collections is
+consistent with those other characteristics of ancient jurisprudence
+which have been discussed in this treatise. Nine-tenths of the civil
+part of the law practised by civilised societies are made up of the
+Law of Persons, of the Law of Property and of Inheritance, and of the
+Law of Contract. But it is plain that all these provinces of
+jurisprudence must shrink within narrower boundaries, the nearer we
+make our approaches to the infancy of social brotherhood. The Law of
+Persons, which is nothing else than the Law of Status, will be
+restricted to the scantiest limits as long as all forms of status are
+merged in common subjection to Paternal Power, as long as the Wife has
+no rights against her Husband, the Son none against his Father, and
+the infant Ward none against the Agnates who are his Guardians.
+Similarly, the rules relating to Property and Succession can never be
+plentiful, so long as land and goods devolve within the family, and,
+if distributed at all, are distributed inside its circle. But the
+greatest gap in ancient civil law will always be caused by the absence
+of Contract, which some archaic codes do not mention at all, while
+others significantly attest the immaturity of the moral notions on
+which Contract depends by supplying its place with an elaborate
+jurisprudence of Oaths. There are no corresponding reasons for the
+poverty of penal law, and accordingly, even if it be hazardous to
+pronounce that the childhood of nations is always a period of
+ungoverned violence, we shall still be able to understand why the
+modern relation of criminal law to civil should be inverted in ancient
+codes.
+
+I have spoken of primitive jurisprudence as giving to _criminal_ law a
+priority unknown in a later age. The expression has been
+used for convenience' sake, but in fact the inspection of ancient
+codes shows that the law which they exhibit in unusual quantities is
+not true criminal law. All civilised systems agree in drawing a
+distinction between offences against the State or Community and
+offences against the Individual, and the two classes of injuries, thus
+kept apart, I may here, without pretending that the terms have always
+been employed consistently in jurisprudence, call Crimes and Wrongs,
+_crimina_ and _delicta_. Now the penal law of ancient communities is
+not the law of Crimes; it is the law of Wrongs, or, to use the English
+technical word, of Torts. The person injured proceeds against the
+wrong-doer by an ordinary civil action, and recovers compensation in
+the shape of money-damages if he succeeds. If the Commentaries of
+Gaius be opened at the place where the writer treats of the penal
+jurisprudence founded on the Twelve Tables, it will be seen that at
+the head of the civil wrongs recognised by the Roman law stood
+_Furtum_ or _Theft_. Offences which we are accustomed to regard
+exclusively as _crimes_ are exclusively treated as _torts_, and not
+theft only, but assault and violent robbery, are associated by the
+jurisconsult with trespass, libel and slander. All alike gave rise to
+an Obligation or _vinculum juris_, and were all requited by a payment
+of money. This peculiarity, however, is most strongly brought out in
+the consolidated Laws of the Germanic tribes. Without an exception,
+they describe an immense system of money compensations for homicide,
+and with few exceptions, as large a scheme of compensations for minor
+injuries. "Under Anglo-Saxon law," writes Mr. Kemble (_Anglo-Saxons_,
+i. 177), "a sum was placed on the life of every free man, according to
+his rank, and a corresponding sum on every wound that could be
+inflicted on his person, for nearly every injury that could be done to
+his civil rights, honour or peace; the sum being aggravated according
+to adventitious circumstances." These compositions are evidently
+regarded as a valuable source of income; highly complex rules regulate
+the title to them and the responsibility for them; and, as I have
+already had occasion to state, they often follow a very peculiar line
+of devolution, if they have not been acquitted at the decease of the
+person to whom they belong. If therefore the criterion of a _delict_,
+_wrong_, or _tort_ be that the person who suffers it, and not the
+State, is conceived to be wronged, it may be asserted that in the
+infancy of jurisprudence the citizen depends for protection against
+violence or fraud not on the Law of Crime but on the Law of Tort.
+
+Torts then are copiously enlarged upon in primitive jurisprudence. It
+must be added that Sins are known to it also. Of the Teutonic codes it
+is almost unnecessary to make this assertion, because those codes, in
+the form in which we have received them, were compiled or recast by
+Christian legislators. But it is also true that non-Christian bodies
+of archaic law entail penal consequences on certain classes of acts
+and on certain classes of omissions, as being violations of divine
+prescriptions and commands. The law administered at Athens by the
+Senate of Areopagus was probably a special religious code, and at
+Rome, apparently from a very early period, the Pontifical
+jurisprudence punished adultery, sacrilege and perhaps murder. There
+were therefore in the Athenian and in the Roman States laws punishing
+_sins_. There were also laws punishing _torts_. The conception of
+offence against God produced the first class of ordinances; the
+conception of offence against one's neighbour produced the second; but
+the idea of offence against the State or aggregate community did not
+at first produce a true criminal jurisprudence.
+
+Yet it is not to be supposed that a conception so simple and
+elementary as that of wrong done to the State was wanting in any
+primitive society. It seems rather that the very distinctness with
+which this conception is realised is the true cause which at first
+prevents the growth of a criminal law. At all events, when the Roman
+community conceived itself to be injured, the analogy of a personal
+wrong received was carried out to its consequences with absolute
+literalness, and the State avenged itself by a single act on the
+individual wrong-doer. The result was that, in the infancy of the
+commonwealth, every offence vitally touching its security or its
+interests was punished by a separate enactment of the legislature. And
+this is the earliest conception of a _crimen_ or Crime--an act
+involving such high issues that the State, instead of leaving its
+cognisance to the civil tribunal or the religious court, directed a
+special law or _privilegium_ against the perpetrator. Every indictment
+therefore took the form of a bill of pains and penalties, and the
+trial of a _criminal_ was a proceeding wholly extraordinary, wholly
+irregular, wholly independent of settled rules and fixed conditions.
+Consequently, both for the reason that the tribunal dispensing justice
+was the sovereign state itself and also for the reason that no
+classification of the acts prescribed or forbidden was possible, there
+was not at this epoch any _Law_ of crimes, any criminal jurisprudence.
+The procedure was identical with the forms of passing an ordinary
+statute; it was set in motion by the same persons and conducted with
+precisely the same solemnities. And it is to be observed that, when a
+regular criminal law with an apparatus of Courts and officers for its
+administration had afterwards come into being, the old procedure, as
+might be supposed from its conformity with theory, still in strictness
+remained practicable; and, much as resort to such an expedient was
+discredited, the people of Rome always retained the power of punishing
+by a special law offences against its majesty. The classical scholar
+does not require to be reminded that in exactly the same manner the
+Athenian Bill of Pains and Penalties, or [Greek: eisangelia], survived
+the establishment of regular tribunals. It is known too that when the
+freemen of the Teutonic races assembled for legislation, they also
+claimed authority to punish offences of peculiar blackness or
+perpetrated by criminals of exalted station. Of this nature was the
+criminal jurisdiction of the Anglo-Saxon Witenagemot.
+
+It may be thought that the difference which I have asserted to exist
+between the ancient and modern view of penal law has only a verbal
+existence. The community, it may be said, besides interposing to
+punish crimes legislatively, has from the earliest times interfered by
+its tribunals to compel the wrong-doer to compound for his wrong, and,
+if it does this, it must always have supposed that in some way it was
+injured through his offence. But, however rigorous this inference may
+seem to us now-a-days, it is very doubtful whether it was actually
+drawn by the men of primitive antiquity. How little the notion of
+injury to the community had to do with the earliest interferences of
+the State _through its tribunals_, is shown by the curious
+circumstances that in the original administration of justice, the
+proceedings were a close imitation of the series of acts which were
+likely to be gone through in private life by persons who were
+disputing, but who afterwards suffered their quarrel to be appeased.
+The magistrate carefully simulated the demeanour of a private
+arbitrator casually called in.
+
+In order to show that this statement is not a mere fanciful conceit, I
+will produce the evidence on which it rests. Very far the most ancient
+judicial proceeding known to us is the Legis Actio Sacramenti of the
+Romans, out of which all the later Roman Law of Actions may be proved
+to have grown. Gaius carefully describes its ceremonial. Unmeaning and
+grotesque as it appears at first sight, a little attention enables us
+to decipher and interpret it.
+
+The subject of litigation is supposed to be in Court. If it is
+moveable, it is actually there. If it be immoveable, a fragment or
+sample of it is brought in its place; land, for instance, is
+represented by a clod, a house by a single brick. In the example
+selected by Gaius, the suit is for a slave. The proceeding begins by
+the plaintiff's advancing with a rod, which, as Gaius expressly
+tells, symbolised a spear. He lays hold of the slave and asserts a
+right to him with the words, "_Hunc ego hominem ex Jure Quiritium meum
+esse dico secundum suam causam sicut dixi_;" and then saying, "_Ecce
+tibi Vindictam imposui_," he touches him with the spear. The defendant
+goes through the same series of acts and gestures. On this the Prætor
+intervenes, and bids the litigants relax their hold, "_Mittite ambo
+hominem_." They obey, and the plaintiff demands from the defendant the
+reason of his interference, "_Postulo anne dicas quâ ex causâ
+vindicaveris_," a question which is replied to by a fresh assertion of
+right, "_Jus peregi sicut vindictam imposui_." On this, the first
+claimant offers to stake a sum of money, called a Sacramentum, on the
+justice of his own case, "_Quando tu injuriâ provocasti, D æris
+Sacramento te provoco_," and the defendant, in the phrase "_Similiter
+ego te_," accepts the wager. The subsequent proceedings were no longer
+of a formal kind, but it is to be observed that the Prætor took
+security for the Sacramentum, which always went into the coffers of
+the State.
+
+Such was the necessary preface of every ancient Roman suit. It is
+impossible, I think, to refuse assent to the suggestion of those who
+see in it a dramatisation of the Origin of Justice. Two armed men are
+wrangling about some disputed property. The Prætor, _vir pietate
+gravis_, happens to be going by, and interposes to stop the contest.
+The disputants state their case to him, and agree that he shall
+arbitrate between them, it being arranged that the loser, besides
+resigning the subject of the quarrel, shall pay a sum of money to the
+umpire as remuneration for his trouble and loss of time. This
+interpretation would be less plausible than it is, were it not that,
+by a surprising coincidence, the ceremony described by Gaius as the
+imperative course of proceeding in a Legis Actio is substantially the
+same with one of the two subjects which the God Hephæstus is described
+by Homer as moulding into the First Compartment of the Shield of
+Achilles. In the Homeric trial-scene, the dispute, as if expressly
+intended to bring out the characteristics of primitive society, is not
+about property but about the composition for a homicide. One person
+asserts that he has paid it, the other that he has never received it.
+The point of detail, however, which stamps the picture as the
+counterpart of the archaic Roman practice is the reward designed for
+the judges. Two talents of gold lie in the middle, to be given to him
+who shall explain the grounds of the decision most to the satisfaction
+of the audience. The magnitude of this sum as compared with the
+trifling amount of the Sacramentum seems to me indicative of the
+indifference between fluctuating usage and usage consolidated into
+law. The scene introduced by the poet as a striking and
+characteristic, but still only occasional, feature of city-life in the
+heroic age has stiffened, at the opening of the history of civil
+process, into the regular, ordinary formalities of a lawsuit. It is
+natural therefore that in the Legis Actio the remuneration of the
+Judge should be reduced to a reasonable sum, and that, instead of
+being adjudged to one of a number of arbitrators by popular
+acclamation, it should be paid as a matter of course to the State
+which the Prætor represents. But that the incidents described so
+vividly by Homer, and by Gaius with even more than the usual crudity
+of technical language, have substantially the same meaning, I cannot
+doubt; and, in confirmation of this view, it may be added that many
+observers of the earliest judicial usages of modern Europe have
+remarked that the fines inflicted by Courts on offenders were
+originally _sacramenta_. The State did not take from the defendant a
+composition for any wrong supposed to be done to itself, but claimed a
+share in the compensation awarded to the plaintiff simply as the fair
+price of its time and trouble. Mr. Kemble expressly assigns this
+character to the Anglo-Saxon _bannum_ or _fredum_.
+
+Ancient law furnishes other proofs that the earliest administrators of
+justice simulated the probable acts of persons engaged in a private
+quarrel. In settling the damages to be awarded, they took as their
+guide the measure of vengeance likely to be exacted by an aggrieved
+person under the circumstances of the case. This is the true
+explanation of the very different penalties imposed by ancient law on
+offenders caught in the act or soon after it and on offenders detected
+after considerable delay. Some strange exemplifications of this
+peculiarity are supplied by the old Roman law of Theft. The Laws of
+the Twelve Tables seem to have divided Thefts into Manifest and
+Non-Manifest, and to have allotted extraordinarily different penalties
+to the offence according as it fell under one head or the other. The
+Manifest Thief was he who was caught within the house in which he had
+been pilfering, or who was taken while making off to a place of safety
+with the stolen goods; the Twelve Tables condemned him to be put to
+death if he were already a slave, and, if he was a freeman, they made
+him the bondsman of the owner of the property. The Non-Manifest Thief
+was he who was detected under any other circumstances than those
+described; and the old code simply directed that an offender of this
+sort should refund double the value of what he had stolen. In Gaius's
+day the excessive severity of the Twelve Tables to the Manifest Thief
+had naturally been much mitigated, but the law still maintained the
+old principle by mulcting him in fourfold the value of the stolen
+goods, while the Non-Manifest Thief still continued to pay merely the
+double. The ancient lawgiver doubtless considered that the injured
+proprietor, if left to himself, would inflict a very different
+punishment when his blood was hot from that with which he would be
+satisfied when the Thief was detected after a considerable interval;
+and to this calculation the legal scale of penalties was adjusted. The
+principle is precisely the same as that followed in the Anglo-Saxon
+and other Germanic codes, when they suffer a thief chased down and
+caught with the booty to be hanged or decapitated on the spot, while
+they exact the full penalties of homicide from anybody who kills him
+after the pursuit has been intermitted. These archaic distinctions
+bring home to us very forcibly the distance of a refined from a rude
+jurisprudence. The modern administrator of justice has confessedly one
+of the hardest tasks before him when he undertakes to discriminate
+between the degrees of criminality which belong to offences falling
+within the same technical description. It is always easy to say that a
+man is guilty of manslaughter, larceny, or bigamy, but it is often
+most difficult to pronounce what extent of moral guilt he has
+incurred, and consequently what measure of punishment he has deserved.
+There is hardly any perplexity in casuistry, or in the analysis of
+motive, which we may not be called upon to confront, if we attempt to
+settle such a point with precision; and accordingly the law of our day
+shows an increasing tendency to abstain as much as possible from
+laying down positive rules on the subject. In France, the jury is left
+to decide whether the offence which it finds committed has been
+attended by extenuating circumstances; in England, a nearly unbounded
+latitude in the selection of punishments is now allowed to the judge;
+while all States have in reserve an ultimate remedy for the
+miscarriages of law in the Prerogative of Pardon, universally lodged
+with the Chief Magistrate. It is curious to observe how little the men
+of primitive times were troubled with these scruples, how completely
+they were persuaded that the impulses of the injured person were the
+proper measure of the vengeance he was entitled to exact, and how
+literally they imitated the probable rise and fall of his passions in
+fixing their scale of punishment. I wish it could be said that their
+method of legislation is quite extinct. There are, however, several
+modern systems of law which, in cases of graver wrong, admit the fact
+of the wrong-doer having been taken in the act to be pleaded in
+justification of inordinate punishment inflicted on him by the
+sufferer--an indulgence which, though superficially regarded it may
+seem intelligible, is based, as it seems to me, on a very low
+morality.
+
+Nothing, I have said, can be simpler than the considerations which
+ultimately led ancient societies to the formation of a true criminal
+jurisprudence. The State conceived itself to be wronged, and the
+Popular Assembly struck straight at the offender with the same
+movement which accompanied its legislative action. It is further true
+of the ancient world--though not precisely of the modern, as I shall
+have occasion to point out--that the earliest criminal tribunals were
+merely subdivisions, or committees, of the legislature. This, at all
+events, is the conclusion pointed at by the legal history of the two
+great states of antiquity, with tolerable clearness in one case, and
+with absolute distinctness in the other. The primitive penal law of
+Athens entrusted the castigation of offences partly to the Archons,
+who seem to have punished them as _torts_, and partly to the Senate of
+Areopagus, which punished them as _sins_. Both jurisdictions were
+substantially transferred in the end to the Heliæa, the High Court of
+Popular Justice, and the functions of the Archons and of the Areopagus
+became either merely ministerial or quite insignificant. But "Heliæa"
+is only an old word for Assembly; the Heliæa of classical times was
+simply the Popular Assembly convened for judicial purposes, and the
+famous Dikasteries of Athens were only its subdivisions or panels. The
+corresponding changes which occurred at Rome are still more easily
+interpreted, because the Romans confined their experiments to the
+penal law, and did not, like the Athenians, construct popular courts
+with a civil as well as a criminal jurisdiction. The history of Roman
+criminal jurisprudence begins with the old Judicia Populi, at which
+the Kings are said to have presided. These were simply solemn trials
+of great offenders under legislative forms. It seems, however, that
+from an early period the Comitia had occasionally delegated its
+criminal jurisdiction to a Quæstio or Commission, which bore much the
+same relation to the Assembly as a Committee of the House of Commons
+bears to the House itself, except that the Roman Commissioners or
+Quæstores did not merely _report_ to the Comitia, but exercised all
+powers which that body was itself in the habit of exercising, even to
+the passing sentence on the Accused. A Quæstio of this sort was only
+appointed to try a particular offender, but there was nothing to
+prevent two or three Quæstiones sitting at the same time; and it is
+probable that several of them were appointed simultaneously, when
+several grave cases of wrong to the community had occurred together.
+There are also indications that now and then these Quæstiones
+approached the character of our _Standing_ Committees, in that they
+were appointed periodically, and without waiting for occasion to arise
+in the commission of some serious crime. The old Quæstores Parricidii,
+who are mentioned in connection with transactions of very ancient
+date, as being deputed to try (or, as some take it, to search out and
+try) all cases of parricide and murder, seem to have been appointed
+regularly every year; and the Duumviri Perduellionis, or Commission of
+Two for trial of violent injury to the Commonwealth, are also believed
+by most writers to have been named periodically. The delegations of
+power to these latter functionaries bring us some way forwards.
+Instead of being appointed _when and as_ state-offences were
+committed, they had a general, though a temporary jurisdiction over
+such as _might_ be perpetrated. Our proximity to a regular criminal
+jurisprudence is also indicated by the general terms "Parricidium" and
+"Perduellio" which mark the approach to something like a
+classification of crimes.
+
+The true criminal law did not however come into existence till the
+year B.C. 149, when L. Calpurnius Piso carried the statute known as
+the Lex Calpurnia de Repetundis. The law applied to cases Repetundarum
+Pecuniarum, that is, claims by Provincials to recover monies
+improperly received by a Governor-General, but the great and permanent
+importance of this statute arose from its establishing the first
+Quæstio Perpetua. A Quæstio Perpetua was a _Permanent_ Commission as
+opposed to those which were occasional and to those which were
+temporary. It was a regular criminal tribunal whose existence dated
+from the passing of the statute creating it and continued till another
+statute should pass abolishing it. Its members were not specially
+nominated, as were the members of the older Quæstiones, but provision
+was made in the law constituting it for selecting from particular
+classes the judges who were to officiate, and for renewing them in
+conformity with definite rules. The offences of which it took
+cognisance were also expressly named and defined in this statute, and
+the new Quæstio had authority to try and sentence all persons in
+future whose acts should fall under the definitions of crime supplied
+by the law. It was therefore a regular criminal judicature,
+administering a true criminal jurisprudence.
+
+The primitive history of criminal law divides itself therefore into
+four stages. Understanding that the conception of _Crime_, as
+distinguished from that of _Wrong_ or _Tort_ and from that of _Sin_,
+involves the idea of injury to the State or collective community, we
+first find that the commonwealth, in literal conformity with the
+conception, itself interposed directly, and by isolated acts, to
+avenge itself on the author of the evil which it had suffered. This is
+the point from which we start; each indictment is now a bill of pains
+and penalties, a special law naming the criminal and prescribing his
+punishment. A _second_ step is accomplished, when the multiplicity of
+crimes compels the legislature to delegate its powers to particular
+Quæstiones or Commissions, each of which is deputed to investigate a
+particular accusation, and if it be proved, to punish the particular
+offender. Yet _another_ movement is made when the legislature, instead
+of waiting for the alleged commission of a crime as the occasion of
+appointing a Quæstio, periodically nominates Commissioners like the
+Quæstores Parricidii and the Duumviri Perduellionis, on the chance of
+certain classes of crimes being committed, and in the expectation that
+they _will_ be perpetrated. The _last_ stage is reached when the
+Quæstiones from being periodical or occasional become permanent
+Benches or Chambers--when the judges, instead of being named in the
+particular law nominating the Commission, are directed to be chosen
+through all future time in a particular way and from a particular
+class--and when certain acts are described in general language and
+declared to be crimes, to be visited, in the event of their
+perpetration, with specified penalties appropriated to each
+description.
+
+If the Quæstiones Perpetuæ had had a longer history, they would
+doubtless have come to be regarded as a distinct institution, and
+their relation to the Comitia would have seemed no closer than the
+connection of our own Courts of Law with the Sovereign, who is
+theoretically the fountain of justice. But the Imperial despotism
+destroyed them before their origin had been completely forgotten, and,
+so long as they lasted, these Permanent Commissions were looked upon
+by the Romans as the mere depositaries of a delegated power. The
+cognisance of crimes was considered a natural attribute of the
+legislature, and the mind of the citizen never ceased to be carried
+back from the Quæstiones, to the Comitia which had deputed them to put
+into exercise some of its own inalienable functions. The view which
+regarded the Quæstiones, even when they became permanent, as mere
+Committees of the Popular Assembly--as bodies which only ministered to
+a higher authority--had some important legal consequences which left
+their mark on the criminal law to the very latest period. One
+immediate result was that the Comitia continued to exercise criminal
+jurisdiction by way of bill of pains and penalties, long after the
+Quæstiones had been established. Though the legislature had consented
+to delegate its powers for the sake of convenience to bodies external
+to itself, it did not follow that it surrendered them. The Comitia and
+the Quæstiones went on trying and punishing offenders side by side;
+and any unusual outburst of popular indignation was sure, until the
+extinction of the Republic, to call down upon its object an indictment
+before the Assembly of the Tribes.
+
+One of the most remarkable peculiarities of the institutions of the
+Republic is also traceable to this dependance of the Quæstiones on the
+Comitia. The disappearance of the punishment of Death from the penal
+system of Republican Rome used to be a very favourite topic with the
+writers of the last century, who were perpetually using it to point
+some theory of the Roman character or of modern social economy. The
+reason which can be confidently assigned for it stamps it as purely
+fortuitous. Of the three forms which the Roman legislature
+successively assumed, one, it is well known--the Comitia
+Centuriata--was exclusively taken to represent the State as embodied
+for military operations. The Assembly of the Centuries, therefore, had
+all powers which may be supposed to be properly lodged with a General
+commanding an army, and, among them, it had authority to subject all
+offenders to the same correction to which a soldier rendered himself
+liable by breaches of discipline. The Comitia Centuriata could
+therefore inflict capital punishment. Not so, however, the Comitia
+Curiata or Comitia Tributa. They were fettered on this point by the
+sacredness with which the person of a Roman citizen, inside the walls
+of the city, was invested by religion and law; and, with respect to
+the last of them, the Comitia Tributa, we know for certain that it
+became a fixed principle that the Assembly of the Tribes could at most
+impose a fine. So long as criminal jurisdiction was confined to the
+legislature, and so long as the assemblies of the centuries and of the
+Tribes continued to exercise co-ordinate powers, it was easy to prefer
+indictments for graver crimes before the legislative body which
+dispensed the heavier penalties; but then it happened that the more
+democratic assembly, that of the Tribes, almost entirely superseded
+the others, and became the ordinary legislature of the later Republic.
+Now the decline of the Republic was exactly the period during which
+the Quæstiones Perpetuæ were established, so that the statutes
+creating them were all passed by a legislative assembly which itself
+could not, at its ordinary sittings, punish a criminal with death. It
+followed that the Permanent Judicial Commissions, holding a delegated
+authority, were circumscribed in their attributes and capacities by
+the limits of the powers residing with the body which deputed them.
+They could do nothing which the Assembly of the Tribes could not have
+done; and, as the Assembly could not sentence to death, the Quæstiones
+were equally incompetent to award capital punishment. The anomaly thus
+resulting was not viewed in ancient times with anything like the
+favour which it has attracted among the moderns, and indeed, while it
+is questionable whether the Roman character was at all the better for
+it, it is certain that the Roman Constitution was a great deal the
+worse. Like every other institution which has accompanied the human
+race down the current of its history, the punishment of death is a
+necessity of society in certain stages of the civilising process.
+There is a time when the attempt to dispense with it baulks both of
+the two great instincts which lie at the root of all penal law.
+Without it, the community neither feels that it is sufficiently
+revenged on the criminal, nor thinks that the example of his
+punishment is adequate to deter others from imitating him. The
+incompetence of the Roman Tribunals to pass sentence of death led
+distinctly and directly to those frightful Revolutionary intervals,
+known as the Proscriptions, during which all law was formally
+suspended simply because party violence could find no other avenue to
+the vengeance for which it was thirsting. No cause contributed so
+powerfully to the decay of political capacity in the Roman people as
+this periodical abeyance of the laws; and, when it had once been
+resorted to, we need not hesitate to assert that the ruin of Roman
+liberty became merely a question of time. If the practice of the
+Tribunals had afforded an adequate vent for popular passion, the forms
+of judicial procedure would no doubt have been as flagrantly perverted
+as with us in the reigns of the later Stuarts, but national character
+would not have suffered as deeply as it did, nor would the stability
+of Roman institutions have been as seriously enfeebled.
+
+I will mention two more singularities of the Roman Criminal System
+which were produced by the same theory of judicial authority. They
+are, the extreme multiplicity of the Roman criminal tribunals, and the
+capricious and anomalous classification of crimes which characterised
+Roman penal jurisprudence throughout its entire history. Every
+_Quæstio_, it has been said, whether Perpetual or otherwise, had its
+origin in a distinct statute. From the law which created it, it
+derived its authority; it rigorously observed the limits which its
+charter prescribed to it, and touched no form of criminality which
+that charter did not expressly define. As then the statutes which
+constituted the various Quæstiones were all called forth by particular
+emergencies, each of them being in fact passed to punish a class of
+acts which the circumstances of the time rendered particularly odious
+or particularly dangerous, these enactments made not the slightest
+reference to each other, and were connected by no common principle.
+Twenty or thirty different criminal laws were in existence together,
+with exactly the same number of Quæstiones to administer them; nor was
+any attempt made during the Republic to fuse these distinct judicial
+bodies into one, or to give symmetry to the provisions of the statutes
+which appointed them and defined their duties. The state of the Roman
+criminal jurisdiction at this period, exhibited some resemblances to
+the administration of civil remedies in England at the time when the
+English Courts of Common Law had not as yet introduced those
+fictitious averments into their writs which enabled them to trespass
+on each other's peculiar province. Like the Quæstiones, the Courts of
+Queen's Bench, Common Pleas, and Exchequer were all theoretical
+emanations from a higher authority, and each entertained a special
+class of cases supposed to be committed to it by the fountain of its
+jurisdiction; but then the Roman Quæstiones were many more than three
+in number, and it was infinitely less easy to discriminate the acts
+which fell under the cognisance of each Quæstio, than to distinguish
+between the provinces of the three Courts in Westminster Hall. The
+difficulty of drawing exact lines between the spheres of the different
+Quæstiones made the multiplicity of Roman tribunals something more
+than a mere inconvenience; for we read with astonishment that when it
+was not immediately clear under what general description a man's
+alleged offences ranged themselves, he might be indicted at once or
+successively before several different Commissions, on the chance of
+some one of them declaring itself competent to convict him; and,
+although conviction by one Quæstio ousted the jurisdiction of the
+rest, acquittal by one of them could not be pleaded to an accusation
+before another. This was directly contrary to the rule of the Roman
+civil law; and we may be sure that a people so sensitive as the Romans
+to anomalies (or, as their significant phrase was, to _inelegancies_)
+in jurisprudence, would not long have tolerated it, had not the
+melancholy history of the Quæstiones caused them to be regarded much
+more as temporary weapons in the hands of factions than as permanent
+institutions for the correction of crime. The Emperors soon abolished
+this multiplicity and conflict of jurisdiction; but it is remarkable
+that they did not remove another singularity of the criminal law which
+stands in close connection with the number of the Courts. The
+classifications of crimes which are contained even in the Corpus
+Juris of Justinian are remarkably capricious. Each Quæstio had, in
+fact, confined itself to the crimes committed to its cognisance by its
+charter. These crimes, however, were only classed together in the
+original statute because they happened to call simultaneously for
+castigation at the moment of passing it. They had not therefore
+anything necessarily in common; but the fact of their constituting the
+particular subject-matter of trials before a particular Quæstio
+impressed itself naturally on the public attention, and so inveterate
+did the association become between the offences mentioned in the same
+statute that, even when formal attempts were made by Sylla and by the
+Emperor Augustus to consolidate the Roman criminal law, the legislator
+preserved the old grouping. The Statutes of Sylla and Augustus were
+the foundation of the penal jurisprudence of the Empire, and nothing
+can be more extraordinary than some of the classifications which they
+bequeathed to it. I need only give a single example in the fact that
+_perjury_ was always classed with _cutting and wounding_ and with
+_poisoning_, no doubt because a law of Sylla, the Lex Cornelia de
+Sicariis et Veneficis, had given jurisdiction over all these three
+forms of crime to the same Permanent Commission. It seems too that
+this capricious grouping of crimes affected the vernacular speech of
+the Romans. People naturally fell into the habit of designating all
+the offences enumerated in one law by the first name on the list,
+which doubtless gave its style to the Law Court deputed to try them
+all. All the offences tried by the Quæstio De Adulteriis would thus be
+called Adultery.
+
+I have dwelt on the history and characteristics of the Roman
+Quæstiones because the formation of a criminal jurisprudence is
+nowhere else so instructively exemplified. The last Quæstiones were
+added by the Emperor Augustus, and from that time the Romans may be
+said to have had a tolerably complete criminal law. Concurrently with
+its growth, the analogous process had gone on, which I have called the
+conversion of Wrongs into Crimes, for, though the Roman legislature
+did not extinguish the civil remedy for the more heinous offences, it
+offered the sufferer a redress which he was sure to prefer. Still,
+even after Augustus had completed his legislation, several offences
+continued to be regarded as Wrongs, which modern societies look upon
+exclusively as Crimes; nor did they become criminally punishable till
+some late but uncertain date, at which the law began to take notice of
+a new description of offences called in the Digest _crimina
+extraordinaria_. These were doubtless a class of acts which the theory
+of Roman jurisprudence treated merely as wrongs; but the growing sense
+of the majesty of society revolted from their entailing nothing worse
+on their perpetrator than the payment of money damages, and
+accordingly the injured person seems to have been permitted, if he
+pleased, to pursue them as crimes _extra ordinem_, that is by a mode
+of redress departing in some respect or other from the ordinary
+procedure. From the period at which these _crimina extraordinaria_
+were first recognised, the list of crimes in the Roman State must have
+been as long as in any community of the modern world.
+
+It is unnecessary to describe with any minuteness the mode of
+administering criminal justice under the Roman Empire, but it is to be
+noted that both its theory and practice have had powerful effect on
+modern society. The Emperors did not immediately abolish the
+Quæstiones, and at first they committed an extensive criminal
+jurisdiction to the Senate, in which, however servile it might show
+itself in fact, the Emperor was no more nominally than a Senator like
+the rest. But some sort of collateral criminal jurisdiction had been
+claimed by the Prince from the first; and this, as recollections of
+the free commonwealth decayed, tended steadily to gain at the expense
+of the old tribunals. Gradually the punishment of crimes was
+transferred to magistrates directly nominated by the Emperor and the
+privileges of the Senate passed to the Imperial Privy Council, which
+also became a Court of ultimate criminal appeal. Under these
+influences the doctrine, familiar to the moderns, insensibly shaped
+itself that the Sovereign is the fountain of all Justice and the
+depositary of all Grace. It was not so much the fruit of increasing
+adulation and servility as of the centralisation of the Empire which
+had by this time perfected itself. The theory of criminal justice had,
+in fact, worked round almost to the point from which it started. It
+had begun in the belief that it was the business of the collective
+community to avenge its own wrongs by its own hand; and it ended in
+the doctrine that the chastisement of crimes belonged in an especial
+manner to the Sovereign as representative and mandatary of his
+people. The new view differed from the old one chiefly in the air of
+awfulness and majesty which the guardianship of justice appeared to
+throw around the person of the Sovereign.
+
+This later Roman view of the Sovereign's relation to justice certainly
+assisted in saving modern societies from the necessity of travelling
+through the series of changes which I have illustrated by the history
+of the Quæstiones. In the primitive law of almost all the races which
+have peopled Western Europe there are vestiges of the archaic notion
+that the punishment of crimes belongs to the general assembly of
+freemen; and there are some States--Scotland is said to be one of
+them--in which the parentage of the existing judicature can be traced
+up to a Committee of the legislative body. But the development of the
+criminal law was universally hastened by two causes, the memory of the
+Roman Empire and the influence of the Church. On the one hand
+traditions of the majesty of the Cæsars, perpetuated by the temporary
+ascendency of the House of Charlemagne, were surrounding Sovereigns
+with a prestige which a mere barbarous chieftain could never otherwise
+have acquired and were communicating to the pettiest feudal potentate
+the character of guardian of society and representative of the State.
+On the other hand, the Church, in its anxiety to put a curb on
+sanguinary ferocity, sought about for authority to punish the graver
+misdeeds, and found it in those passages of Scripture which speak with
+approval of the powers of punishment committed to the civil
+magistrate. The New Testament was appealed to as proving that secular
+rulers exist for the terror of evildoers; the Old Testament, as laying
+down that "Whoso sheddeth man's blood, by man shall his blood be
+shed." There can be no doubt, I imagine, that modern ideas on the
+subject of crime are based upon two assumptions contended for by the
+Church in the Dark Ages--first, that each feudal ruler, in his degree,
+might be assimilated to the Roman Magistrates spoken of by Saint Paul;
+and next, that the offences which he was to chastise were those
+selected for prohibition in the Mosaic Commandments, or rather such of
+them as the Church did not reserve to her own cognisance. Heresy
+(supposed to be included in the First and Second Commandments),
+Adultery, and Perjury were ecclesiastical offences, and the Church
+only admitted the co-operation of the secular arm for the purpose of
+inflicting severer punishment in cases of extraordinary
+aggravation. At the same time, she taught that murder and robbery with
+their various modifications were under the jurisdiction of civil
+rulers, not as an accident of their position but by the express
+ordinance of God.
+
+There is a passage in the writings of King Alfred (Kemble, ii. 209)
+which brings out into remarkable clearness the struggle of the various
+ideas that prevailed in his day as to the origin of criminal
+jurisdiction. It will be seen that Alfred attributes it partly to the
+authority of the Church and partly to that of the Witan, while he
+expressly claims for treason against the lord the same immunity from
+ordinary rules which the Roman Law of Majestas had assigned to treason
+against the Cæsar. "After this it happened," he writes, "that many
+nations received the faith of Christ, and there were many synods
+assembled throughout the earth, and among the English race also after
+they had received the faith of Christ, both of holy bishops and of
+their exalted Witan. They then ordained that, out of that mercy which
+Christ had taught, secular lords, with their leave, might without sin
+take for every misdeed the _bot_ in money which they ordained; except
+in cases of treason against a lord, to which they dared not assign any
+mercy because Almighty God adjudged none to them that despised Him,
+nor did Christ adjudge any to them which sold Him to death; and He
+commanded that a lord should be loved like Himself."
+
+
+
+
+INDEX
+
+
+Austin, 69, 171;
+  _Province of Jurisprudence Determined_, 4
+
+Ayala, 64
+
+
+Bentham, 18, 46, 54, 70, 147;
+  _Fragment on Government_, 4
+
+Blackstone, 67, 89, 150, 152
+
+
+_Cambridge Essays_, 1856, Maine, 205, 212
+
+Capture in war, 145, 146
+
+Casuistry, 205, 206, 207
+
+Charlemagne, 62, 233
+
+Codes, Attic of Solon, 9;
+  era of, 8;
+  first introduced into the West, 10;
+  Hindoo Law of Menu, 10-12;
+  Justinian, 25, 27;
+  Napoléon, 104;
+  Roman, superiority over Hindoo, 10-12;
+  Twelve Tables of Rome, 1, 8, 9, 12, 20
+
+Contract, Austin on, 190;
+  Bentham on, 190;
+  Imperative Law, 182;
+  judicial and popular error, 181;
+  Law of Nations, 181, 196, 197;
+  literal or written, 194;
+  origin lies in the family, 99;
+  pact or convention, 184, 185;
+  real, 195;
+  Roman, classification, 191, 192;
+  consensual, 195-198;
+  Domestic System, 194;
+  Nexum, definition of, 185-189;
+  Rousseau, 181;
+  sale, 188
+
+Conveyances and contracts, confusion between, 185-187;
+  and mancipation, 185
+
+_Corpus juris civilis_, 26
+
+Creditors, powers of, in ancient system, 189
+
+Crimes and wrongs, confusion between, 231, 232;
+  distinction between primitive and modern, 217, 218;
+  Kemble in _Anglo-Saxons_, 218
+
+Criminal Law, Athens, 224;
+  degree of guilt, 223;
+  four stages of primitive history, 226;
+  influence of Church, 233;
+  primitive religious code, 218, 219;
+  Roman, crime against State, 219;
+  B.C. 149, 225;
+  origin of, 225;
+  sentence of death, 227-229;
+  theft, 222, 223;
+  tribunals, 228-230;
+  under emperors, 230-232
+
+Customary Law, epoch of, 7, 8;
+  Hindoo, 4
+
+
+Dangers of Law, rigidity, too rapid development, 44, 45
+
+Debtors, severity of ancient system, 189
+
+
+Equity, 172;
+  early history of, 15;
+  Lord Eldon on, 40;
+  English, 40, 41;
+  meaning of, 17;
+  origin, 34, 35;
+  Roman compared with English, 40-42
+
+
+Feudalism, explanation of, 214
+
+
+Gaius, 90, 174, 220-223
+
+Grote, decline of kingly rule, 6;
+  _History of Greece_, 3, 5;
+  law administered by aristocracies, 7
+
+Grotius, Hugo, 56, 58, 59, 64;
+  _De Jure Belli et Pacis_, 205
+
+
+Homer, earliest notions of law derived from, 2, 3;
+  Themis, Themistes, 2-5
+
+
+Indian (Hindoo) Law, _see_ separate headings Codes, Customary,
+  Primogeniture, Property, Testamentary Law, Village communities
+
+Institutional Treatise (Justinian), 27
+
+International Law, 64;
+  and occupancy, 145
+
+
+Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37;
+  origin of, 27-31
+
+Legal fictions, benefit of, 77;
+  examples in English Law, 18;
+  in Roman Law, 15, 16;
+  meaning, useful purpose of, 15, 16
+
+Legis Actio Sacramenti, Gaius on, 220, 221
+
+Legislation, the agent of legal
+  improvement, 17;
+  differing from equity, legal fictions, 17, 18
+
+_Lettres Persanes_, 183
+
+
+Maine, _Cambridge Essays_, 1856, 205, 212
+
+Mancipation, 120, 121, 163-169, 185
+
+Menu, Laws of, 10-12
+
+Montesquieu, 49, 51, 183
+
+
+Natural Law (Law of Nature), American Law and, 56;
+  antagonistic to historical method, 53;
+  confusing past with present, 43;
+  equality of man, 54-56;
+  equality of sex, 90;
+  feudalism, 62, 65;
+  French history, 47, 48, 50, 53;
+  French Law, 56;
+  Greek interpretation of, 44;
+  Grotian system, 56, 58, 59, 64-66;
+  incorporated with Roman Law, 36, 37;
+  influence of Stoics, 32, 33;
+  Modern International Law, 56-60;
+  most critical period, 50;
+  modern society, 54;
+  occupancy, 145-147, 153;
+  origin of, 31, 32;
+  private property, 164;
+  Rousseau on, 51;
+  slavery, 95;
+  territorial sovereignty, 60-63;
+  Testamentary Law, 103, 104
+
+
+Occupancy, 144, 145;
+  in Roman Law, 145
+
+
+Pascal, _Provincial Letters_, 207
+
+Prescriptions, 167, 168;
+  and Canon Law, 168
+
+Primogeniture, Celtic customs, 141, 142;
+  feudal system, 135-137;
+  Hindoo Law, 134, 137, 141;
+  Mahometan Law, 142;
+  Roman Law, 133, 134
+
+Property, natural modes of acquiring, 144
+
+Property Law, ancient Germanic, 165,
+  ancient Sclavonic, 165;
+  descent in Middle Ages, 132;
+  Indian Law, 165;
+  origin of, 145;
+  possession, 170, 172;
+  private, ancient forms of transfer, 160, 162-164;
+  Roman, 60, 66, 166;
+  Cessio in Jure, 170;
+  Edictum Perpetuum, 37;
+  Emphyteusis, 175-178;
+  Gaius on, 174;
+  Justinian, 174;
+  law of persons and things, 152;
+  mancipation, 163, 169;
+  possessory interdicts, 171;
+  Praetor's interdict, 172;
+  Res Mancipi, 160-164, 173;
+  Res Nec Mancipi, 164;
+  system of farming, 176;
+  usucapion, 167, 169, 173
+
+
+Roman Law, _see_ separate headings Contracts, Criminal, Property,
+    Occupancy, Testamentary;
+  Decemviral Law, 20;
+  definition of inheritance, 107;
+  end of period of jurists, 40;
+  influence of Praetor, 38;
+  intestacy, 127-130;
+  law of inheritance, 111;
+  Leges Corneliae, 24, 25;
+  Leges Juliae, 25;
+  marriage, 91;
+  obligation in, 190, 191, 195, 197;
+  Pandects of Justinian, 39;
+  powers of Praetor, 37, 39;
+  Praetorian edict, 24, 25;
+  Responsa Prudentum, 20, 21, 24;
+  reverence of Romans for, 22;
+  Statute Law, 25;
+  Twelve Tables, 1, 8, 9, 12, 20
+
+Rousseau, on Social Contract, 181
+
+
+Savigny, 171;
+  on occupancy, 150
+
+Slavery, American opinions of, 96;
+  influence of Law of Nature upon, 97;
+  Roman system, 95-97
+
+Status, definition of, 100
+
+
+Testamentary Law, adoption and testation, 114, 115;
+  Church's influence upon, 102;
+  corporation, aggregate and sole, 110;
+  Hindoo Law, 113, 114;
+  Hindoo compared with Roman, 113;
+  Law of Nature, 103, 104;
+  Roman Law, 111, 112, 117-123;
+  mancipation, 120, 123;
+  Praetorian testament, 123-125;
+  Twelve Tables, 112, 119, 122;
+  Roman family, agnatic and cognatic relationship, 86-89;
+  duties and rights of father, 85;
+  effects of Christianity, 92;
+  family, the basis of State, 75, 76;
+  kinship, 86, 88;
+  modification of parental privileges, 84;
+  origin of contract in, 99;
+  origin of law of persons, 89;
+  parental powers, 80-82, 88
+
+Theology, and Jurisprudence, 208-210;
+  moral, 204, 205
+
+Theories, based on Roman doctrine, Bentham, 69;
+  Blackstone, 67;
+  differing from Roman Glossators, annotations of, 67;
+  Grotius, 67;
+  Jurisprudence, dissatisfaction with, 70;
+  Locke, 67;
+  Montesquieu, 68;
+  patriarchal, 72-75
+
+
+Universal succession, 106;
+  in Roman Law, 106, 107
+
+"Universatis Juris," 105
+
+
+Village communities, Indian, 153, 154, 156, 158;
+  Indian, compared with Roman gens, 155;
+  Indian, Elphinstone, _History of India_, 155, 156;
+  Russian 157
+
+
+Women, ancient rules defeated by Natural Law, 90;
+  Canon Law, 93;
+  English Common Law, 93, 94;
+  Roman family, 90, 91;
+  gradual independence under Roman Law, 91, 92;
+  Roman, perpetual tutelage of, 90;
+  under Roman Law, 89, 90;
+  subordination to husband in Middle Ages, 92;
+  subordination of Roman to relations, 90
+
+
+MADE AT THE
+TEMPLE PRESS
+
+LETCHWORTH
+IN GREAT BRITAIN
+
+
+
+
+
+
+End of Project Gutenberg's Ancient Law, by Sir Henry James Sumner Maine
+
+*** END OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+***** This file should be named 22910-8.txt or 22910-8.zip *****
+This and all associated files of various formats will be found in:
+        https://www.gutenberg.org/2/2/9/1/22910/
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+Updated editions will replace the previous one--the old editions
+will be renamed.
+
+Creating the works from public domain print editions means that no
+one owns a United States copyright in these works, so the Foundation
+(and you!) can copy and distribute it in the United States without
+permission and without paying copyright royalties.  Special rules,
+set forth in the General Terms of Use part of this license, apply to
+copying and distributing Project Gutenberg-tm electronic works to
+protect the PROJECT GUTENBERG-tm concept and trademark.  Project
+Gutenberg is a registered trademark, and may not be used if you
+charge for the eBooks, unless you receive specific permission.  If you
+do not charge anything for copies of this eBook, complying with the
+rules is very easy.  You may use this eBook for nearly any purpose
+such as creation of derivative works, reports, performances and
+research.  They may be modified and printed and given away--you may do
+practically ANYTHING with public domain eBooks.  Redistribution is
+subject to the trademark license, especially commercial
+redistribution.
+
+
+
+*** START: FULL LICENSE ***
+
+THE FULL PROJECT GUTENBERG LICENSE
+PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK
+
+To protect the Project Gutenberg-tm mission of promoting the free
+distribution of electronic works, by using or distributing this work
+(or any other work associated in any way with the phrase "Project
+Gutenberg"), you agree to comply with all the terms of the Full Project
+Gutenberg-tm License (available with this file or online at
+https://gutenberg.org/license).
+
+
+Section 1.  General Terms of Use and Redistributing Project Gutenberg-tm
+electronic works
+
+1.A.  By reading or using any part of this Project Gutenberg-tm
+electronic work, you indicate that you have read, understand, agree to
+and accept all the terms of this license and intellectual property
+(trademark/copyright) agreement.  If you do not agree to abide by all
+the terms of this agreement, you must cease using and return or destroy
+all copies of Project Gutenberg-tm electronic works in your possession.
+If you paid a fee for obtaining a copy of or access to a Project
+Gutenberg-tm electronic work and you do not agree to be bound by the
+terms of this agreement, you may obtain a refund from the person or
+entity to whom you paid the fee as set forth in paragraph 1.E.8.
+
+1.B.  "Project Gutenberg" is a registered trademark.  It may only be
+used on or associated in any way with an electronic work by people who
+agree to be bound by the terms of this agreement.  There are a few
+things that you can do with most Project Gutenberg-tm electronic works
+even without complying with the full terms of this agreement.  See
+paragraph 1.C below.  There are a lot of things you can do with Project
+Gutenberg-tm electronic works if you follow the terms of this agreement
+and help preserve free future access to Project Gutenberg-tm electronic
+works.  See paragraph 1.E below.
+
+1.C.  The Project Gutenberg Literary Archive Foundation ("the Foundation"
+or PGLAF), owns a compilation copyright in the collection of Project
+Gutenberg-tm electronic works.  Nearly all the individual works in the
+collection are in the public domain in the United States.  If an
+individual work is in the public domain in the United States and you are
+located in the United States, we do not claim a right to prevent you from
+copying, distributing, performing, displaying or creating derivative
+works based on the work as long as all references to Project Gutenberg
+are removed.  Of course, we hope that you will support the Project
+Gutenberg-tm mission of promoting free access to electronic works by
+freely sharing Project Gutenberg-tm works in compliance with the terms of
+this agreement for keeping the Project Gutenberg-tm name associated with
+the work.  You can easily comply with the terms of this agreement by
+keeping this work in the same format with its attached full Project
+Gutenberg-tm License when you share it without charge with others.
+
+1.D.  The copyright laws of the place where you are located also govern
+what you can do with this work.  Copyright laws in most countries are in
+a constant state of change.  If you are outside the United States, check
+the laws of your country in addition to the terms of this agreement
+before downloading, copying, displaying, performing, distributing or
+creating derivative works based on this work or any other Project
+Gutenberg-tm work.  The Foundation makes no representations concerning
+the copyright status of any work in any country outside the United
+States.
+
+1.E.  Unless you have removed all references to Project Gutenberg:
+
+1.E.1.  The following sentence, with active links to, or other immediate
+access to, the full Project Gutenberg-tm License must appear prominently
+whenever any copy of a Project Gutenberg-tm work (any work on which the
+phrase "Project Gutenberg" appears, or with which the phrase "Project
+Gutenberg" is associated) is accessed, displayed, performed, viewed,
+copied or distributed:
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+1.E.2.  If an individual Project Gutenberg-tm electronic work is derived
+from the public domain (does not contain a notice indicating that it is
+posted with permission of the copyright holder), the work can be copied
+and distributed to anyone in the United States without paying any fees
+or charges.  If you are redistributing or providing access to a work
+with the phrase "Project Gutenberg" associated with or appearing on the
+work, you must comply either with the requirements of paragraphs 1.E.1
+through 1.E.7 or obtain permission for the use of the work and the
+Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or
+1.E.9.
+
+1.E.3.  If an individual Project Gutenberg-tm electronic work is posted
+with the permission of the copyright holder, your use and distribution
+must comply with both paragraphs 1.E.1 through 1.E.7 and any additional
+terms imposed by the copyright holder.  Additional terms will be linked
+to the Project Gutenberg-tm License for all works posted with the
+permission of the copyright holder found at the beginning of this work.
+
+1.E.4.  Do not unlink or detach or remove the full Project Gutenberg-tm
+License terms from this work, or any files containing a part of this
+work or any other work associated with Project Gutenberg-tm.
+
+1.E.5.  Do not copy, display, perform, distribute or redistribute this
+electronic work, or any part of this electronic work, without
+prominently displaying the sentence set forth in paragraph 1.E.1 with
+active links or immediate access to the full terms of the Project
+Gutenberg-tm License.
+
+1.E.6.  You may convert to and distribute this work in any binary,
+compressed, marked up, nonproprietary or proprietary form, including any
+word processing or hypertext form.  However, if you provide access to or
+distribute copies of a Project Gutenberg-tm work in a format other than
+"Plain Vanilla ASCII" or other format used in the official version
+posted on the official Project Gutenberg-tm web site (www.gutenberg.org),
+you must, at no additional cost, fee or expense to the user, provide a
+copy, a means of exporting a copy, or a means of obtaining a copy upon
+request, of the work in its original "Plain Vanilla ASCII" or other
+form.  Any alternate format must include the full Project Gutenberg-tm
+License as specified in paragraph 1.E.1.
+
+1.E.7.  Do not charge a fee for access to, viewing, displaying,
+performing, copying or distributing any Project Gutenberg-tm works
+unless you comply with paragraph 1.E.8 or 1.E.9.
+
+1.E.8.  You may charge a reasonable fee for copies of or providing
+access to or distributing Project Gutenberg-tm electronic works provided
+that
+
+- You pay a royalty fee of 20% of the gross profits you derive from
+     the use of Project Gutenberg-tm works calculated using the method
+     you already use to calculate your applicable taxes.  The fee is
+     owed to the owner of the Project Gutenberg-tm trademark, but he
+     has agreed to donate royalties under this paragraph to the
+     Project Gutenberg Literary Archive Foundation.  Royalty payments
+     must be paid within 60 days following each date on which you
+     prepare (or are legally required to prepare) your periodic tax
+     returns.  Royalty payments should be clearly marked as such and
+     sent to the Project Gutenberg Literary Archive Foundation at the
+     address specified in Section 4, "Information about donations to
+     the Project Gutenberg Literary Archive Foundation."
+
+- You provide a full refund of any money paid by a user who notifies
+     you in writing (or by e-mail) within 30 days of receipt that s/he
+     does not agree to the terms of the full Project Gutenberg-tm
+     License.  You must require such a user to return or
+     destroy all copies of the works possessed in a physical medium
+     and discontinue all use of and all access to other copies of
+     Project Gutenberg-tm works.
+
+- You provide, in accordance with paragraph 1.F.3, a full refund of any
+     money paid for a work or a replacement copy, if a defect in the
+     electronic work is discovered and reported to you within 90 days
+     of receipt of the work.
+
+- You comply with all other terms of this agreement for free
+     distribution of Project Gutenberg-tm works.
+
+1.E.9.  If you wish to charge a fee or distribute a Project Gutenberg-tm
+electronic work or group of works on different terms than are set
+forth in this agreement, you must obtain permission in writing from
+both the Project Gutenberg Literary Archive Foundation and Michael
+Hart, the owner of the Project Gutenberg-tm trademark.  Contact the
+Foundation as set forth in Section 3 below.
+
+1.F.
+
+1.F.1.  Project Gutenberg volunteers and employees expend considerable
+effort to identify, do copyright research on, transcribe and proofread
+public domain works in creating the Project Gutenberg-tm
+collection.  Despite these efforts, Project Gutenberg-tm electronic
+works, and the medium on which they may be stored, may contain
+"Defects," such as, but not limited to, incomplete, inaccurate or
+corrupt data, transcription errors, a copyright or other intellectual
+property infringement, a defective or damaged disk or other medium, a
+computer virus, or computer codes that damage or cannot be read by
+your equipment.
+
+1.F.2.  LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right
+of Replacement or Refund" described in paragraph 1.F.3, the Project
+Gutenberg Literary Archive Foundation, the owner of the Project
+Gutenberg-tm trademark, and any other party distributing a Project
+Gutenberg-tm electronic work under this agreement, disclaim all
+liability to you for damages, costs and expenses, including legal
+fees.  YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
+LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE
+PROVIDED IN PARAGRAPH F3.  YOU AGREE THAT THE FOUNDATION, THE
+TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE
+LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
+INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH
+DAMAGE.
+
+1.F.3.  LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a
+defect in this electronic work within 90 days of receiving it, you can
+receive a refund of the money (if any) you paid for it by sending a
+written explanation to the person you received the work from.  If you
+received the work on a physical medium, you must return the medium with
+your written explanation.  The person or entity that provided you with
+the defective work may elect to provide a replacement copy in lieu of a
+refund.  If you received the work electronically, the person or entity
+providing it to you may choose to give you a second opportunity to
+receive the work electronically in lieu of a refund.  If the second copy
+is also defective, you may demand a refund in writing without further
+opportunities to fix the problem.
+
+1.F.4.  Except for the limited right of replacement or refund set forth
+in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER
+WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
+WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE.
+
+1.F.5.  Some states do not allow disclaimers of certain implied
+warranties or the exclusion or limitation of certain types of damages.
+If any disclaimer or limitation set forth in this agreement violates the
+law of the state applicable to this agreement, the agreement shall be
+interpreted to make the maximum disclaimer or limitation permitted by
+the applicable state law.  The invalidity or unenforceability of any
+provision of this agreement shall not void the remaining provisions.
+
+1.F.6.  INDEMNITY - You agree to indemnify and hold the Foundation, the
+trademark owner, any agent or employee of the Foundation, anyone
+providing copies of Project Gutenberg-tm electronic works in accordance
+with this agreement, and any volunteers associated with the production,
+promotion and distribution of Project Gutenberg-tm electronic works,
+harmless from all liability, costs and expenses, including legal fees,
+that arise directly or indirectly from any of the following which you do
+or cause to occur: (a) distribution of this or any Project Gutenberg-tm
+work, (b) alteration, modification, or additions or deletions to any
+Project Gutenberg-tm work, and (c) any Defect you cause.
+
+
+Section  2.  Information about the Mission of Project Gutenberg-tm
+
+Project Gutenberg-tm is synonymous with the free distribution of
+electronic works in formats readable by the widest variety of computers
+including obsolete, old, middle-aged and new computers.  It exists
+because of the efforts of hundreds of volunteers and donations from
+people in all walks of life.
+
+Volunteers and financial support to provide volunteers with the
+assistance they need, is critical to reaching Project Gutenberg-tm's
+goals and ensuring that the Project Gutenberg-tm collection will
+remain freely available for generations to come.  In 2001, the Project
+Gutenberg Literary Archive Foundation was created to provide a secure
+and permanent future for Project Gutenberg-tm and future generations.
+To learn more about the Project Gutenberg Literary Archive Foundation
+and how your efforts and donations can help, see Sections 3 and 4
+and the Foundation web page at https://www.pglaf.org.
+
+
+Section 3.  Information about the Project Gutenberg Literary Archive
+Foundation
+
+The Project Gutenberg Literary Archive Foundation is a non profit
+501(c)(3) educational corporation organized under the laws of the
+state of Mississippi and granted tax exempt status by the Internal
+Revenue Service.  The Foundation's EIN or federal tax identification
+number is 64-6221541.  Its 501(c)(3) letter is posted at
+https://pglaf.org/fundraising.  Contributions to the Project Gutenberg
+Literary Archive Foundation are tax deductible to the full extent
+permitted by U.S. federal laws and your state's laws.
+
+The Foundation's principal office is located at 4557 Melan Dr. S.
+Fairbanks, AK, 99712., but its volunteers and employees are scattered
+throughout numerous locations.  Its business office is located at
+809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email
+business@pglaf.org.  Email contact links and up to date contact
+information can be found at the Foundation's web site and official
+page at https://pglaf.org
+
+For additional contact information:
+     Dr. Gregory B. Newby
+     Chief Executive and Director
+     gbnewby@pglaf.org
+
+
+Section 4.  Information about Donations to the Project Gutenberg
+Literary Archive Foundation
+
+Project Gutenberg-tm depends upon and cannot survive without wide
+spread public support and donations to carry out its mission of
+increasing the number of public domain and licensed works that can be
+freely distributed in machine readable form accessible by the widest
+array of equipment including outdated equipment.  Many small donations
+($1 to $5,000) are particularly important to maintaining tax exempt
+status with the IRS.
+
+The Foundation is committed to complying with the laws regulating
+charities and charitable donations in all 50 states of the United
+States.  Compliance requirements are not uniform and it takes a
+considerable effort, much paperwork and many fees to meet and keep up
+with these requirements.  We do not solicit donations in locations
+where we have not received written confirmation of compliance.  To
+SEND DONATIONS or determine the status of compliance for any
+particular state visit https://pglaf.org
+
+While we cannot and do not solicit contributions from states where we
+have not met the solicitation requirements, we know of no prohibition
+against accepting unsolicited donations from donors in such states who
+approach us with offers to donate.
+
+International donations are gratefully accepted, but we cannot make
+any statements concerning tax treatment of donations received from
+outside the United States.  U.S. laws alone swamp our small staff.
+
+Please check the Project Gutenberg Web pages for current donation
+methods and addresses.  Donations are accepted in a number of other
+ways including including checks, online payments and credit card
+donations.  To donate, please visit: https://pglaf.org/donate
+
+
+Section 5.  General Information About Project Gutenberg-tm electronic
+works.
+
+Professor Michael S. Hart was the originator of the Project Gutenberg-tm
+concept of a library of electronic works that could be freely shared
+with anyone.  For thirty years, he produced and distributed Project
+Gutenberg-tm eBooks with only a loose network of volunteer support.
+
+
+Project Gutenberg-tm eBooks are often created from several printed
+editions, all of which are confirmed as Public Domain in the U.S.
+unless a copyright notice is included.  Thus, we do not necessarily
+keep eBooks in compliance with any particular paper edition.
+
+
+Most people start at our Web site which has the main PG search facility:
+
+     https://www.gutenberg.org
+
+This Web site includes information about Project Gutenberg-tm,
+including how to make donations to the Project Gutenberg Literary
+Archive Foundation, how to help produce our new eBooks, and how to
+subscribe to our email newsletter to hear about new eBooks.
diff --git a/22910-8.zip b/22910-8.zip
new file mode 100644
index 0000000..2a0476e
--- /dev/null
+++ b/22910-8.zip
diff --git a/22910-h.zip b/22910-h.zip
new file mode 100644
index 0000000..bc86038
--- /dev/null
+++ b/22910-h.zip
diff --git a/22910-h/22910-h.htm b/22910-h/22910-h.htm
new file mode 100644
index 0000000..76aaa0f
--- /dev/null
+++ b/22910-h/22910-h.htm
@@ -0,0 +1,11439 @@
+<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN"
+    "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd">
+
+<html xmlns="http://www.w3.org/1999/xhtml">
+  <head>
+    <meta http-equiv="Content-Type" content="text/html;charset=iso-8859-1" />
+    <title>
+      The Project Gutenberg eBook of Ancient Law, by Sir Henry James Sumner Maine.
+    </title>
+    <style type="text/css">
+/*<![CDATA[  XML blockout */
+<!--
+    p {  margin-top: .75em;
+         text-align: justify;
+         margin-bottom: .75em;
+         }
+
+    p.indent2 {margin-left: 2em; text-indent: -2em; text-align: justify;
+                margin-top: 0em; margin-bottom: 0em;}
+
+    p.quotsig { text-align:right; margin-right:2em;
+        margin-top: 0em; margin-bottom: 0em;}
+
+    h1,h2,h3,h4,h5,h6 {
+         text-align: center; font-weight: normal; /* all headings centered */
+         clear: both;
+         }
+    hr { width: 33%;
+	 margin-top: 2em;
+	 margin-bottom: 2em;
+         margin-left: auto;
+         margin-right: auto;
+         clear: both;
+       }
+
+    table {margin-left: auto; margin-right: auto;}
+
+    td.left_80 {vertical-align: top; width: 80%; text-align: left;}
+    td.right_10 {vertical-align: top; width: 10%; text-align: right;}
+    td.right_10b {vertical-align: bottom; width: 10%; text-align: right;}
+    td.right_10b {vertical-align: bottom; width: 100%; text-align: center;}
+
+    body{margin-left: 10%;
+         margin-right: 10%;
+        }
+
+        ul {list-style-type: none;}
+        ul.IX { /* styling the IndeX */
+                list-style-type: none;
+                font-size: .9em; text-indent: -2em;
+                }
+        ul.IX li { /* list items in an index list: compressed */
+                margin-top: 0; text-indent: -2em;}
+
+
+    .pagenum  { /* uncomment the next line for invisible page numbers */
+            /*  visibility: hidden;  */
+                position: absolute;
+                left: 92%;
+                font-size: smaller;
+                text-align: right;
+              } /* page numbers */
+
+    .linenum  {position: absolute; top: auto; left: 4%;} /* poetry number */
+    .blockquot{margin-left: 0%; margin-right: 0%; font-size: .9em;}
+    .sidenote {width: 20%; padding-bottom: .5em; padding-top: .5em;
+               padding-left: .5em; padding-right: .5em; margin-left: 1em;
+               float: right; clear: right; margin-top: 1em;
+               font-size: smaller; color: black; background: #eeeeee; border: dashed 1px;}
+
+    .bb       {border-bottom: solid 2px;}
+    .bl       {border-left: solid 2px;}
+    .bt       {border-top: solid 2px;}
+    .br       {border-right: solid 2px;}
+    .bbox     {border: solid 2px;}
+
+    .center   {text-align: center;}
+    .center2   {text-align: center; margin-top: 0em; margin-bottom: 0em;}
+
+    .smcap    {font-variant: small-caps;}
+    .u        {text-decoration: underline;}
+
+    .caption  {font-weight: bold;}
+
+    .figcenter   {margin: auto; text-align: center;}
+
+    .figleft     {float: left; clear: left; margin-left: 0; margin-bottom: 1em; margin-top:
+                 1em; margin-right: 1em; padding: 0; text-align: center;}
+
+    .figright    {float: right; clear: right; margin-left: 1em; margin-bottom: 1em;
+                 margin-top: 1em; margin-right: 0; padding: 0; text-align: center;}
+
+    .footnotes        {border: dashed 1px;}
+    .footnote         {margin-left: 10%; margin-right: 10%; font-size: 0.9em;}
+    .footnote .label  {position: absolute; right: 84%; text-align: right;}
+    .fnanchor         {vertical-align: super; font-size: .8em; text-decoration: none;}
+
+    .poem             {margin-left:10%; margin-right:10%; text-align: left;}
+    .poem br          {display: none;}
+    .poem .stanza     {margin: 1em 0em 1em 0em;}
+    .poem span.i0     {display: block; margin-left: 0em; padding-left: 3em; text-indent: -3em;}
+    .poem span.i2     {display: block; margin-left: 2em; padding-left: 3em; text-indent: -3em;}
+    .poem span.i4     {display: block; margin-left: 4em; padding-left: 3em; text-indent: -3em;}
+    // -->
+    /* XML end  ]]>*/
+    </style>
+  </head>
+<body>
+
+
+<pre>
+
+The Project Gutenberg EBook of Ancient Law, by Sir Henry James Sumner Maine
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Ancient Law
+       Its Connection to the History of Early Society
+
+Author: Sir Henry James Sumner Maine
+
+Release Date: October 7, 2007 [EBook #22910]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+
+
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+
+
+
+
+</pre>
+
+
+
+<div class="center2">Everyman, I will go with thee, and be thy guide,<br />
+In thy most need to go by thy side.<br />
+</div>
+
+<table width="70%">
+<tr>
+<td><p>This is No. 734 of Everyman's Library. A
+list of authors and their works in this series
+will be found at the end of this volume. The
+publishers will be pleased to send freely to all
+applicants a separate, annotated list of the
+Library.</p>
+<br />
+
+<div class="center2">J. M. DENT &amp; SONS LIMITED<br />
+10-13 BEDFORD STREET LONDON W.C.2<br />
+<br />
+E. P. DUTTON &amp; CO. INC.<br />
+286-302 FOURTH AVENUE<br />
+NEW YORK<br />
+
+EVERYMAN'S LIBRARY<br />
+EDITED BY ERNEST RHYS<br />
+</div>
+</td>
+</tr>
+</table>
+
+
+<hr style="width: 65%;" />
+<table width="70%">
+<tr>
+<td><p>SIR HENRY JAMES SUMNER MAINE, the
+son of a doctor, born 1822 in India. Educated
+at Christ's Hospital and Pembroke College,
+Cambridge. In 1847 professor of civil law
+at Cambridge; 1850, called to the Bar.
+Member of Indian Council for seven years.
+Died at Cannes, 1888.</p></td>
+</tr>
+</table>
+
+
+
+<hr style="width: 65%;" />
+<h1>ANCIENT LAW</h1>
+
+
+<div class="figcenter" style="width:100px;"><img src=
+"images/printers.png" width="100" height="96" alt="Printers mark" title=
+"" /></div>
+
+
+<h3>SIR HENRY MAINE</h3>
+<h4>INTRODUCTION BY PROF. J. H. MORGAN</h4>
+
+<h4>LONDON: J. M. DENT &amp; SONS LTD.<br />
+NEW YORK: E. P. DUTTON &amp; CO. INC.</h4>
+
+
+<div class="center2">
+<i>All rights reserved</i><br />
+<i>Made in Great Britain</i><br />
+<i>at The Temple Press Letchworth</i><br />
+<i>and decorated by Eric Ravilious</i><br />
+<i>for</i><br />
+<i>J. M. Dent &amp; Sons Ltd.</i><br />
+<i>Aldine House Bedford St. London</i><br />
+<i>First Published in this Edition 1917</i><br />
+<i>Reprinted 1927, 1931, 1936</i>
+</div>
+
+
+
+<hr style="width: 65%;" />
+<p><span class='pagenum'>vii</span></p>
+
+<h3>INTRODUCTION</h3>
+
+
+<p>No one who is interested in the growth of human ideas
+or the origins of human society can afford to neglect
+Maine's <i>Ancient Law</i>. Published some fifty-six years ago it
+immediately took rank as a classic, and its epoch-making
+influence may not unfitly be compared to that exercised
+by Darwin's <i>Origin of Species</i>. The revolution effected by
+the latter in the study of biology was hardly more remarkable
+than that effected by Maine's brilliant treatise in the
+study of early institutions. Well does one of Maine's latest
+and most learned commentators say of his work that "he
+did nothing less than create the natural history of law."
+This is only another way of saying that he demonstrated
+that our legal conceptions&mdash;using that term in its largest
+sense to include social and political institutions&mdash;are as
+much the product of historical development as biological
+organisms are the outcome of evolution. This was a new
+departure, inasmuch as the school of jurists, represented by
+Bentham and Austin, and of political philosophers, headed
+by Hobbes, Locke, and their nineteenth-century disciples,
+had approached the study of law and political society
+almost entirely from an unhistoric point of view and had
+substituted dogmatism for historical investigation. They
+had read history, so far as they troubled to read it at all,
+"backwards," and had invested early man and early
+society with conceptions which, as a matter of fact, are
+themselves historical products. The jurists, for example,
+had in their analysis of legal sovereignty postulated the
+commands of a supreme lawgiver by simply ignoring the
+fact that, in point of time, custom precedes legislation and
+that early law is, to use Maine's own phrase, "a habit"
+and not a conscious exercise of the volition of a lawgiver
+or a legislature. The political philosophers, similarly, had
+sought the origin of political society in a "state of nature"&mdash;humane,
+according to Locke and Rousseau, barbarous,
+according to Hobbes&mdash;in which men freely subscribed to
+<span class='pagenum'>viii</span>an "original contract" whereby each submitted to the
+will of all. It was not difficult to show, as Maine has done,
+that contract&mdash;<i>i.e.</i> the recognition of a mutual agreement
+as binding upon the parties who make it&mdash;is a conception
+which comes very late to the human mind. But Maine's
+work covers much wider ground than this. It may be
+summed up by saying that he shows that early society, so
+far as we have any recognisable legal traces of it, begins
+with the group, not with the individual.</p>
+
+<p>This group was, according to Maine's theory, the Family&mdash;that
+is to say the Family as resting upon the patriarchal
+power of the father to whom all its members, wife, sons,
+daughters, and slaves, were absolutely subject. This,
+the central feature of Maine's speculation, is worked out
+with infinite suggestiveness and great felicity of style in
+chapter V. ("Primitive Society and Ancient Law") of
+the present work, and his chief illustrations are sought in
+the history of Roman law. The topics of the other chapters
+are selected largely with a view to supplying confirmation
+of the theory in question and, as we shall see in a moment,
+Maine's later works do but serve to carry the train of
+reasoning a step further by the use of the Comparative
+Method in invoking evidence from other sources, notably
+from Irish and Hindu Law. Let us, however, confine ourselves
+for the moment to "Ancient Law." Maine works out
+the implications of his theory by showing that it, and it
+alone, can serve to explain such features of early Roman
+law as Agnation, <i>i.e.</i> the tracing of descent exclusively
+through males, and Adoption, <i>i.e.</i> the preservation of the
+family against the extinction of male heirs. The perpetual
+tutelage of women is the consequence of this position.
+Moreover, all the members of the family, except its head,
+are in a condition best described as <i>status</i>: they have no
+power to acquire property, or to bequeath it, or to enter
+into contracts in relation to it. The traces of this state
+of society are clearly visible in the pages of that classical
+text-book of Roman Law, the <i>Institutes</i> of Justinian,<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">1</a> compiled
+in the sixth century <span class="smcap">A.D.</span>, though equally visible is
+the disintegration wrought in it by the reforming activity
+<span class='pagenum'>ix</span>of the praetor's edicts. That reformation followed the
+course of a gradual emancipation of the members of the
+family, except those under age, from the despotic authority
+of the father. This gradual substitution of the Individual for
+the Family was effected in a variety of ways, but in none
+more conspicuously than by the development of the idea
+of contract, <i>i.e.</i> of the capacity of the individual to enter
+into independent agreements with strangers to his family-group
+by which he was legally bound&mdash;an historical process
+which Maine sums up in his famous aphorism that the
+movement of progressive societies has hitherto been a
+movement from Status to Contract.</p>
+
+<p>In the chapters on the early history of Wills, Property,
+and Contract, Maine supports his theory by showing that
+it is the key which unlocks many, if not all, of the problems
+which those topics present. The chapter on Wills&mdash;particularly
+the passage in which he explains what is meant
+by Universal Succession&mdash;is a brilliant example of Maine's
+analytic power. He shows that a Will&mdash;in the sense of a
+secret and revocable disposition of property only taking
+effect after the death of the testator&mdash;is a conception unknown
+to early law, and that it makes its first appearance
+as a means of transmitting the exercise of domestic sovereignty,
+the transfer of the property being only a subsidiary
+feature; wills only being permitted, in early times,
+in cases where there was likely to be a failure of proper
+heirs. The subsequent popularity of wills, and the indulgence
+with which the law came to regard them, were
+due to a desire to correct the rigidity of the Patria Potestas,
+as reflected in the law of intestate succession, by giving free
+scope to natural affection. In other words, the conception
+of relationship as reckoned only through males, and as
+resting on the continuance of the children within their
+father's power, gave way, through the instrumentality of
+the will, to the more modern and more natural conception
+of relationship.</p>
+
+<p>In the chapter on Property Maine again shows that the
+theory of its origin in occupancy is too individualistic and
+that not separate ownership but joint ownership is the
+really archaic institution. The father was in some sense
+(we must avoid importing modern terms) the trustee of
+the joint property of the family. Here Maine makes an
+<span class='pagenum'>x</span>excursion into the fields of the Early Village Community,
+and has, too, to look elsewhere than to Rome, where the
+village community had already been transformed by
+coalescence into the city-state. He therefore seeks his
+examples from India and points to the Indian village as
+an example of the expansion of the family into a larger
+group of co-proprietors, larger but still bearing traces of
+its origin to the patriarchal power. And, to quote his
+own words, "the most important passage in the history
+of Private Property is its gradual separation from the
+co-ownership of kinsmen." The chapter on Contract,
+although it contains some of Maine's most suggestive
+writing, and the chapter on Delict and Crime, have a less
+direct bearing on his main thesis except in so far as they
+go to show that the reason why there is so little in early
+law of what we call civil, as distinct from criminal, law,
+and in particular of the Law of Contract, is to be found
+in the fact that, in the infancy of society, the Law of
+Persons, and with it the law of civil rights, is merged in
+the common subjection to Paternal Power.</p>
+
+<p>Such, putting it in the simplest possible language, is the
+main argument of <i>Ancient Law</i>. The exigencies of space
+and of simplicity compel me to pass by, to a large extent,
+most of the other topics with which Maine deals&mdash;the place
+of custom, code, and fiction in the development of early
+law, the affiliation of international Law to the <i>Jus Gentium</i>
+and the Law of Nature, the origins of feudalism and of
+primogeniture, the early history of delict and crime, and
+that most remarkable and profound passage in which Maine
+shows the heavy debt of the various sciences to Roman law
+and the influence which it has exerted on the vocabulary
+of political science, the concepts of moral philosophy, and
+the doctrines of theology. I must confine myself to two
+questions: how far did Maine develop or modify in his
+subsequent writings the main thesis of <i>Ancient Law</i>? to
+what extent has this thesis stood the test of the criticism
+and research of others? As regards the first point, it is
+to be remembered that <i>Ancient Law</i> is but the first, though
+doubtless the most important, of a whole series of works
+by its author on the subject of early law. It was followed
+at intervals by three volumes: <i>Village Communities in the
+East and West</i>, <i>Early Institutions</i>, and <i>Early Law and</i>
+<span class='pagenum'>xi</span><i>Custom</i>. In the first of these he dealt with a subject which
+has excited an enormous degree of attention and not a
+little controversy among English, French, German, and
+Russian scholars,<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">2</a> amounting as it does to nothing less
+than an investigation into the origin of private property
+in land. The question has been put in various forms: did
+it commence with joint (or, as some would put it, less justifiably,
+communal or corporate) ownership or with individual
+ownership, and again was the village community free or
+servile? It is now pretty generally recognised that there
+was more than one type, though common cultivation was
+doubtless a feature of them all, and even in India there
+were at least two types, of which the one presenting several,
+as opposed to communal, ownership is not the less ancient.
+But it may well be that, as Maitland so often pointed out,
+much of the controversy has been literally an anachronism;
+that is to say, that nineteenth-century men have been asking
+the Early Ages questions which they could not answer
+and reading back into early history distinctions which are
+themselves historical products. Ownership is itself a late
+abstraction developed out of use. We may say with some
+certainty that family "ownership" preceded individual
+ownership, but in what sense there was communal ownership
+by a whole village it is not so easy to say.</p>
+
+<p>Maine was on surer ground when, as in his studies of
+Irish and Hindu law, he confined himself to the more
+immediate circle of the family group. In his <i>Early Institutions</i>
+he subjects the Brehon Laws of early Ireland to a
+suggestive examination as presenting an example of Celtic
+law largely unaffected by Roman influences. He there
+shows, as he has shown in <i>Ancient Law</i>, that in early times
+the only social brotherhood recognised was that of kinship,
+and that almost every form of social organisation, tribe,
+guild, and religious fraternity, was conceived of under a
+similitude of it. Feudalism converted the village community,
+based on a real or assumed consanguinity of its
+members, into the fief in which the relations of tenant and
+lord were those of contract, while those of the unfree tenant
+<span class='pagenum'>xii</span>rested on status. In his <i>Early Law and Custom</i> he pursues
+much the same theme by an examination of Hindu Law
+as presenting a peculiarly close implication of early law
+with religion. Here he devotes his attention chiefly to
+Ancestor-worship, a subject which about this time had
+engaged the attention, as regards its Greek and Roman
+forms, of that brilliant Frenchman, Fustel de Coulanges,
+whose monograph <i>La Cit&eacute; Antique</i> is now a classic. As is
+well known, the right of inheriting a dead man's property
+and the duty of performing his obsequies are co-relative to
+this day in Hindu law, and his investigation of this subject
+brings Maine back to the subject of the Patriarchal Power.
+He points out that both worshipper and the object of
+worship were exclusively males, and concludes that it was
+the power of the father which generated the practice of
+worshipping him, while this practice in turn, by the gradual
+admission of women to participate in the ceremonies,
+gradually acted as a solvent upon the power itself. The
+necessity of finding some one to perform these rites, on
+failure of direct male heirs, marked the beginning of the
+recognition of a right in women to inherit. The conception
+of the family becomes less intense and more extensive.
+These discussions brought Maine, in chapter VII. of <i>Early
+Law and Custom</i>, to reconsider the main theory of <i>Ancient
+Law</i> in the light of the criticism to which it had been
+exposed, and every reader of <i>Ancient Law</i> who desires to
+understand Maine's exact position in regard to the scope
+of his generalisations should read for himself the chapter
+in the later work entitled "Theories of Primitive Society."
+His theory of the patriarchal power had been criticised by
+two able and industrious anthropologists, M'Lennan and
+Morgan, who, by their investigation of "survivals" among
+barbarous tribes in our own day, had arrived at the conclusion
+that, broadly speaking, the normal process through
+which society had passed was not patriarchal but "matriarchal,"
+<i>i.e.</i> understanding by that term a system in which
+descent is traced through females. It would take up far
+too much space to enter into this controversy in detail. It
+is sufficient to say that the counter-theory rested on the
+assumption that society originated not in families, based
+on the authority of the father and relationship through him,
+but in promiscuous hordes among whom the only certain
+<span class='pagenum'>xiii</span>fact, and, consequently, the only recognised basis of relationship,
+was maternity. Maine's answer to this was that his
+generalisations as to the prevalence of the patriarchal power
+were confined to Indo-European races, and that he did not
+pretend to dogmatise about other races, also that he was
+dealing not with all societies but all that had any permanence.
+He argues that the promiscuous horde, where and
+when it is found, is to be explained as an abnormal case of
+retrogression due to a fortuitous scarcity of females resulting
+in polyandry, and he opposes to the theory of its predominance
+the potency of sexual jealousy which might
+serve as only another name for the patriarchal power. On
+the whole the better opinion is certainly with Maine. His
+theory, at any rate, alone accords with a view of society so
+soon as it is seen to possess any degree of civilisation and
+social cohesion.</p>
+
+<p>It will be seen that Maine's work, like that of most great
+thinkers, presents a singular coherence and intellectual
+elegance. It is distinguished also by an extraordinary
+wide range of vision. He lays under contribution with
+equal felicity and suggestiveness the Old Testament, the
+Homeric poems, the Latin dramatists, the laws of the
+Barbarians, the sacerdotal laws of the Hindus, the oracles
+of the Brehon caste, and the writings of the Roman jurists.
+In other words, he was a master of the Comparative Method.
+Few writers have thrown so much light on the development
+of the human mind in its social relations. We know now&mdash;a
+hundred disciples have followed in Maine's footsteps
+and applied his teaching&mdash;how slow is the growth of the
+human intellect in these matters, with what painful steps
+man learns to generalise, how convulsively he clings in the
+infancy of civilisation to the formal, the material, the
+realistic aspects of things, how late he develops such
+abstractions as "the State." In all this Maine first showed
+the way. As Sir Frederick Pollock has admirably put it&mdash;</p>
+
+<div class="blockquot"><p>Nowadays it may be said that "all have got the seed," but
+this is no justification for forgetting who first cleared and sowed
+the ground. We may till fields that the master left untouched,
+and one man will bring a better ox to yoke to the plough, and
+another a worse; but it is the master's plough still.</p></div>
+
+<p>We may conclude with some remarks on Maine's views
+<span class='pagenum'>xiv</span>of the contemporary problems of political society. Maine
+was what, for want of a better term, may be called a
+Conservative, and, indeed, it may be doubted whether,
+with the single exception of Burke, any English writer has
+done more to provide English Conservatives with reasons
+for the faith that is in them. He has set forth his views
+in a collection of polemical essays under the title of <i>Popular
+Government</i>, which were given to the world in book form in
+1885. He viewed the advent of Democracy with more
+distrust than alarm&mdash;he appears to have thought it a form
+of government which could not last&mdash;and he has an unerring
+eye for its weaknesses.<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">3</a> Indeed, his remarks on the
+facility with which Democracy yields itself to manipulation
+by wire-pullers, newspapers, and demagogues, have found
+not a little confirmation in such studies of the actual working
+of democratic government as M. Ostrogorski's <i>Democracy
+and the Organisation of Political Parties</i>. Maine emphasised
+the tyranny of majorities, the enslavement of untutored
+minds by political catchwords, their susceptibility to
+"suggestion," their readiness to adopt vicarious opinion
+in preference to an intellectual exercise of their own volition.
+It is not surprising that the writer who had subjected the
+theories of the Social Contract to such merciless criticism
+sighed for a scientific analysis of political terms as the first
+step to clear thinking about politics. Here he was on
+strong ground, but for such an analysis we have yet to
+wait.<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">4</a> He seems to have placed his hopes in the adoption
+of some kind of written constitution which, like the American
+prototype, would safeguard us from fundamental changes
+by the caprice of a single assembly. But this is not the
+place to pursue such highly debateable matters. Enough
+if we say that the man who wishes to serve an apprenticeship
+to an intelligent understanding of the political society
+<span class='pagenum'>xv</span>of the present cannot do better than begin by a careful
+study of Maine's researches into the political society of
+the past.</p>
+
+<p class="quotsig">J. H. MORGAN.</p>
+
+<div class="blockquot"><p><i>Note.</i>&mdash;The reader who desires to study Maine in the light of
+modern criticism is recommended to read Sir F. Pollock's "Notes
+on Maine's <i>Ancient Law</i>" (published by John Murray at 2<i>s.</i> 6<i>d.</i>,
+or, with the text, at 5<i>s.</i>). The best short study of Maine with
+which I am acquainted is the article by Professor Vinogradoff in
+the <i>Law Quarterly Review</i> for April 1904. The field of research
+covered by Maine in his various writings is so vast that it is
+impossible to refer the reader, except at great length, to anything
+like an adequate list of later books on the subjects of his investigation.
+In addition to the works on the Village Community
+mentioned in a previous footnote, I may, however, refer the
+beginner to Mr. Edward Jenks' little book on <i>The History of
+Politics</i> in Dent's Primers, to Professor Ashley's translation of a
+fragment of Fustel de Coulanges under the title of <i>The Origin
+of Property in Land</i>, and to Sir Frederick Pollock's brilliant little
+book, <i>The Expansion of the Common Law</i>. The reader is also
+recommended to study Mr. H.A.L. Fisher's succinct survey of
+the contributions of Maitland to legal history under the title of
+<i>F.W. Maitland; an Appreciation</i> (Cambridge University Press).
+One of the most brilliant and ingenious studies of the origins of
+European civilisation is to be found in the work of the great
+German jurist, Ihering, <i>Die Vorgeschichte der Indo-Europder</i>,
+translated into English under the title of <i>The Early History of
+the Indo-European Races</i> (Sonnenschein, 1897).</p></div>
+
+<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">1</span></a> The reader who desires to pursue the subject by reference to one
+of Maine's chief authorities is recommended to read the translation of
+the <i>Institutes</i> by Sandars.</p></div>
+
+<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">2</span></a> English literature on the subject is best studied in Maitland's
+<i>Domesday Book and Beyond</i>, Vinogradoff's <i>The Growth of the Manor</i>
+and <i>Villeinage in England</i> (with an excellent historical introduction),
+and Seebohm's <i>English Village Community</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">3</span></a> Witness the characteristic sentence: "On the whole they [<i>i.e.</i> the
+studies of earlier society] suggest that the differences which, after ages
+of change, separate the civilised man from savage or barbarian, are
+not so great as the vulgar opinion would have them.... Like the
+savage, he is a man of party with a newspaper for a totem ... and
+like a savage he is apt to make of his totem his God."</p></div>
+
+<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">4</span></a> Something of the kind was done many years ago by Sir George
+Cornewall Lewis in his little book on the <i>Use and Abuse of Political
+Terms</i>. I have attempted to carry the task a step farther in an article
+which appeared in the form of a review of Lord Morley's "History and
+Politics" in the <i>Nineteenth Century</i> for March 1913.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<p><span class='pagenum'>xvi</span></p>
+<h3>BIBLIOGRAPHY</h3>
+
+
+<p>Navis ornate atque armata in aquam deducitur (Prize Poem), 1842;
+The Birth of the Prince of Wales (Prize Poem), 1842; C&aelig;sar ad Rubiconem
+constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851;
+Roman Law and Legal Education (Essay), 1856; Ancient Law: its
+Connection with the Early History of Society and its Relation to
+Modern Ideas, 1861; Short Essays and Reviews on the Educational
+Policy of the Government of India, 1866; Village Communities in the
+East and West (Lectures), 1871; The Early History of the Property of
+Married Women as collected from Roman and Hindoo Law (Lecture),
+1873; The Effects of Observation of India on Modern European
+Thought (Lecture), 1875; Lectures on the Early History of Institutions,
+1875; Village Communities, etc.; third ed. with other Lectures
+and Addresses, 1876; Dissertations on Early Law and Custom (selected
+from Lectures), 1883; Popular Government (four Essays), 1885;
+India [1837-1887] (in "The Reign of Queen Victoria," ed. by Thos.
+Humphry Ward, vol. i.), 1887; The Whewell Lectures: International
+Law, 1887, 1888; Ancient Law (ed. with introduction and notes by Sir
+Frederick Pollock), 1906; Ancient Law (Allahabad ed., with introduction
+by K.C. Banerji), 1912.</p>
+
+<p>Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine,"
+1871; "Quarterly Review," 1886; "Saturday Review," and "St.
+James's Gazette."</p>
+
+<p>A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant
+Duff; with some of his Indian speeches and minutes, selected by
+Whitley Stokes, 1892.</p>
+
+
+
+<hr style="width: 65%;" />
+
+<p><span class='pagenum'>xvii</span></p>
+<h3>PREFACE</h3>
+
+
+<p>The chief object of the following pages is to indicate some of
+the earliest ideas of mankind, as they are reflected in Ancient
+Law, and to point out the relation of those ideas to modern
+thought. Much of the inquiry attempted could not have been
+prosecuted with the slightest hope of a useful result if there
+had not existed a body of law, like that of the Romans,
+bearing in its earliest portions the traces of the most remote
+antiquity and supplying from its later rules the staple of the
+civil institutions by which modern society is even now controlled.
+The necessity of taking the Roman law as a typical
+system has compelled the author to draw from it what may
+appear a disproportionate number of his illustrations; but
+it has not been his intention to write a treatise on Roman
+jurisprudence, and he has as much as possible avoided all
+discussions which might give that appearance to his work.
+The space allotted in the third and fourth chapters to certain
+philosophical theories of the Roman Jurisconsults has been
+appropriated to them for two reasons. In the first place,
+those theories appear to the author to have had a wider and
+more permanent influence on the thought and action of the
+world than is usually supposed. Secondly, they are believed
+to be the ultimate source of most of the views which have
+been prevalent, till quite recently, on the subjects treated of
+in this volume. It was impossible for the author to proceed
+far with his undertaking without stating his opinion on the
+origin, meaning, and value of those speculations.</p>
+
+<p class="quotsig">H. S. M.</p>
+
+<p>&nbsp;&nbsp;&nbsp;&nbsp;<small><span class="smcap">London</span>, <i>January 1861</i>.</small></p>
+
+
+
+<hr style="width: 65%;" />
+
+<p><span class='pagenum'>xviii</span></p>
+<h3>CONTENTS</h3>
+
+<table width="100%" summary="CONTENTS">
+<tr>
+<td class="right_10"><small><span class="smcap">chap.</span></small></td>
+<td class="left_80">&nbsp;</td>
+<td class="right_10b"><small><span class="smcap">page</span></small></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">I.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Ancient Codes</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_I">1</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">II.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Legal Fictions</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_II">13</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">III.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Law of Nature and Equity</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_III">26</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">IV.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">The Modern History of the Law of Nature</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_IV">43</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">V.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Primitive Society and Ancient Law</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_V">67</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">VI.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">The Early History of Testamentary Succession</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_VI">101</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">VII.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Ancient and Modern Ideas Respecting Wills
+And Successions</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_VII">127</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">VIII.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">The Early History of Property</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_VIII">144</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">IX.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">The Early History of Contract</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_IX">179</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">X.</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">The Early History of Delict and Crime</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#CHAPTER_X">216</a></span></td>
+</tr>
+<tr>
+<td class="right_10"><span class="smcap">&nbsp;</span></td>
+<td class="left_80"><p class="indent2"><span class="smcap">Index</span></p></td>
+<td class="right_10b"><span class="smcap"><a href="#INDEX">235</a></span></td>
+</tr>
+</table>
+
+
+<hr style="width: 65%;" />
+<p><span class='pagenum'><a name="Page_1" id="Page_1">001</a></span></p>
+
+<h3><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I</h3>
+
+<h4><span class="smcap">ancient codes</span></h4>
+
+
+<p>The most celebrated system of jurisprudence known to the
+world begins, as it ends, with a Code. From the commencement
+to the close of its history, the expositors of Roman Law
+consistently employed language which implied that the body
+of their system rested on the Twelve Decemviral Tables, and
+therefore on a basis of written law. Except in one particular,
+no institutions anterior to the Twelve Tables were
+recognised at Rome. The theoretical descent of Roman
+jurisprudence from a code, the theoretical ascription of
+English law to immemorial unwritten tradition, were the
+chief reasons why the development of their system differed
+from the development of ours. Neither theory corresponded
+exactly with the facts, but each produced consequences of
+the utmost importance.</p>
+
+<p>I need hardly say that the publication of the Twelve Tables
+is not the earliest point at which we can take up the history
+of law. The ancient Roman code belongs to a class of which
+almost every civilised nation in the world can show a sample,
+and which, so far as the Roman and Hellenic worlds were
+concerned, were largely diffused over them at epochs not
+widely distant from one another. They appeared under
+exceedingly similar circumstances, and were produced, to
+our knowledge, by very similar causes. Unquestionably,
+many jural phenomena lie behind these codes and preceded
+them in point of time. Not a few documentary records exist
+which profess to give us information concerning the early
+phenomena of law; but, until philology has effected a complete
+analysis of the Sanskrit literature, our best sources
+of knowledge are undoubtedly the Greek Homeric poems,
+considered of course not as a history of actual occurrences,<span class='pagenum'><a name="Page_2" id="Page_2">002</a></span>
+but as a description, not wholly idealised, of a state of society
+known to the writer. However the fancy of the poet may
+have exaggerated certain features of the heroic age, the
+prowess of warriors and the potency of gods, there is no
+reason to believe that it has tampered with moral or metaphysical
+conceptions which were not yet the subjects of
+conscious observation; and in this respect the Homeric
+literature is far more trustworthy than those relatively later
+documents which pretend to give an account of times similarly
+early, but which were compiled under philosophical or theological
+influences. If by any means we can determine the
+early forms of jural conceptions, they will be invaluable to us.
+These rudimentary ideas are to the jurist what the primary
+crusts of the earth are to the geologist. They contain,
+potentially, all the forms in which law has subsequently
+exhibited itself. The haste or the prejudice which has
+generally refused them all but the most superficial examination,
+must bear the blame of the unsatisfactory condition in
+which we find the science of jurisprudence. The inquiries
+of the jurist are in truth prosecuted much as inquiry in physics
+and physiology was prosecuted before observation had taken
+the place of assumption. Theories, plausible and comprehensive,
+but absolutely unverified, such as the Law of Nature
+or the Social Compact, enjoy a universal preference over sober
+research into the primitive history of society and law; and
+they obscure the truth not only by diverting attention from
+the only quarter in which it can be found, but by that most
+real and most important influence which, when once entertained
+and believed in, they are enabled to exercise on the
+later stages of jurisprudence.</p>
+
+<p>The earliest notions connected with the conception, now
+so fully developed, of a law or rule of life, are those contained
+in the Homeric words "Themis" and "Themistes."
+"Themis," it is well known, appears in the later Greek
+pantheon as the Goddess of Justice, but this is a modern
+and much developed idea, and it is in a very different sense
+that Themis is described in the Iliad as the assessor of Zeus.
+It is now clearly seen by all trustworthy observers of the
+primitive condition of mankind that, in the infancy of the
+race, men could only account for sustained or periodically
+recurring action by supposing a personal agent. Thus, the
+wind blowing was a person and of course a divine person;<span class='pagenum'><a name="Page_3" id="Page_3">003</a></span>
+the sun rising, culminating, and setting was a person and a
+divine person; the earth yielding her increase was a person
+and divine. As, then, in the physical world, so in the moral.
+When a king decided a dispute by a sentence, the judgment
+was assumed to be the result of direct inspiration. The
+divine agent, suggesting judicial awards to kings or to gods,
+the greatest of kings, was <i>Themis</i>. The peculiarity of the
+conception is brought out by the use of the plural. <i>Themistes</i>,
+Themises, the plural of <i>Themis</i>, are the awards themselves,
+divinely dictated to the judge. Kings are spoken of as if
+they had a store of "Themistes" ready to hand for use;
+but it must be distinctly understood that they are not laws,
+but judgments. "Zeus, or the human king on earth,"
+says Mr. Grote, in his History of Greece, "is not a lawmaker,
+but a judge." He is provided with Themistes, but,
+consistently with the belief in their emanation from above,
+they cannot be supposed to be connected by any thread of
+principle; they are separate, isolated judgments.</p>
+
+<p>Even in the Homeric poems, we can see that these ideas
+are transient. Parities of circumstance were probably commoner
+in the simple mechanism of ancient society than
+they are now, and in the succession of similar cases awards
+are likely to follow and resemble each other. Here we have
+the germ or rudiment of a Custom, a conception posterior
+to that of Themistes or judgments. However strongly we,
+with our modern associations, may be inclined to lay down
+<i>&agrave; priori</i> that the notion of a Custom must precede that of
+a judicial sentence, and that a judgment must affirm a Custom
+or punish its breach, it seems quite certain that the historical
+order of the ideas is that in which I have placed them. The
+Homeric word for a custom in the embryo is sometimes
+"Themis" in the singular&mdash;more often "Dike," the meaning
+of which visibly fluctuates between a "judgment" and a
+"custom" or "usage." &#925;&#8057;&#956;&#959;&#962;, a Law, so great and famous a
+term in the political vocabulary of the later Greek society,
+does not occur in Homer.</p>
+
+<p>This notion of a divine agency, suggesting the Themistes,
+and itself impersonated in Themis, must be kept apart from
+other primitive beliefs with which a superficial inquirer might
+confound it. The conception of the Deity dictating an entire
+code or body of law, as in the case of the Hindoo laws of Menu,
+seems to belong to a range of ideas more recent and more<span class='pagenum'><a name="Page_4" id="Page_4">004</a></span>
+advanced. "Themis" and "Themistes" are much less
+remotely linked with that persuasion which clung so long and
+so tenaciously to the human mind, of a divine influence
+underlying and supporting every relation of life, every social
+institution. In early law, and amid the rudiments of political
+thought, symptoms of this belief meet us on all sides. A
+supernatural presidency is supposed to consecrate and keep
+together all the cardinal institutions of those times, the State,
+the Race, and the Family. Men, grouped together in the
+different relations which those institutions imply, are bound
+to celebrate periodically common rites and to offer common
+sacrifices; and every now and then the same duty is even
+more significantly recognised in the purifications and expiations
+which they perform, and which appear intended to
+deprecate punishment for involuntary or neglectful disrespect.
+Everybody acquainted with ordinary classical literature will
+remember the <i>sacra gentilicia</i>, which exercised so important
+an influence on the early Roman law of adoption and of wills.
+And to this hour the Hindoo Customary Law, in which some
+of the most curious features of primitive society are stereotyped,
+makes almost all the rights of persons and all the rules
+of succession hinge on the due solemnisation of fixed ceremonies
+at the dead man's funeral, that is, at every point where
+a breach occurs in the continuity of the family.</p>
+
+<p>Before we quit this stage of jurisprudence, a caution may
+be usefully given to the English student. Bentham, in his
+<i>Fragment on Government</i>, and Austin, in his <i>Province of
+Jurisprudence Determined</i>, resolve every law into a <i>command</i>
+of the lawgiver, <i>an obligation</i> imposed thereby on the citizen,
+and a <i>sanction</i> threatened in the event of disobedience; and
+it is further predicated of the <i>command</i>, which is the first
+element in a law, that it must prescribe, not a single act,
+but a series or number of acts of the same class or kind.
+The results of this separation of ingredients tally exactly
+with the facts of mature jurisprudence; and, by a little
+straining of language, they may be made to correspond in
+form with all law, of all kinds, at all epochs. It is not, however,
+asserted that the notion of law entertained by the
+generality is even now quite in conformity with this dissection;
+and it is curious that, the farther we penetrate into the
+primitive history of thought, the farther we find ourselves
+from a conception of law which at all resembles a compound<span class='pagenum'><a name="Page_5" id="Page_5">005</a></span>
+of the elements which Bentham determined. It is certain
+that, in the infancy of mankind, no sort of legislature, not
+even a distinct author of law, is contemplated or conceived
+of. Law has scarcely reached the footing of custom; it is
+rather a habit. It is, to use a French phrase, "in the air."
+The only authoritative statement of right and wrong is a
+judicial sentence after the facts, not one presupposing a law
+which has been violated, but one which is breathed for the
+first time by a higher power into the judge's mind at the
+moment of adjudication. It is of course extremely difficult
+for us to realise a view so far removed from us in point both
+of time and of association, but it will become more credible
+when we dwell more at length on the constitution of ancient
+society, in which every man, living during the greater part of
+his life under the patriarchal despotism, was practically controlled
+in all his actions by a regimen not of law but of caprice.
+I may add that an Englishman should be better able than
+a foreigner to appreciate the historical fact that the
+"Themistes" preceded any conception of law, because, amid
+the many inconsistent theories which prevail concerning the
+character of English jurisprudence, the most popular, or at
+all events the one which most affects practice, is certainly
+a theory which assumes that adjudged cases and precedents
+exist antecedently to rules, principles, and distinctions.
+The "Themistes" have too, it should be remarked, the
+characteristic which, in the view of Bentham and Austin,
+distinguishes single or mere commands from laws. A true
+law enjoins on all the citizens indifferently a number of acts
+similar in class or kind; and this is exactly the feature of a
+law which has most deeply impressed itself on the popular
+mind, causing the term "law" to be applied to mere uniformities,
+successions, and similitudes. A <i>command</i> prescribes
+only a single act, and it is to commands, therefore,
+that "Themistes" are more akin than to laws. They are
+simply adjudications on insulated states of fact, and do not
+necessarily follow each other in any orderly sequence.</p>
+
+<p>The literature of the heroic age discloses to us law in the
+germ under the "Themistes" and a little more developed
+in the conception of "Dike." The next stage which we
+reach in the history of jurisprudence is strongly marked and
+surrounded by the utmost interest. Mr. Grote, in the second
+part and second chapter of his History, has fully described<span class='pagenum'><a name="Page_6" id="Page_6">006</a></span>
+the mode in which society gradually clothed itself with a
+different character from that delineated by Homer. Heroic
+kingship depended partly on divinely given prerogative, and
+partly on the possession of supereminent strength, courage,
+and wisdom. Gradually, as the impression of the monarch's
+sacredness became weakened, and feeble members occurred
+in the series of hereditary kings, the royal power decayed,
+and at last gave way to the dominion of aristocracies. If
+language so precise can be used of the revolution, we might
+say that the office of the king was usurped by that council
+of chiefs which Homer repeatedly alludes to and depicts.
+At all events from an epoch of kingly rule we come everywhere
+in Europe to an era of oligarchies; and even where the
+name of the monarchical functions does not absolutely disappear,
+the authority of the king is reduced to a mere shadow.
+He becomes a mere hereditary general, as in Laced&aelig;mon, a
+mere functionary, as the King Archon at Athens, or a mere
+formal hierophant, like the <i>Rex Sacrificulus</i> at Rome. In
+Greece, Italy, and Asia Minor, the dominant orders seem to
+have universally consisted of a number of families united by
+an assumed relationship in blood, and, though they all appear
+at first to have laid claim to a quasi-sacred character, their
+strength does not seem to have resided in their pretended
+sanctity. Unless they were prematurely overthrown by
+the popular party, they all ultimately approached very
+closely to what we should now understand by a political
+aristocracy. The changes which society underwent in the
+communities of the further Asia occurred of course at periods
+long anterior in point of time to these revolutions of the
+Italian and Hellenic worlds; but their relative place in
+civilisation appears to have been the same, and they seem to
+have been exceedingly similar in general character. There
+is some evidence that the races which were subsequently
+united under the Persian monarchy, and those which peopled
+the peninsula of India, had all their heroic age and their era
+of aristocracies; but a military and a religious oligarchy
+appear to have grown up separately, nor was the authority
+of the king generally superseded. Contrary, too, to the
+course of events in the West, the religious element in the East
+tended to get the better of the military and political. Military
+and civil aristocracies disappear, annihilated or crushed into
+insignificance between the kings and the sacerdotal order;<span class='pagenum'><a name="Page_7" id="Page_7">007</a></span>
+and the ultimate result at which we arrive is, a monarch
+enjoying great power, but circumscribed by the privileges
+of a caste of priests. With these differences, however, that
+in the East aristocracies became religious, in the West civil
+or political, the proposition that a historical era of aristocracies
+succeeded a historical era of heroic kings may be
+considered as true, if not of all mankind, at all events of all
+branches of the Indo-European family of nations.</p>
+
+<p>The important point for the jurist is that these aristocracies
+were universally the depositaries and administrators of law.
+They seem to have succeeded to the prerogatives of the king,
+with the important difference, however, that they do not
+appear to have pretended to direct inspiration for each
+sentence. The connection of ideas which caused the judgments
+of the patriarchal chieftain to be attributed to superhuman
+dictation still shows itself here and there in the claim
+of a divine origin for the entire body of rules, or for certain
+parts of it, but the progress of thought no longer permits the
+solution of particular disputes to be explained by supposing
+an extra-human interposition. What the juristical oligarchy
+now claims is to monopolise the <i>knowledge</i> of the laws, to
+have the exclusive possession of the principles by which
+quarrels are decided. We have in fact arrived at the epoch
+of Customary Law. Customs or Observances now exist as a
+substantive aggregate, and are assumed to be precisely known
+to the aristocratic order or caste. Our authorities leave us
+no doubt that the trust lodged with the oligarchy was sometimes
+abused, but it certainly ought not to be regarded as a
+mere usurpation or engine of tyranny. Before the invention
+of writing, and during the infancy of the art, an aristocracy
+invested with judicial privileges formed the only expedient
+by which accurate preservation of the customs of the race
+or tribe could be at all approximated to. Their genuineness
+was, so far as possible, insured by confiding them to the
+recollection of a limited portion of the community.</p>
+
+<p>The epoch of Customary Law, and of its custody by a
+privileged order, is a very remarkable one. The condition
+of the jurisprudence which it implies has left traces which
+may still be detected in legal and popular phraseology. The
+law, thus known exclusively to a privileged minority, whether
+a caste, an aristocracy, a priestly tribe, or a sacerdotal college
+is true unwritten law. Except this, there is no such thing as<span class='pagenum'><a name="Page_8" id="Page_8">008</a></span>
+unwritten law in the world. English case-law is sometimes
+spoken of as unwritten, and there are some English theorists
+who assure us that if a code of English jurisprudence were
+prepared we should be turning unwritten law into written&mdash;a
+conversion, as they insist, if not of doubtful policy, at all
+events of the greatest seriousness. Now, it is quite true that
+there was once a period at which the English common law
+might reasonably have been termed unwritten. The elder
+English judges did really pretend to knowledge of rules,
+principles, and distinctions which were not entirely revealed
+to the bar and to the lay-public. Whether all the law which
+they claimed to monopolise was really unwritten, is exceedingly
+questionable; but at all events, on the assumption that
+there was once a large mass of civil and criminal rules
+known exclusively to the judges, it presently ceased to be
+unwritten law. As soon as the Courts at Westminster Hall
+began to base their judgments on cases recorded, whether
+in the year books or elsewhere, the law which they administered
+became written law. At the present moment a rule of
+English law has first to be disentangled from the recorded
+facts of adjudged printed precedents, then thrown into a
+form of words varying with the taste, precision, and knowledge
+of the particular judge, and then applied to the circumstances
+of the case for adjudication. But at no stage of this
+process has it any characteristic which distinguishes it from
+written law. It is written case-law, and only different from
+code-law because it is written in a different way.</p>
+
+<p>From the period of Customary Law we come to another
+sharply defined epoch in the history of jurisprudence. We
+arrive at the era of Codes, those ancient codes of which the
+Twelve Tables of Rome were the most famous specimen. In
+Greece, in Italy, on the Hellenised sea-board of Western Asia,
+these codes all made their appearance at periods much the
+same everywhere, not, I mean, at periods identical in point
+of time, but similar in point of the relative progress of each
+community. Everywhere, in the countries I have named,
+laws engraven on tablets and published to the people take
+the place of usages deposited with the recollection of a privileged
+oligarchy. It must not for a moment be supposed that
+the refined considerations now urged in favour of what is
+called codification had any part or place in the change I
+have described. The ancient codes were doubtless originally<span class='pagenum'><a name="Page_9" id="Page_9">009</a></span>
+suggested by the discovery and diffusion of the art of writing.
+It is true that the aristocracies seem to have abused their
+monopoly of legal knowledge; and at all events their exclusive
+possession of the law was a formidable impediment to
+the success of those popular movements which began to be
+universal in the western world. But, though democratic
+sentiment may have added to their popularity, the codes
+were certainly in the main a direct result of the invention
+of writing. Inscribed tablets were seen to be a better
+depositary of law, and a better security for its accurate
+preservation, than the memory of a number of persons however
+strengthened by habitual exercise.</p>
+
+<p>The Roman code belongs to the class of codes I have been
+describing. Their value did not consist in any approach to
+symmetrical classifications, or to terseness and clearness of
+expression, but in their publicity, and in the knowledge which
+they furnished to everybody, as to what he was to do, and
+what not to do. It is, indeed, true that the Twelve Tables
+of Rome do exhibit some traces of systematic arrangement,
+but this is probably explained by the tradition that the framers
+of that body of law called in the assistance of Greeks who
+enjoyed the later Greek experience in the art of law-making.
+The fragments of the Attic Code of Solon show, however, that
+it had but little order, and probably the laws of Draco had
+even less. Quite enough too remains of these collections,
+both in the East and in the West, to show that they mingled
+up religious, civil, and merely moral ordinances, without
+any regard to differences in their essential character; and
+this is consistent with all we know of early thought from other
+sources, the severance of law from morality, and of religion
+from law, belonging very distinctly to the <i>later</i> stages of
+mental progress.</p>
+
+<p>But, whatever to a modern eye are the singularities of these
+Codes, their importance to ancient societies was unspeakable.
+The question&mdash;and it was one which affected the whole
+future of each community&mdash;was not so much whether there
+should be a code at all, for the majority of ancient societies
+seem to have obtained them sooner or later, and, but for the
+great interruption in the history of jurisprudence created by
+feudalism, it is likely that all modern law would be distinctly
+traceable to one or more of these fountain-heads. But the
+point on which turned the history of the race was, at what<span class='pagenum'><a name="Page_10" id="Page_10">010</a></span>
+period, at what stage of their social progress, they should have
+their laws put into writing. In the western world the plebeian
+or popular element in each state successfully assailed the
+oligarchical monopoly, and a code was nearly universally
+obtained <i>early</i> in the history of the Commonwealth. But in
+the East, as I have before mentioned, the ruling aristocracies
+tended to become religious rather than military or political,
+and gained, therefore, rather than lost in power; while in
+some instances the physical conformation of Asiatic countries
+had the effect of making individual communities larger and
+more numerous than in the West; and it is a known social
+law that the larger the space over which a particular set of
+institutions is diffused, the greater is its tenacity and vitality.
+From whatever cause, the codes obtained by Eastern societies
+were obtained, relatively, much later than by Western, and
+wore a very different character. The religious oligarchies of
+Asia, either for their own guidance, or for the relief of their
+memory, or for the instruction of their disciples, seem in all
+cases to have ultimately embodied their legal learning in a
+code; but the opportunity of increasing and consolidating
+their influence was probably too tempting to be resisted.
+Their complete monopoly of legal knowledge appears to have
+enabled them to put off on the world collections, not so
+much of the rules actually observed as of the rules which
+the priestly order considered proper to be observed. The
+Hindoo code, called the Laws of Menu, which is certainly
+a Brahmin compilation, undoubtedly enshrines many genuine
+observances of the Hindoo race, but the opinion of the best
+contemporary orientalists is, that it does not, as a whole,
+represent a set of rules ever actually administered in Hindostan.
+It is, in great part, an ideal picture of that which, in
+the view of the Brahmins, <i>ought</i> to be the law. It is consistent
+with human nature and with the special motives of
+their authors, that codes like that of Menu should pretend to
+the highest antiquity and claim to have emanated in their
+complete form from the Deity. Menu, according to Hindoo
+mythology, is an emanation from the supreme God; but the
+compilation which bears his name, though its exact date is
+not easily discovered, is, in point of the relative progress of
+Hindoo jurisprudence, a recent production.</p>
+
+<p>Among the chief advantages which the Twelve Tables and
+similar codes conferred on the societies which obtained them,<span class='pagenum'><a name="Page_11" id="Page_11">011</a></span>
+was the protection which they afforded against the frauds
+of the privileged oligarchy and also against the spontaneous
+depravation and debasement of the national institutions.
+The Roman Code was merely an enunciation in words of the
+existing customs of the Roman people. Relatively to the
+progress of the Romans in civilisation, it was a remarkably
+early code, and it was published at a time when Roman
+society had barely emerged from that intellectual condition
+in which civil obligation and religious duty are inevitably
+confounded. Now a barbarous society practising a body of
+customs, is exposed to some especial dangers which may be
+absolutely fatal to its progress in civilisation. The usages
+which a particular community is found to have adopted in
+its infancy and in its primitive seats are generally those which
+are on the whole best suited to promote its physical and moral
+well-being; and, if they are retained in their integrity until
+new social wants have taught new practices, the upward
+march of society is almost certain. But unhappily there is
+a law of development which ever threatens to operate upon
+unwritten usage. The customs are of course obeyed by
+multitudes who are incapable of understanding the true
+ground of their expediency, and who are therefore left
+inevitably to invent superstitious reasons for their permanence.
+A process then commences which may be shortly
+described by saying that usage which is reasonable generates
+usage which is unreasonable. Analogy, the most valuable
+of instruments in the maturity of jurisprudence, is the most
+dangerous of snares in its infancy. Prohibitions and ordinances,
+originally confined, for good reasons, to a single
+description of acts, are made to apply to all acts of the same
+class, because a man menaced with the anger of the gods for
+doing one thing, feels a natural terror in doing any other
+thing which is remotely like it. After one kind of food has
+been interdicted for sanitary reasons, the prohibition is
+extended to all food resembling it, though the resemblance
+occasionally depends on analogies the most fanciful. So,
+again, a wise provision for insuring general cleanliness
+dictates in time long routines of ceremonial ablution; and
+that division into classes which at a particular crisis of social
+history is necessary for the maintenance of the national
+existence degenerates into the most disastrous and blighting
+of all human institutions&mdash;Caste. The fate of the Hindoo<span class='pagenum'><a name="Page_12" id="Page_12">012</a></span>
+law is, in fact, the measure of the value of the Roman code.
+Ethnology shows us that the Romans and the Hindoos sprang
+from the same original stock, and there is indeed a striking
+resemblance between what appear to have been their original
+customs. Even now, Hindoo jurisprudence has a substratum
+of forethought and sound judgment, but irrational imitation
+has engrafted in it an immense apparatus of cruel absurdities.
+From these corruptions the Romans were protected by their
+code. It was compiled while the usage was still wholesome,
+and a hundred years afterwards it might have been too late.
+The Hindoo law has been to a great extent embodied in
+writing, but, ancient as in one sense are the compendia which
+still exist in Sanskrit, they contain ample evidence that they
+were drawn up after the mischief had been done. We are
+not of course entitled to say that if the Twelve Tables had
+not been published the Romans would have been condemned
+to a civilisation as feeble and perverted as that of the Hindoos,
+but thus much at least is certain, that <i>with</i> their code they
+were exempt from the very chance of so unhappy a destiny.<span class='pagenum'><a name="Page_13" id="Page_13">013</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II</h3>
+
+<h4><span class="smcap">legal fictions</span></h4>
+
+
+<p>When primitive law has once been embodied in a Code, there
+is an end to what may be called its spontaneous development.
+Henceforward the changes effected in it, if effected at all,
+are effected deliberately and from without. It is impossible
+to suppose that the customs of any race or tribe remained
+unaltered during the whole of the long&mdash;in some instances
+the immense&mdash;interval between their declaration by a patriarchal
+monarch and their publication in writing. It would be
+unsafe too to affirm that no part of the alteration was effected
+deliberately. But from the little we know of the progress
+of law during this period, we are justified in assuming that set
+purpose had the very smallest share in producing change.
+Such innovations on the earliest usages as disclose themselves
+appear to have been dictated by feelings and modes of thought
+which, under our present mental conditions, we are unable
+to comprehend. A new era begins, however, with the Codes.
+Wherever, after this epoch, we trace the course of legal
+modification we are able to attribute it to the conscious
+desire of improvement, or at all events of compassing objects
+other than those which were aimed at in the primitive times.</p>
+
+<p>It may seem at first sight that no general propositions worth
+trusting can be elicited from the history of legal systems
+subsequent to the codes. The field is too vast. We cannot be
+sure that we have included a sufficient number of phenomena
+in our observations, or that we accurately understand those
+which we have observed. But the undertaking will be seen
+to be more feasible, if we consider that after the epoch of codes
+the distinction between stationary and progressive societies
+begins to make itself felt. It is only with the progressive
+that we are concerned, and nothing is more remarkable
+than their extreme fewness. In spite of overwhelming evidence,
+it is most difficult for a citizen of western Europe
+to bring thoroughly home to himself the truth that the
+civilisation which surrounds him is a rare exception in the<span class='pagenum'><a name="Page_14" id="Page_14">014</a></span>
+history of the world. The tone of thought common among
+us, all our hopes, fears, and speculations, would be materially
+affected, if we had vividly before us the relation of the progressive
+races to the totality of human life. It is indisputable
+that much the greatest part of mankind has never shown
+a particle of desire that its civil institutions should be improved
+since the moment when external completeness was
+first given to them by their embodiment in some permanent
+record. One set of usages has occasionally been violently
+overthrown and superseded by another; here and there a
+primitive code, pretending to a supernatural origin, has been
+greatly extended, and distorted into the most surprising
+forms, by the perversity of sacerdotal commentators; but,
+except in a small section of the world, there has been nothing
+like the gradual amelioration of a legal system. There has
+been material civilisation, but, instead of the civilisation expanding
+the law, the law has limited the civilisation. The study
+of races in their primitive condition affords us some clue to the
+point at which the development of certain societies has stopped.
+We can see that Brahminical India has not passed beyond
+a stage which occurs in the history of all the families of mankind,
+the stage at which a rule of law is not yet discriminated
+from a rule of religion. The members of such a society consider
+that the transgression of a religious ordinance should be
+punished by civil penalties, and that the violation of a civil
+duty exposes the delinquent to divine correction. In China
+this point has been passed, but progress seems to have been
+there arrested, because the civil laws are coextensive with
+all the ideas of which the race is capable. The difference
+between the stationary and progressive societies is, however,
+one of the great secrets which inquiry has yet to penetrate.
+Among partial explanations of it I venture to place the considerations
+urged at the end of the last chapter. It may
+further be remarked that no one is likely to succeed in the
+investigation who does not clearly realise that the stationary
+condition of the human race is the rule, the progressive the
+exception. And another indispensable condition of success
+is an accurate knowledge of Roman law in all its principal
+stages. The Roman jurisprudence has the longest known
+history of any set of human institutions. The character of
+all the changes which it underwent is tolerably well ascertained.
+From its commencement to its close, it was progressively<span class='pagenum'><a name="Page_15" id="Page_15">015</a></span>
+modified for the better, or for what the authors of
+the modification conceived to be the better, and the course
+of improvement was continued through periods at which all
+the rest of human thought and action materially slackened
+its pace, and repeatedly threatened to settle down into
+stagnation.</p>
+
+<p>I confine myself in what follows to the progressive societies.
+With respect to them it may be laid down that social necessities
+and social opinion are always more or less in advance of
+Law. We may come indefinitely near to the closing of the gap
+between them, but it has a perpetual tendency to reopen.
+Law is stable; the societies we are speaking of are progressive.
+The greater or less happiness of a people depends on the
+degree of promptitude with which the gulf is narrowed.</p>
+
+<p>A general proposition of some value may be advanced with
+respect to the agencies by which Law is brought into harmony
+with society. These instrumentalities seem to me to be three
+in number, Legal Fictions, Equity, and Legislation. Their
+historical order is that in which I have placed them. Sometimes
+two of them will be seen operating together, and there
+are legal systems which have escaped the influence of one or
+other of them. But I know of no instance in which the order
+of their appearance has been changed or inverted. The early
+history of one of them, Equity, is universally obscure, and
+hence it may be thought by some that certain isolated statutes,
+reformatory of the civil law, are older than any equitable
+jurisdiction. My own belief is that remedial Equity is everywhere
+older than remedial Legislation; but, should this be not
+strictly true, it would only be necessary to limit the proposition
+respecting their order of sequence to the periods at which
+they exercise a sustained and substantial influence in transforming
+the original law.</p>
+
+<p>I employ the word "fiction" in a sense considerably wider
+than that in which English lawyers are accustomed to use it,
+and with a meaning much more extensive than that which
+belonged to the Roman "fictiones." Fictio, in old Roman
+law, is properly a term of pleading, and signifies a false
+averment on the part of the plaintiff which the defendant
+was not allowed to traverse; such, for example, as an averment
+that the plaintiff was a Roman citizen, when in truth
+he was a foreigner. The object of these "fictiones" was,
+of course, to give jurisdiction, and they therefore strongly<span class='pagenum'><a name="Page_16" id="Page_16">016</a></span>
+resembled the allegations in the writs of the English Queen's
+Bench, and Exchequer, by which those Courts contrived to
+usurp the jurisdiction of the Common Pleas:&mdash;the allegation
+that the defendant was in custody of the king's marshal, or
+that the plaintiff was the king's debtor, and could not pay his
+debt by reason of the defendant's default. But I now employ
+the expression "Legal Fiction" to signify any assumption
+which conceals, or affects to conceal, the fact that a rule of
+law has undergone alteration, its letter remaining unchanged,
+its operation being modified. The words, therefore, include
+the instances of fictions which I have cited from the English
+and Roman law, but they embrace much more, for I should
+speak both of the English Case-law and of the Roman
+Responsa Prudentum as resting on fictions. Both these
+examples will be examined presently. The <i>fact</i> is in both
+cases that the law has been wholly changed; the <i>fiction</i> is
+that it remains what it always was. It is not difficult to understand
+why fictions in all their forms are particularly congenial
+to the infancy of society. They satisfy the desire for improvement,
+which is not quite wanting, at the same time that they
+do not offend the superstitious disrelish for change which is
+always present. At a particular stage of social progress they
+are invaluable expedients for overcoming the rigidity of law,
+and, indeed, without one of them, the Fiction of Adoption
+which permits the family tie to be artificially created, it
+is difficult to understand how society would ever have
+escaped from its swaddling clothes, and taken its first steps
+towards civilisation. We must, therefore, not suffer ourselves
+to be affected by the ridicule which Bentham pours
+on legal fictions wherever he meets them. To revile them as
+merely fraudulent is to betray ignorance of their peculiar
+office in the historical development of law. But at the same
+time it would be equally foolish to agree with those theorists,
+who, discerning that fictions have had their uses, argue that
+they ought to be stereotyped in our system. They have had
+their day, but it has long since gone by. It is unworthy of
+us to effect an admittedly beneficial object by so rude a
+device as a legal fiction. I cannot admit any anomaly to be
+innocent, which makes the law either more difficult to understand
+or harder to arrange in harmonious order. Now legal
+fictions are the greatest of obstacles to symmetrical classification.
+The rule of law remains sticking in the system, but it<span class='pagenum'><a name="Page_17" id="Page_17">017</a></span>
+is a mere shell. It has been long ago undermined, and a new
+rule hides itself under its cover. Hence there is at once a
+difficulty in knowing whether the rule which is actually
+operative should be classed in its true or in its apparent place,
+and minds of different casts will differ as to the branch of the
+alternative which ought to be selected. If the English law is
+ever to assume an orderly distribution, it will be necessary to
+prune away the legal fictions which, in spite of some recent
+legislative improvements, are still abundant in it.</p>
+
+<p>The next instrumentality by which the adaptation of law
+to social wants is carried on I call Equity, meaning by that
+word any body of rules existing by the side of the original civil
+law, founded on distinct principles and claiming incidentally
+to supersede the civil law in virtue of a superior sanctity
+inherent in those principles. The Equity whether of the
+Roman Pr&aelig;tors or of the English Chancellors, differs from
+the Fictions which in each case preceded it, in that the interference
+with law is open and avowed. On the other hand,
+it differs from Legislation, the agent of legal improvement
+which comes after it, in that its claim to authority is grounded,
+not on the prerogative of any external person or body, not
+even on that of the magistrate who enunciates it, but on the
+special nature of its principles, to which it is alleged that all
+law ought to conform. The very conception of a set of principles,
+invested with a higher sacredness than those of the
+original law and demanding application independently of
+the consent of any external body, belongs to a much more
+advanced stage of thought than that to which legal fictions
+originally suggested themselves.</p>
+
+<p>Legislation, the enactments of a legislature which, whether
+it take the form of an autocratic prince or of a parliamentary
+assembly, is the assumed organ of the entire society, is the
+last of the ameliorating instrumentalities. It differs from
+Legal Fictions just as Equity differs from them, and it is
+also distinguished from Equity, as deriving its authority from
+an external body or person. Its obligatory force is independent
+of its principles. The legislature, whatever be the actual
+restraints imposed on it by public opinion, is in theory empowered
+to impose what obligations it pleases on the members
+of the community. There is nothing to prevent its legislating
+in the wantonness of caprice. Legislation may be dictated
+by equity, if that last word be used to indicate some standard<span class='pagenum'><a name="Page_18" id="Page_18">018</a></span>
+of right and wrong to which its enactments happen to be
+adjusted; but then these enactments are indebted for their
+binding force to the authority of the legislature and not to
+that of the principles on which the legislature acted; and
+thus they differ from rules of Equity, in the technical sense
+of the word, which pretend to a paramount sacredness entitling
+them at once to the recognition of the courts even
+without the concurrence of prince or parliamentary assembly.
+It is the more necessary to note these differences, because
+a student of Bentham would be apt to confound Fictions,
+Equity, and Statute law under the single head of legislation.
+They all, he would say, involve <i>law-making</i>; they differ
+only in respect of the machinery by which the new law is
+produced. That is perfectly true, and we must never forget
+it; but it furnishes no reason why we should deprive ourselves
+of so convenient a term as Legislation in the special
+sense. Legislation and Equity are disjoined in the popular
+mind and in the minds of most lawyers; and it will never
+do to neglect the distinction between them, however conventional,
+when important practical consequences follow
+from it.</p>
+
+<p>It would be easy to select from almost any regularly developed
+body of rules examples of <i>legal fictions</i>, which at once
+betray their true character to the modern observer. In the
+two instances which I proceed to consider, the nature of the
+expedient employed is not so readily detected. The first
+authors of these fictions did not perhaps intend to innovate,
+certainly did not wish to be suspected of innovating. There are,
+moreover, and always have been, persons who refuse to see
+any fiction in the process, and conventional language bears
+out their refusal. No examples, therefore, can be better
+calculated to illustrate the wide diffusion of legal fictions,
+and the efficiency with which they perform their two-fold
+office of transforming a system of laws and of concealing the
+transformation.</p>
+
+<p>We in England are well accustomed to the extension,
+modification, and improvement of law by a machinery which,
+in theory, is incapable of altering one jot or one line of existing
+jurisprudence. The process by which this virtual legislation
+is effected is not so much insensible as unacknowledged.
+With respect to that great portion of our legal system which
+is enshrined in cases and recorded in law reports, we habitually<span class='pagenum'><a name="Page_19" id="Page_19">019</a></span>
+employ a double language and entertain, as it would appear,
+a double and inconsistent set of ideas. When a group of facts
+come before an English Court for adjudication, the whole
+course of the discussion between the judge and the advocate
+assumes that no question is, or can be, raised which will call for
+the application of any principles but old ones, or any distinctions
+but such as have long since been allowed. It is
+taken absolutely for granted that there is somewhere a rule
+of known law which will cover the facts of the dispute now
+litigated, and that, if such a rule be not discovered, it is only
+that the necessary patience, knowledge, or acumen is not
+forthcoming to detect it. Yet the moment the judgment has
+been rendered and reported, we slide unconsciously or unavowedly
+into a new language and a new train of thought.
+We now admit that the new decision <i>has</i> modified the law.
+The rules applicable have, to use the very inaccurate expression
+sometimes employed, become more elastic. In fact they
+have been changed. A clear addition has been made to the
+precedents, and the canon of law elicited by comparing the
+precedents is not the same with that which would have been
+obtained if the series of cases had been curtailed by a single
+example. The fact that the old rule has been repealed, and
+that a new one has replaced it, eludes us, because we are not
+in the habit of throwing into precise language the legal formulas
+which we derive from the precedents, so that a change
+in their tenor is not easily detected unless it is violent and
+glaring. I shall not now pause to consider at length the causes
+which have led English lawyers to acquiesce in these curious
+anomalies. Probably it will be found that originally it was the
+received doctrine that somewhere, <i>in nubibus</i> or <i>in gremio
+magistratuum</i>, there existed a complete, coherent, symmetrical
+body of English law, of an amplitude sufficient to furnish
+principles which would apply to any conceivable combination
+of circumstances. The theory was at first much more
+thoroughly believed in than it is now, and indeed it may have
+had a better foundation. The judges of the thirteenth century
+may have really had at their command a mine of law unrevealed
+to the bar and to the lay-public, for there is some
+reason for suspecting that in secret they borrowed freely,
+though not always wisely, from current compendia of the
+Roman and Canon laws. But that storehouse was closed so
+soon as the points decided at Westminster Hall became<span class='pagenum'><a name="Page_20" id="Page_20">020</a></span>
+numerous enough to supply a basis for a substantive system
+of jurisprudence; and now for centuries English practitioners
+have so expressed themselves as to convey the paradoxical
+proposition that, except by Equity and Statute law, nothing
+has been added to the basis since it was first constituted.
+We do not admit that our tribunals legislate; we imply that
+they have never legislated; and yet we maintain that the
+rules of the English common law, with some assistance from
+the Court of Chancery and from Parliament, are coextensive
+with the complicated interests of modern society.</p>
+
+<p>A body of law bearing a very close and very instructive
+resemblance to our case-law in those particulars which I
+have noticed, was known to the Romans under the name of
+the Responsa Prudentum, the "answers of the learned in the
+law." The form of these Responses varied a good deal at
+different periods of the Roman jurisprudence, but throughout
+its whole course they consisted of explanatory glosses on
+authoritative written documents, and at first they were exclusively
+collections of opinions interpretative of the Twelve
+Tables. As with us, all legal language adjusted itself to the
+assumption that the text of the old Code remained unchanged.
+There was the express rule. It overrode all glosses and comments,
+and no one openly admitted that any interpretation
+of it, however eminent the interpreter, was safe from revision
+on appeal to the venerable texts. Yet in point of fact, Books
+of Responses bearing the names of leading jurisconsults
+obtained an authority at least equal to that of our reported
+cases, and constantly modified, extended, limited or practically
+overruled the provisions of the Decemviral law. The
+authors of the new jurisprudence during the whole progress
+of its formation professed the most sedulous respect for the
+letter of the Code. They were merely explaining it, deciphering
+it, bringing out its full meaning; but then, in the result, by
+piecing texts together, by adjusting the law to states of fact
+which actually presented themselves and by speculating on
+its possible application to others which might occur, by
+introducing principles of interpretation derived from the
+exegesis of other written documents which fell under their
+observation, they educed a vast variety of canons which
+had never been dreamed of by the compilers of the Twelve
+Tables and which were in truth rarely or never to be found
+there. All these treatises of the jurisconsults claimed respect<span class='pagenum'><a name="Page_21" id="Page_21">021</a></span>
+on the ground of their assumed conformity with the Code,
+but their comparative authority depended on the reputation
+of the particular jurisconsults who gave them to the world.
+Any name of universally acknowledged greatness clothed a
+Book of Responses with a binding force hardly less than that
+which belonged to enactments of the legislature; and such
+a book in its turn constituted a new foundation on which a
+further body of jurisprudence might rest. The Responses of
+the early lawyers were not however published, in the modern
+sense, by their author. They were recorded and edited by
+his pupils, and were not therefore in all probability arranged
+according to any scheme of classification. The part of the
+students in these publications must be carefully noted, because
+the service they rendered to their teacher seems to have
+been generally repaid by his sedulous attention to the pupils'
+education. The educational treatises called Institutes or
+Commentaries, which are a later fruit of the duty then recognised,
+are among the most remarkable features of the Roman
+system. It was apparently in these Institutional works,
+and not in the books intended for trained lawyers, that
+the jurisconsults gave to the public their classifications and
+their proposals for modifying and improving the technical
+phraseology.</p>
+
+<p>In comparing the Roman Responsa Prudentum with their
+nearest English counterpart, it must be carefully borne in
+mind that the authority by which this part of the Roman
+jurisprudence was expounded was not the <i>bench</i>, but the <i>bar</i>.
+The decision of a Roman tribunal, though conclusive in the
+particular case, had no ulterior authority except such as was
+given by the professional repute of the magistrate who
+happened to be in office for the time. Properly speaking,
+there was no institution at Rome during the republic analogous
+to the English Bench, the Chambers of Imperial Germany,
+or the Parliaments of Monarchical France. There
+were magistrates indeed, invested with momentous judicial
+functions in their several departments, but the tenure of the
+magistracies was but for a single year, so that they are much
+less aptly compared to a permanent judicature than to a
+cycle of offices briskly circulating among the leaders of the
+bar. Much might be said on the origin of a condition of things
+which looks to us like a startling anomaly, but which was in
+fact much more congenial than our own system to the spirit<span class='pagenum'><a name="Page_22" id="Page_22">022</a></span>
+of ancient societies, tending, as they always did, to split into
+distinct orders which, however exclusive themselves, tolerated
+no professional hierarchy above them.</p>
+
+<p>It is remarkable that this system did not produce certain
+effects which might on the whole have been expected from it.
+It did not, for example, <i>popularise</i> the Roman law&mdash;it did not,
+as in some of the Greek republics, lessen the effort of intellect
+required for the mastery of the science, although its
+diffusion and authoritative exposition were opposed by no
+artificial barriers. On the contrary, if it had not been for the
+operation of a separate set of causes, there were strong probabilities
+that the Roman jurisprudence would have become
+as minute, technical, and difficult as any system which has
+since prevailed. Again, a consequence which might still more
+naturally have been looked for, does not appear at any time
+to have exhibited itself. The jurisconsults, until the liberties
+of Rome were overthrown, formed a class which was quite
+undefined and must have fluctuated greatly in numbers;
+nevertheless, there does not seem to have existed a doubt as
+to the particular individuals whose opinion, in their generation,
+was conclusive on the cases submitted to them. The
+vivid pictures of a leading jurisconsult's daily practice
+which abound in Latin literature&mdash;the clients from the country
+flocking to his antechamber in the early morning, and
+the students standing round with their note-books to record
+the great lawyer's replies&mdash;are seldom or never identified
+at any given period with more than one or two conspicuous
+names. Owing too to the direct contact of the client and the
+advocate, the Roman people itself seems to have been always
+alive to the rise and fall of professional reputation, and there
+is abundance of proof, more particularly in the well-known
+oration of Cicero, <i>Pro Mur&aelig;na</i>, that the reverence of the
+commons for forensic success was apt to be excessive rather
+than deficient.</p>
+
+<p>We cannot doubt that the peculiarities which have been
+noted in the instrumentality by which the development of
+the Roman law was first effected, were the source of its
+characteristic excellence, its early wealth in principles. The
+growth and exuberance of principle was fostered, in part,
+by the competition among the expositors of the law, an
+influence wholly unknown where there exists a Bench, the
+depositaries intrusted by king or commonwealth with the<span class='pagenum'><a name="Page_23" id="Page_23">023</a></span>
+prerogative of justice. But the chief agency, no doubt, was
+the uncontrolled multiplication of cases for legal decision.
+The state of facts which caused genuine perplexity to a
+country client was not a whit more entitled to form the basis
+of the jurisconsult's Response, or legal decision, than a set
+of hypothetical circumstances propounded by an ingenious
+pupil. All combinations of fact were on precisely the same
+footing, whether they were real or imaginary. It was nothing
+to the jurisconsult that his opinion was overruled for the
+moment by the magistrate who adjudicated on his client's
+case, unless that magistrate happened to rank above him in
+legal knowledge or the esteem of his profession. I do not,
+indeed, mean it to be inferred that he would wholly omit to
+consider his client's advantage, for the client was in earlier
+times the great lawyer's constituent and at a later period his
+paymaster, but the main road to the rewards of ambition lay
+through the good opinion of his order, and it is obvious that
+under such a system as I have been describing this was much
+more likely to be secured by viewing each case as an illustration
+of a great principle, or an exemplification of a broad
+rule, than by merely shaping it for an insulated forensic
+triumph. A still more powerful influence must have been
+exercised by the want of any distinct check on the suggestion
+or invention of possible questions. Where the data can be
+multiplied at pleasure, the facilities for evolving a general
+rule are immensely increased. As the law is administered
+among ourselves, the judge cannot travel out of the sets of
+facts exhibited before him or before his predecessors. Accordingly
+each group of circumstances which is adjudicated upon
+receives, to employ a Gallicism, a sort of consecration. It
+acquires certain qualities which distinguish it from every
+other case genuine or hypothetical. But at Rome, as I have
+attempted to explain, there was nothing resembling a Bench
+or Chamber of judges; and therefore no combination of facts
+possessed any particular value more than another. When a
+difficulty came for opinion before the jurisconsult, there was
+nothing to prevent a person endowed with a nice perception
+of analogy from at once proceeding to adduce and consider an
+entire class of supposed questions with which a particular
+feature connected it. Whatever were the practical advice
+given to the client, the <i>responsum</i> treasured up in the notebooks
+of listening pupils would doubtless contemplate the<span class='pagenum'><a name="Page_24" id="Page_24">024</a></span>
+circumstances as governed by a great principle, or included
+in a sweeping rule. Nothing like this has ever been possible
+among ourselves, and it should be acknowledged that in many
+criticisms passed on the English law the manner in which it
+has been enunciated seems to have been lost sight of. The
+hesitation of our courts in declaring principles may be much
+more reasonably attributed to the comparative scantiness of
+our precedents, voluminous as they appear to him who is
+acquainted with no other system, than to the temper of our
+judges. It is true that in the wealth of legal principle we are
+considerably poorer than several modern European nations,
+But they, it must be remembered, took the Roman jurisprudence
+for the foundation of their civil institutions. They
+built the <i>d&eacute;bris</i> of the Roman law into their walls; but in the
+materials, and workmanship of the residue there is not much
+which distinguishes it favourably from the structure erected
+by the English judicature.</p>
+
+<p>The period of Roman freedom was the period during which
+the stamp of a distinctive character was impressed on the
+Roman jurisprudence; and through all the earlier part of it,
+it was by the Responses of the jurisconsults that the development
+of the law was mainly carried on. But as we approach
+the fall of the republic there are signs that the Responses are
+assuming a form which must have been fatal to their farther
+expansion. They are becoming systematised and reduced into
+compendia. Q. Mucius Sc&aelig;vola, the Pontifex, is said to have
+published a manual of the entire Civil Law, and there are
+traces in the writings of Cicero of growing disrelish for the
+old methods, as compared with the more active instruments
+of legal innovation. Other agencies had in fact by this time
+been brought to bear on the law. The Edict, or annual proclamation
+of the Pr&aelig;tor, had risen into credit as the principal
+engine of law reform, and L. Cornelius Sylla, by causing to
+be enacted the great group of statutes called the <i>Leges
+Corneli&aelig;</i>, had shown what rapid and speedy improvements
+can be effected by direct legislation. The final blow to the
+Responses was dealt by Augustus, who limited to a few leading
+jurisconsults the right of giving binding opinions on cases
+submitted to them, a change which, though it brings us nearer
+the ideas of the modern world, must obviously have altered
+fundamentally the characteristics of the legal profession and
+the nature of its influence on Roman law. At a later period<span class='pagenum'><a name="Page_25" id="Page_25">025</a></span>
+another school of jurisconsults arose, the great lights of jurisprudence
+for all time. But Ulpian and Paulus, Gaius and
+Papinian, were not authors of Responses. Their works were
+regular treatises on particular departments of the law, more
+especially on the Pr&aelig;tor's Edict.</p>
+
+<p>The <i>Equity</i> of the Romans and the Pr&aelig;torian Edict by
+which it was worked into their system, will be considered in
+the next chapter. Of the Statute Law it is only necessary to
+say that it was scanty during the republic, but became very
+voluminous under the empire. In the youth and infancy of a
+nation it is a rare thing for the legislature to be called into
+action for the general reform of private law. The cry of the
+people is not for change in the laws, which are usually valued
+above their real worth, but solely for their pure, complete, and
+easy administration; and recourse to the legislative body is
+generally directed to the removal of some great abuse, or
+the decision of some incurable quarrel between classes and
+dynasties. There seems in the minds of the Romans to have
+been some association between the enactment of a large body
+of statutes and the settlement of society after a great civil
+commotion. Sylla signalised his reconstitution of the republic
+by the Leges Corneli&aelig;; Julius C&aelig;sar contemplated vast
+additions to the Statute Law; Augustus caused to be passed
+the all-important group of Leges Juli&aelig;; and among later
+emperors the most active promulgators of constitutions are
+princes who, like Constantine, have the concerns of the world
+to readjust. The true period of Roman Statute Law does not
+begin till the establishment of the empire. The enactments of
+the emperors, clothed at first in the pretence of popular
+sanction, but afterwards emanating undisguisedly from the
+imperial prerogative, extend in increasing massiveness from
+the consolidation of Augustus's power to the publication of
+the Code of Justinian. It will be seen that even in the reign
+of the second emperor a considerable approximation is made
+to that condition of the law and that mode of administering
+it with which we are all familiar. A statute law and a limited
+board of expositors have risen into being; a permanent court
+of appeal and a collection of approved commentaries will
+very shortly be added; and thus we are brought close on the
+ideas of our own day.<span class='pagenum'><a name="Page_26" id="Page_26">026</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+
+<h3><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III</h3>
+
+<h4><span class="smcap">law of nature and equity</span></h4>
+
+
+<p>The theory of a set of legal principles, entitled by their intrinsic
+superiority to supersede the older law, very early
+obtained currency both in the Roman state and in England.
+Such a body of principles, existing in any system, has in the
+foregoing chapters been denominated Equity, a term which, as
+will presently be seen, was one (though only one) of the
+designations by which this agent of legal change was known
+to the Roman jurisconsults. The jurisprudence of the Court
+of Chancery, which bears the name of Equity in England,
+could only be adequately discussed in a separate treatise.
+It is extremely complex in its texture and derives its materials
+from several heterogeneous sources. The early ecclesiastical
+chancellors contributed to it, from the Canon Law, many of
+the principles which lie deepest in its structure. The Roman
+law, more fertile than the Canon Law in rules applicable to
+secular disputes, was not seldom resorted to by a later generation
+of Chancery judges, amid whose recorded dicta we often
+find entire texts from the <i>Corpus Juris Civilis</i> imbedded, with
+their terms unaltered, though their origin is never acknowledged.
+Still more recently, and particularly at the middle
+and during the latter half of the eighteenth century, the mixed
+systems of jurisprudence and morals constructed by the
+publicists of the Low Countries appear to have been much
+studied by English lawyers, and from the chancellorship of
+Lord Talbot to the commencement of Lord Eldon's chancellorship
+these works had considerable effect on the rulings of
+the Court of Chancery. The system, which obtained its ingredients
+from these various quarters, was greatly controlled in
+its growth by the necessity imposed on it of conforming itself
+to the analogies of the common law, but it has always answered
+the description of a body of comparatively novel legal
+principles claiming to override the older jurisprudence of the
+country on the strength of an intrinsic ethical superiority.<span class='pagenum'><a name="Page_27" id="Page_27">027</a></span></p>
+
+<p>The Equity of Rome was a much simpler structure, and its
+development from its first appearance can be much more
+easily traced. Both its character and its history deserve
+attentive examination. It is the root of several conceptions
+which have exercised profound influence on human thought,
+and through human thought have seriously affected the
+destinies of mankind.</p>
+
+<p>The Romans described their legal system as consisting of
+two ingredients. "All nations," says the Institutional Treatise
+published under the authority of the Emperor Justinian,
+"who are ruled by laws and customs, are governed partly
+by their own particular laws, and partly by those laws which
+are common to all mankind. The law which a people enacts is
+called the Civil Law of that people, but that which natural
+reason appoints for all mankind is called the Law of Nations,
+because all nations use it." The part of the law "which natural
+reason appoints for all mankind" was the element which the
+Edict of the Pr&aelig;tor was supposed to have worked into Roman
+jurisprudence. Elsewhere it is styled more simply Jus Naturale,
+or the Law of Nature; and its ordinances are said to be
+dictated by Natural Equity (<i>naturalis &aelig;quitas</i>) as well as by
+natural reason. I shall attempt to discover the origin of these
+famous phrases, Law of Nations, Law of Nature, Equity, and
+to determine how the conceptions which they indicate are
+related to one another.</p>
+
+<p>The most superficial student of Roman history must be
+struck by the extraordinary degree in which the fortunes of
+the republic were affected by the presence of foreigners, under
+different names, on her soil. The causes of this immigration
+are discernible enough at a later period, for we can readily
+understand why men of all races should flock to the mistress of
+the world; but the same phenomenon of a large population
+of foreigners and denizens meets us in the very earliest records
+of the Roman State. No doubt, the instability of society in
+ancient Italy, composed as it was in great measure of robber
+tribes, gave men considerable inducement to locate themselves
+in the territory of any community strong enough to
+protect itself and them from external attack, even though
+protection should be purchased at the cost of heavy taxation,
+political disfranchisement, and much social humiliation. It
+is probable, however, that this explanation is imperfect, and
+that it could only be completed by taking into account those<span class='pagenum'><a name="Page_28" id="Page_28">028</a></span>
+active commercial relations which, though they are little
+reflected in the military traditions of the republic, Rome
+appears certainly to have had with Carthage and with the
+interior of Italy in pre-historic times. Whatever were the
+circumstances to which it was attributable, the foreign element
+in the commonwealth determined the whole course of
+its history, which, at all its stages, is little more than a narrative
+of conflicts between a stubborn nationality and an alien
+population. Nothing like this has been seen in modern times;
+on the one hand, because modern European communities have
+seldom or never received any accession of foreign immigrants
+which was large enough to make itself felt by the bulk of the
+native citizens, and on the other, because modern states,
+being held together by allegiance to a king or political superior,
+absorb considerable bodies of immigrant settlers with a quickness
+unknown to the ancient world, where the original
+citizens of a commonwealth always believed themselves to
+be united by kinship in blood, and resented a claim to equality
+of privilege as a usurpation of their birthright. In the early
+Roman republic the principle of the absolute exclusion of
+foreigners pervaded the Civil Law no less than the Constitution.
+The alien or denizen could have no share in any institution
+supposed to be coeval with the State. He could not
+have the benefit of Quiritarian law. He could not be a party
+to the <i>nexum</i> which was at once the conveyance and the contract
+of the primitive Romans. He could not sue by the
+Sacramental Action, a mode of litigation of which the origin
+mounts up to the very infancy of civilisation. Still, neither
+the interest nor the security of Rome permitted him to be
+quite outlawed. All ancient communities ran the risk of being
+overthrown by a very slight disturbance of equilibrium, and
+the mere instinct of self-preservation would force the Romans
+to devise some method of adjusting the rights and duties of
+foreigners, who might otherwise&mdash;and this was a danger of
+real importance in the ancient world&mdash;have decided their
+controversies by armed strife. Moreover, at no period of
+Roman history was foreign trade entirely neglected. It was
+therefore probably half as a measure of police and half in
+furtherance of commerce that jurisdiction was first assumed
+in disputes to which the parties were either foreigners or a
+native and a foreigner. The assumption of such a jurisdiction
+brought with it the immediate necessity of discovering some<span class='pagenum'><a name="Page_29" id="Page_29">029</a></span>
+principles on which the questions to be adjudicated upon
+could be settled, and the principles applied to this object by
+the Roman lawyers were eminently characteristic of the time.
+They refused, as I have said before, to decide the new cases
+by pure Roman Civil Law. They refused, no doubt because it
+seemed to involve some kind of degradation, to apply the law
+of the particular State from which the foreign litigant came.
+The expedient to which they resorted was that of selecting
+the rules of law common to Rome and to the different Italian
+communities in which the immigrants were born. In other
+words, they set themselves to form a system answering to the
+primitive and literal meaning of Jus Gentium, that is, Law
+common to all Nations. Jus Gentium was, in fact, the sum of
+the common ingredients in the customs of the old Italian
+tribes, for they were <i>all the nations</i> whom the Romans had
+the means of observing, and who sent successive swarms of
+immigrants to Roman soil. Whenever a particular usage was
+seen to be practised by a large number of separate races in
+common it was set down as part of the Law common to all
+Nations, or Jus Gentium. Thus, although the conveyance of
+property was certainly accompanied by very different forms
+in the different commonwealths surrounding Rome, the
+actual transfer, tradition, or delivery of the article intended
+to be conveyed was a part of the ceremonial in all of them.
+It was, for instance, a part, though a subordinate part, in the
+Mancipation or conveyance peculiar to Rome. Tradition,
+therefore, being in all probability the only common ingredient
+in the modes of conveyance which the jurisconsults had the
+means of observing, was set down as an institution Juris
+Gentium, or rule of the Law common to all Nations. A vast
+number of other observances were scrutinised with the same
+result. Some common characteristic was discovered in all of
+them, which had a common object, and this characteristic
+was classed in the Jus Gentium. The Jus Gentium was accordingly
+a collection of rules and principles, determined by
+observation to be common to the institutions which prevailed
+among the various Italian tribes.</p>
+
+<p>The circumstances of the origin of the Jus Gentium are
+probably a sufficient safeguard against the mistake of supposing
+that the Roman lawyers had any special respect for it.
+It was the fruit in part of their disdain for all foreign law, and
+in part of their disinclination to give the foreigner the advan<span class='pagenum'><a name="Page_30" id="Page_30">030</a></span>tage
+of their own indigenous Jus Civile. It is true that we,
+at the present day, should probably take a very different view
+of the Jus Gentium, if we were performing the operation which
+was effected by the Roman jurisconsults. We should attach
+some vague superiority or precedence to the element which
+we had thus discerned underlying and pervading so great a
+variety of usage. We should have a sort of respect for rules
+and principles so universal. Perhaps we should speak of the
+common ingredient as being of the essence of the transaction
+into which it entered, and should stigmatise the remaining
+apparatus of ceremony, which varied in different communities,
+as adventitious and accidental. Or it may be, we should infer
+that the races which we were comparing had once obeyed
+a great system of common institutions of which the Jus
+Gentium was the reproduction, and that the complicated
+usages of separate commonwealths were only corruptions
+and depravations of the simpler ordinances which had once
+regulated their primitive state. But the results to which
+modern ideas conduct the observer are, as nearly as possible,
+the reverse of those which were instinctively brought home to
+the primitive Roman. What we respect or admire, he disliked
+or regarded with jealous dread. The parts of jurisprudence
+which he looked upon with affection were exactly
+those which a modern theorist leaves out of consideration
+as accidental and transitory; the solemn gestures of the
+mancipation; the nicely adjusted questions and answers
+of the verbal contract; the endless formalities of pleading
+and procedure. The Jus Gentium was merely a system forced
+on his attention by a political necessity. He loved it as little
+as he loved the foreigners from whose institutions it was
+derived and for whose benefit it was intended. A complete
+revolution in his ideas was required before it could challenge
+his respect, but so complete was it when it did occur, that the
+true reason why our modern estimate of the Jus Gentium
+differs from that which has just been described, is that both
+modern jurisprudence and modern philosophy have inherited
+the matured views of the later jurisconsults on this subject.
+There did come a time, when from an ignoble appendage of
+the Jus Civile, the Jus Gentium came to be considered a great
+though as yet imperfectly developed model to which all law
+ought as far as possible to conform. This crisis arrived when
+the Greek theory of a Law of Nature was applied to the<span class='pagenum'><a name="Page_31" id="Page_31">031</a></span>
+practical Roman administration of the Law common to all
+Nations.</p>
+
+<p>The Jus Naturale, or Law of Nature, is simply the Jus
+Gentium or Law of Nations seen in the light of a peculiar
+theory. An unfortunate attempt to discriminate them was
+made by the jurisconsult Ulpian, with the propensity to distinguish
+characteristic of a lawyer, but the language of Gaius,
+a much higher authority, and the passage quoted before from
+the Institutes leave no room for doubt, that the expressions
+were practically convertible. The difference between them
+was entirely historical, and no distinction in essence could
+ever be established between them. It is almost unnecessary
+to add that the confusion between Jus Gentium, or Law
+common to all Nations, and <i>international law</i> is entirely
+modern. The classical expression for international law is
+Jus Feciale or the law of negotiation and diplomacy. It is,
+however, unquestionable that indistinct impressions as to the
+meaning of Jus Gentium had considerable share in producing
+the modern theory that the relations of independent states
+are governed by the Law of Nature.</p>
+
+<p>It becomes necessary to investigate the Greek conceptions
+of nature and her law. The word &#966;&#8059;&#963;&#953;&#962;, which was rendered
+in the Latin <i>natura</i> and our <i>nature</i>, denoted beyond all doubt
+originally the material universe, but it was the material
+universe contemplated under an aspect which&mdash;such is our
+intellectual distance from those times&mdash;it is not very easy to
+delineate in modern language. Nature signified the physical
+world regarded as the result of some primordial element or
+law. The oldest Greek philosophers had been accustomed to
+explain the fabric of creation as the manifestation of some
+single principle which they variously asserted to be movement,
+force, fire, moisture, or generation. In its simplest and
+most ancient sense, Nature is precisely the physical universe
+looked upon in this way as the manifestation of a principle.
+Afterwards, the later Greek sects, returning to a path from
+which the greatest intellects of Greece had meanwhile strayed,
+added the <i>moral</i> to the <i>physical</i> world in the conception of
+Nature. They extended the term till it embraced not merely
+the visible creation, but the thoughts, observances, and aspirations
+of mankind. Still, as before, it was not solely the moral
+phenomena of human society which they understood by<span class='pagenum'><a name="Page_32" id="Page_32">032</a></span>
+<i>Nature</i>, but these phenomena considered as resolvable into
+some general and simple laws.</p>
+
+<p>Now, just as the oldest Greek theorists supposed that the
+sports of chance had changed the material universe from its
+simple primitive form into its present heterogeneous condition,
+so their intellectual descendants imagined that but for
+untoward accident the human race would have conformed
+itself to simpler rules of conduct and a less tempestuous life.
+To live according to <i>nature</i> came to be considered as the end
+for which man was created, and which the best men were
+bound to compass. To live according to <i>nature</i> was to rise
+above the disorderly habits and gross indulgences of the
+vulgar to higher laws of action which nothing but self-denial
+and self-command would enable the aspirant to observe. It
+is notorious that this proposition&mdash;live according to nature&mdash;was
+the sum of the tenets of the famous Stoic philosophy.
+Now on the subjugation of Greece that philosophy made
+instantaneous progress in Roman society. It possessed
+natural fascinations for the powerful class who, in theory at
+least, adhered to the simple habits of the ancient Italian race,
+and disdained to surrender themselves to the innovations of
+foreign fashions. Such persons began immediately to affect
+the Stoic precepts of life according to nature&mdash;an affectation
+all the more grateful, and, I may add, all the more noble,
+from its contrast with the unbounded profligacy which was
+being diffused through the imperial city by the pillage of the
+world and by the example of its most luxurious races. In
+the front of the disciples of the new Greek school, we might be
+sure, even if we did not know it historically, that the Roman
+lawyers figured. We have abundant proof that, there being
+substantially but two professions in the Roman republic, the
+military men were generally identified with the party of
+movement, but the lawyers were universally at the head of
+the party of resistance.</p>
+
+<p>The alliance of the lawyers with the Stoic philosophers
+lasted through many centuries. Some of the earliest names
+in the series of renowned jurisconsults are associated with
+Stoicism, and ultimately we have the golden age of Roman
+jurisprudence fixed by general consent at the era of the
+Antonine C&aelig;sars, the most famous disciples to whom that
+philosophy has given a rule of life. The long diffusion of these
+doctrines among the members of a particular profession was<span class='pagenum'><a name="Page_33" id="Page_33">033</a></span>
+sure to affect the art which they practised and influenced.
+Several positions which we find in the remains of the Roman
+jurisconsults are scarcely intelligible, unless we use the Stoic
+tenets as our key; but at the same time it is a serious, though
+a very common, error to measure the influence of Stoicism
+on Roman law by counting up the number of legal rules which
+can be confidently affiliated on Stoical dogmas. It has often
+been observed that the strength of Stoicism resided not in
+its canons of conduct, which were often repulsive or ridiculous,
+but in the great though vague principle which it inculcated
+of resistance to passion. Just in the same way the influence
+on jurisprudence of the Greek theories, which had their most
+distinct expression in Stoicism, consisted not in the number
+of specific positions which they contributed to Roman law,
+but in the single fundamental assumption which they lent
+to it. After nature had become a household word in the
+mouths of the Romans, the belief gradually prevailed among
+the Roman lawyers that the old Jus Gentium was in fact
+the lost code of Nature, and that the Pr&aelig;tor in framing an
+Edictal jurisprudence on the principles of the Jus Gentium
+was gradually restoring a type from which law had only
+departed to deteriorate. The inference from this belief was
+immediate, that it was the Pr&aelig;tor's duty to supersede the
+Civil Law as much as possible by the Edict, to revive as far
+as might be the institutions by which Nature had governed
+man in the primitive state. Of course, there were many
+impediments to the amelioration of law by this agency.
+There may have been prejudices to overcome even in
+the legal profession itself, and Roman habits were far
+too tenacious to give way at once to mere philosophical
+theory. The indirect methods by which the Edict combated
+certain technical anomalies, show the caution which its
+authors were compelled to observe, and down to the very
+days of Justinian there was some part of the old law which
+had obstinately resisted its influence. But, on the whole, the
+progress of the Romans in legal improvement was astonishingly
+rapid as soon as stimulus was applied to it by the theory
+of Natural Law. The ideas of simplification and generalisation
+had always been associated with the conception of Nature;
+simplicity, symmetry, and intelligibility came therefore to be
+regarded as the characteristics of a good legal system, and
+the taste for involved language, multiplied ceremonials, and<span class='pagenum'><a name="Page_34" id="Page_34">034</a></span>
+useless difficulties disappeared altogether. The strong will,
+and unusual opportunities of Justinian were needed to bring
+the Roman law to its existing shape, but the ground plan of
+the system had been sketched long before the imperial
+reforms were effected.</p>
+
+<p>What was the exact point of contact between the old Jus
+Gentium and the Law of Nature? I think that they touch and
+blend through &AElig;quitas, or Equity in its original sense; and
+here we seem to come to the first appearance in jurisprudence
+of this famous term, Equity. In examining an expression
+which has so remote an origin and so long a history as this,
+it is always safest to penetrate, if possible, to the simple
+metaphor or figure which at first shadowed forth the conception.
+It has generally been supposed that &AElig;quitas is the
+equivalent of the Greek &#7984;&#963;&#8057;&#964;&#951;&#962;, <i>i.e.</i> the principle of equal
+or proportionate distribution. The equal division of numbers
+or physical magnitudes is doubtless closely entwined with
+our perceptions of justice; there are few associations which
+keep their ground in the mind so stubbornly or are dismissed
+from it with such difficulty by the deepest thinkers. Yet in
+tracing the history of this association, it certainly does not
+seem to have suggested itself to very early thought, but is
+rather the offspring of a comparatively late philosophy. It is
+remarkable too that the "equality" of laws on which the
+Greek democracies prided themselves&mdash;that equality which,
+in the beautiful drinking song of Callistratus, Harmodius and
+Aristogiton are said to have given to Athens&mdash;had little in
+common with the "equity" of the Romans. The first was
+an equal administration of civil laws among the citizens,
+however limited the class of citizens might be; the last implied
+the applicability of a law, which was not civil law, to a
+class which did not necessarily consist of citizens. The first
+excluded a despot; the last included foreigners, and for some
+purposes slaves. On the whole, I should be disposed to look
+in another direction for the germ of the Roman "Equity."
+The Latin word "&aelig;quus" carries with it more distinctly than
+the Greek "&#7988;&#963;&#959;&#962;" the sense of <i>levelling</i>. Now its levelling
+tendency was exactly the characteristic of the Jus Gentium,
+which would be most striking to a primitive Roman. The
+pure Quiritarian law recognised a multitude of arbitrary
+distinctions between classes of men and kinds of property;
+the Jus Gentium, generalised from a comparison of various<span class='pagenum'><a name="Page_35" id="Page_35">035</a></span>
+customs, neglected the Quiritarian divisions. The old Roman
+law established, for example, a fundamental difference
+between "Agnatic" and "Cognatic" relationship, that is,
+between the Family considered as based upon common
+subjection to patriarchal authority and the Family considered
+(in conformity with modern ideas) as united through the mere
+fact of a common descent. This distinction disappears in
+the "law common to all nations," as also does the difference
+between the archaic forms of property, Things "Mancipi"
+and Things "nec Mancipi." The neglect of demarcations
+and boundaries seems to me, therefore, the feature of the
+Jus Gentium which was depicted in &AElig;quitas. I imagine that
+the word was at first a mere description of that constant
+<i>levelling</i> or removal of irregularities which went on wherever
+the pr&aelig;torian system was applied to the cases of foreign
+litigants. Probably no colour of ethical meaning belonged at
+first to the expression; nor is there any reason to believe
+that the process which it indicated was otherwise than extremely
+distasteful to the primitive Roman mind.</p>
+
+<p>On the other hand, the feature of the Jus Gentium
+which was presented to the apprehension of a Roman
+by the word Equity, was exactly the first and most
+vividly realised characteristic of the hypothetical state of
+nature. Nature implied symmetrical order, first in the
+physical world, and next in the moral, and the earliest notion
+of order doubtless involved straight lines, even surfaces, and
+measured distances. The same sort of picture or figure would
+be unconsciously before the mind's eye, whether it strove to
+form the outlines of the supposed natural state, or whether
+it took in at a glance the actual administration of the "law
+common to all nations"; and all we know of primitive
+thought would lead us to conclude that this ideal similarity
+would do much to encourage the belief in an identity of the
+two conceptions. But then, while the Jus Gentium had
+little or no antecedent credit at Rome, the theory of a
+Law of Nature came in surrounded with all the prestige of
+philosophical authority, and invested with the charms of
+association with an elder and more blissful condition of the
+race. It is easy to understand how the difference in the point
+of view would affect the dignity of the term which at once
+described the operation of the old principles and the results
+of the new theory. Even to modern ears it is not at all the<span class='pagenum'><a name="Page_36" id="Page_36">036</a></span>
+same thing to describe a process as one of "levelling" and
+to call it the "correction of anomalies," though the metaphor
+is precisely the same. Nor do I doubt that, when once
+&AElig;quitas was understood to convey an allusion to the Greek
+theory, associations which grew out of the Greek notion of
+&#7984;&#963;&#8057;&#964;&#951;&#962; began to cluster round it. The language of Cicero
+renders it more than likely that this was so, and it was the
+first stage of a transmutation of the conception of Equity,
+which almost every ethical system which has appeared since
+those days has more or less helped to carry on.</p>
+
+<p>Something must be said of the formal instrumentality by
+which the principles and distinctions associated, first with the
+Law common to all Nations, and afterwards with the Law of
+Nature, were gradually incorporated with the Roman law.
+At the crisis of primitive Roman history which is marked by
+the expulsion of the Tarquins, a change occurred which has
+its parallel in the early annals of many ancient states, but
+which had little in common with those passages of political
+affairs which we now term revolutions. It may best be
+described by saying that the monarchy was put into commission.
+The powers heretofore accumulated in the hands of
+a single person were parcelled out among a number of elective
+functionaries, the very name of the kingly office being
+retained and imposed on a personage known subsequently as
+the Rex Sacrorum or Rex Sacrificulus. As part of the change,
+the settled duties of the supreme judicial office devolved on
+the Pr&aelig;tor, at the time the first functionary in the commonwealth,
+and together with these duties was transferred the
+undefined supremacy over law and legislation which always
+attached to ancient sovereigns and which is not obscurely
+related to the patriarchal and heroic authority they had once
+enjoyed. The circumstances of Rome gave great importance
+to the more indefinite portion of the functions thus as
+transferred, as with the establishment of the republic began
+that series of recurrent trials which overtook the state, in
+the difficulty of dealing with a multitude of persons who,
+not coming within the technical description of indigenous
+Romans, were nevertheless permanently located within
+Roman jurisdiction. Controversies between such persons, or
+between such persons and native-born citizens, would have
+remained without the pale of the remedies provided by
+Roman law, if the Pr&aelig;tor had not undertaken to decide them,<span class='pagenum'><a name="Page_37" id="Page_37">037</a></span>
+and he must soon have addressed himself to the more critical
+disputes which in the extension of commerce arose between
+Roman subjects and avowed foreigners. The great increase
+of such cases in the Roman Courts about the period of the
+first Punic War is marked by the appointment of a special
+Pr&aelig;tor, known subsequently as the Pr&aelig;tor Peregrinus, who
+gave them his undivided attention. Meantime, one precaution
+of the Roman people against the revival of oppression, had
+consisted in obliging every magistrate whose duties had any
+tendency to expand their sphere, to publish, on commencing
+his year of office, an Edict or proclamation, in which he
+declared the manner in which he intended to administer his
+department. The Pr&aelig;tor fell under the rule with other
+magistrates; but as it was necessarily impossible to construct
+each year a separate system of principles, he seems to
+have regularly republished his predecessor's Edict with such
+additions and changes as the exigency of the moment or his
+own views of the law compelled him to introduce. The
+Pr&aelig;tor's proclamation, thus lengthened by a new portion
+every year, obtained the name of the Edictum Perpetuum,
+that is, the <i>continuous</i> or <i>unbroken</i> edict. The immense
+length to which it extended, together perhaps with some
+distaste for its necessarily disorderly texture, caused the
+practice of increasing it to be stopped in the year of Salvius
+Julianus, who occupied the magistracy in the reign of the
+Emperor Hadrian. The edict of that Pr&aelig;tor embraced therefore
+the whole body of equity jurisprudence, which it probably
+disposed in new and symmetrical order, and the perpetual
+edict is therefore often cited in Roman law merely as the
+Edict of Julianus.</p>
+
+<p>Perhaps the first inquiry which occurs to an Englishman
+who considers the peculiar mechanism of the Edict is, what
+were the limitations by which these extensive powers of the
+Pr&aelig;tor were restrained? How was authority so little definite
+reconciled with a settled condition of society and of law?
+The answer can only be supplied by careful observation of the
+conditions under which our own English law is administered.
+The Pr&aelig;tor, it should be recollected, was a jurisconsult himself,
+or a person entirely in the hands of advisers who were
+jurisconsults, and it is probable that every Roman lawyer
+waited impatiently for the time when he should fill or control
+the great judicial magistracy. In the interval, his tastes,<span class='pagenum'><a name="Page_38" id="Page_38">038</a></span>
+feelings, prejudices, and degree of enlightenment were
+inevitably those of his own order, and the qualifications
+which he ultimately brought to office were those which he had
+acquired in the practice and study of his profession. An
+English Chancellor goes through precisely the same training,
+and carries to the woolsack the same qualifications. It is
+certain when he assumes office that he will have, to some
+extent, modified the law before he leaves it; but until he
+has quitted his seat, and the series of his decisions in the Law
+Reports has been completed, we cannot discover how far
+he has elucidated or added to the principles which his predecessors
+bequeathed to him. The influence of the Pr&aelig;tor on
+Roman jurisprudence differed only in respect of the period
+at which its amount was ascertained. As was before stated,
+he was in office but for a year, and his decisions rendered
+during his year, though of course irreversible as regarded the
+litigants, were of no ulterior value. The most natural moment
+for declaring the changes he proposed to effect occurred
+therefore at his entrance on the pr&aelig;torship, and hence, when
+commencing his duties, he did openly and avowedly that
+which in the end his English representative does insensibly
+and sometimes unconsciously. The checks on this apparent
+liberty are precisely those imposed on an English judge.
+Theoretically there seems to be hardly any limit to the
+powers of either of them, but practically the Roman Pr&aelig;tor,
+no less than the English Chancellor, was kept within the
+narrowest bounds by the prepossessions imbibed from early
+training and by the strong restraints of professional opinion,
+restraints of which the stringency can only be appreciated
+by those who have personally experienced them. It may be
+added that the lines within which movement is permitted,
+and beyond which there is to be no travelling, were chalked
+with as much distinctness in the one case as in the other.
+In England the judge follows the analogies of reported
+decisions on insulated groups of facts. At Rome, as the
+intervention of the Pr&aelig;tor was at first dictated by simple
+concern for the safety of the state, it is likely that in the
+earliest times it was proportioned to the difficulty which it
+attempted to get rid of. Afterwards, when the taste for
+principle had been diffused by the Responses, he no doubt
+used the Edict as the means of giving a wider application to
+those fundamental principles, which he and the other practising<span class='pagenum'><a name="Page_39" id="Page_39">039</a></span>
+jurisconsults, his contemporaries, believed themselves to
+have detected underlying the law. Latterly he acted wholly
+under the influence of Greek philosophical theories, which at
+once tempted him to advance and confined him to a particular
+course of progress.</p>
+
+<p>The nature of the measures attributed to Salvius Julianus
+has been much disputed. Whatever they were, their effects
+on the Edict are sufficiently plain. It ceased to be extended
+by annual additions, and henceforward the equity jurisprudence
+of Rome was developed by the labours of a
+succession of great jurisconsults who fill with their writings
+the interval between the reign of Hadrian and the reign of
+Alexander Severus. A fragment of the wonderful system
+which they built up survives in the Pandects of Justinian,
+and supplies evidence that their works took the form of
+treatises on all parts of Roman Law, but chiefly that of
+commentaries on the Edict. Indeed, whatever be the immediate
+subject of a jurisconsult of this epoch, he may always
+be called an expositor of Equity. The principles of the Edict
+had, before the epoch of its cessation, made their way into
+every part of Roman jurisprudence. The Equity of Rome,
+it should be understood, even when most distinct from the
+Civil Law, was always administered by the same tribunals.
+The Pr&aelig;tor was the chief equity judge as well as the great
+common law magistrate, and as soon as the Edict had evolved
+an equitable rule the Pr&aelig;tor's court began to apply it in
+place of or by the side of the old rule of the Civil Law, which
+was thus directly or indirectly repealed without any express
+enactment of the legislature. The result, of course, fell considerably
+short of a complete fusion of law and equity,
+which was not carried out till the reforms of Justinian. The
+technical severance of the two elements of jurisprudence
+entailed some confusion and some inconvenience, and there
+were certain of the stubborner doctrines of the Civil Law with
+which neither the authors nor the expositors of the Edict
+had ventured to interfere. But at the same time there was
+no corner of the field of jurisprudence which was not more
+or less swept over by the influence of Equity. It supplied
+the jurist with all his materials for generalisation, with all
+his methods of interpretation, with his elucidations of first
+principles, and with that great mass of limiting rules which are<span class='pagenum'><a name="Page_40" id="Page_40">040</a></span>
+rarely interfered with by the legislator, but which seriously
+control the application of every legislative act.</p>
+
+<p>The period of jurists ends with Alexander Severus. From
+Hadrian to that emperor the improvement of law was carried
+on, as it is at the present moment in most continental
+countries, partly by approved commentaries and partly by
+direct legislation. But in the reign of Alexander Severus the
+power of growth in Roman Equity seems to be exhausted,
+and the succession of jurisconsults comes to a close. The
+remaining history of the Roman law is the history of the
+imperial constitutions, and, at the last, of attempts to codify
+what had now become the unwieldy body of Roman jurisprudence.
+We have the latest and most celebrated experiment
+of this kind in the <i>Corpus Juris</i> of Justinian.</p>
+
+<p>It would be wearisome to enter on a detailed comparison
+or contrast of English and Roman Equity, but
+it may be worth while to mention two features which they
+have in common. The first may be stated as follows. Each
+of them tended, and all such systems tend, to exactly the
+same state in which the old common law was when Equity
+first interfered with it. A time always comes at which the
+moral principles originally adopted have been carried out
+to all their legitimate consequences, and then the system
+founded on them becomes as rigid, as unexpansive, and as
+liable to fall behind moral progress as the sternest code of
+rules avowedly legal. Such an epoch was reached at Rome
+in the reign of Alexander Severus; after which, though the
+whole Roman world was undergoing a moral revolution, the
+Equity of Rome ceased to expand. The same point of legal
+history was attained in England under the chancellorship
+of Lord Eldon, the first of our equity judges who, instead of
+enlarging the jurisprudence of his court by indirect legislation,
+devoted himself through life to explaining and harmonising
+it. If the philosophy of legal history were better understood
+in England, Lord Eldon's services would be less exaggerated
+on the one hand and better appreciated on the other than
+they appear to be among contemporary lawyers. Other
+misapprehensions too, which bear some practical fruit, would
+perhaps be avoided. It is easily seen by English lawyers that
+English Equity is a system founded on moral rules; but it is
+forgotten that these rules are the morality of past centuries&mdash;not
+of the present&mdash;that they have received nearly as much<span class='pagenum'><a name="Page_41" id="Page_41">041</a></span>
+application as they are capable of, and that though of course
+they do not differ largely from the ethical creed of our own
+day, they are not necessarily on a level with it. The imperfect
+theories of the subject which are commonly adopted have
+generated errors of opposite sorts. Many writers of treatises
+on Equity, struck with the completeness of the system in its
+present state, commit themselves expressly or implicitly to
+the paradoxical assertion that the founders of the chancery
+jurisprudence contemplated its present fixity of form when
+they were settling its first bases. Others, again, complain&mdash;and
+this is a grievance frequently observed upon in forensic
+arguments&mdash;that the moral rules enforced by the Court of
+Chancery fall short of the ethical standard of the present day.
+They would have each Lord Chancellor perform precisely
+the same office for the jurisprudence which he finds ready to
+his hand, which was performed for the old common law by
+the fathers of English equity. But this is to invert the order
+of the agencies by which the improvement of the law is carried
+on. Equity has its place and its time; but I have pointed out
+that another instrumentality is ready to succeed it when its
+energies are spent.</p>
+
+<p>Another remarkable characteristic of both English and
+Roman Equity is the falsehood of the assumptions upon
+which the claim of the equitable to superiority over the legal
+rule is originally defended. Nothing is more distasteful to
+men, either as individuals or as masses, than the admission
+of their moral progress as a substantive reality.
+This unwillingness shows itself, as regards individuals, in
+the exaggerated respect which is ordinarily paid to the
+doubtful virtue of consistency. The movement of the
+collective opinion of a whole society is too palpable to be
+ignored, and is generally too visible for the better to be
+decried; but there is the greatest disinclination to accept it
+as a primary phenomenon, and it is commonly explained as
+the recovery of a lost perfection&mdash;the gradual return to a
+state from which the race has lapsed. This tendency to look
+backward instead of forward for the goal of moral progress
+produced anciently, as we have seen, on Roman jurisprudence
+effects the most serious and permanent. The Roman jurisconsults,
+in order to account for the improvement of their
+jurisprudence by the Pr&aelig;tor, borrowed from Greece the
+doctrine of a Natural state of man&mdash;a Natural society&mdash;<span class='pagenum'><a name="Page_42" id="Page_42">042</a></span>
+anterior to the organisation of commonwealths governed by
+positive laws. In England, on the other hand, a range of
+ideas especially congenial to Englishmen of that day, explained
+the claim of Equity to override the common law by
+supposing a general right to superintend the administration
+of justice which was assumed to be vested in the king as a
+natural result of his paternal authority. The same view
+appears in a different and a quainter form in the old doctrine
+that Equity flowed from the king's conscience&mdash;the improvement
+which had in fact taken place in the moral standard of
+the community being thus referred to an inherent elevation
+in the moral sense of the sovereign. The growth of the
+English constitution rendered such a theory unpalatable
+after a time; but, as the jurisdiction of the Chancery was then
+firmly established, it was not worth while to devise any formal
+substitute for it. The theories found in modern manuals of
+Equity are very various, but all are alike in their untenability.
+Most of them are modifications of the Roman doctrine of a
+natural law, which is indeed adopted in tenour by those
+writers who begin a discussion of the jurisdiction of the Court
+of Chancery by laying down a distinction between natural
+justice and civil.<span class='pagenum'><a name="Page_43" id="Page_43">043</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV</h3>
+
+<h4><span class="smcap">the modern history of the law of nature</span></h4>
+
+
+<p>It will be inferred from what has been said that the theory
+which transformed the Roman jurisprudence had no claim to
+philosophical precision. It involved, in fact, one of those
+"mixed modes of thought" which are now acknowledged
+to have characterised all but the highest minds during the
+infancy of speculation, and which are far from undiscoverable
+even in the mental efforts of our own day. The Law of
+Nature confused the Past and the Present. Logically, it
+implied a state of Nature which had once been regulated by
+natural law; yet the jurisconsults do not speak clearly or
+confidently of the existence of such a state, which indeed is
+little noticed by the ancients except where it finds a poetical
+expression in the fancy of a golden age. Natural law, for all
+practical purposes, was something belonging to the present,
+something entwined with existing institutions, something
+which could be distinguished from them by a competent
+observer. The test which separated the ordinances of Nature
+from the gross ingredients with which they were mingled was
+a sense of simplicity and harmony; yet it was not on account
+of their simplicity and harmony that these finer elements
+were primarily respected, but on the score of their descent
+from the aboriginal reign of Nature. This confusion has not
+been successfully explained away by the modern disciples
+of the jurisconsults, and in truth modern speculations on the
+Law of Nature betray much more indistinctness of perception
+and are vitiated by much more hopeless ambiguity of
+language than the Roman lawyers can be justly charged with.
+There are some writers on the subject who attempt to evade
+the fundamental difficulty by contending that the code of
+Nature exists in the future and is the goal to which all civil
+laws are moving, but this is to reverse the assumptions on
+which the old theory rested, or rather perhaps to mix together
+two inconsistent theories. The tendency to look not to the
+past but to the future for types of perfection was brought into<span class='pagenum'><a name="Page_44" id="Page_44">044</a></span>
+the world by Christianity. Ancient literature gives few or no
+hints of a belief that the progress of society is necessarily
+from worse to better.</p>
+
+<p>But the importance of this theory to mankind has been
+very much greater than its philosophical deficiencies would
+lead us to expect. Indeed, it is not easy to say what turn the
+history of thought, and therefore, of the human race, would
+have taken, if the belief in a law natural had not become
+universal in the ancient world.</p>
+
+<p>There are two special dangers to which law, and society
+which is held together by law, appear to be liable in their
+infancy. One of them is that law may be too rapidly
+developed. This occurred with the codes of the more progressive
+Greek communities, which disembarrassed themselves
+with astonishing facility from cumbrous forms of procedure
+and needless terms of art, and soon ceased to attach any
+superstitious value to rigid rules and prescriptions. It was
+not for the ultimate advantage of mankind that they did
+so, though the immediate benefit conferred on their citizens
+may have been considerable. One of the rarest qualities of
+national character is the capacity for applying and working
+out the law, as such, at the cost of constant miscarriages of
+abstract justice, without at the same time losing the hope or
+the wish that law may be conformed to a higher ideal. The
+Greek intellect, with all its nobility and elasticity, was quite
+unable to confine itself within the strait waistcoat of a legal
+formula; and, if we may judge them by the popular courts of
+Athens, of whose working we possess accurate knowledge, the
+Greek tribunals exhibited the strongest tendency to confound
+law and fact. The remains of the Orators and the forensic
+commonplaces preserved by Aristotle in his Treatise on
+Rhetoric, show that questions of pure law were constantly
+argued on every consideration which could possibly influence
+the mind of the judges. No durable system of jurisprudence
+could be produced in this way. A community which never
+hesitated to relax rules of written law whenever they stood
+in the way of an ideally perfect decision on the facts of
+particular cases, would only, if it bequeathed any body of
+judicial principles to posterity, bequeath one consisting of
+the ideas of right and wrong which happened to be prevalent
+at the time. Such a jurisprudence would contain no framework
+to which the more advanced conceptions of subsequent<span class='pagenum'><a name="Page_45" id="Page_45">045</a></span>
+ages could be fitted. It would amount at best to a philosophy
+marked with the imperfections of the civilisation under which
+it grew up.</p>
+
+<p>Few national societies have had their jurisprudence
+menaced by this peculiar danger of precocious maturity and
+untimely disintegration. It is certainly doubtful whether
+the Romans were ever seriously threatened by it, but at any
+rate they had adequate protection in their theory of Natural
+Law. For the Natural Law of the jurisconsults was distinctly
+conceived by them as a system which ought gradually
+to absorb civil laws, without superseding them so long as
+they remained unrepealed. There was no such impression
+of its sanctity abroad, that an appeal to it would be likely
+to overpower the mind of a judge who was charged with the
+superintendence of a particular litigation. The value and
+serviceableness of the conception arose from its keeping
+before the mental vision a type of perfect law, and from its
+inspiring the hope of an indefinite approximation to it, at
+the same time that it never tempted the practitioner or the
+citizen to deny the obligation of existing laws which had not
+yet been adjusted to the theory. It is important too to
+observe that this model system, unlike many of those which
+have mocked men's hopes in later days, was not entirely the
+product of imagination. It was never thought of as founded
+on quite untested principles. The notion was that it underlay
+existing law and must be looked for through it. Its
+functions were in short remedial, not revolutionary or
+anarchical. And this, unfortunately, is the exact point at
+which the modern view of a Law of Nature has often ceased
+to resemble the ancient.</p>
+
+<p>The other liability to which the infancy of society is exposed
+has prevented or arrested the progress of far the greater part
+of mankind. The rigidity of primitive law, arising chiefly
+from its early association and identification with religion,
+has chained down the mass of the human race to those views
+of life and conduct which they entertained at the time when
+their usages were first consolidated into a systematic form.
+There were one or two races exempted by a marvellous fate
+from this calamity, and grafts from these stocks have fertilised
+a few modern societies, but it is still true that, over the larger
+part of the world, the perfection of law has always been
+considered as consisting in adherence to the ground plan<span class='pagenum'><a name="Page_46" id="Page_46">046</a></span>
+supposed to have been marked out by the original legislator.
+If intellect has in such cases been exercised on jurisprudence,
+it has uniformly prided itself on the subtle perversity of the
+conclusions it could build on ancient texts, without discoverable
+departure from their literal tenour. I know no reason
+why the law of the Romans should be superior to the laws
+of the Hindoos, unless the theory of Natural Law had given
+it a type of excellence different from the usual one. In this
+one exceptional instance, simplicity and symmetry were
+kept before the eyes of a society whose influence on mankind
+was destined to be prodigious from other causes, as the
+characteristics of an ideal and absolutely perfect law. It is
+impossible to overrate the importance to a nation or profession
+of having a distinct object to aim at in the pursuit of
+improvement. The secret of Bentham's immense influence in
+England during the past thirty years is his success in placing
+such an object before the country. He gave us a clear rule
+of reform. English lawyers of the last century were probably
+too acute to be blinded by the paradoxical commonplace that
+English law was the perfection of human reason, but they
+acted as if they believed it for want of any other principle
+to proceed upon. Bentham made the good of the community
+take precedence of every other object, and thus gave escape
+to a current which had long been trying to find its way
+outwards.</p>
+
+<p>It is not an altogether fanciful comparison if we call the
+assumptions we have been describing the ancient counterpart
+of Benthamism. The Roman theory guided men's efforts
+in the same direction as the theory put into shape by the
+Englishman; its practical results were not widely different
+from those which would have been attained by a sect of law-reformers
+who maintained a steady pursuit of the general
+good of the community. It would be a mistake, however,
+to suppose it a conscious anticipation of Bentham's principles.
+The happiness of mankind is, no doubt, sometimes assigned,
+both in the popular and in the legal literature of the Romans,
+as the proper object of remedial legislation, but it is very
+remarkable how few and faint are the testimonies to this
+principle compared with the tributes which are constantly
+offered to the overshadowing claims of the Law of Nature.
+It was not to anything resembling philanthropy, but to their
+sense of simplicity and harmony&mdash;of what they significantly<span class='pagenum'><a name="Page_47" id="Page_47">047</a></span>
+termed "elegance"&mdash;that the Roman jurisconsults freely
+surrendered themselves. The coincidence of their labours
+with those which a more precise philosophy would have
+counselled has been part of the good fortune of mankind.</p>
+
+<p>Turning to the modern history of the law of nature, we
+find it easier to convince ourselves of the vastness of its
+influence than to pronounce confidently whether that influence
+has been exerted for good or for evil. The doctrines and
+institutions which may be attributed to it are the material
+of some of the most violent controversies debated in our time,
+as will be seen when it is stated that the theory of Natural
+Law is the source of almost all the special ideas as to law,
+politics, and society which France during the last hundred
+years has been the instrument of diffusing over the western
+world. The part played by jurists in French history, and the
+sphere of jural conceptions in French thought, have always
+been remarkably large. It was not indeed in France, but
+in Italy, that the juridical science of modern Europe took its
+rise, but of the schools founded by emissaries of the Italian
+universities in all parts of the continent, and attempted
+(though vainly) to be set up in our island, that established
+in France produced the greatest effect on the fortunes of
+the country. The lawyers of France immediately formed a
+strict alliance with the kings of the house of Capet, and it was
+as much through their assertions of royal prerogative, and
+through their interpretations of the rules of feudal succession,
+as by the power of the sword, that the French monarchy at
+last grew together out of the agglomeration of provinces and
+dependencies. The enormous advantage which their understanding
+with the lawyers conferred on the French kings in
+the prosecution of their struggle with the great feudatories,
+the aristocracy, and the church, can only be appreciated if
+we take into account the ideas which prevailed in Europe far
+down into the middle ages. There was, in the first place, a
+great enthusiasm for generalisation and a curious admiration
+for all general propositions, and consequently, in the field
+of law, an involuntary reverence for every general formula
+which seemed to embrace and sum up a number of the
+insulated rules which were practised as usages in various
+localities. Such general formulas it was, of course, not
+difficult for practitioners familiar with the Corpus Juris or
+the Glosses to supply in almost any quantity. There was,<span class='pagenum'><a name="Page_48" id="Page_48">048</a></span>
+however, another cause which added yet more considerably
+to the lawyers' power. At the period of which we are speaking,
+there was universal vagueness of ideas as to the degree
+and nature of the authority residing in written texts of law.
+For the most part, the peremptory preface, <i>Ita scriptum est</i>,
+seems to have been sufficient to silence all objections. Where
+a mind of our own day would jealously scrutinise the formula
+which had been quoted, would inquire its source, and would
+(if necessary) deny that the body of law to which it belonged
+had any authority to supersede local customs, the elder jurist
+would not probably have ventured to do more than question
+the applicability of the rule, or at best cite some counter
+proposition from the Pandects or the Canon Law. It is
+extremely necessary to bear in mind the uncertainty of men's
+notions on this most important side of juridical controversies,
+not only because it helps to explain the weight which the
+lawyers threw into the monarchical scale, but on account of
+the light which it sheds on several curious historical problems.
+The motives of the author of the Forged Decretals and his
+extraordinary success are rendered more intelligible by it.
+And, to take a phenomenon of smaller interest, it assists us,
+though only partially, to understand the plagiarisms of
+Bracton. That an English writer of the time of Henry III.
+should have been able to put off on his countrymen as a
+compendium of pure English law a treatise of which the entire
+form and a third of the contents were directly borrowed from
+the Corpus Juris, and that he should have ventured on this
+experiment in a country where the systematic study of the
+Roman law was formally proscribed, will always be among
+the most hopeless enigmas in the history of jurisprudence;
+but still it is something to lessen our surprise when we comprehend
+the state of opinion at the period as to the obligatory
+force of written texts, apart from all consideration of the
+source whence they were derived.</p>
+
+<p>When the kings of France had brought their long struggle
+for supremacy to a successful close, an epoch which may
+be placed roughly at the accession of the branch of Valois-Angoul&ecirc;me
+to the throne, the situation of the French jurists
+was peculiar and continued to be so down to the outbreak
+of the revolution. On the one hand, they formed the best
+instructed and nearly the most powerful class in the nation.
+They had made good their footing as a privileged order by<span class='pagenum'><a name="Page_49" id="Page_49">049</a></span>
+the side of the feudal aristocracy, and they had assured their
+influence by an organisation which distributed their profession
+over France in great chartered corporations possessing large
+defined powers and still larger indefinite claims. In all
+the qualities of the advocate, the judge, and the legislator,
+they far excelled their compeers throughout Europe. Their
+juridical tact, their ease of expression, their fine sense of
+analogy and harmony, and (if they may be judged by the
+highest names among them) their passionate devotion to
+their conceptions of justice, were as remarkable as the
+singular variety of talent which they included, a variety
+covering the whole ground between the opposite poles of
+Cujas and Montesquieu, of D'Aguesseau and Dumoulin.
+But, on the other hand, the system of laws which they had to
+administer stood in striking contrast with the habits of mind
+which they had cultivated. The France which had been in
+great part constituted by their efforts was smitten with the
+curse of an anomalous and dissonant jurisprudence beyond
+every other country in Europe. One great division ran
+through the country and separated it into <i>Pays du Droit
+Ecrit</i> and <i>Pays du Droit Coutumier</i>, the first acknowledging
+the written Roman law as the basis of their jurisprudence,
+the last admitting it only so far as it supplied general forms
+of expression, and courses of juridical reasoning which were
+reconcileable with the local usages. The sections thus formed
+were again variously subdivided. In the <i>Pays du Droit
+Coutumier</i> province differed from province, county from
+county, municipality from municipality, in the nature of its
+customs. In the <i>Pays du Droit Ecrit</i> the stratum of feudal
+rules which overlay the Roman law was of the most miscellaneous
+composition. No such confusion as this ever existed
+in England. In Germany it did exist, but was too much
+in harmony with the deep political and religious divisions of
+the country to be lamented or even felt. It was the special
+peculiarity of France that an extraordinary diversity of laws
+continued without sensible alteration while the central
+authority of the monarchy was constantly strengthening
+itself, while rapid approaches were being made to complete
+administrative unity, and while a fervid national spirit had
+been developed among the people. The contrast was one
+which fructified in many serious results, and among them we
+must rank the effect which it produced on the minds of the<span class='pagenum'><a name="Page_50" id="Page_50">050</a></span>
+French lawyers. Their speculative opinions and their intellectual
+bias were in the strongest opposition to their interests and
+professional habits. With the keenest sense and the fullest
+recognition of those perfections of jurisprudence which consist
+in simplicity and uniformity, they believed, or seemed to
+believe, that the vices which actually infested French law
+were ineradicable; and in practice they often resisted the
+reformation of abuses with an obstinacy which was not shown
+by many among their less enlightened countrymen. But
+there was a way to reconcile these contradictions. They
+became passionate enthusiasts for Natural Law. The Law
+of Nature overleapt all provincial and municipal boundaries;
+it disregarded all distinctions between noble and burgess,
+between burgess and peasant; it gave the most exalted place
+to lucidity, simplicity and system; but it committed its
+devotees to no specific improvement, and did not directly
+threaten any venerable or lucrative technicality. Natural
+law may be said to have become the common law of France,
+or, at all events, the admission of its dignity and claims
+was the one tenet which all French practitioners alike subscribed
+to. The language of the pr&aelig;-revolutionary jurists
+in its eulogy is singularly unqualified, and it is remarkable
+that the writers on the Customs, who often made it their duty
+to speak disparagingly of the pure Roman law, speak even
+more fervidly of Nature and her rules than the civilians who
+professed an exclusive respect for the Digest and the Code.
+Dumoulin, the highest of all authorities on old French
+Customary Law, has some extravagant passages on the Law
+of Nature; and his panegyrics have a peculiar rhetorical
+turn which indicated a considerable departure from the
+caution of the Roman jurisconsults. The hypothesis of a
+Natural Law had become not so much a theory guiding
+practice as an article of speculative faith, and accordingly
+we shall find that, in the transformation which it more recently
+underwent, its weakest parts rose to the level of its strongest
+in the esteem of its supporters.</p>
+
+<p>The eighteenth century was half over when the most
+critical period in the history of Natural Law was reached.
+Had the discussion of the theory and of its consequences
+continued to be exclusively the employment of the legal
+profession, there would possibly have been an abatement of
+the respect which it commanded; for by this time the <i>Esprit des Lois</i><span class='pagenum'><a name="Page_51" id="Page_51">051</a></span>
+had appeared. Bearing in some exaggerations the
+marks of the excessive violence with which its author's mind
+had recoiled from assumptions usually suffered to pass without
+scrutiny, yet showing in some ambiguities the traces of a
+desire to compromise with existing prejudice, the book of
+Montesquieu, with all its defects, still proceeded on that
+Historical Method before which the Law of Nature has
+never maintained its footing for an instant. Its influence on
+thought ought to have been as great as its general popularity;
+but, in fact, it was never allowed time to put it forth, for
+the counter-hypothesis which it seemed destined to destroy
+passed suddenly from the forum to the street, and became the
+key-note of controversies far more exciting than are ever
+agitated in the courts or the schools. The person who
+launched it on its new career was that remarkable man who,
+without learning, with few virtues, and with no strength of
+character, has nevertheless stamped himself ineffaceably on
+history by the force of a vivid imagination, and by the help
+of a genuine and burning love for his fellow-men, for which
+much will always have to be forgiven him. We have never
+seen in our own generation&mdash;indeed the world has not seen
+more than once or twice in all the course of history&mdash;a literature
+which has exercised such prodigious influence over the
+minds of men, over every cast and shade of intellect, as that
+which emanated from Rousseau between 1749 and 1762. It
+was the first attempt to re-erect the edifice of human belief
+after the purely iconoclastic efforts commenced by Bayle, and
+in part by our own Locke, and consummated by Voltaire;
+and besides the superiority which every constructive effort
+will always enjoy over one that is merely destructive, it
+possessed the immense advantage of appearing amid an all
+but universal scepticism as to the soundness of all foregone
+knowledge in matters speculative. Now, in all the speculations
+of Rousseau, the central figure, whether arrayed in an
+English dress as the signatory of a social compact, or simply
+stripped naked of all historical qualities, is uniformly Man,
+in a supposed state of nature. Every law or institution
+which would misbeseem this imaginary being under these
+ideal circumstances is to be condemned as having lapsed
+from an original perfection; every transformation of society
+which would give it a closer resemblance to the world over
+which the creature of Nature reigned, is admirable and worthy<span class='pagenum'><a name="Page_52" id="Page_52">052</a></span>
+to be effected at any apparent cost. The theory is still that
+of the Roman lawyers, for in the phantasmagoria with which
+the Natural Condition is peopled, every feature and characteristic
+eludes the mind except the simplicity and harmony which
+possessed such charms for the jurisconsult; but the theory
+is, as it were, turned upside down. It is not the Law of
+Nature, but the State of Nature, which is now the primary
+subject of contemplation. The Roman had conceived that
+by careful observation of existing institutions parts of them
+could be singled out which either exhibited already, or could
+by judicious purification be made to exhibit, the vestiges of
+that reign of nature whose reality he faintly affirmed. Rousseau's
+belief was that a perfect social order could be evolved
+from the unassisted consideration of the natural state, a social
+order wholly irrespective of the actual condition of the world
+and wholly unlike it. The great difference between the views
+is that one bitterly and broadly condemns the present for
+its unlikeness to the ideal past; while the other, assuming the
+present to be as necessary as the past, does not affect to disregard
+or censure it. It is not worth our while to analyse
+with any particularity that philosophy of politics, art,
+education, ethics, and social relation which was constructed
+on the basis of a state of nature. It still possesses singular
+fascination for the looser thinkers of every country, and is
+no doubt the parent, more or less remote, of almost all the
+prepossessions which impede the employment of the Historical
+Method of inquiry, but its discredit with the higher minds
+of our day is deep enough to astonish those who are familiar
+with the extraordinary vitality of speculative error. Perhaps
+the question most frequently asked nowadays is not
+what is the value of these opinions, but what were the causes
+which gave them such overshadowing prominence a hundred
+years ago. The answer is, I conceive, a simple one. The
+study which in the last century would best have corrected
+the misapprehensions into which an exclusive attention to
+legal antiquities is apt to betray was the study of religion.
+But Greek religion, as then understood, was dissipated in
+imaginative myths. The Oriental religions, if noticed at all,
+appeared to be lost in vain cosmogonies. There was but one
+body of primitive records which was worth studying&mdash;the
+early history of the Jews. But resort to this was prevented
+by the prejudices of the time. One of the few characteristics<span class='pagenum'><a name="Page_53" id="Page_53">053</a></span>
+which the school of Rousseau had in common with the school
+of Voltaire was an utter disdain of all religious antiquities;
+and, more than all, of those of the Hebrew race. It is well
+known that it was a point of honour with the reasoners of
+that day to assume not merely that the institutions called
+after Moses were not divinely dictated, nor even that they
+were codified at a later date than that attributed to them,
+but that they and the entire Pentateuch were a gratuitous
+forgery, executed after the return from the Captivity. Debarred,
+therefore, from one chief security against speculative
+delusion, the philosophers of France, in their eagerness to
+escape from what they deemed a superstition of the priests,
+flung themselves headlong into a superstition of the lawyers.</p>
+
+<p>But though the philosophy founded on the hypothesis of
+a state of nature has fallen low in general esteem, in so far
+as it is looked upon under its coarser and more palpable
+aspect, it does not follow that in its subtler disguises it has
+lost plausibility, popularity, or power. I believe, as I have
+said, that it is still the great antagonist of the Historical
+Method; and whenever (religious objections apart) any mind
+is seen to resist or contemn that mode of investigation, it
+will generally be found under the influence of a prejudice or
+vicious bias traceable to a conscious or unconscious reliance
+on a non-historic, natural, condition of society or the
+individual. It is chiefly, however, by allying themselves with
+political and social tendencies that the doctrines of Nature
+and her law have preserved their energy. Some of these
+tendencies they have stimulated, others they have actually
+created, to a great number they have given expression and
+form. They visibly enter largely into the ideas which
+constantly radiate from France over the civilised world, and
+thus become part of the general body of thought by which
+its civilisation is modified. The value of the influence which
+they thus exercise over the fortunes of the race is of course
+one of the points which our age debates most warmly, and
+it is beside the purpose of this treatise to discuss it. Looking
+back, however, to the period at which the theory of the state
+of nature acquired the maximum of political importance,
+there are few who will deny that it helped most powerfully
+to bring about the grosser disappointments of which the first
+French Revolution was fertile. It gave birth, or intense
+stimulus, to the vices of mental habit all but universal at the<span class='pagenum'><a name="Page_54" id="Page_54">054</a></span>
+time, disdain of positive law, impatience of experience, and
+the preference of <i>&agrave; priori</i> to all other reasoning. In proportion
+too as this philosophy fixes its grasp on minds which
+have thought less than others and fortified themselves with
+smaller observation, its tendency is to become distinctly anarchical.
+It is surprising to note how many of the <i>Sophismes
+Anarchiques</i> which Dumont published for Bentham, and
+which embody Bentham's exposure of errors distinctively
+French, are derived from the Roman hypothesis in its French
+transformation, and are unintelligible unless referred to it.
+On this point too it is a curious exercise to consult the <i>Moniteur</i>
+during the principal eras of the Revolution. The appeals
+to the Law and State of Nature become thicker as the times
+grow darker. They are comparatively rare in the Constituent
+Assembly; they are much more frequent in the Legislative;
+in the Convention, amid the din of debate on conspiracy and
+war, they are perpetual.</p>
+
+<p>There is a single example which very strikingly illustrates
+the effects of the theory of natural law on modern society,
+and indicates how very far are those effects from being
+exhausted. There cannot, I conceive, be any question that
+to the assumption of a Law Natural we owe the doctrine
+of the fundamental equality of human beings. That "all
+men are equal" is one of a large number of legal propositions
+which, in progress of time, have become political. The
+Roman jurisconsults of the Antonine era lay down that
+"omnes homines natur&acirc; &aelig;quales sunt," but in their eyes
+this is a strictly juridical axiom. They intend to affirm that,
+under the hypothetical Law of Nature, and in so far as positive
+law approximates to it, the arbitrary distinctions which the
+Roman Civil Law maintained between classes of persons
+cease to have a legal existence. The rule was one of considerable
+importance to the Roman practitioner, who required
+to be reminded that, wherever Roman jurisprudence was
+assumed to conform itself exactly to the code of Nature, there
+was no difference in the contemplation of the Roman tribunals
+between citizen and foreigner, between freeman and slave,
+between Agnate and Cognate. The jurisconsults who thus
+expressed themselves most certainly never intended to censure
+the social arrangements under which civil law fell somewhat
+short of its speculative type; nor did they apparently believe
+that the world would ever see human society completely<span class='pagenum'><a name="Page_55" id="Page_55">055</a></span>
+assimilated to the economy of nature. But when the doctrine
+of human equality makes its appearance in a modern dress
+it has evidently clothed itself with a new shade of meaning.
+Where the Roman jurisconsult had written "&aelig;quales sunt,"
+meaning exactly what he said, the modern civilian wrote
+"all men are equal" in the sense of "all men ought to be
+equal." The peculiar Roman idea that natural law coexisted
+with civil law and gradually absorbed it, had evidently been
+lost sight of, or had become unintelligible, and the words
+which had at most conveyed a theory concerning the origin,
+composition, and development of human institutions, were
+beginning to express the sense of a great standing wrong
+suffered by mankind. As early as the beginning of the fourteenth
+century, the current language concerning the birth-state
+of men, though visibly intended to be identical with that
+of Ulpian and his contemporaries, has assumed an altogether
+different form and meaning. The preamble to the celebrated
+ordinance of King Louis Hutin enfranchising the serfs of
+the royal domains would have sounded strangely to Roman
+ears. "Whereas, according to natural law, everybody ought
+to be born free; and by some usages and customs which,
+from long antiquity, have been introduced and kept until
+now in our realm, and peradventure by reason of the misdeeds
+of their predecessors, many persons of our common people
+have fallen into servitude, therefore, We, etc." This is the
+enunciation not of a legal rule but of a political dogma; and
+from this time the equality of men is spoken of by the French
+lawyers just as if it were a political truth which happened to
+have been preserved among the archives of their science.
+Like all other deductions from the hypothesis of a Law
+Natural, and like the belief itself in a Law of Nature, it was
+languidly assented to and suffered to have little influence on
+opinion and practice until it passed out of the possession of
+the lawyers into that of the literary men of the eighteenth
+century and of the public which sat at their feet. With them
+it became the most distinct tenet of their creed, and was
+even regarded as a summary of all the others. It is probable,
+however, that the power which it ultimately acquired over
+the events of 1789 was not entirely owing to its popularity
+in France, for in the middle of the century it passed over to
+America. The American lawyers of the time, and particularly
+those of Virginia, appear to have possessed a stock of know<span class='pagenum'><a name="Page_56" id="Page_56">056</a></span>ledge
+which differed chiefly from that of their English contemporaries
+in including much which could only have been
+derived from the legal literature of continental Europe. A
+very few glances at the writings of Jefferson will show how
+strongly his mind was affected by the semi-juridical, semi-popular
+opinions which were fashionable in France, and we
+cannot doubt that it was sympathy with the peculiar ideas
+of the French jurists which led him and the other colonial
+lawyers who guided the course of events in America to join
+the specially French assumption that "all men are born
+equal" with the assumption, more familiar to Englishmen,
+that "all men are born free," in the very first lines of
+their Declaration of Independence. The passage was one
+of great importance to the history of the doctrine before us.
+The American lawyers, in thus prominently and emphatically
+affirming the fundamental equality of human beings, gave
+an impulse to political movements in their own country, and
+in a less degree in Great Britain, which is far from having yet
+spent itself; but besides this they returned the dogma they
+had adopted to its home in France, endowed with vastly
+greater energy and enjoying much greater claims on general
+reception and respect. Even the more cautious politicians
+of the first Constituent Assembly repeated Ulpian's proposition
+as if it at once commended itself to the instincts and
+intuitions of mankind; and of all the "principles of 1789"
+it is the one which has been least strenuously assailed, which
+has most thoroughly leavened modern opinion, and which
+promises to modify most deeply the constitution of societies
+and the politics of states.</p>
+
+<p>The grandest function of the Law of Nature was discharged
+in giving birth to modern International Law and to the modern
+Law of War, but this part of its effects must here be dismissed
+with consideration very unequal to its importance.</p>
+
+<p>Among the postulates which form the foundation of International
+Law, or of so much of it as retains the figure which
+it received from its original architects, there are two or three
+of pre-eminent importance. The first of all is expressed in
+the position that there is a determinable Law of Nature.
+Grotius and his successors took the assumption directly
+from the Romans, but they differed widely from the Roman
+jurisconsults and from each other in their ideas as to the mode
+of determination. The ambition of almost every Publicist<span class='pagenum'><a name="Page_57" id="Page_57">057</a></span>
+who has flourished since the revival of letters has been to
+provide new and more manageable definitions of Nature
+and of her law, and it is indisputable that the conception in
+passing through the long series of writers on Public Law has
+gathered round it a large accretion, consisting of fragments
+of ideas derived from nearly every theory of ethics which has
+in its turn taken possession of the schools. Yet it is a remarkable
+proof of the essentially historical character of the conception
+that, after all the efforts which have been made to
+evolve the code of nature from the necessary characteristics
+of the natural state, so much of the result is just what it would
+have been if men had been satisfied to adopt the dicta of
+the Roman lawyers without questioning or reviewing them.
+Setting aside the Conventional or Treaty Law of Nations, it
+is surprising how large a part of the system is made up of pure
+Roman law. Wherever there is a doctrine of the jurisconsults
+affirmed by them to be in harmony with the Jus Gentium,
+the publicists have found a reason for borrowing it, however
+plainly it may bear the marks of a distinctively Roman
+origin. We may observe too that the derivative theories
+are afflicted with the weakness of the primary notion. In
+the majority of the Publicists, the mode of thought is still
+"mixed." In studying these writers, the great difficulty
+is always to discover whether they are discussing law or
+morality&mdash;whether the state of international relations they
+describe is actual or ideal&mdash;whether they lay down that which
+is, or that which, in their opinion, ought to be.</p>
+
+<p>The assumption that Natural Law is binding on states
+<i>inter se</i> is the next in rank of those which underlie International
+Law. A series of assertions or admissions of this
+principle may be traced up to the very infancy of modern
+juridical science, and at first sight it seems a direct inference
+from the teaching of the Romans. The civil condition of
+society being distinguished from the natural by the fact that
+in the first there is a distinct author of law, while in the last
+there is none, it appears as if the moment a number of <i>units</i>
+were acknowledged to obey no common sovereign or political
+superior they were thrown back on the ulterior behests of
+the Law Natural. States are such units; the hypothesis of
+their independence excludes the notion of a common lawgiver,
+and draws with it, therefore, according to a certain range of
+ideas, the notion of subjection to the primeval order of nature.<span class='pagenum'><a name="Page_58" id="Page_58">058</a></span>
+The alternative is to consider independent communities as
+not related to each other by any law, but this condition of
+lawlessness is exactly the vacuum which the Nature of the
+jurisconsults abhorred. There is certainly apparent reason
+for thinking that if the mind of a Roman lawyer rested on any
+sphere from which civil law was banished, it would instantly
+fill the void with the ordinances of Nature. It is never safe,
+however, to assume that conclusions, however certain and
+immediate in our own eyes, were actually drawn at any period
+of history. No passage has ever been adduced from the
+remains of Roman law which, in my judgment, proves the
+jurisconsults to have believed natural law to have obligatory
+force between independent commonwealths; and we cannot
+but see that to citizens of the Roman empire who regarded
+their sovereign's dominions as conterminous with civilisation,
+the equal subjection of states to the Law of Nature, if contemplated
+at all, must have seemed at most an extreme result
+of curious speculation. The truth appears to be that modern
+International Law, undoubted as is its descent from Roman
+law, is only connected with it by an irregular filiation. The
+early modern interpreters of the jurisprudence of Rome,
+misconceiving the meaning of Jus Gentium, assumed without
+hesitation that the Romans had bequeathed to them a
+system of rules for the adjustment of international transactions.
+This "Law of Nations" was at first an authority
+which had formidable competitors to strive with, and the
+condition of Europe was long such as to preclude its universal
+reception. Gradually, however, the western world
+arranged itself in a form more favourable to the theory of
+the civilians; circumstances destroyed the credit of rival
+doctrines; and at last, at a peculiarly felicitous conjuncture,
+Ayala and Grotius were able to obtain for it the enthusiastic
+assent of Europe, an assent which has been over and over again
+renewed in every variety of solemn engagement. The great
+men to whom its triumph is chiefly owing attempted, it need
+scarcely be said, to place it on an entirely new basis, and it is
+unquestionable that in the course of this displacement they
+altered much of its structure, though far less of it than is
+commonly supposed. Having adopted from the Antonine
+jurisconsults the position that the Jus Gentium and the Jus
+Natur&aelig; were identical, Grotius, with his immediate predecessors
+and his immediate successors, attributed to the<span class='pagenum'><a name="Page_59" id="Page_59">059</a></span>
+Law of Nature an authority which would never perhaps have
+been claimed for it, if "Law of Nations" had not in that age
+been an ambiguous expression. They laid down unreservedly
+that Natural Law is the code of states, and thus put in operation
+a process which has continued almost down to our own
+day, the process of engrafting on the international system
+rules which are supposed to have been evolved from the
+unassisted contemplation of the conception of Nature. There
+is too one consequence of immense practical importance to
+mankind which, though not unknown during the early modern
+history of Europe, was never clearly or universally acknowledged
+till the doctrines of the Grotian school had prevailed.
+If the society of nations is governed by Natural Law, the
+atoms which compose it must be absolutely equal. Men
+under the sceptre of Nature are all equal, and accordingly
+commonwealths are equal if the international state be one
+of nature. The proposition that independent communities,
+however different in size and power, are all equal in the view
+of the law of nations, has largely contributed to the happiness
+of mankind, though it is constantly threatened by the political
+tendencies of each successive age. It is a doctrine which
+probably would never have obtained a secure footing at all
+if International Law had not been entirely derived from the
+majestic claims of Nature by the Publicists who wrote after
+the revival of letters.</p>
+
+<p>On the whole, however, it is astonishing, as I have observed
+before, how small a proportion the additions made to International
+Law since Grotius's day bear to the ingredients
+which have been simply taken from the most ancient stratum
+of the Roman Jus Gentium. Acquisition of territory has
+always been the great spur of national ambition, and the
+rules which govern this acquisition, together with the rules
+which moderate the wars in which it too frequently results,
+are merely transcribed from the part of the Roman law which
+treats of the modes of acquiring property <i>jure gentium</i>. These
+modes of acquisition were obtained by the elder jurisconsults,
+as I have attempted to explain, by abstracting a common
+ingredient from the usages observed to prevail among the
+various tribes surrounding Rome; and, having been classed
+on account of their origin in the "law common to all nations,"
+they were thought by the later lawyers to fit in, on the score
+of their simplicity, with the more recent conception of a Law<span class='pagenum'><a name="Page_60" id="Page_60">060</a></span>
+Natural. They thus made their way into the modern Law of
+Nations, and the result is that those parts of the international
+system which refer to <i>dominion</i>, its nature, its limitations, the
+modes of acquiring and securing it, are pure Roman Property
+Law&mdash;so much, that is to say, of the Roman Law of Property
+as the Antonine jurisconsults imagined to exhibit a certain
+congruity with the natural state. In order that these chapters
+of International Law may be capable of application, it is necessary
+that sovereigns should be related to each other like the
+members of a group of Roman proprietors. This is another of
+the postulates which lie at the threshold of the International
+Code, and it is also one which could not possibly have been
+subscribed to during the first centuries of modern European
+history. It is resolvable into the double proposition that
+"sovereignty is territorial," <i>i.e.</i> that it is always associated
+with the proprietorship of a limited portion of the
+earth's surface, and that "sovereigns <i>inter se</i> are to be
+deemed not <i>paramount</i>, but <i>absolute</i>, owners of the state's
+territory."</p>
+
+<p>Many contemporary writers on International Law tacitly
+assume that the doctrines of their system, founded on principles
+of equity and common sense, were capable of being
+readily reasoned out in every stage of modern civilisation.
+But this assumption, while it conceals some real defects of the
+international theory, is altogether untenable, so far as regards
+a large part of modern history. It is not true that the authority
+of the Jus Gentium in the concerns of nations was always uncontradicted;
+on the contrary, it had to struggle long against
+the claims of several competing systems. It is again not true
+that the territorial character of sovereignty was always recognised,
+for long after the dissolution of the Roman dominion
+the minds of men were under the empire of ideas irreconcileable
+with such a conception. An old order of things, and of
+views founded on it, had to decay&mdash;a new Europe, and an
+apparatus of new notions congenial to it, had to spring up&mdash;before
+two of the chiefest postulates of International Law
+could be universally conceded.</p>
+
+<p>It is a consideration well worthy to be kept in view, that
+during a large part of what we usually term modern history
+no such conception was entertained as that of "<i>territorial
+sovereignty</i>." Sovereignty was not associated with dominion
+over a portion or subdivision of the earth. The world had lain<span class='pagenum'><a name="Page_61" id="Page_61">061</a></span>
+for so many centuries under the shadow of Imperial Rome as
+to have forgotten that distribution of the vast spaces comprised
+in the empire which had once parcelled them out into
+a number of independent commonwealths, claiming immunity
+from extrinsic interference, and pretending to equality of
+national rights. After the subsidence of the barbarian irruptions,
+the notion of sovereignty that prevailed seems to have
+been twofold. On the one hand it assumed the form of what
+may be called "<i>tribe</i>-sovereignty." The Franks, the Burgundians,
+the Vandals, the Lombards, and Visigoths were
+masters, of course, of the territories which they occupied,
+and to which some of them have given a geographical
+appellation; but they based no claim of right upon the fact
+of territorial possession, and indeed attached no importance
+to it whatever. They appear to have retained the traditions
+which they brought with them from the forest and the steppe,
+and to have still been in their own view a patriarchal society,
+a nomad horde, merely encamped for the time upon the soil
+which afforded them sustenance. Part of Transalpine Gaul,
+with part of Germany, had now become the country <i>de facto</i>
+occupied by the Franks&mdash;it was France; but the Merovingian
+line of chieftains, the descendants of Clovis, were not Kings
+of France, they were Kings of the Franks. The alternative
+to this peculiar notion of sovereignty appears to have been&mdash;and
+this is the important point&mdash;the idea of universal
+dominion. The moment a monarch departed from the special
+relation of chief to clansmen, and became solicitous, for purposes
+of his own, to invest himself with a novel form of sovereignty,
+the only precedent which suggested itself for his
+adoption was the domination of the Emperors of Rome. To
+parody a common quotation, he became "<i>aut C&aelig;sar aut
+nullus</i>." Either he pretended to the full prerogative of the
+Byzantine Emperor, or he had no political status whatever.
+In our own age, when a new dynasty is desirous of obliterating
+the prescriptive title of a deposed line of sovereigns, it takes
+its designation from the <i>people</i>, instead of the <i>territory</i>. Thus
+we have Emperors and Kings of the French, and a King of
+the Belgians. At the period of which we have been speaking,
+under similar circumstances a different alternative presented
+itself. The Chieftain who would no longer call himself King
+of the tribe must claim to be Emperor of the world. Thus,
+when the hereditary Mayors of the Palace had ceased to<span class='pagenum'><a name="Page_62" id="Page_62">062</a></span>
+compromise with the monarchs they had long since virtually
+dethroned, they soon became unwilling to call themselves
+Kings of the Franks, a title which belonged to the displaced
+Merovings; but they could not style themselves Kings of
+France, for such a designation, though apparently not unknown,
+was not a title of dignity. Accordingly they came
+forward as aspirants to universal empire. Their motive has
+been greatly misapprehended. It has been taken for granted
+by recent French writers that Charlemagne was far before his
+age, quite as much in the character of his designs as in the
+energy with which he prosecuted them. Whether it be true or
+not that anybody is at any time before his age, it is certainly
+true that Charlemagne, in aiming at an unlimited dominion,
+was emphatically taking the only course which the characteristic
+ideas of his age permitted him to follow. Of his
+intellectual eminence there cannot be a question, but it is
+proved by his acts and not by his theory.</p>
+
+<p>These singularities of view were not altered on the partition
+of the inheritance of Charlemagne among his three grandsons.
+Charles the Bald, Lewis, and Lothair were still theoretically&mdash;if
+it be proper to use the word&mdash;Emperors of Rome. Just
+as the C&aelig;sars of the Eastern and Western Empires had each
+been <i>de jure</i> emperor of the whole world, with <i>de facto</i> control
+over half of it, so the three Carlovingians appear to have considered
+their power as limited, but their title as unqualified.
+The same speculative universality of sovereignty continued
+to be associated with the Imperial throne after the second
+division on the death of Charles the Fat, and, indeed, was
+never thoroughly dissociated from it so long as the empire of
+Germany lasted. Territorial sovereignty&mdash;the view which
+connects sovereignty with the possession of a limited portion
+of the earth's surface&mdash;was distinctly an offshoot, though a
+tardy one, of <i>feudalism</i>. This might have been expected <i>&agrave;
+priori</i>, for it was feudalism which for the first time linked
+personal duties, and by consequence personal rights, to the
+ownership of land. Whatever be the proper view of its origin
+and legal nature, the best mode of vividly picturing to ourselves
+the feudal organisation is to begin with the basis, to
+consider the relation of the tenant to the patch of soil which
+created and limited his services&mdash;and then to mount up,
+through narrowing circles of super-feudation, till we approximate<span class='pagenum'><a name="Page_63" id="Page_63">063</a></span>
+to the apex of the system. Where that summit exactly
+was during the later portion of the dark ages it is not easy to
+decide. Probably, wherever the conception of tribe sovereignty
+had really decayed, the topmost point was always
+assigned to the supposed successor of the C&aelig;sars of the West.
+But before long, when the actual sphere of Imperial authority
+had immensely contracted, and when the emperors had concentrated
+the scanty remains of their power upon Germany
+and North Italy, the highest feudal superiors in all the outlying
+portions of the former Carlovingian empire found themselves
+practically without a supreme head. Gradually they
+habituated themselves to the new situation, and the fact of
+immunity put at last out of sight the theory of dependence;
+but there are many symptoms that this change was not quite
+easily accomplished; and, indeed, to the impression that in
+the nature of things there must necessarily be a culminating
+domination somewhere, we may, no doubt, refer the increasing
+tendency to attribute secular superiority to the
+See of Rome. The completion of the first stage in the revolution
+of opinion is marked, of course, by the accession of the
+Capetian dynasty in France. When the feudal prince of a
+limited territory surrounding Paris began, from the accident
+of his uniting an unusual number of suzerainties in his own
+person, to call himself <i>King of France</i>, he became king in quite
+a new sense, a sovereign standing in the same relation to the
+soil of France as the baron to his estate, the tenant to his
+freehold. The precedent, however, was as influential as it
+was novel, and the form of the monarchy in France had
+visible effects in hastening changes which were elsewhere
+proceeding in the same direction. The kingship of our Anglo-Saxon
+regal houses was midway between the chieftainship of
+a tribe and a territorial supremacy; but the superiority of
+the Norman monarchs, imitated from that of the King of
+France, was distinctly a territorial sovereignty. Every subsequent
+dominion which was established or consolidated was
+formed on the later model. Spain, Naples, and the principalities
+founded on the ruins of municipal freedom in Italy,
+were all under rulers whose sovereignty was territorial. Few
+things, I may add, are more curious than the gradual lapse
+of the <i>Venetians</i> from one view to the other. At the commencement
+of its foreign conquests, the republic regarded<span class='pagenum'><a name="Page_64" id="Page_64">064</a></span>
+itself as an antitype of the Roman commonwealth, governing
+a number of subject provinces. Move a century onwards,
+and you find that it wishes to be looked upon as a corporate
+sovereign, claiming the rights of a feudal suzerain over its
+possessions in Italy and the &AElig;gean.</p>
+
+<p>During the period through which the popular ideas on
+the subject of sovereignty were undergoing this remarkable
+change, the system which stood in the place of what we now
+call International Law, was heterogeneous in form and inconsistent
+in the principles to which it appealed. Over so much
+of Europe as was comprised in the Romano-German empire,
+the connection of the confederate states was regulated by
+the complex and as yet incomplete mechanism of the Imperial
+constitution; and, surprising as it may seem to us, it was a
+favourite notion of German lawyers that the relations of
+commonwealths, whether inside or outside the empire, ought
+to be regulated not by the <i>Jus Gentium</i>, but by the pure
+Roman jurisprudence, of which C&aelig;sar was still the centre.
+This doctrine was less confidently repudiated in the outlying
+countries than we might have supposed antecedently; but,
+substantially, through the rest of Europe feudal subordinations
+furnished a substitute for a public law; and when those
+were undetermined or ambiguous, there lay behind, in theory
+at least, a supreme regulating force in the authority of the
+head of the Church. It is certain, however, that both feudal
+and ecclesiastical influences were rapidly decaying during the
+fifteenth, and even the fourteenth century; and if we closely
+examine the current pretexts of wars, and the avowed
+motives of alliances, it will be seen that, step by step with the
+displacement of the old principles, the views afterwards
+harmonised and consolidated by Ayala and Grotius were
+making considerable progress, though it was silent and but
+slow. Whether the fusion of all the sources of authority would
+ultimately have evolved a system of international relations,
+and whether that system would have exhibited material
+differences from the fabric of Grotius, is not now possible to
+decide, for as a matter of fact the Reformation annihilated all
+its potential elements except one. Beginning in Germany,
+it divided the princes of the empire by a gulf too broad
+to be bridged over by the Imperial supremacy, even if
+<span class='pagenum'><a name="Page_65" id="Page_65">065</a></span>the Imperial superior had stood neutral. He, however, was
+forced to take colour with the church against the reformers;
+the Pope was, as a matter of course, in the same predicament;
+and thus the two authorities to whom belonged the office of
+mediation between combatants became themselves the chiefs
+of one great faction in the schism of the nations. Feudalism,
+already enfeebled and discredited as a principle of public
+relations, furnished no bond whatever which was stable
+enough to countervail the alliances of religion. In a condition,
+therefore, of public law which was little less than chaotic,
+those views of a state system to which the Roman jurisconsults
+were supposed to have given their sanction alone
+remained standing. The shape, the symmetry, and the
+prominence which they assumed in the hands of Grotius are
+known to every educated man; but the great marvel of the
+Treatise "De Jure Belli et Pacis," was its rapid, complete,
+and universal success. The horrors of the Thirty Years' War,
+the boundless terror and pity which the unbridled license of
+the soldiery was exciting, must, no doubt, be taken to explain
+that success in some measure, but they do not wholly account
+for it. Very little penetration into the ideas of that age is
+required to convince one that if the ground plan of the international
+edifice which was sketched in the great book of
+Grotius had not appeared to be theoretically perfect, it would
+have been discarded by jurists and neglected by statesmen
+and soldiers.</p>
+
+<p>It is obvious that the speculative perfection of the Grotian
+system is intimately connected with that conception of territorial
+sovereignty which we have been discussing. The theory
+of International Law assumes that commonwealths are,
+relatively to each other, in a state of nature; but the component
+atoms of a natural society must, by the fundamental
+assumption, be insulated and independent of each other. If
+there be a higher power connecting them, however slightly
+and occasionally by the claim of common supremacy, the
+very conception of a common superior introduces the notion
+of positive law, and excludes the idea of a law natural. It
+follows, therefore, that if the universal suzerainty of an
+Imperial head had been admitted even in bare theory, the
+labours of Grotius would have been idle. Nor is this the only
+point of junction between modern public law and those views
+of sovereignty of which I have endeavoured to describe the<span class='pagenum'><a name="Page_66" id="Page_66">066</a></span>
+development. I have said that there are entire departments of
+international jurisprudence which consist of the Roman Law
+of Property. What then is the inference? It is, that if there
+had been no such change as I have described in the estimate
+of sovereignty&mdash;if sovereignty had not been associated with
+the proprietorship of a limited portion of the earth, had not,
+in other words, become territorial&mdash;three parts of the Grotian
+theory would have been incapable of application.<span class='pagenum'><a name="Page_67" id="Page_67">067</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V</h3>
+
+<h4><span class="smcap">primitive society and ancient law</span></h4>
+
+
+<p>The necessity of submitting the subject of jurisprudence to
+scientific treatment has never been entirely lost sight of in
+modern times, and the essays which the consciousness of this
+necessity has produced have proceeded from minds of very
+various calibre, but there is not much presumption, I think,
+in asserting that what has hitherto stood in the place of a
+science has for the most part been a set of guesses, those very
+guesses of the Roman lawyers which were examined in the
+two preceding chapters. A series of explicit statements,
+recognising and adopting these conjectural theories of a
+natural state, and of a system of principles congenial to it, has
+been continued with but brief interruption from the days of
+their inventors to our own. They appear in the annotations
+of the Glossators who founded modern jurisprudence, and in
+the writings of the scholastic jurists who succeeded them.
+They are visible in the dogmas of the canonists. They are
+thrust into prominence by those civilians of marvellous
+erudition, who flourished at the revival of ancient letters.
+Grotius and his successors invested them not less with
+brilliancy and plausibility than with practical importance.
+They may be read in the introductory chapters of our own
+Blackstone, who has transcribed them textually from Burlamaqui,
+and wherever the manuals published in the present
+day for the guidance of the student or the practitioner begin
+with any discussion of the first principles of law, it always
+resolves itself into a restatement of the Roman hypothesis.
+It is however from the disguises with which these conjectures
+sometimes clothe themselves, quite as much as from their
+native form, that we gain an adequate idea of the subtlety
+with which they mix themselves in human thought. The
+Lockeian theory of the origin of Law in a Social Compact
+scarcely conceals its Roman derivation, and indeed is only the
+dress by which the ancient views were rendered more attractive
+to a particular generation of the moderns; but on the<span class='pagenum'><a name="Page_68" id="Page_68">068</a></span>
+other hand the theory of Hobbes on the same subject was
+purposely devised to repudiate the reality of a law of nature
+as conceived by the Romans and their disciples. Yet these
+two theories, which long divided the reflecting politicians of
+England into hostile camps, resemble each other strictly in
+their fundamental assumption of a non-historic, unverifiable,
+condition of the race. Their authors differed as to the characteristics
+of the pr&aelig;-social state, and as to the nature of
+the abnormal action by which men lifted themselves out
+of it into that social organisation with which alone we are
+acquainted, but they agreed in thinking that a great chasm
+separated man in his primitive condition from man in society,
+and this notion we cannot doubt that they borrowed, consciously
+or unconsciously, from the Romans. If indeed the
+phenomena of law be regarded in the way in which these
+theorists regarded them&mdash;that is, as one vast complex whole&mdash;it
+is not surprising that the mind should often evade the
+task it has set to itself by falling back on some ingenious conjecture
+which (plausibly interpreted) will seem to reconcile
+everything, or else that it should sometimes abjure in despair
+the labour of systematization.</p>
+
+<p>From the theories of jurisprudence which have the same
+speculative basis as the Roman doctrine two of much celebrity
+must be excepted. The first of them is that associated with the
+great name of Montesquieu. Though there are some ambiguous
+expressions in the early part of the <i>Esprit des Lois</i>,
+which seem to show its writer's unwillingness to break quite
+openly with the views hitherto popular, the general drift
+of the book is certainly to indicate a very different conception
+of its subject from any which had been entertained before.
+It has often been noticed that, amidst the vast variety of
+examples which, in its immense width of survey, it sweeps
+together from supposed systems of jurisprudence, there is
+an evident anxiety to thrust into especial prominence those
+manners and institutions which astonish the civilised reader
+by their uncouthness, strangeness, or indecency. The inference
+constantly suggested is, that laws are the creatures of climate,
+local situation, accident, or imposture&mdash;the fruit of any
+causes except those which appear to operate with tolerable
+constancy. Montesquieu seems, in fact, to have looked on
+the nature of man as entirely plastic, as passively reproducing
+the impressions, and submitting implicitly to the impulses,<span class='pagenum'><a name="Page_69" id="Page_69">069</a></span>
+which it receives from without. And here no doubt lies the
+error which vitiates his system as a system. He greatly
+underrates the stability of human nature. He pays little
+or no regard to the inherited qualities of the race, those
+qualities which each generation receives from its predecessors,
+and transmits but slightly altered to the generation which
+follows it. It is quite true, indeed, that no complete account
+can be given of social phenomena, and consequently of laws,
+till due allowance has been made for those modifying causes
+which are noticed in the <i>Esprit des Lois</i>; but their number
+and their force appear to have been overestimated by Montesquieu.
+Many of the anomalies which he parades have
+since been shown to rest on false report or erroneous construction,
+and of those which remain not a few prove the
+permanence rather than the variableness of man's nature,
+since they are relics of older stages of the race which have
+obstinately defied the influences that have elsewhere had
+effect. The truth is that the stable part of our mental, moral,
+and physical constitution is the largest part of it, and the
+resistance it opposes to change is such that, though the
+variations of human society in a portion of the world are
+plain enough, they are neither so rapid nor so extensive
+that their amount, character, and general direction cannot
+be ascertained. An approximation to truth may be all that
+is attainable with our present knowledge, but there is no
+reason for thinking that is so remote, or (what is the same
+thing) that it requires so much future correction, as to be
+entirely useless and uninstructive.</p>
+
+<p>The other theory which has been adverted to is the historical
+theory of Bentham. This theory which is obscurely
+(and, it might even be said, timidly) propounded in several
+parts of Bentham's works is quite distinct from that analysis
+of the conception of law which he commenced in the "Fragment
+on Government," and which was more recently completed
+by Mr. John Austin. The resolution of a law into a
+command of a particular nature, imposed under special conditions,
+does not affect to do more than protect us against
+a difficulty&mdash;a most formidable one certainly&mdash;of language.
+The whole question remains open as to the motives of societies
+in imposing these commands on themselves, as to the connection
+of these commands with each other, and the nature of
+their dependence on those which preceded them, and which<span class='pagenum'><a name="Page_70" id="Page_70">070</a></span>
+they have superseded. Bentham suggests the answer that
+societies modify, and have always modified, their laws according
+to modifications of their views of general expediency. It
+is difficult to say that this proposition is false, but it certainly
+appears to be unfruitful. For that which seems expedient
+to a society, or rather to the governing part of it, when it
+alters a rule of law is surely the same thing as the object,
+whatever it may be, which it has in view when it makes the
+change. Expediency and the greatest good are nothing more
+than different names for the impulse which prompts the modification;
+and when we lay down expediency as the rule of
+change in law or opinion, all we get by the proposition is the
+substitution of an express term for a term which is necessarily
+implied when we say that a change takes place.</p>
+
+<p>There is such wide-spread dissatisfaction with existing
+theories of jurisprudence, and so general a conviction that they
+do not really solve the questions they pretend to dispose of,
+as to justify the suspicion that some line of inquiry necessary
+to a perfect result has been incompletely followed or altogether
+omitted by their authors. And indeed there is one
+remarkable omission with which all these speculations are
+chargeable, except perhaps those of Montesquieu. They take
+no account of what law has actually been at epochs remote
+from the particular period at which they made their appearance.
+Their originators carefully observed the institutions of
+their own age and civilisation, and those of other ages and
+civilisations with which they had some degree of intellectual
+sympathy, but, when they turned their attention to archaic
+states of society which exhibited much superficial difference
+from their own, they uniformly ceased to observe and began
+guessing. The mistake which they committed is therefore
+analogous to the error of one who, in investigating the laws
+of the material universe, should commence by contemplating
+the existing physical world as a whole, instead of beginning
+with the particles which are its simplest ingredients. One
+does not certainly see why such a scientific solecism should
+be more defensible in jurisprudence than in any other region
+of thought. It would seem antecedently that we ought to
+commence with the simplest social forms in a state as near
+as possible to their rudimentary condition. In other words,
+if we followed the course usual in such inquiries, we should
+penetrate as far up as we could in the history of primitive<span class='pagenum'><a name="Page_71" id="Page_71">071</a></span>
+societies. The phenomena which early societies present us
+with are not easy at first to understand, but the difficulty
+of grappling with them bears no proportion to the perplexities
+which beset us in considering the baffling entanglement of
+modern social organisation. It is a difficulty arising from their
+strangeness and uncouthness, not from their number and
+complexity. One does not readily get over the surprise
+which they occasion when looked at from a modern point
+of view; but when that is surmounted they are few enough
+and simple enough. But even if they gave more trouble
+than they do, no pains would be wasted in ascertaining
+the germs out of which has assuredly been unfolded every
+form of moral restraint which controls our actions and
+shapes our conduct at the present moment.</p>
+
+<p>The rudiments of the social state, so far as they are known
+to us at all, are known through testimony of three sorts&mdash;accounts
+by contemporary observers of civilisations less
+advanced than their own, the records which particular races
+have preserved concerning their primitive history, and ancient
+law. The first kind of evidence is the best we could have
+expected. As societies do not advance concurrently, but at
+different rates of progress, there have been epochs at which
+men trained to habits of methodical observation have really
+been in a position to watch and describe the infancy of mankind.
+Tacitus made the most of such an opportunity; but
+the <i>Germany</i>, unlike most celebrated classical books, has not
+induced others to follow the excellent example set by its
+author, and the amount of this sort of testimony which we
+possess is exceedingly small. The lofty contempt which a
+civilised people entertains for barbarous neighbours has caused
+a remarkable negligence in observing them, and this carelessness
+has been aggravated at times by fear, by religious prejudice,
+and even by the use of these very terms&mdash;civilisation
+and barbarism&mdash;which convey to most persons the impression
+of a difference not merely in degree but in kind. Even the
+<i>Germany</i> has been suspected by some critics of sacrificing
+fidelity to poignancy of contrast and picturesqueness of narrative.
+Other histories too, which have been handed down to us
+among the archives of the people to whose infancy they relate,
+have been thought distorted by the pride of race or by the
+religious sentiment of a newer age. It is important then to
+observe that these suspicions, whether groundless or rational,<span class='pagenum'><a name="Page_72" id="Page_72">072</a></span>
+do not attach to a great deal of archaic law. Much of the old
+law which has descended to us was preserved merely because
+it was old. Those who practised and obeyed it did not pretend
+to understand it; and in some cases they even ridiculed and
+despised it. They offered no account of it except that it had
+come down to them from their ancestors. If we confine our
+attention, then, to those fragments of ancient institutions
+which cannot reasonably be supposed to have been tampered
+with, we are able to gain a clear conception of certain great
+characteristics of the society to which they originally belonged.
+Advancing a step further, we can apply our knowledge
+to systems of law which, like the Code of Menu, are
+as a whole of suspicious authenticity; and, using the key we
+have obtained, we are in a position to discriminate those
+portions of them which are truly archaic from those which
+have been affected by the prejudices, interests, or ignorance
+of the compiler. It will at least be acknowledged that, if
+the materials for this process are sufficient, and if the comparisons
+be accurately executed, the methods followed are
+as little objectionable as those which have led to such
+surprising results in comparative philology.</p>
+
+<p>The effect of the evidence derived from comparative jurisprudence
+is to establish that view of the primeval condition
+of the human race which is known as the Patriarchal Theory.
+There is no doubt, of course, that this theory was originally
+based on the Scriptural history of the Hebrew patriarchs in
+Lower Asia; but, as has been explained already, its connection
+with Scripture rather militated than otherwise against
+its reception as a complete theory, since the majority of the
+inquirers who till recently addressed themselves with most
+earnestness to the colligation of social phenomena, were either
+influenced by the strongest prejudice against Hebrew antiquities
+or by the strongest desire to construct their system without
+the assistance of religious records. Even now there is
+perhaps a disposition to undervalue these accounts, or rather
+to decline generalising from them, as forming part of the
+traditions of a Semitic people. It is to be noted, however,
+that the legal testimony comes nearly exclusively from the
+institutions of societies belonging to the Indo-European stock,
+the Romans, Hindoos, and Sclavonians supplying the greater
+part of it; and indeed the difficulty at the present stage of
+the inquiry, is to know where to stop, to say of what races<span class='pagenum'><a name="Page_73" id="Page_73">073</a></span>
+of men it is <i>not</i> allowable to lay down that the society in
+which they are united was originally organised on the
+patriarchal model. The chief lineaments of such a society,
+as collected from the early chapters in Genesis, I need not
+attempt to depict with any minuteness, both because they
+are familiar to most of us from our earliest childhood, and
+because, from the interest once attaching to the controversy
+which takes its name from the debate between Locke and
+Filmer, they fill a whole chapter, though not a very profitable
+one, in English literature. The points which lie on the
+surface of the history are these:&mdash;The eldest male parent&mdash;the
+eldest ascendant&mdash;is absolutely supreme in his household.
+His dominion extends to life and death, and is as unqualified
+over his children and their houses as over his slaves; indeed
+the relations of sonship and serfdom appear to differ in little
+beyond the higher capacity which the child in blood possesses
+of becoming one day the head of a family himself. The flocks
+and herds of the children are the flocks and herds of the father,
+and the possessions of the parent, which he holds in a representative
+rather than in a proprietary character, are equally
+divided at his death among his descendants in the first
+degree, the eldest son sometimes receiving a double share
+under the name of birthright, but more generally endowed
+with no hereditary advantage beyond an honorary precedence.
+A less obvious inference from the Scriptural accounts is that
+they seem to plant us on the traces of the breach which is first
+effected in the empire of the parent. The families of Jacob
+and Esau separate and form two nations; but the families
+of Jacob's children hold together and become a people. This
+looks like the immature germ of a state or commonwealth,
+and of an order of rights superior to the claims of family
+relation.</p>
+
+<p>If I were attempting for the more special purposes of
+the jurist to express compendiously the characteristics of the
+situation in which mankind disclose themselves at the dawn
+of their history, I should be satisfied to quote a few verses
+from the <i>Odyssee</i> of Homer:</p>
+
+<div class="poem">
+<div class="stanza">
+<span class="i2">&#964;&#959;&#8150;&#963;&#953;&#957; &#948;' &#959;&#8020;&#964;' &#8049;&#947;&#959;&#961;&#945;&#8054; &#946;&#959;&#965;&#955;&#951;&#966;&#8057;&#961;&#959;&#953; &#959;&#8020;&#964;&#949; &#952;&#8051;&#956;&#953;&#963;&#964;&#949;&#962;</span>
+<span class="i2">&nbsp;&nbsp;&nbsp;&nbsp;*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&#952;&#949;&#956;&#953;&#963;&#964;&#949;&#8059;&#953; &#948;&#8050; &#7956;&#967;&#945;&#963;&#964;&#959;&#962;</span>
+<span class="i2">&#960;&#945;&#953;&#948;&#969;&#957; &#7968;&#948;'  &#8049;&#955;&#8057;&#967;&#969;&#957; &#959;&#8016;&#948;' &#7936;&#955;&#955;&#8053;&#955;&#969;&#957; &#7936;&#955;&#8051;&#947;&#959;&#965;&#963;&#953;&#957;.</span>
+</div>
+</div>
+
+<p>"They have neither assemblies for consultation nor <i>themistes</i>,<span class='pagenum'><a name="Page_74" id="Page_74">074</a></span>
+but every one exercises jurisdiction over his wives and his
+children, and they pay no regard to one another." These
+lines are applied to the Cyclops, and it may not perhaps be
+an altogether fanciful idea when I suggest that the Cyclops
+is Homer's type of an alien and less advanced civilisation;
+for the almost physical loathing which a primitive community
+feels for men of widely different manners from its
+own usually expresses itself by describing them as monsters,
+such as giants, or even (which is almost always the case in
+Oriental mythology) as demons. However that may be, the
+verses condense in themselves the sum of the hints which are
+given us by legal antiquities. Men are first seen distributed
+in perfectly insulated groups, held together by obedience to
+the parent. Law is the parent's word, but it is not yet in the
+condition of those <i>themistes</i> which were analysed in the first
+chapter of this work. When we go forward to the state of
+society in which these early legal conceptions show themselves
+as formed, we find that they still partake of the mystery
+and spontaneity which must have seemed to characterise a
+despotic father's commands, but that at the same time,
+inasmuch as they proceed from a sovereign, they presuppose
+a union of family groups in some wider organisation. The
+next question is, what is the nature of this union and the
+degree of intimacy which it involves? It is just here that
+archaic law renders us one of the greatest of its services and
+fills up a gap which otherwise could only have been bridged
+by conjecture. It is full, in all its provinces, of the clearest
+indications that society in primitive times was not what it is
+assumed to be at present, a collection of <i>individuals</i>. In fact,
+and in the view of the men who composed it, it was <i>an aggregation
+of families</i>. The contrast may be most forcibly expressed
+by saying that the <i>unit</i> of an ancient society was the Family,
+of a modern society the Individual. We must be prepared to
+find in ancient law all the consequences of this difference. It
+is so framed as to be adjusted to a system of small independent
+corporations. It is therefore scanty, because it is supplemented
+by the despotic commands of the heads of households.
+It is ceremonious, because the transactions to which it pays
+regard resemble international concerns much more than the
+quick play of intercourse between individuals. Above all it
+has a peculiarity of which the full importance cannot be
+<span class='pagenum'><a name="Page_75" id="Page_75">075</a></span>shown at present. It takes a view of <i>life</i> wholly unlike any
+which appears in developed jurisprudence. Corporations
+<i>never die</i>, and accordingly primitive law considers the entities
+with which it deals, <i>i.e.</i> the patriarchal or family groups, as
+perpetual and inextinguishable. This view is closely allied
+to the peculiar aspect under which, in very ancient times,
+moral attributes present themselves. The moral elevation
+and moral debasement of the individual appear to be confounded
+with, or postponed to, the merits and offences of the
+group to which the individual belongs. If the community
+sins, its guilt is much more than the sum of the offences
+committed by its members; the crime is a corporate act, and
+extends in its consequences to many more persons than have
+shared in its actual perpetration. If, on the other hand, the
+individual is conspicuously guilty, it is his children, his
+kinsfolk, his tribesmen, or his fellow-citizens, who suffer with
+him, and sometimes for him. It thus happens that the ideas
+of moral responsibility and retribution often seem to be more
+clearly realised at very ancient than at more advanced
+periods, for, as the family group is immortal, and its liability
+to punishment indefinite, the primitive mind is not perplexed
+by the questions which become troublesome as soon as
+the individual is conceived as altogether separate from the
+group. One step in the transition from the ancient and simple
+view of the matter to the theological or metaphysical explanations
+of later days is marked by the early Greek notion of an
+inherited curse. The bequest received by his posterity from
+the original criminal was not a liability to punishment, but
+a liability to the commission of fresh offences which drew
+with them a condign retribution; and thus the responsibility
+of the family was reconciled with the newer phase of thought
+which limited the consequences of crime to the person of the
+actual delinquent.</p>
+
+<p>It would be a very simple explanation of the origin of
+society if we could base a general conclusion on the hint
+furnished us by the scriptural example already adverted to,
+and could suppose that communities began to exist wherever
+a family held together instead of separating at the death
+of its patriarchal chieftain. In most of the Greek states and
+in Rome there long remained the vestiges of an ascending
+series of groups out of which the State was at first constituted.
+The Family, House, and Tribe of the Romans may be taken
+as the type of them, and they are so described to us that we<span class='pagenum'><a name="Page_76" id="Page_76">076</a></span>
+can scarcely help conceiving them as a system of concentric
+circles which have gradually expanded from the same point.
+The elementary group is the Family, connected by common
+subjection to the highest male ascendant. The aggregation
+of Families forms the Gens or House. The aggregation of
+Houses makes the Tribe. The aggregation of Tribes constitutes
+the Commonwealth. Are we at liberty to follow these
+indications, and to lay down that the commonwealth is a
+collection of persons united by common descent from the
+progenitor of an original family? Of this we may at least be
+certain, that all ancient societies regarded themselves as
+having proceeded from one original stock, and even laboured
+under an incapacity for comprehending any reason except
+this for their holding together in political union. The history
+of political ideas begins, in fact, with the assumption that
+kinship in blood is the sole possible ground of community
+in political functions; nor is there any of those subversions
+of feeling, which we term emphatically revolutions, so
+startling and so complete as the change which is accomplished
+when some other principle&mdash;such as that, for instance, of
+<i>local contiguity</i>&mdash;establishes itself for the first time as the
+basis of common political action. It may be affirmed then of
+early commonwealths that their citizens considered all the
+groups in which they claimed membership to be founded on
+common lineage. What was obviously true of the Family
+was believed to be true first of the House, next of the Tribe,
+lastly of the State. And yet we find that along with this belief,
+or, if we may use the word, this theory, each community
+preserved records or traditions which distinctly showed that
+the fundamental assumption was false. Whether we look
+to the Greek states, or to Rome, or to the Teutonic aristocracies
+in Ditmarsh which furnished Niebuhr with so many
+valuable illustrations, or to the Celtic clan associations, or
+to that strange social organisation of the Sclavonic Russians
+and Poles which has only lately attracted notice, everywhere
+we discover traces of passages in their history when men of
+alien descent were admitted to, and amalgamated with, the
+original brotherhood. Adverting to Rome singly, we perceive
+that the primary group, the Family, was being constantly
+adulterated by the practice of adoption, while stories seem
+to have been always current respecting the exotic extraction
+of one of the original Tribes and concerning a large addition<span class='pagenum'><a name="Page_77" id="Page_77">077</a></span>
+to the houses made by one of the early kings. The composition
+of the state, uniformly assumed to be natural, was nevertheless
+known to be in great measure artificial. This conflict
+between belief or theory and notorious fact is at first sight
+extremely perplexing; but what it really illustrates is the
+efficiency with which Legal Fictions do their work in the
+infancy of society. The earliest and most extensively employed
+of legal fictions was that which permitted family
+relations to be created artificially, and there is none to which
+I conceive mankind to be more deeply indebted. If it had
+never existed, I do not see how any one of the primitive groups,
+whatever were their nature, could have absorbed another,
+or on what terms any two of them could have combined,
+except those of absolute superiority on one side and absolute
+subjection on the other. No doubt, when with our modern
+ideas we contemplate the union of independent communities,
+we can suggest a hundred modes of carrying it out, the
+simplest of all being that the individuals comprised in the
+coalescing groups shall vote or act together according to local
+propinquity; but the idea that a number of persons should
+exercise political rights in common simply because they
+happened to live within the same topographical limits was
+utterly strange and monstrous to primitive antiquity. The
+expedient which in those times commanded favour was
+that the incoming population should <i>feign themselves</i> to be
+descended from the same stock as the people on whom they
+were engrafted; and it is precisely the good faith of this
+fiction, and the closeness with which it seemed to imitate
+reality, that we cannot now hope to understand. One circumstance,
+however, which it is important to recollect, is
+that the men who formed the various political groups were
+certainly in the habit of meeting together periodically, for
+the purpose of acknowledging and consecrating their association
+by common sacrifices. Strangers amalgamated with the
+brotherhood were doubtless admitted to these sacrifices; and
+when that was once done we can believe that it seemed
+equally easy, or not more difficult, to conceive them as sharing
+in the common lineage. The conclusion then which is suggested
+by the evidence is, not that all early societies were
+formed by descent from the same ancestor, but that all of
+them which had any permanence and solidity either were so
+descended or assumed that they were. An indefinite number<span class='pagenum'><a name="Page_78" id="Page_78">078</a></span>
+of causes may have shattered the primitive groups, but wherever
+their ingredients recombined, it was on the model or
+principle of an association of kindred. Whatever were the
+fact, all thought, language, and law adjusted themselves
+to the assumption. But though all this seems to me to
+be established with reference to the communities with
+whose records we are acquainted, the remainder of their
+history sustains the position before laid down as to the
+essentially transient and terminable influence of the most
+powerful Legal Fictions. At some point of time&mdash;probably
+as soon as they felt themselves strong enough to resist extrinsic
+pressure&mdash;all these states ceased to recruit themselves
+by factitious extensions of consanguinity. They necessarily,
+therefore, became Aristocracies, in all cases where a fresh
+population from any cause collected around them which
+could put in no claim to community of origin. Their sternness
+in maintaining the central principle of a system under which
+political rights were attainable on no terms whatever except
+connection in blood, real or artificial, taught their inferiors
+another principle, which proved to be endowed with a far
+higher measure of vitality. This was the principle of <i>local
+contiguity</i>, now recognised everywhere as the condition of
+community in political functions. A new set of political ideas
+came at once into existence, which, being those of ourselves,
+our contemporaries, and in great measure of our ancestors,
+rather obscure our perception of the older theory which they
+vanquished and dethroned.</p>
+
+<p>The Family then is the type of an archaic society in all the
+modifications which it was capable of assuming; but the
+family here spoken of is not exactly the family as understood
+by a modern. In order to reach the ancient conception we
+must give to our modern ideas an important extension and
+an important limitation. We must look on the family as
+constantly enlarged by the absorption of strangers within
+its circle, and we must try to regard the fiction of adoption
+as so closely simulating the reality of kinship that neither
+law nor opinion makes the slightest difference between a real
+and an adoptive connection. On the other hand, the persons
+theoretically amalgamated into a family by their common
+descent are practically held together by common obedience
+to their highest living ascendant, the father, grandfather, or
+great-grandfather. The patriarchal authority of a chieftain<span class='pagenum'><a name="Page_79" id="Page_79">079</a></span>
+is as necessary an ingredient in the notion of the family group
+as the fact (or assumed fact) of its having sprung from his
+loins; and hence we must understand that if there be any
+persons who, however truly included in the brotherhood by
+virtue of their blood-relationship, have nevertheless <i>de facto</i>
+withdrawn themselves from the empire of its ruler, they are
+always, in the beginnings of law, considered as lost to the
+family. It is this patriarchal aggregate&mdash;the modern family
+thus cut down on one side and extended on the other&mdash;which
+meets us on the threshold of primitive jurisprudence.
+Older probably than the State, the Tribe, and the House,
+it left traces of itself on private law long after the House and
+the Tribe had been forgotten, and long after consanguinity
+had ceased to be associated with the composition of States.
+It will be found to have stamped itself on all the great departments
+of jurisprudence, and may be detected, I think, as the
+true source of many of their most important and most
+durable characteristics. At the outset, the peculiarities of law
+in its most ancient state lead us irresistibly to the conclusion
+that it took precisely the same view of the family group which
+is taken of individual men by the systems of rights and
+duties now prevalent throughout Europe. There are societies
+open to our observation at this very moment whose laws and
+usages can scarcely be explained unless they are supposed
+never to have emerged from this primitive condition; but in
+communities more fortunately circumstanced the fabric of
+jurisprudence fell gradually to pieces, and if we carefully
+observe the disintegration we shall perceive that it took place
+principally in those portions of each system which were most
+deeply affected by the primitive conception of the family.
+In one all-important instance, that of the Roman law, the
+change was effected so slowly, that from epoch to epoch we
+can observe the line and direction which it followed, and can
+even give some idea of the ultimate result to which it was
+tending. And, in pursuing this last inquiry, we need not
+suffer ourselves to be stopped by the imaginary barrier which
+separates the modern from the ancient world. For one effect
+of that mixture of refined Roman law with primitive barbaric
+usage, which is known to us by the deceptive name of feudalism,
+was to revive many features of archaic jurisprudence
+which had died out of the Roman world, so that the decomposition<span class='pagenum'><a name="Page_80" id="Page_80">080</a></span>
+hich had seemed to be over commenced again, and
+to some extent is still proceeding.</p>
+
+<p>On a few systems of law the family organisation of the
+earliest society has left a plain and broad mark in the life-long
+authority of the Father or other ancestor over the
+person and property of his descendants, an authority which
+we may conveniently call by its later Roman name of Patria
+Potestas. No feature of the rudimentary associations of
+mankind is deposed to by a greater amount of evidence than
+this, and yet none seems to have disappeared so generally
+and so rapidly from the usages of advancing communities.
+Gaius, writing under the Antonines, describes the institution
+as distinctively Roman. It is true that, had he glanced across
+the Rhine or the Danube to those tribes of barbarians which
+were exciting the curiosity of some among his contemporaries,
+he would have seen examples of patriarchal power in its
+crudest form; and in the far East a branch of the same
+ethnical stock from which the Romans sprang was repeating
+their Patria Potestas in some of its most technical incidents.
+But among the races understood to be comprised within
+the Roman empire, Gaius could find none which exhibited
+an institution resembling the Roman "Power of the Father,"
+except only the Asiatic Galat&aelig;. There are reasons, indeed, as
+it seems to me, why the direct authority of the ancestor
+should, in the greater number of progressive societies, very
+shortly assume humbler proportions than belonged to it in
+their earliest state. The implicit obedience of rude men to
+their parent is doubtless a primary fact, which it would be
+absurd to explain away altogether by attributing to them
+any calculation of its advantages; but, at the same time, if
+it is natural in the sons to obey the father, it is equally natural
+that they should look to him for superior strength or superior
+wisdom. Hence, when societies are placed under circumstances
+which cause an especial value to be attached to bodily
+and mental vigour, there is an influence at work which tends
+to confine the Patria Potestas to the cases where its possessor
+is actually skilful and strong. When we obtain our first glimpse
+of organised Hellenic society, it seems as if supereminent
+wisdom would keep alive the father's power in persons whose
+bodily strength had decayed; but the relations of Ulysses and
+Laertes in the <i>Odyssee</i> appear to show that, where extraordinary
+valour and sagacity were united in the son, the father<span class='pagenum'><a name="Page_81" id="Page_81">081</a></span>
+in the decrepitude of age was deposed from the headship of the
+family. In the mature Greek jurisprudence, the rule advances
+a few steps on the practice hinted at in the Homeric literature;
+and though very many traces of stringent family obligation
+remain, the direct authority of the parent is limited, as in
+European codes, to the nonage or minority of the children,
+or, in other words, to the period during which their mental
+and physical inferiority may always be presumed. The Roman
+law, however, with its remarkable tendency to innovate on
+ancient usage only just so far as the exigency of the commonwealth
+may require, preserves both the primeval institution
+and the natural limitation to which I conceive it to have been
+subject. In every relation of life in which the collective
+community might have occasion to avail itself of his wisdom
+and strength, for all purposes of counsel or of war, the filius
+familias, or Son under Power, was as free as his father. It
+was a maxim of Roman jurisprudence that the Patria Potestas
+did not extend to the Jus Publicum. Father and son voted
+together in the city, and fought side by side in the field; indeed,
+the son, as general, might happen to command the
+father, or, as magistrate, decide on his contracts and punish
+his delinquencies. But in all the relations created by Private
+Law, the son lived under a domestic despotism which, considering
+the severity it retained to the last, and the number
+of centuries through which it endured, constitutes one of the
+strangest problems in legal history.</p>
+
+<p>The Patria Potestas of the Romans, which is necessarily
+our type of the primeval paternal authority, is equally difficult
+to understand as an institution of civilised life, whether
+we consider its incidence on the person or its effects on property.
+It is to be regretted that a chasm which exists in its
+history cannot be more completely filled. So far as regards
+the person, the parent, when our information commences, has
+over his children the <i>jus vit&aelig; necisque</i>, the power of life and
+death, and <i>&agrave; fortiori</i> of uncontrolled corporal chastisement;
+he can modify their personal condition at pleasure; he can
+give a wife to his son; he can give his daughter in marriage;
+he can divorce his children of either sex; he can transfer
+them to another family by adoption; and he can sell them.
+Late in the Imperial period we find vestiges of all these powers,
+but they are reduced within very narrow limits. The unqualified
+right of domestic chastisement has become a right<span class='pagenum'><a name="Page_82" id="Page_82">082</a></span>
+of bringing domestic offences under the cognisance of the
+civil magistrate; the privilege of dictating marriage has
+declined into a conditional veto; the liberty of selling has
+been virtually abolished, and adoption itself, destined to lose
+almost all its ancient importance in the reformed system of
+Justinian, can no longer be effected without the assent of the
+child transferred to the adoptive parentage. In short, we are
+brought very close to the verge of the ideas which have at
+length prevailed in the modern world. But between these
+widely distant epochs there is an interval of obscurity, and
+we can only guess at the causes which permitted the Patria
+Potestas to last as long as it did by rendering it more tolerable
+than it appears. The active discharge of the most important
+among the duties which the son owed to the state must have
+tempered the authority of his parent if they did not annul it.
+We can readily persuade ourselves that the paternal despotism
+could not be brought into play without great scandal
+against a man of full age occupying a high civil office. During
+the earlier history, however, such cases of practical emancipation
+would be rare compared with those which must have
+been created by the constant wars of the Roman republic.
+The military tribune and the private soldier who were in the
+field three-quarters of a year during the earlier contests, at
+a later period the proconsul in charge of a province, and the
+legionaries who occupied it, cannot have had practical reason
+to regard themselves as the slaves of a despotic master; and
+all these avenues of escape tended constantly to multiply
+themselves. Victories led to conquests, conquests to occupations;
+the mode of occupation by colonies was exchanged
+for the system of occupying provinces by standing armies.
+Each step in advance was a call for the expatriation of more
+Roman citizens and a fresh draft on the blood of the failing
+Latin race. We may infer, I think, that a strong sentiment
+in favour of the relaxation of the Patria Potestas had become
+fixed by the time that the pacification of the world commenced
+on the establishment of the Empire. The first serious
+blows at the ancient institution are attributed to the earlier
+C&aelig;sars, and some isolated interferences of Trajan and Hadrian
+seem to have prepared the ground for a series of express
+enactments which, though we cannot always determine their
+dates, we know to have limited the father's powers on the
+one hand, and on the other to have multiplied facilities for<span class='pagenum'><a name="Page_83" id="Page_83">083</a></span>
+their voluntary surrender. The older mode of getting rid of
+the Potestas, by effecting a triple sale of the son's person,
+is evidence, I may remark, of a very early feeling against the
+unnecessary prolongation of the powers. The rule which
+declared that the son should be free after having been three
+times sold by his father seems to have been originally meant
+to entail penal consequences on a practice which revolted
+even the imperfect morality of the primitive Roman. But
+even before the publication of the Twelve Tables it had been
+turned, by the ingenuity of the jurisconsults, into an expedient
+for destroying the parental authority wherever the
+father desired that it should cease.</p>
+
+<p>Many of the causes which helped to mitigate the stringency
+of the father's power over the persons of his children are
+doubtless among those which do not lie upon the face of
+history. We cannot tell how far public opinion may have
+paralysed an authority which the law conferred, or how far
+natural affection may have rendered it endurable. But though
+the powers over the <i>person</i> may have been latterly nominal,
+the whole tenour of the extant Roman jurisprudence suggests
+that the father's rights over the son's <i>property</i> were always
+exercised without scruple to the full extent to which they
+were sanctioned by law. There is nothing to astonish us in the
+latitude of these rights when they first show themselves.
+The ancient law of Rome forbade the Children under Power
+to hold property apart from their parent, or (we should
+rather say) never contemplated the possibility of their
+claiming a separate ownership. The father was entitled to
+take the whole of the son's acquisitions, and to enjoy the
+benefit of his contracts without being entangled in any
+compensating liability. So much as this we should expect
+from the constitution of the earliest Roman society, for we
+can hardly form a notion of the primitive family group unless
+we suppose that its members brought their earnings of all
+kinds into the common stock while they were unable to bind
+it by improvident individual engagements. The true enigma
+of the Patria Potestas does not reside here, but in the slowness
+with which these proprietary privileges of the parent were
+curtailed, and in the circumstance that, before they were
+seriously diminished, the whole civilised world was brought
+within their sphere. No innovation of any kind was attempted
+till the first years of the Empire, when the acquisitions of<span class='pagenum'><a name="Page_84" id="Page_84">084</a></span>
+soldiers on service were withdrawn from the operation of the
+Patria Potestas, doubtless as part of the reward of the armies
+which had overthrown the free commonwealth. Three centuries
+afterwards the same immunity was extended to the
+earnings of persons who were in the civil employment of the
+state. Both changes were obviously limited in their application,
+and they were so contrived in technical form as to
+interfere as little as possible with the principle of Patria
+Potestas. A certain qualified and dependent ownership had
+always been recognised by the Roman law in the perquisites
+and savings which slaves and sons under power were not
+compelled to include in the household accounts, and the
+special name of this permissive property, Peculium, was
+applied to the acquisitions newly relieved from Patria Potestas,
+which were called in the case of soldiers Castrense Peculium,
+and Quasi-castrense Peculium in the case of civil
+servants. Other modifications of the parental privileges followed,
+which showed a less studious outward respect for the
+ancient principle. Shortly after the introduction of the Quasi-castrense
+Peculium, Constantine the Great took away the
+father's absolute control over property which his children had
+inherited from their mother, and reduced it to a <i>usufruct</i>, or
+life-interest. A few more changes of slight importance followed
+in the Western Empire, but the furthest point reached
+was in the East, under Justinian, who enacted that unless
+the acquisitions of the child were derived from the parent's
+own property, the parent's rights over them should not extend
+beyond enjoying their produce for the period of his life.
+Even this, the utmost relaxation of the Roman Patria Potestas,
+left it far ampler and severer than any analogous institution
+of the modern world. The earliest modern writers on
+jurisprudence remark that it was only the fiercer and ruder of
+the conquerors of the empire, and notably the nations of
+Sclavonic origin, which exhibited a Patria Potestas at all
+resembling that which was described in the Pandects and the
+Code. All the Germanic immigrants seem to have recognised
+a corporate union of the family under the <i>mund</i>, or authority
+of a patriarchal chief; but his powers are obviously only the
+relics of a decayed Patria Potestas, and fell far short of those
+enjoyed by the Roman father. The Franks are particularly
+mentioned as not having the Roman Institution, and accordingly
+the old French lawyers, even when most busily engaged<span class='pagenum'><a name="Page_85" id="Page_85">085</a></span>
+in filling the interstices of barbarous custom with rules of
+Roman law, were obliged to protect themselves against the
+intrusion of the Potestas by the express maxim, <i>Puyssance
+de p&egrave;re en France n'a lieu</i>. The tenacity of the Romans in
+maintaining this relic of their most ancient condition is in
+itself remarkable, but it is less remarkable than the diffusion
+of the Potestas over the whole of a civilisation from which
+it had once disappeared. While the Castrense Peculium
+constituted as yet the sole exception to the father's power
+over property, and while his power over his children's persons
+was still extensive, the Roman citizenship, and with it the
+Patria Potestas, were spreading into every corner of the empire.
+Every African or Spaniard, every Gaul, Briton, or Jew, who
+received this honour by gift, purchase, or inheritance, placed
+himself under the Roman Law of Persons, and, though our
+authorities intimate that children born before the acquisition
+of citizenship could not be brought under Power against their
+will, children born after it and all ulterior descendants were
+on the ordinary footing of a Roman <i>filius familias</i>. It does
+not fall within the province of this treatise to examine the
+mechanism of the later Roman society, but I may be permitted
+to remark that there is little foundation for the
+opinion which represents the constitution of Antoninus
+Caracalla conferring Roman citizenship on the whole of his
+subjects as a measure of small importance. However we
+may interpret it, it must have enormously enlarged the
+sphere of the Patria Potestas, and it seems to me that the
+tightening of family relations which it effected is an agency
+which ought to be kept in view more than it has been, in
+accounting for the great moral revolution which was transforming
+the world.</p>
+
+<p>Before this branch of our subject is dismissed, it should be
+observed that the Paterfamilias was answerable for the delicts
+(or <i>torts</i>) of his Sons under Power. He was similarly liable
+for the torts of his slaves; but in both cases he originally
+possessed the singular privilege of tendering the delinquent's
+person in full satisfaction of the damage. The responsibility
+thus incurred on behalf of sons, coupled with the mutual
+incapacity of parent and Child under Power to sue one another,
+has seemed to some jurists to be best explained by the
+assumption of a "unity of person" between the Paterfamilias
+<span class='pagenum'><a name="Page_86" id="Page_86">086</a></span>and the Filius-familias. In the chapter on Successions I shall attempt to show in what sense, and to what
+extent, this "unity" can be accepted as a reality. I can
+only say at present that these responsibilities of the Paterfamilias,
+and other legal phenomena which will be discussed
+hereafter, appear to me to point at certain <i>duties</i> of the
+primitive Patriarchal chieftain which balanced his <i>rights</i>.
+I conceive that, if he disposed absolutely of the persons and
+fortune of his clansmen, this representative ownership was
+coextensive with a liability to provide for all members of
+the brotherhood out of the common fund. The difficulty is
+to throw ourselves out of our habitual associations sufficiently
+for conceiving the nature of his obligation. It was not a legal
+duty, for law had not yet penetrated into the precinct of the
+Family. To call it <i>moral</i> is perhaps to anticipate the ideas
+belonging to a later stage of mental development; but the
+expression "moral obligation" is significant enough for our
+purpose, if we understand by it a duty semi-consciously
+followed and enforced rather by instinct and habit than by
+definite sanctions.</p>
+
+<p>The Patria Potestas, in its normal shape, has not been, and,
+as it seems to me, could not have been, a generally durable
+institution. The proof of its former universality is therefore
+incomplete so long as we consider it by itself; but the demonstration
+may be carried much further by examining other
+departments of ancient law which depend on it ultimately,
+but not by a thread of connection visible in all its parts or
+to all eyes. Let us turn for example to Kinship, or in other
+words, to the scale on which the proximity of relatives to each
+other is calculated in archaic jurisprudence. Here again it
+will be convenient to employ the Roman terms, Agnatic and
+Cognatic relationship. <i>Cognatic</i> relationship is simply the
+conception of kinship familiar to modern ideas; it is the
+relationship arising through common descent from the same
+pair of married persons, whether the descent be traced
+through males or females. <i>Agnatic</i> relationship is something
+very different: it excludes a number of persons whom we in
+our day should certainly consider of kin to ourselves, and
+it includes many more whom we should never reckon among
+our kindred. It is in truth the connection existing between
+the members of the Family, conceived as it was in the most
+ancient times. The limits of this connection are far from
+conterminous with those of modern relationship.<span class='pagenum'><a name="Page_87" id="Page_87">087</a></span></p>
+
+<p>Cognates then are all those persons who can trace their
+blood to a single ancestor and ancestress; or, if we take the
+strict technical meaning of the word in Roman law, they are
+all who trace their blood to the legitimate marriage of a
+common pair. "Cognation" is therefore a relative term,
+and the degree of connection in blood which it indicates
+depends on the particular marriage which is selected as the
+commencement of the calculation. If we begin with the marriage
+of father and mother, Cognation will only express the
+relationship of brothers and sisters; if we take that of the
+grandfather and grandmother, then uncles, aunts, and their
+descendants will also be included in the notion of Cognation,
+and following the same process a larger number of Cognates
+may be continually obtained by choosing the starting point
+higher and higher up in the line of ascent. All this is easily
+understood by a modern; but who are the Agnates? In the
+first place, they are all the Cognates who trace their connection
+exclusively through males. A table of Cognates is, of course,
+formed by taking each lineal ancestor in turn and including
+all his descendants of both sexes in the tabular view; if then,
+in tracing the various branches of such a genealogical table
+or tree, we stop whenever we come to the name of a female
+and pursue that particular branch or ramification no further,
+all who remain after the descendants of women have been
+excluded are Agnates, and their connection together is Agnatic
+Relationship. I dwell a little on the process which is practically
+followed in separating them from the Cognates, because
+it explains a memorable legal maxim, "Mulier est finis
+famili&aelig;"&mdash;a woman is the terminus of the family. A female
+name closes the branch or twig of the genealogy in which it
+occurs. None of the descendants of a female are included in
+the primitive notion of family relationship.</p>
+
+<p>If the system of archaic law at which we are looking be one
+which admits Adoption, we must add to the Agnate thus
+obtained all persons, male or female, who have been brought
+into the Family by the artificial extension of its boundaries.
+But the descendants of such persons will only be Agnates, if
+they satisfy the conditions which have just been described.</p>
+
+<p>What then is the reason of this arbitrary inclusion and
+exclusion? Why should a conception of Kinship, so elastic
+as to include strangers brought into the family by adoption,
+be nevertheless so narrow as to shut out the descendants<span class='pagenum'><a name="Page_88" id="Page_88">088</a></span>
+of a female member? To solve these questions, we must
+recur to the Patria Potestas. The foundation of Agnation
+is not the marriage of Father and Mother, but the
+authority of the Father. All persons are Agnatically connected
+together who are under the same Paternal Power, or
+who have been under it, or who might have been under it
+if their lineal ancestor had lived long enough to exercise his
+empire. In truth, in the primitive view, Relationship is
+exactly limited by Patria Potestas. Where the Potestas
+begins, Kinship begins; and therefore adoptive relatives are
+among the kindred. Where the Potestas ends, Kinship ends;
+so that a son emancipated by his father loses all rights of
+Agnation. And here we have the reason why the descendants
+of females are outside the limits of archaic kinship. If a
+woman died unmarried, she could have no legitimate descendants.
+If she married, her children fell under the Patria
+Potestas, not of her Father, but of her Husband, and thus
+were lost to her own family. It is obvious that the organisation
+of primitive societies would have been confounded, if
+men had called themselves relatives of their mother's relatives.
+The inference would have been that a person might be subject
+to two distinct Patri&aelig; Potestates; but distinct Patri&aelig;
+Potestates implied distinct jurisdictions, so that anybody
+amenable to two of them at the same time would have lived
+under two different dispensations. As long as the Family was
+an imperium in imperio, a community within the commonwealth,
+governed by its own institutions of which the parent
+was the source, the limitation of relationship to the Agnates
+was a necessary security against a conflict of laws in the
+domestic forum.</p>
+
+<p>The Parental Powers proper are extinguished by the death
+of the Parent, but Agnation is as it were a mould which retains
+their imprint after they have ceased to exist. Hence comes
+the interest of Agnation for the inquirer into the history of
+jurisprudence. The Powers themselves are discernible in
+comparatively few monuments of ancient law, but Agnatic
+Relationship, which implies their former existence, is discoverable
+almost everywhere. There are few indigenous
+bodies of law belonging to communities of the Indo-European
+stock, which do not exhibit peculiarities in the most ancient
+part of their structure which are clearly referable to Agnation.
+In Hindoo law, for example, which is saturated with the<span class='pagenum'><a name="Page_89" id="Page_89">089</a></span>
+primitive notions of family dependency, kinship is entirely
+Agnatic, and I am informed that in Hindoo genealogies the
+names of women are generally omitted altogether. The same
+view of relationship pervades so much of the laws of the races
+who overran the Roman Empire as appears to have really
+formed part of their primitive usage, and we may suspect
+that it would have perpetuated itself even more than it has in
+modern European jurisprudence, if it had not been for the
+vast influence of the later Roman law on modern thought.
+The Pr&aelig;tors early laid hold on Cognation as the <i>natural</i> form
+of kinship, and spared no pains in purifying their system
+from the older conception. Their ideas have descended to us,
+but still traces of Agnation are to be seen in many of the
+modern rules of succession after death. The exclusion of
+females and their children from governmental functions,
+commonly attributed to the usage of the Salian Franks, has
+certainly an agnatic origin, being descended from the ancient
+German rule of succession to allodial property. In Agnation
+too is to be sought the explanation of that extraordinary rule
+of English Law, only recently repealed, which prohibited
+brothers of the half-blood from succeeding to one another's
+lands. In the Customs of Normandy, the rule applies to
+<i>uterine</i> brothers only, that is, to brothers by the same mother
+but not by the same father; and, limited in this way, it is a
+strict deduction from the system of Agnation, under which
+uterine brothers are no relations at all to one another. When
+it was transplanted to England, the English judges, who had
+no clue to its principle, interpreted it as a general prohibition
+against the succession of the half-blood, and extended it to
+<i>consanguineous</i> brothers, that is to sons of the same father
+by different wives. In all the literature which enshrines the
+pretended philosophy of law, there is nothing more curious
+than the pages of elaborate sophistry in which Blackstone
+attempts to explain and justify the exclusion of the half-blood.</p>
+
+<p>It may be shown, I think, that the Family, as held together
+by the Patria Potestas, is the nidus out of which the entire
+Law of Persons has germinated. Of all the chapters of that
+Law the most important is that which is concerned with the
+status of Females. It has just been stated that Primitive
+Jurisprudence, though it does not allow a Woman to communicate
+any rights of Agnation to her descendants, includes
+<span class='pagenum'><a name="Page_90" id="Page_90">090</a></span>herself nevertheless in the Agnatic bond. Indeed, the relation
+of a female to the family in which she was born is much
+stricter, closer, and more durable than that which unites her
+male kinsmen. We have several times laid down that early
+law takes notice of Families only; this is the same thing as
+saying that it only takes notice of persons exercising Patria
+Potestas, and accordingly the only principle on which it enfranchises
+a son or grandson at the death of his Parent, is a
+consideration of the capacity inherent in such son or grandson
+to become himself the head of a new family and the root of
+a new set of Parental Powers. But a woman, of course, has no
+capacity of the kind, and no title accordingly to the liberation
+which it confers. There is therefore a peculiar contrivance
+of archaic jurisprudence for retaining her in the bondage of
+the Family for life. This is the institution known to the oldest
+Roman law as the Perpetual Tutelage of Women, under which
+a Female, though relieved from her Parent's authority by his
+decease, continues subject through life to her nearest male
+relations as her Guardians. Perpetual Guardianship is
+obviously neither more nor less than an artificial prolongation
+of the Patria Potestas, when for other purposes it has been
+dissolved. In India, the system survives in absolute completeness,
+and its operation is so strict that a Hindoo Mother
+frequently becomes the ward of her own sons. Even in
+Europe, the laws of the Scandinavian nations respecting
+women preserved it until quite recently. The invaders of the
+Western Empire had it universally among their indigenous
+usages, and indeed their ideas on the subject of Guardianship,
+in all its forms, were among the most retrogressive of those
+which they introduced into the Western world. But from the
+mature Roman jurisprudence it had entirely disappeared.
+We should know almost nothing about it, if we had only the
+compilations of Justinian to consult; but the discovery of the
+manuscript of Gaius discloses it to us at a most interesting
+epoch, just when it had fallen into complete discredit and
+was verging on extinction. The great jurisconsult himself
+scouts the popular apology offered for it in the mental inferiority
+of the female sex, and a considerable part of his
+volume is taken up with descriptions of the numerous
+expedients, some of them displaying extraordinary ingenuity,
+which the Roman lawyers had devised for enabling Women
+to defeat the ancient rules. Led by their theory of Natural
+Law, the jurisconsults had evidently at this time assumed<span class='pagenum'><a name="Page_91" id="Page_91">091</a></span>
+the equality of the sexes as a principle of their code of equity.
+The restrictions which they attacked were, it is to be observed,
+restrictions on the disposition of property, for which the
+assent of the woman's guardians was still formally required.
+Control of her person was apparently quite obsolete.</p>
+
+<p>Ancient Law subordinates the woman to her blood-relations,
+while a prime phenomenon of modern jurisprudence has been
+her subordination to her husband. The history of the change
+is remarkable. It begins far back in the annals of Rome.
+Anciently, there were three modes in which marriage might
+be contracted according to Roman usage, one involving a
+religious solemnity, the other two the observance of certain
+secular formalities. By the religious marriage or <i>Confarreation</i>;
+by the higher form of civil marriage, which was
+called <i>Coemption</i>; and by the lower form, which was termed
+<i>Usus</i>, the Husband acquired a number of rights over the
+person and property of his wife, which were on the whole in
+excess of such as are conferred on him in any system of
+modern jurisprudence. But in what capacity did he acquire
+them? Not as <i>Husband</i>, but as <i>Father</i>. By the Confarreation,
+Coemption, and Usus, the woman passed <i>in manum viri</i>, that
+is, in law she became the <i>Daughter</i> of her husband. She was
+included in his Patria Potestas. She incurred all the liabilities
+springing out of it while it subsisted, and surviving it when it
+had expired. All her property became absolutely his, and
+she was retained in tutelage after his death to the guardian
+whom he had appointed by will. These three ancient forms of
+marriage fell, however, gradually into disuse, so that, at the
+most splendid period of Roman greatness, they had almost
+entirely given place to a fashion of wedlock&mdash;old apparently,
+but not hitherto considered reputable&mdash;which was founded
+on a modification of the lower form of civil marriage. Without
+explaining the technical mechanism of the institution now
+generally popular, I may describe it as amounting in law to
+little more than a temporary deposit of the woman by her
+family. The rights of the family remained unimpaired, and the
+lady continued in the tutelage of guardians whom her parents
+had appointed and whose privileges of control overrode, in
+many material respects, the inferior authority of her husband.
+The consequence was that the situation of the Roman female,
+whether married or unmarried, became one of great personal
+and proprietary independence, for the tendency of the later<span class='pagenum'><a name="Page_92" id="Page_92">092</a></span>
+law, as I have already hinted, was to reduce the power of the
+guardian to a nullity, while the form of marriage in fashion
+conferred on the husband no compensating superiority. But
+Christianity tended somewhat from the very first to narrow
+this remarkable liberty. Led at first by justifiable disrelish
+for the loose practices of the decaying heathen world, but
+afterwards hurried on by a passion of asceticism, the professors
+of the new faith looked with disfavour on a marital
+tie which was in fact the laxest the Western world has seen.
+The latest Roman law, so far as it is touched by the constitutions
+of the Christian Emperors, bears some marks of a reaction
+against the liberal doctrines of the great Antonine jurisconsults.
+And the prevalent state of religious sentiment may
+explain why it is that modern jurisprudence, forged in the
+furnace of barbarian conquest, and formed by the fusion of
+Roman jurisprudence with patriarchal usage, has absorbed,
+among its rudiments, much more than usual of those rules
+concerning the position of women which belong peculiarly
+to an imperfect civilisation. During the troubled era which
+begins modern history, and while the laws of the Germanic
+and Sclavonic immigrants remained superposed like a
+separate layer above the Roman jurisprudence of their provincial
+subjects, the women of the dominant races are seen
+everywhere under various forms of archaic guardianship, and
+the husband who takes a wife from any family except his own
+pays a money-price to her relations for the tutelage which
+they surrender to him. When we move onwards, and the code
+of the middle ages has been formed by the amalgamation of
+the two systems, the law relating to women carries the stamp
+of its double origin. The principle of the Roman jurisprudence
+is so far triumphant that unmarried females are generally
+(though there are local exceptions to the rule) relieved from
+the bondage of the family; but the archaic principle of the
+barbarians has fixed the position of married women, and the
+husband has drawn to himself in his marital character the
+powers which had once belonged to his wife's male kindred,
+the only difference being that he no longer purchases his
+privileges. At this point therefore the modern law of Western
+and Southern Europe begins to be distinguished by one of its
+chief characteristics, the comparative freedom it allows to
+unmarried women and widows, the heavy disabilities it imposes
+<span class='pagenum'><a name="Page_93" id="Page_93">093</a></span>on wives. It was very long before the subordination
+entailed on the other sex by marriage was sensibly diminished.
+The principal and most powerful solvent of the revived barbarism
+of Europe was always the codified jurisprudence of
+Justinian, wherever it was studied with that passionate
+enthusiasm which it seldom failed to awaken. It covertly
+but most efficaciously undermined the customs which it pretended
+merely to interpret. But the Chapter of law relating
+to married women was for the most part read by the light,
+not of Roman, but of Canon Law, which in no one particular
+departs so widely from the spirit of the secular jurisprudence
+as in the view it takes of the relations created by marriage.
+This was in part inevitable, since no society which preserves
+any tincture of Christian institution is likely to restore to
+married women the personal liberty conferred on them by the
+middle Roman law, but the proprietary disabilities of married
+females stand on quite a different basis from their personal
+incapacities, and it is by keeping alive and consolidating the
+former that the expositors of the Canon Law have deeply
+injured civilisation. There are many vestiges of a struggle
+between the secular and ecclesiastical principles, but the
+Canon Law nearly everywhere prevailed. In some of the
+French provinces married women, of a rank below nobility,
+obtained all the powers of dealing with property which
+Roman jurisprudence had allowed, and this local law has
+been largely followed by the Code Napol&eacute;on; but the state
+of the Scottish law shows that scrupulous deference to the
+doctrines of the Roman jurisconsults did not always extend
+to mitigating the disabilities of wives. The systems however
+which are least indulgent to married women are invariably
+those which have followed the Canon Law exclusively, or
+those which, from the lateness of their contact with European
+civilisation, have never had their archaisms weeded out. The
+Scandinavian laws, harsh till lately to all females, are still
+remarkable for their severity to wives. And scarcely less
+stringent in the proprietary incapacities it imposes is the
+English Common Law, which borrows far the greatest number
+of its fundamental principles from the jurisprudence of the
+Canonists. Indeed, the part of the Common Law which prescribes
+the legal situation of married women may serve to
+give an Englishman clear notions of the great institution
+which has been the principal subject of this chapter. I do
+not know how the operation and nature of the ancient Patria<span class='pagenum'><a name="Page_94" id="Page_94">094</a></span>
+Potestas can be brought so vividly before the mind as by reflecting
+on the prerogatives attached to the husband by the
+pure English Common Law, and by recalling the rigorous
+consistency with which the view of a complete legal subjection
+on the part of the wife is carried by it, where it is
+untouched by equity or statutes, through every department
+of rights, duties, and remedies. The distance between the
+eldest and latest Roman law on the subject of Children under
+Power may be considered as equivalent to the difference
+between the Common Law and the jurisprudence of the Court
+of Chancery in the rules which they respectively apply to
+wives.</p>
+
+<p>If we were to lose sight of the true origin of Guardianship
+in both its forms and were to employ the common language
+on these topics, we should find ourselves remarking that,
+while the Tutelage of Women is an instance in which systems
+of archaic law push to an extravagant length the fiction of
+suspended rights, the rules which they lay down for the
+Guardianship of Male Orphans are an example of a fault
+in precisely the opposite direction. All such systems terminate
+the Tutelage of males at an extraordinary early period.
+Under the ancient Roman law, which may be taken as their
+type, the son who was delivered from Patria Potestas by the
+death of his Father or Grandfather remained under guardianship
+till an epoch which for general purposes may be described
+as arriving with his fifteenth year; but the arrival of that
+epoch placed him at once in the full enjoyment of personal and
+proprietary independence. The period of minority appears
+therefore to have been as unreasonably short as the duration
+of the disabilities of women was preposterously long. But,
+in point of fact, there was no element either of excess or of
+shortcoming in the circumstances which gave their original
+form to the two kinds of guardianship. Neither the one nor
+the other of them was based on the slightest consideration of
+public or private convenience. The guardianship of male
+orphans was no more designed originally to shield them till
+the arrival of years of discretion than the tutelage of women
+was intended to protect the other sex against its own feebleness.
+The reason why the death of the father delivered the
+son from the bondage of the family was the son's capacity for
+becoming himself the head of a new family and the founder of
+a new Patria Potestas; no such capacity was possessed by<span class='pagenum'><a name="Page_95" id="Page_95">095</a></span>
+the woman and therefore she was <i>never</i> enfranchised. Accordingly
+the Guardianship of Male Orphans was a contrivance
+for keeping alive the semblance of subordination to the family
+of the Parent, up to the time when the child was supposed
+capable of becoming a parent himself. It was a prolongation
+of the Patria Potestas up to the period of bare physical manhood.
+It ended with puberty, for the rigour of the theory
+demanded that it should do so. Inasmuch, however, as it did
+not profess to conduct the orphan ward to the age of intellectual
+maturity or fitness for affairs, it was quite unequal to
+the purposes of general convenience; and this the Romans
+seem to have discovered at a very early stage of their social
+progress. One of the very oldest monuments of Roman
+legislation is the <i>Lex L&aelig;toria</i> or <i>Pl&aelig;toria</i> which placed all free
+males who were of full years and rights under the temporary
+control of a new class of guardians, called <i>Curatores</i>, whose
+sanction was required to validate their acts or contracts. The
+twenty-sixth year of the young man's age was the limit of this
+statutory supervision; and it is exclusively with reference
+to the age of twenty-five that the terms "majority" and
+"minority" are employed in Roman law. <i>Pupilage</i> or <i>wardship</i>
+in modern jurisprudence had adjusted itself with tolerable
+regularity to the simple principle of protection to the
+immaturity of youth both bodily and mental. It has its
+natural termination with years of discretion. But for protection
+against physical weakness and for protection against
+intellectual incapacity, the Romans looked to two different
+institutions, distinct both in theory and design. The ideas
+attendant on both are combined in the modern idea of
+guardianship.</p>
+
+<p>The Law of Persons contains but one other chapter which
+can be usefully cited for our present purpose. The legal rules
+by which systems of nature jurisprudence regulate the connection
+of <i>Master and Slave</i>, present no very distinct traces
+of the original condition common to ancient societies. But
+there are reasons for this exception. There seems to be something
+in the institution of Slavery which has at all times
+either shocked or perplexed mankind, however little habituated
+to reflection, and however slightly advanced in the
+cultivation of its moral instincts. The compunction which
+ancient communities almost unconsciously experienced appears
+to have always resulted in the adoption of some<span class='pagenum'><a name="Page_96" id="Page_96">096</a></span>
+imaginary principle upon which a defence, or at least a
+rationale, of slavery could be plausibly founded. Very early
+in their history the Greeks explained the institution as
+grounded on the intellectual inferiority of certain races and
+their consequent natural aptitude for the servile condition.
+The Romans, in a spirit equally characteristic, derived it from
+a supposed agreement between the victor and the vanquished
+in which the first stipulated for the perpetual services of his
+foe; and the other gained in consideration the life which he
+had legitimately forfeited. Such theories were not only unsound
+but plainly unequal to the case for which they affected
+to account. Still they exercised powerful influence in many
+ways. They satisfied the conscience of the Master. They
+perpetuated and probably increased the debasement of the
+Slave. And they naturally tended to put out of sight the
+relation in which servitude had originally stood to the rest
+of the domestic system. The relation, though not clearly
+exhibited, is casually indicated in many parts of primitive
+law, and more particularly in the typical system&mdash;that of
+ancient Rome.</p>
+
+<p>Much industry and some learning have been bestowed in
+the United States of America on the question whether the
+Slave was in the early stages of society a recognised member
+of the Family. There is a sense in which an affirmative answer
+must certainly be given. It is clear, from the testimony both
+of ancient law and of many primeval histories, that the Slave
+might under certain conditions be made the Heir, or Universal
+Successor, of the Master, and this significant faculty, as I
+shall explain in the Chapter on Succession, implies that the
+government and representation of the Family might, in a
+particular state of circumstances, devolve on the bondman.
+It seems, however, to be assumed in the American arguments
+on the subject that, if we allow Slavery to have been a primitive
+Family institution, the acknowledgment is pregnant with
+an admission of the moral defensibility of Negro-servitude
+at the present moment. What then is meant by saying that
+the Slave was originally included in the Family? Not that
+his situation may not have been the fruit of the coarsest
+motives which can actuate man. The simple wish to use the
+bodily powers of another person as a means of ministering to
+one's own ease or pleasure is doubtless the foundation of
+<span class='pagenum'><a name="Page_97" id="Page_97">097</a></span>Slavery, and as old as human nature. When we speak of the
+Slave as anciently included in the Family, we intend to assert
+nothing as to the motives of those who brought him into it
+or kept him there; we merely imply that the tie which bound
+him to his master was regarded as one of the same general
+character with that which united every other member of the
+group to its chieftain. This consequence is, in fact, carried
+in the general assertion already made that the primitive
+ideas of mankind were unequal to comprehending any basis
+of the connection <i>inter se</i> of individuals, apart from the
+relations of family. The Family consisted primarily of those
+who belonged to it by consanguinity and next of those who
+had been engrafted on it by adoption; but there was still a
+third class of persons who were only joined to it by common
+subjection to its head, and these were the Slaves. The born
+and the adopted subjects of the chief were raised above the
+Slave by the certainty that in the ordinary course of events
+they would be relieved from bondage and entitled to exercise
+powers of their own; but that the inferiority of the Slave
+was not such as to place him outside the pale of the Family,
+or such as to degrade him to the footing of inanimate property,
+is clearly proved, I think, by the many traces which
+remain of his ancient capacity for inheritance in the last
+resort. It would, of course, be unsafe in the highest degree to
+hazard conjectures how far the lot of the Slave was mitigated,
+in the beginnings of society, by having a definite place
+reserved to him in the empire of the Father. It is, perhaps,
+more probable that the son was practically assimilated to the
+Slave, than that the Slave shared any of the tenderness which
+in later times was shown to the son. But it may be asserted
+with some confidence of advanced and matured codes that,
+wherever servitude is sanctioned, the Slave has uniformly
+greater advantages under systems which preserve some
+memento of his earlier condition than under those which have
+adopted some other theory of his civil degradation. The point
+of view from which jurisprudence regards the Slave is always
+of great importance to him. The Roman law was arrested in
+its growing tendency to look upon him more and more as an
+article of property by the theory of the Law of Nature; and
+hence it is that, wherever servitude is sanctioned by institutions
+which have been deeply affected by Roman jurisprudence,
+the servile condition is never intolerably wretched.
+There is a great deal of evidence that in those American<span class='pagenum'><a name="Page_98" id="Page_98">098</a></span>
+States which have taken the highly Romanised code of
+Louisiana as the basis of their jurisprudence, the lot and
+prospects of the negro-population are better in many material
+respects than under institutions founded on the English
+Common Law, which, as recently interpreted, has no true
+place for the Slave, and can only therefore regard him as a
+chattel.</p>
+
+<p>We have now examined all parts of the ancient Law of
+Persons which fall within the scope of this treatise, and the
+result of the inquiry is, I trust, to give additional definiteness
+and precision to our view of the infancy of jurisprudence.
+The Civil laws of States first make their appearance as the
+Themistes of a patriarchal sovereign, and we can now see
+that these Themistes are probably only a developed form of
+the irresponsible commands which, in a still earlier condition
+of the race, the head of each isolated household may have
+addressed to his wives, his children, and his slaves. But, even
+after the State has been organised, the laws have still an
+extremely limited application. Whether they retain their
+primitive character as Themistes, or whether they advance
+to the condition of Customs or Codified Texts, they are binding
+not on individuals, but on Families. Ancient jurisprudence,
+if a perhaps deceptive comparison may be employed, may be
+likened to International Law, filling nothing, as it were, excepting
+the interstices between the great groups which are
+the atoms of society. In a community so situated, the legislation
+of assemblies and the jurisdiction of Courts reaches only
+to the heads of families, and to every other individual the
+rule of conduct is the law of his home, of which his Parent is
+the legislator. But the sphere of civil law, small at first, tends
+steadily to enlarge itself. The agents of legal change, Fictions,
+Equity, and Legislation, are brought in turn to bear on the
+primeval institutions, and at every point of the progress, a
+greater number of personal rights and a larger amount of
+property are removed from the domestic forum to the
+cognisance of the public tribunals. The ordinances of the
+government obtain gradually the same efficacy in private
+concerns as in matters of state, and are no longer liable to be
+overridden by the behests of a despot enthroned by each
+hearthstone. We have in the annals of Roman law a nearly
+complete history of the crumbling away of an archaic system,
+and of the formation of new institutions from the recombined<span class='pagenum'><a name="Page_99" id="Page_99">099</a></span>
+materials, institutions some of which descended unimpaired
+to the modern world, while others, destroyed or corrupted by
+contact with barbarism in the dark ages, had again to be
+recovered by mankind. When we leave this jurisprudence at
+the epoch of its final reconstruction by Justinian, few traces
+of archaism can be discovered in any part of it except in the
+single article of the extensive powers still reserved to the
+living Parent. Everywhere else principles of convenience, or
+of symmetry, or of simplification&mdash;new principles at any rate&mdash;have
+usurped the authority of the jejune considerations which
+satisfied the conscience of ancient times. Everywhere a new
+morality has displaced the canons of conduct and the reasons
+of acquiescence which were in unison with the ancient usages,
+because in fact they were born of them.</p>
+
+<p>The movement of the progressive societies has been uniform
+in one respect. Through all its course it has been distinguished
+by the gradual dissolution of family dependency and
+the growth of individual obligation in its place. The Individual
+is steadily substituted for the Family, as the unit of
+which civil laws take account. The advance has been accomplished
+at varying rates of celerity, and there are societies
+not absolutely stationary in which the collapse of the ancient
+organisation can only be perceived by careful study of the
+phenomena they present. But, whatever its pace, the change
+has not been subject to reaction or recoil, and apparent
+retardations will be found to have been occasioned through
+the absorption of archaic ideas and customs from some entirely
+foreign source. Nor is it difficult to see what is the tie between
+man and man which replaces by degrees those forms of
+reciprocity in rights and duties which have their origin in
+the Family. It is Contract. Starting, as from one terminus
+of history, from a condition of society in which all the relations
+of Persons are summed up in the relations of Family, we seem
+to have steadily moved towards a phase of social order in
+which all these relations arise from the free agreement of
+Individuals. In Western Europe the progress achieved in this
+direction has been considerable. Thus the status of the Slave
+has disappeared&mdash;it has been superseded by the contractual
+relation of the servant to his master. The status of the Female
+under Tutelage, if the tutelage be understood of persons other
+than her husband, has also ceased to exist; from her coming
+of age to her marriage all the relations she may form are<span class='pagenum'><a name="Page_100" id="Page_100">100</a></span>
+relations of contract. So too the status of the Son under
+Power has no true place in law of modern European
+societies. If any civil obligation binds together the Parent
+and the child of full age, it is one to which only contract gives
+its legal validity. The apparent exceptions are exceptions of
+that stamp which illustrate the rule. The child before years
+of discretion, the orphan under guardianship, the adjudged
+lunatic, have all their capacities and incapacities regulated
+by the Law of Persons. But why? The reason is differently
+expressed in the conventional language of different systems,
+but in substance it is stated to the same effect by all. The
+great majority of Jurists are constant to the principle that
+the classes of persons just mentioned are subject to extrinsic
+control on the single ground that they do not possess the
+faculty of forming a judgment on their own interests; in
+other words, that they are wanting in the first essential of an
+engagement by Contract.</p>
+
+<p>The word Status may be usefully employed to construct a
+formula expressing the law of progress thus indicated, which,
+whatever be its value, seems to me to be sufficiently ascertained.
+All the forms of Status taken notice of in the Law of
+Persons were derived from, and to some extent are still
+coloured by, the powers and privileges anciently residing in
+the Family. If then we employ Status, agreeably with the
+usage of the best writers, to signify these personal conditions
+only, and avoid applying the term to such conditions as are
+the immediate or remote result of agreement, we may say
+that the movement of the progressive societies has hitherto
+been a movement <i>from Status to Contract</i>.<span class='pagenum'><a name="Page_101" id="Page_101">101</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI</h3>
+
+<h4><span class="smcap">the early history of testamentary succession</span></h4>
+
+
+<p>If an attempt were made to demonstrate in England the
+superiority of the historical method of investigation to the
+modes of inquiry concerning Jurisprudence which are in
+fashion among us, no department of Law would better serve
+as an example than Testaments or Wills. Its capabilities it
+owes to its great length and great continuity. At the beginning
+of its history we find ourselves in the very infancy of
+the social state, surrounded by conceptions which it requires
+some effort of mind to realise in their ancient form; while
+here, at the other extremity of its line of progress, we are in
+the midst of legal notions which are nothing more than those
+same conceptions disguised by the phraseology and by the
+habits of thought which belong to modern times, and exhibiting
+therefore a difficulty of another kind, the difficulty
+of believing that ideas which form part of our everyday
+mental stock can really stand in need of analysis and examination.
+The growth of the Law of Wills between these extreme
+points can be traced with remarkable distinctness. It was
+much less interrupted at the epoch of the birth of feudalism,
+than the history of most other branches of law. It is, indeed,
+true that, as regards all provinces of jurisprudence, the break
+caused by the division between ancient and modern history,
+or in other words by the dissolution of the Roman empire,
+has been very greatly exaggerated. Indolence has disinclined
+many writers to be at the pains of looking for threads of
+connection entangled and obscured by the confusions of
+six troubled centuries, while other inquirers, not naturally
+deficient in patience and industry, have been misled by idle
+pride in the legal system of their country, and by consequent
+unwillingness to confess its obligations to the jurisprudence of
+Rome. But these unfavourable influences have had comparatively
+little effect on the province of Testamentary Law.
+The barbarians were confessedly strangers to any such conception
+<span class='pagenum'><a name="Page_102" id="Page_102">102</a></span>as that of a Will. The best authorities agree that
+there is no trace of it in those parts of their written codes
+which comprise the customs practised by them in their
+original seats, and in their subsequent settlements on the
+edge of the Roman empire. But soon after they became mixed
+with the population of the Roman provinces they appropriated
+from the Imperial jurisprudence the conception of
+a Will, at first in part, and afterwards in all its integrity.
+The influence of the Church had much to do with this rapid
+assimilation. The ecclesiastical power had very early succeeded
+to those privileges of custody and registration of
+Testaments which several of the heathen temples had enjoyed;
+and even thus early it was almost exclusively to private bequests
+that the religious foundations owed their temporal
+possessions. Hence it is that the decrees of the earliest
+Provincial Councils perpetually contain anathemas against
+those who deny the sanctity of Wills. Here, in England,
+Church influence was certainly chief among the causes which
+by universal acknowledgment have prevented that discontinuity
+in the history of Testamentary Law, which is sometimes
+believed to exist in the history of other provinces of
+Jurisprudence. The jurisdiction over one class of Wills was
+delegated to the Ecclesiastical Courts, which applied to them,
+though not always intelligently, the principles of Roman
+jurisprudence; and, though neither the courts of Common
+Law nor the Court of Chancery owned any positive obligation
+to follow the Ecclesiastical tribunals, they could not
+escape the potent influence of a system of settled rules in
+course of application by their side. The English law of testamentary
+succession to personalty has become a modified form
+of the dispensation under which the inheritances of Roman
+citizens were administered.</p>
+
+<p>It is not difficult to point out the extreme difference of
+the conclusions forced on us by the historical treatment of
+the subject from those to which we are conducted when, without
+the help of history, we merely strive to analyse our <i>prim&acirc;
+facie</i> impressions. I suppose there is nobody who, starting
+from the popular or even the legal conception of a Will, would
+not imagine that certain qualities are necessarily attached to
+it. He would say, for example, that a Will necessarily takes
+effect <i>at death only</i>&mdash;that it is <i>secret</i>, not known as a matter
+of course to persons taking interests under its provisions&mdash;that
+it is <i>revocable</i>, <i>i.e.</i> always capable of being superseded by<span class='pagenum'><a name="Page_103" id="Page_103">103</a></span>
+a new act of testation. Yet I shall be able to show that there
+was a time when none of these characteristics belonged to a
+Will. The Testaments from which our Wills are directly
+descended at first took effect immediately on their execution;
+they were not secret; they were not revocable. Few legal
+agencies are, in fact, the fruit of more complex historical
+agencies than that by which a man's written intentions control
+the posthumous disposition of his goods. Testaments
+very slowly and gradually gathered round them the qualities
+I have mentioned; and they did this from causes and under
+pressure of events which may be called casual, or which at any
+rate have no interest for us at present, except so far as they
+have affected the history of law.</p>
+
+<p>At a time when legal theories were more abundant than at
+present&mdash;theories which, it is true, were for the most part
+gratuitous and premature enough, but which nevertheless
+rescued jurisprudence from that worse and more ignoble condition,
+not unknown to ourselves, in which nothing like a
+generalisation is aspired to, and law is regarded as a mere
+empirical pursuit&mdash;it was the fashion to explain the ready and
+apparently intuitive perception which we have of certain
+qualities in a Will, by saying that they were natural to it, or,
+as the phrase would run in full, attached to it by the Law of
+Nature. Nobody, I imagine, would affect to maintain such a
+doctrine, when once it was ascertained that all these characteristics
+had their origin within historical memory; at the
+same time, vestiges of the theory of which the doctrine is an
+offshoot, linger in forms of expression which we all of us use
+and perhaps scarcely know how to dispense with. I may
+illustrate this by mentioning a position common in the legal
+literature of the seventeenth century. The jurists of that
+period very commonly assert that the power of Testation itself
+is of Natural Law, that it is a right conferred by the Law of
+Nature. Their teaching, though all persons may not at once
+see the connection, is in substance followed by those who
+affirm that the right of dictating or controlling the posthumous
+disposal of property is a necessary or natural consequence
+of the proprietary rights themselves. And every student of
+technical jurisprudence must have come across the same view,
+clothed in the language of a rather different school, which,
+in its rationale of this department of law, treats succession
+<i>ex testamento</i> as the mode of devolution which the property of<span class='pagenum'><a name="Page_104" id="Page_104">104</a></span>
+deceased persons ought primarily to follow, and then proceeds
+to account for succession <i>ab intestato</i> as the incidental
+provision of the lawgiver for the discharge of a function which
+was only left unperformed through the neglect or misfortune
+of the deceased proprietor. These opinions are only expanded
+forms of the more compendious doctrine that Testamentary
+disposition is an institution of the Law of Nature. It is certainly
+never quite safe to pronounce dogmatically as to the
+range of association embraced by modern minds, when they
+reflect on Nature and her Law; but I believe that most
+persons, who affirm that the Testamentary Power is of
+Natural Law, may be taken to imply either that, as a matter
+of fact, it is universal, or that nations are prompted to sanction
+it by an original instinct and impulse. With respect to
+the first of these positions, I think that, when explicitly set
+forth, it can never be seriously contended for in an age which
+has seen the severe restraints imposed on the Testamentary
+Power by the <i>Code Napol&eacute;on</i>, and has witnessed the steady
+multiplication of systems for which the French codes have
+served as a model. To the second assertion we must object
+that it is contrary to the best-ascertained facts in the early
+history of law, and I venture to affirm generally that, in all
+indigenous societies, a condition of jurisprudence in which
+Testamentary privileges are <i>not</i> allowed, or rather not contemplated,
+has preceded that later stage of legal development
+in which the mere will of the proprietor is permitted under
+more or less of restriction to override the claims of his kindred
+in blood.</p>
+
+<p>The conception of a Will or Testament cannot be considered
+by itself. It is a member, and not the first, of a series
+of conceptions. In itself a Will is simply the instrument by
+which the intention of the testator is declared. It must be
+clear, I think, that before such an instrument takes its turn
+for discussion, there are several preliminary points to be
+examined&mdash;as, for example, what is it, what sort of right or
+interest, which passes from a dead man on his decease? to
+whom and in what form does it pass? and how came it that
+the dead were allowed to control the posthumous disposition
+of their property? Thrown into technical language, the
+dependence of the various conceptions which contribute to
+the notion of a Will is thus expressed. A Will or Testament
+is an instrument by which the devolution of an inheritance is<span class='pagenum'><a name="Page_105" id="Page_105">105</a></span>
+prescribed. Inheritance is a form of universal succession. A
+universal succession is a succession to a <i>universitas juris</i>, or
+university of rights and duties. Inverting this order we have
+therefore to inquire what is a <i>universitas juris</i>; what is a
+universal succession; what is the form of universal succession
+which is called an inheritance? And there are also two further
+questions, independent to some extent of the points I have
+mooted, but demanding solution before the subject of Wills
+can be exhausted. These are, how came an inheritance to be
+controlled in any case by the testator's volition, and what is
+the nature of the instrument by which it came to be controlled?</p>
+
+<p>The first question relates to the <i>universitas juris</i>; that is,
+a university (or bundle) of rights and duties. A <i>universitas
+juris</i> is a collection of rights and duties united by the single
+circumstance of their having belonged at one time to some
+one person. It is, as it were, the legal clothing of some given
+individual. It is not formed by grouping together <i>any</i> rights
+and <i>any</i> duties. It can only be constituted by taking all the
+rights and all the duties of a particular person. The tie
+which so connects a number of rights of property, rights of
+way, rights to legacies, duties of specific performance, debts,
+obligations to compensate wrongs&mdash;which so connects all these
+legal privileges and duties together as to constitute them a
+<i>universitas juris</i>, is the <i>fact</i> of their having attached to some
+individual capable of exercising them. Without this <i>fact</i>
+there is no university of rights and duties. The expression
+<i>universitas juris</i> is not classical, but for the notion jurisprudence
+is exclusively indebted to Roman law; nor is it at
+all difficult to seize. We must endeavour to collect under one
+conception the whole set of legal relations in which each one
+of us stands to the rest of the world. These, whatever be their
+character and composition, make up together a <i>universitas
+juris</i>; and there is but little danger of mistake in forming
+the notion, if we are only careful to remember that duties
+enter into it quite as much as rights. Our duties may overbalance
+our rights. A man may owe more than he is worth,
+and therefore if a money value is set on his collective legal
+relations he may be what is called insolvent. But for all that
+the entire group of rights and duties which centres in him is
+not the less a "juris universitas."</p>
+
+<p>We come next to a "universal succession." A universal
+succession is a succession to a <i>universitas juris</i>. It occurs when<span class='pagenum'><a name="Page_106" id="Page_106">106</a></span>
+one man is invested with the legal clothing of another, becoming
+at the same moment subject to all his liabilities and
+entitled to all his rights. In order that the universal succession
+may be true and perfect, the devolution must take place <i>uno
+ictu</i>, as the jurists phrase it. It is of course possible to conceive
+one man acquiring the whole of the rights and duties of
+another at different periods, as for example by successive
+purchases; or he might acquire them in different capacities,
+part as heir, part as purchaser, part as legatee. But though
+the group of rights and duties thus made up should in fact
+amount to the whole legal personality of a particular individual,
+the acquisition would not be a universal succession.
+In order that there may be a true universal succession, the
+transmission must be such as to pass the whole aggregate of
+rights and duties at the <i>same</i> moment and in virtue of the <i>same</i>
+legal capacity in the recipient. The notion of a universal succession,
+like that of a juris universitas, is permanent in jurisprudence,
+though in the English legal system it is obscured
+by the great variety of capacities in which rights are acquired,
+and, above all, by the distinction between the two great
+provinces of English property, "realty" and "personalty."
+The succession of an assignee in bankruptcy to the entire
+property of the bankrupt is, however, a universal succession,
+though as the assignee only pays debts to the extent of the
+assets, this is only a modified form of the primary notion.
+Were it common among us for persons to take assignments
+of <i>all</i> a man's property on condition of paying <i>all</i> his debts,
+such transfers would exactly resemble the universal successions
+known to the oldest Roman Law. When a Roman
+citizen <i>adrogated</i> a son, <i>i.e.</i> took a man, not already under
+Patria Potestas, as his adoptive child, he succeeded <i>universally</i>
+to the adoptive child's estate, <i>i.e.</i> he took all the property
+and became liable for all the obligations. Several other forms
+of universal succession appear in the primitive Roman Law,
+but infinitely the most important and the most durable of all
+was that one with which we are more immediately concerned,
+H&aelig;reditas or Inheritance. Inheritance was a universal succession
+occurring at a death. The universal successor was
+H&aelig;res or Heir. He stepped at once into all the rights and all
+the duties of the dead man. He was instantly clothed with
+his entire legal person, and I need scarcely add that the
+special character of the H&aelig;res remained the same, whether he<span class='pagenum'><a name="Page_107" id="Page_107">107</a></span>
+was named by a Will or whether he took on an Intestacy.
+The term H&aelig;res is no more emphatically used of the Intestate
+than of the Testamentary Heir, for the manner in which a
+man became H&aelig;res had nothing to do with the legal character
+he sustained. The dead man's universal successor, however
+he became so, whether by Will or by Intestacy, was his Heir.
+But the Heir was not necessarily a single person. A group of
+persons considered in law as a single unit, might succeed as
+<i>co-heirs</i> to the Inheritance.</p>
+
+<p>Let me now quote the usual Roman definition of an Inheritance.
+The reader will be in a position to appreciate the full
+force of the separate terms. <i>H&aelig;reditas est successio in universum
+jus quod defunctus habuit</i> ("an inheritance is a succession
+to the entire legal position of a deceased man"). The
+notion was that, though the physical person of the deceased
+had perished, his legal personality survived and descended
+unimpaired on his Heir or Co-heirs, in whom his identity (so
+far as the law was concerned) was continued. Our own law,
+in constituting the Executor or Administrator the representative
+of the deceased to the extent of his personal assets,
+may serve as an illustration of the theory from which it
+emanated, but, although it illustrates, it does not explain it.
+The view of even the later Roman Law required a closeness of
+correspondence between the position of the deceased and of
+his Heir which is no feature of an English representation;
+and in the primitive jurisprudence everything turned on the
+continuity of succession. Unless provision was made in the
+will for the instant devolution of the testator's rights and
+duties on the Heir or Co-heirs, the testament lost all its effect.</p>
+
+<p>In modern Testamentary jurisprudence, as in the later
+Roman law, the object of first importance is the execution of
+the testator's intentions. In the ancient law of Rome the
+subject of corresponding carefulness was the bestowal of the
+Universal Succession. One of these rules seems to our eyes a
+principle dictated by common sense, while the other looks
+very much like an idle crotchet. Yet that without the second
+of them the first would never have come into being is as certain
+as any proposition of the kind can be.</p>
+
+<p>In order to solve this apparent paradox, and to bring into
+greater clearness the train of ideas which I have been endeavouring
+to indicate, I must borrow the results of the
+inquiry which was attempted in the earlier portion of the<span class='pagenum'><a name="Page_108" id="Page_108">108</a></span>
+preceding chapter. We saw one peculiarity invariably distinguishing
+the infancy of society. Men are regarded and
+treated, not as individuals, but always as members of a
+particular group. Everybody is first a citizen, and then, as a
+citizen, he is a member of his order&mdash;of an aristocracy or
+a democracy, of an order of patricians or plebeians; or, in
+those societies which an unhappy fate has afflicted with a
+special perversion in their course of development, of a caste.
+Next, he is a member of a gens, house, or clan; and lastly,
+he is a member of his <i>family</i>. This last was the narrowest and
+most personal relation in which he stood; nor, paradoxical
+as it may seem, was he ever regarded as <i>himself</i>, as a distinct
+individual. His individuality was swallowed up in his family.
+I repeat the definition of a primitive society given before. It
+has for its units, not individuals, but groups of men united
+by the reality or the fiction of blood-relationship.</p>
+
+<p>It is in the peculiarities of an undeveloped society that
+we seize the first trace of a universal succession. Contrasted
+with the organisation of a modern state, the commonwealths
+of primitive times may be fairly described as consisting of a
+number of little despotic governments, each perfectly distinct
+from the rest, each absolutely controlled by the prerogative
+of a single monarch. But though the Patriarch, for
+we must not yet call him the Pater-familias, had rights thus
+extensive, it is impossible to doubt that he lay under an equal
+amplitude of obligations. If he governed the family, it was
+for its behoof. If he was lord of its possessions, he held them
+as trustee for his children and kindred. He had no privilege
+or position distinct from that conferred on him by his relation
+to the petty commonwealth which he governed. The Family,
+in fact, was a Corporation; and he was its representative or,
+we might almost say, its Public officer. He enjoyed rights
+and stood under duties, but the rights and the duties were,
+in the contemplation of his fellow-citizens and in the eye of
+the law, quite as much those of the collective body as his own.
+Let us consider for a moment the effect which would be produced
+by the death of such a representative. In the eye of
+the law, in the view of the civil magistrate, the demise of the
+domestic authority would be a perfectly immaterial event.
+The person representing the collective body of the family and
+primarily responsible to municipal jurisdiction would bear
+a different name; and that would be all. The rights and<span class='pagenum'><a name="Page_109" id="Page_109">109</a></span>
+obligations which attached to the deceased head of the house
+would attach, without breach of continuity, to his successor;
+for, in point of fact, they would be the rights and obligations
+of the family, and the family had the distinctive characteristic
+of a corporation&mdash;that it never died. Creditors would
+have the same remedies against the new chieftain as against
+the old, for the liability being that of the still existing family
+would be absolutely unchanged. All rights available to the
+family would be as available after the demise of the headship
+as before it&mdash;except that the Corporation would be
+obliged&mdash;if indeed language so precise and technical can be
+properly used of these early times&mdash;would be obliged to <i>sue</i>
+under a slightly modified name.</p>
+
+<p>The history of jurisprudence must be followed in its whole
+course, if we are to understand how gradually and tardily
+society dissolved itself into the component atoms of which
+it is now constituted&mdash;by what insensible gradations the
+relation of man to man substituted itself for the relation of
+the individual to his family and of families to each other.
+The point now to be attended to is that even when the
+revolution had apparently quite accomplished itself, even
+when the magistrate had in great measure assumed the place
+of the Pater-familias, and the civil tribunal substituted itself
+for the domestic forum, nevertheless the whole scheme of
+rights and duties administered by the judicial authorities
+remained shaped by the influence of the obsolete privileges
+and coloured in every part by their reflection. There seems
+little question that the devolution of the Universitas Juris,
+so strenuously insisted upon by the Roman Law as the first
+condition of a testamentary or intestate succession, was a
+feature of the older form of society which men's minds had
+been unable to dissociate from the new, though with that
+newer phase it had no true or proper connection. It seems,
+in truth, that the prolongation of a man's legal existence in
+his heir, or in a group of co-heirs, is neither more nor less
+than a characteristic of <i>the family</i> transferred by a fiction
+to <i>the individual</i>. Succession in corporations is necessarily
+universal, and the family was a corporation. Corporations
+never die. The decease of individual members makes no
+difference to the collective existence of the aggregate body,
+and does not in any way affect its legal incidents, its faculties
+or liabilities. Now in the idea of a Roman universal succession<span class='pagenum'><a name="Page_110" id="Page_110">110</a></span>
+all these qualities of a corporation seem to have been transferred
+to the individual citizen. His physical death is allowed
+to exercise no effect on the legal position which he filled,
+apparently on the principle that that position is to be adjusted
+as closely as possible to the analogies of a family, which, in
+its corporate character, was not of course liable to physical
+extinction.</p>
+
+<p>I observe that not a few continental jurists have much
+difficulty in comprehending the nature of the connection
+between the conceptions blended in a universal succession,
+and there is perhaps no topic in the philosophy of jurisprudence
+on which their speculations, as a general rule, possess so
+little value. But the student of English law ought to be in no
+danger of stumbling at the analysis of the idea which we are
+examining. Much light is cast upon it by a fiction in our own
+system with which all lawyers are familiar. English lawyers
+classify corporations as Corporations aggregate and Corporations
+sole. A Corporation aggregate is a true Corporation, but
+a Corporation sole is an individual, being a member of a series
+of individuals, who is invested by a fiction with the qualities
+of a Corporation. I need hardly cite the King or the Parson
+of a Parish as instances of Corporations sole. The capacity
+or office is here considered apart from the particular person
+who from time to time may occupy it, and, this capacity being
+perpetual, the series of individuals who fill it are clothed with
+the leading attribute of Corporations&mdash;Perpetuity. Now in the
+older theory of Roman Law the individual bore to the family
+precisely the same relation which in the rationale of English
+jurisprudence a Corporation sole bears to a Corporation
+aggregate. The derivation and association of ideas are
+exactly the same. In fact, if we say to ourselves that for purposes
+of Roman Testamentary Jurisprudence each individual
+citizen was a Corporation sole, we shall not only realise the
+full conception of an inheritance, but have constantly at
+command the clue to the assumption in which it originated.
+It is an axiom with us that the King never dies, being a
+Corporation sole. His capacities are instantly filled by his
+successor, and the continuity of dominion is not deemed
+to have been interrupted. With the Romans it seemed an
+equally simple and natural process, to eliminate the fact of
+death from the devolution of rights and obligations. The
+testator lived on in his heir or in the group of his co-heirs. He<span class='pagenum'><a name="Page_111" id="Page_111">111</a></span>
+was in law the same person with them, and if any one in his
+testamentary dispositions had even constructively violated
+the principle which united his actual and his posthumous
+existence, the law rejected the defective instrument, and
+gave the inheritance to the kindred in blood, whose capacity
+to fulfil the conditions of heirship was conferred on them
+by the law itself, and not by any document which by possibility
+might be erroneously framed.</p>
+
+<p>When a Roman citizen died intestate or leaving no valid
+Will, his descendants or kindred became his heirs according
+to a scale which will be presently described. The person or
+class of persons who succeeded did not simply <i>represent</i> the
+deceased, but, in conformity with the theory just delineated,
+they <i>continued</i> his civil life, his legal existence. The same
+results followed when the order of succession was determined
+by a Will, but the theory of the identity between the
+dead man and his heirs was certainly much older than any
+form of Testament or phase of Testamentary jurisprudence.
+This indeed is the proper moment for suggesting a doubt
+which will press on us with greater force the further we plumb
+the depths of this subject,&mdash;whether <i>wills</i> would ever have
+come into being at all if it had not been for these remarkable
+ideas connected with universal succession. Testamentary
+law is the application of a principle which may be explained
+on a variety of philosophical hypotheses as plausible as they
+are gratuitous; it is interwoven with every part of modern
+society, and it is defensible on the broadest grounds of general
+expediency. But the warning can never be too often repeated,
+that the grand source of mistake in questions of jurisprudence
+is the impression that those reasons which actuate us at the
+present moment, in the maintenance of an existing institution,
+have necessarily anything in common with the sentiment in
+which the institution originated. It is certain that, in the old
+Roman Law of Inheritance, the notion of a will or testament
+is inextricably mixed up, I might almost say confounded,
+with the theory of a man's posthumous existence in the
+person of his heir.</p>
+
+<p>The conception of a universal succession, firmly as it has
+taken root in jurisprudence, has not occurred spontaneously
+to the framers of every body of laws. Wherever it is now
+found, it may be shown to have descended from Roman law;
+and with it have come down a host of legal rules on the<span class='pagenum'><a name="Page_112" id="Page_112">112</a></span>
+subject of Testaments and Testamentary gifts, which modern
+practitioners apply without discerning their relation to the
+parent theory. But, in the pure Roman jurisprudence, the
+principle that a man lives on in his Heir&mdash;the elimination, if
+we may so speak, of the fact of death&mdash;is too obviously for
+mistake the centre round which the whole Law of Testamentary
+and Intestate succession is circling. The unflinching
+sternness of the Roman law in enforcing compliance with
+the governing theory would in itself suggest that the theory
+grew out of something in the primitive constitution of Roman
+society; but we may push the proof a good way beyond the
+presumption. It happens that several technical expressions,
+dating from the earliest institution of Wills at Rome, have
+been accidentally preserved to us. We have in Gaius the
+formula of investiture by which the universal successor was
+created. We have the ancient name by which the person
+afterwards called Heir was at first designated. We have
+further the text of the celebrated clause in the Twelve
+Tables by which the Testamentary power was expressly
+recognised, and the clauses regulating Intestate Succession
+have also been preserved. All these archaic phrases have one
+salient peculiarity. They indicate that what passed from the
+Testator to the Heir was the <i>Family</i>, that is, the aggregate
+of rights and duties contained in the Patria Potestas and
+growing out of it. The material property is in three instances
+not mentioned at all; in two others, it is visibly named as
+an adjunct or appendage of the Family. The original Will
+or Testament was therefore an instrument, or (for it was
+probably not at first in writing) a proceeding, by which the
+devolution of the <i>Family</i> was regulated. It was a mode of
+declaring who was to have the chieftainship, in succession to
+the Testator. When Wills are understood to have this for
+their original object, we see at once how it is that they came
+to be connected with one of the most curious relics of ancient
+religion and law, the <i>sacra</i>, or Family Rites. These <i>sacra</i> were
+the Roman form of an institution which shows itself wherever
+society has not wholly shaken itself free from its primitive
+clothing. They are the sacrifices and ceremonies by which
+the brotherhood of the family is commemorated, the pledge
+and the witness of its perpetuity. Whatever be their nature,&mdash;whether
+it be true or not that in all cases they are the
+worship of some mythical ancestor,&mdash;they are everywhere<span class='pagenum'><a name="Page_113" id="Page_113">113</a></span>
+employed to attest the sacredness of the family-relation; and
+therefore they acquire prominent significance and importance,
+whenever the continuous existence of the Family is endangered
+by a change in the person of its chief. Accordingly
+we hear most about them in connection with demises of
+domestic sovereignty. Among the Hindoos, the right to
+inherit a dead man's property is exactly co-extensive with
+the duty of performing his obsequies. If the rites are not
+properly performed or not performed by the proper person,
+no relation is considered as established between the deceased
+and anybody surviving him; the Law of Succession does not
+apply, and nobody can inherit the property. Every great
+event in the life of a Hindoo seems to be regarded as leading
+up to and bearing upon those solemnities. If he marries, it
+is to have children who may celebrate them after his death;
+if he has no children, he lies under the strongest obligation
+to adopt them from another family, "with a view," writes
+the Hindoo doctor, "to the funeral cake, the water, and the
+solemn sacrifice." The sphere preserved to the Roman <i>sacra</i>
+in the time of Cicero, was not less in extent. It embraced
+Inheritances and Adoptions. No Adoption was allowed to take
+place without due provision for the <i>sacra</i> of the family from
+which the adoptive son was transferred, and no Testament
+was allowed to distribute an Inheritance without a strict
+apportionment of the expenses of these ceremonies among
+the different co-heirs. The differences between the Roman
+law at this epoch, when we obtain our last glimpse of the
+<i>sacra</i>, and the existing Hindoo system, are most instructive.
+Among the Hindoos, the religious element in law has acquired
+a complete predominance. Family sacrifices have
+become the keystone of all the Law of Persons and much of
+the Law of Things. They have even received a monstrous
+extension, for it is a plausible opinion that the self-immolation
+of the widow at her husband's funeral, a practice continued
+to historical times by the Hindoos, and commemorated in
+the traditions of several Indo-European races, was an addition
+grafted on the primitive <i>sacra</i>, under the influence of the
+impression, which always accompanies the idea of sacrifice,
+that human blood is the most precious of all oblations. With
+the Romans, on the contrary, the legal obligation and the
+religious duty have ceased to be blended. The necessity of
+solemnising the <i>sacra</i> forms no part of the theory of civil<span class='pagenum'><a name="Page_114" id="Page_114">114</a></span>
+law, but they are under the separate jurisdiction of the College
+of Pontiffs. The letters of Cicero to Atticus, which are full of
+allusions to them, leave no doubt that they constituted an
+intolerable burden on Inheritances; but the point of development
+at which law breaks away from religion has been
+passed, and we are prepared for their entire disappearance
+from the later jurisprudence.</p>
+
+<p>In Hindoo law there is no such thing as a true Will. The
+place filled by Wills is occupied by Adoptions. We can now
+see the relation of the Testamentary Power to the Faculty of
+Adoption, and the reason why the exercise of either of them
+could call up a peculiar solicitude for the performance of the
+<i>sacra</i>. Both a Will and an Adoption threaten a distortion of
+the ordinary course of Family descent, but they are obviously
+contrivances for preventing the descent being wholly interrupted,
+when there is no succession of kindred to carry it on.
+Of the two expedients Adoption, the factitious creation of
+blood-relationship, is the only one which has suggested itself
+to the greater part of archaic societies. The Hindoos have
+indeed advanced one point on what was doubtless the antique
+practice, by allowing the widow to adopt when the father
+has neglected to do so, and there are in the local customs of
+Bengal some faint traces of the Testamentary powers. But
+to the Romans belongs pre-eminently the credit of inventing
+the Will, the institution which, next to the Contract, has
+exercised the greatest influence in transforming human
+society. We must be careful not to attribute to it in its
+earliest shape the functions which have attended it in more
+recent times. It was at first, not a mode of distributing a
+dead man's goods, but one among several ways of transferring
+the representation of the household to a new chief. The goods
+descend no doubt to the Heir, but that is only because the
+government of the family carries with it in its devolution the
+power of disposing of the common stock. We are very far
+as yet from that stage in the history of Wills in which they
+become powerful instruments in modifying society through
+the stimulus they give to the circulation of property and the
+plasticity they produce in proprietary rights. No such consequences
+as these appear in fact to have been associated
+with the Testamentary power even by the latest Roman
+lawyers. It will be found that Wills were never looked upon
+in the Roman community as a contrivance for parting Property<span class='pagenum'><a name="Page_115" id="Page_115">115</a></span>
+and the Family, or for creating a variety of miscellaneous
+interests, but rather as a means of making a better provision
+for the members of a household than could be secured through
+the rules of Intestate succession. We may suspect indeed
+that the associations of a Roman with the practice of will-making
+were extremely different from those familiar to us
+nowadays. The habit of regarding Adoption and Testation
+as modes of continuing the Family cannot but have had
+something to do with the singular laxity of Roman notions
+as to the inheritance of sovereignty. It is impossible not to
+see that the succession of the early Roman Emperors to each
+other was considered reasonably regular, and that, in spite
+of all that had occurred, no absurdity attached to the pretension
+of such Princes as Theodosius or Justinian to style
+themselves C&aelig;sar and Augustus.</p>
+
+<p>When the phenomena of primitive societies emerge into
+light, it seems impossible to dispute a proposition which the
+jurists of the seventeenth century considered doubtful, that
+Intestate Inheritance is a more ancient institution than
+Testamentary Succession. As soon as this is settled, a question
+of much interest suggests itself, how and under what
+conditions were the directions of a will first allowed to regulate
+the devolution of authority over the household, and
+consequently the posthumous distribution of property. The
+difficulty of deciding the point arises from the rarity of
+Testamentary power in archaic communities. It is doubtful
+whether a true power of testation was known to any original
+society except the Roman. Rudimentary forms of it occur
+here and there, but most of them are not exempt from the
+suspicion of a Roman origin. The Athenian will was, no
+doubt, indigenous, but then, as will appear presently, it was
+only an inchoate Testament. As to the Wills which are
+sanctioned by the bodies of law which have descended to us
+as the codes of the barbarian conquerors of Imperial Rome,
+they are almost certainly Roman. The most penetrating
+German criticism has recently been directed to these <i>leges
+Barbarorum</i>, the great object of investigation being to detach
+those portions of each system which formed the customs
+of the tribe in its original home from the adventitious ingredients
+which were borrowed from the laws of the Romans.
+In the course of this process, one result has invariably disclosed
+itself, that the ancient nucleus of the code contains no<span class='pagenum'><a name="Page_116" id="Page_116">116</a></span>
+trace of a Will. Whatever testamentary law exists, has been
+taken from Roman jurisprudence. Similarly, the rudimentary
+Testament which (as I am informed) the Rabbinical Jewish
+law provides for, has been attributed to contact with the
+Romans. The only form of testament, not belonging to a
+Roman or Hellenic society, which can reasonably be supposed
+indigenous, is that recognised by the usages of the province
+of Bengal; and the testament of Bengal is only a rudimentary
+Will.</p>
+
+<p>The evidence, however, such as it is, seems to point to the
+conclusion that Testaments are at first only allowed to take
+effect on failure of the persons entitled to have the inheritance
+by right of blood genuine or fictitious. Thus, when Athenian
+citizens were empowered for the first time by the Laws of
+Solon to execute Testaments, they were forbidden to disinherit
+their direct male descendants. So, too, the Will of
+Bengal is only permitted to govern the succession so far as it
+is consistent with certain overriding claims of the family.
+Again, the original institutions of the Jews having provided
+nowhere for the privileges of Testatorship, the later Rabbinical
+jurisprudence, which pretends to supply the <i>casus omissi</i>
+of the Mosaic law, allows the Power of Testation to attach
+when all the kindred entitled under the Mosaic system to
+succeed have failed or are undiscoverable. The limitations
+by which the ancient German codes hedge in the testamentary
+jurisprudence which has been incorporated with them are
+also significant, and point in the same direction. It is the
+peculiarity of most of these German laws, in the only shape
+in which we know them, that, besides the <i>allod</i> or domain of
+each household, they recognise several subordinate kinds or
+orders of property, each of which probably represents a
+separate transfusion of Roman principles into the primitive
+body of Teutonic usage. The primitive German or allodial
+property is strictly reserved to the kindred. Not only is it
+incapable of being disposed of by testament but it is scarcely
+capable of being alienated by conveyance <i>inter vivos</i>. The
+ancient German law, like the Hindoo jurisprudence, makes
+the male children co-proprietors with their father, and the
+endowment of the family cannot be parted with except by
+the consent of all its members. But the other sorts of property,
+of more modern origin and lower dignity than the allodial
+possessions, are much more easily alienated than they, and<span class='pagenum'><a name="Page_117" id="Page_117">117</a></span>
+follow much more lenient rules of devolution. Women and
+the descendants of women succeed to them, obviously on the
+principle that they lie outside the sacred precinct of the
+Agnatic brotherhood. Now, it is on these last descriptions
+of property, and on these only, that the Testaments borrowed
+from Rome were at first allowed to operate.</p>
+
+<p>These few indications may serve to lend additional plausibility
+to that which in itself appears to be the most probable
+explanation of an ascertained fact in the early history of
+Roman Wills. We have it stated on abundant authority that
+Testaments, during the primitive period of the Roman State,
+were executed in the Comitia Calata, that is, in the Comitia
+Curiata, or Parliament of the Patrician Burghers of Rome,
+when assembled for Private Business. This mode of execution
+has been the source of the assertion, handed down by one
+generation of civilians to another, that every Will at one era
+of Roman history was a solemn legislative enactment. But
+there is no necessity whatever for resorting to an explanation
+which has the defect of attributing far too much precision
+to the proceedings of the ancient assembly. The proper key
+to the story concerning the execution of Wills in the Comitia
+Calata must no doubt be sought in the oldest Roman Law
+of <i>intestate</i> succession. The canons of primitive Roman
+jurisprudence regulating the inheritance of relations from
+each other were, so long as they remained unmodified by the
+Edictal Law of the Pr&aelig;tor, to the following effect:&mdash;First,
+the <i>sui</i> or direct descendants who had never been emancipated
+succeeded. On the failure of the <i>sui</i>, the Nearest Agnate came
+into their place, that is, the nearest person or class of the
+kindred who was or might have been under the same Patria
+Potestas with the deceased. The third and last degree came
+next, in which the inheritance devolved on the <i>gentiles</i>, that
+is on the collective members of the dead man's <i>gens</i> or <i>House</i>.
+The House, I have explained already, was a fictitious extension
+of the family, consisting of all Roman Patrician citizens
+who bore the same name, and who, on the ground of bearing
+the same name, were supposed to be descended from a
+common ancestor. Now the Patrician Assembly called the
+Comitia Curiata was a Legislature in which Gentes or Houses
+were exclusively represented. It was a representative assembly
+of the Roman people, constituted on the assumption
+that the constituent unit of the state was the Gens. This<span class='pagenum'><a name="Page_118" id="Page_118">118</a></span>
+being so, the inference seems inevitable, that the cognizance
+of Wills by the Comitia was connected with the rights of the
+Gentiles, and was intended to secure them in their privilege of
+ultimate inheritance. The whole apparent anomaly is removed,
+if we suppose that a Testament could only be made
+when the testator had no <i>gentiles</i> discoverable, or when they
+waived their claims, and that every Testament was submitted
+to the General Assembly of the Roman Gentes, in
+order that those aggrieved by its dispositions might put their
+veto upon it if they pleased, or by allowing it to pass might
+be presumed to have renounced their reversion. It is possible
+that on the eve of the publication of the Twelve Tables this
+vetoing power may have been greatly curtailed or only
+occasionally and capriciously exercised. It is much easier,
+however, to indicate the meaning and origin of the jurisdiction
+confided to the Comitia Calata, than to trace its gradual
+development or progressive decay.</p>
+
+<p>The Testament to which the pedigree of all modern Wills
+may be traced is not, however, the Testament executed in the
+Calata Comitia, but another Testament designed to compete
+with it and destined to supersede it. The historical importance
+of this early Roman Will, and the light it casts on much of
+ancient thought, will excuse me for describing it at some
+length.</p>
+
+<p>When the Testamentary power first discloses itself to us in
+legal history, there are signs that, like almost all the great
+Roman institutions, it was the subject of contention between
+the Patricians and the Plebeians. The effect of the political
+maxim, <i>Plebs Gentem non habet</i>, "a Plebeian cannot be a
+member of a House," was entirely to exclude the Plebeians
+from the Comitia Curiata. Some critics have accordingly
+supposed that a Plebeian could not have his Will read or
+recited to the Patrician Assembly, and was thus deprived
+of Testamentary privileges altogether. Others have been
+satisfied to point out the hardships of having to submit a
+proposed Will to the unfriendly jurisdiction of an assembly
+in which the Testator was not represented. Whatever be
+the true view, a form of Testament came into use, which has
+all the characteristics of a contrivance intended to evade
+some distasteful obligation. The Will in question was a conveyance
+<i>inter vivos</i>, a complete and irrevocable alienation of
+the Testator's family and substance to the person whom he<span class='pagenum'><a name="Page_119" id="Page_119">119</a></span>
+meant to be his heir. The strict rules of Roman law must
+always have permitted such an alienation, but, when the
+transaction was intended to have a posthumous effect, there
+may have been disputes whether it was valid for Testamentary
+purposes without the formal assent of the Patrician
+Parliament. If a difference of opinion existed on the point
+between the two classes of the Roman population, it was
+extinguished, with many other sources of heartburning, by
+the great Decemviral compromise. The text of the Twelve
+Tables is still extant which says, "<i>Pater familias uti de
+pecuni&acirc; tutel&acirc;ve rei su&aelig; leg&acirc;ssit, ita jus esto</i>"&mdash;a law which
+can hardly have had any other object than the legalisation
+of the Plebeian Will.</p>
+
+<p>It is well known to scholars that, centuries after the Patrician
+Assembly had ceased to be the legislature of the Roman
+State, it still continued to hold formal sittings for the convenience
+of private business. Consequently, at a period long
+subsequent to the publication of the Decemviral Law, there
+is reason to believe that the Comitia Calata still assembled
+for the validation of Testaments. Its probable functions may
+be best indicated by saying that it was a Court of Registration,
+with the understanding however that the Wills exhibited
+were not <i>enrolled</i>, but simply recited to the members, who
+were supposed to take note of their tenor and to commit
+them to memory. It is very likely that this form of Testament
+was never reduced to writing at all, but at all events if the
+Will had been originally written, the office of the Comitia
+was certainly confined to hearing it read aloud, the document
+being retained afterwards in the custody of the Testator,
+or deposited under the safeguard of some religious corporation.
+This publicity may have been one of the incidents of the
+Testament executed in the Comitia Calata which brought it
+into popular disfavour. In the early years of the Empire the
+Comitia still held its meetings, but they seem to have lapsed
+into the merest form, and few Wills, or none, were probably
+presented at the periodical sitting.</p>
+
+<p>It is the ancient Plebeian Will&mdash;the alternative of the
+Testament just described&mdash;which in its remote effects has
+deeply modified the civilisation of the modern world. It
+acquired at Rome all the popularity which the Testament
+submitted to the Calata Comitia appears to have lost. The
+key to all its characteristics lies in its descent from the<span class='pagenum'><a name="Page_120" id="Page_120">120</a></span>
+<i>mancipium</i>, or ancient Roman conveyance, a proceeding to
+which we may unhesitatingly assign the parentage of two
+great institutions without which modern society can scarcely
+be supposed capable of holding together, the Contract and the
+Will. The <i>mancipium</i>, or as the word would exhibit itself
+in later Latinity, the Mancipation, carries us back by its incidents
+to the infancy of civil society. As it sprang from
+times long anterior, if not to the invention, at all events to
+the popularisation, of the art of writing, gestures, symbolical
+acts, and solemn phrases take the place of documentary
+forms, and a lengthy and intricate ceremonial is intended to
+call the attention of the parties to the importance of the
+transaction, and to impress it on the memory of the witnesses.
+The imperfection too of oral, as compared with written,
+testimony necessitates the multiplication of the witnesses
+and assistants beyond what in later times would be reasonable
+or intelligible limits.</p>
+
+<p>The Roman Mancipation required the presence first of all
+of the parties, the vendor and vendee, or we should perhaps
+rather say, if we are to use modern legal language, the grantor
+and grantee. There were also no less than <i>five</i> witnesses; and
+an anomalous personage, the Libripens, who brought with
+him a pair of scales to weigh the uncoined copper money
+of ancient Rome. The Testament we are considering&mdash;the
+Testament <i>per &aelig;s et libram</i>, "with the copper and the scales,"
+as it long continued to be technically called&mdash;was an ordinary
+Mancipation with no change in the form and hardly
+any in words. The Testator was the grantor; the five witnesses
+and the libripens were present; and the place of
+grantee was taken by a person known technically as the
+<i>famili&aelig; emptor</i>, the Purchaser of the Family. The ordinary
+ceremony of a Mancipation was then proceeded with. Certain
+formal gestures were made and sentences pronounced. The
+<i>Emptor famili&aelig;</i> simulated the payment of a price by striking
+the scales with a piece of money, and finally the Testator
+ratified what had been done in a set form of words called the
+"Nuncupatio" or publication of the transaction, a phrase
+which, I need scarcely remind the lawyer, has had a long
+history in Testamentary jurisprudence. It is necessary to
+attend particularly to the character of the person called
+<i>famili&aelig; emptor</i>. There is no doubt that at first he was the
+Heir himself. The Testator conveyed to him outright his whole<span class='pagenum'><a name="Page_121" id="Page_121">121</a></span>
+"familia," that is, all the rights he enjoyed over and through
+the family; his property, his slaves, and all his ancestral
+privileges, together, on the other hand, with all his duties
+and obligations.</p>
+
+<p>With these data before us, we are able to note several
+remarkable points in which the Mancipatory Testament,
+as it may be called, differed in its primitive form from a
+modern will. As it amounted to a conveyance <i>out-and-out</i> of
+the Testator's estate, it was not <i>revocable</i>. There could be
+no new exercise of a power which had been exhausted.</p>
+
+<p>Again, it was not secret. The Famili&aelig; Emptor, being himself
+the Heir, knew exactly what his rights were, and was
+aware that he was irreversibly entitled to the inheritance;
+a knowledge which the violences inseparable from the best-ordered
+ancient society rendered extremely dangerous. But
+perhaps the most surprising consequence of this relation of
+Testaments to Conveyances was the immediate vesting of
+the inheritance in the Heir. This has seemed so incredible
+to not a few civilians, that they have spoken of the Testator's
+estate as vesting conditionally on the Testator's death or
+as granted to him from a time uncertain, <i>i.e.</i> the death of
+the grantor. But down to the latest period of Roman jurisprudence
+there was a certain class of transactions which
+never admitted of being directly modified by a condition, or
+of being limited to or from a point of time. In technical language
+they did not admit <i>conditio</i> or <i>dies</i>. Mancipation was
+one of them, and therefore, strange as it may seem, we are
+forced to conclude that the primitive Roman Will took effect
+at once, even though the Testator survived his act of Testation.
+It is indeed likely that Roman citizens originally made
+their Wills only in the article of death, and that a provision
+for the continuance of the Family effected by a man in the
+flower of life would take the form rather of an Adoption than
+of a Will. Still we must believe that, if the Testator did recover,
+he could only continue to govern his household by the
+sufferance of his Heir.</p>
+
+<p>Two or three remarks should be made before I explain how
+these inconveniences were remedied, and how Testaments
+came to be invested with the characteristics now universally
+associated with them. The Testament was not necessarily
+written: at first, it seems to have been invariably oral, and,
+even in later times, the instrument declaratory of the bequests<span class='pagenum'><a name="Page_122" id="Page_122">122</a></span>
+was only incidentally connected with the Will and formed no
+essential part of it. It bore in fact exactly the same relation
+to the Testament, which the deed leading the uses bore
+to the Fines and Recoveries of old English law, or which the
+charter of feoffment bore to the feoffment itself. Previously,
+indeed, to the Twelve Tables, no writing would have been of
+the slightest use, for the Testator had no power of giving
+legacies, and the only persons who could be advantaged by a
+will were the Heir or Co-heirs. But the extreme generality
+of the clause in the Twelve Tables soon produced the doctrine
+that the Heir must take the inheritance burdened by any
+directions which the Testator might give him, or in other
+words, take it subject to legacies. Written testamentary
+instruments assumed thereupon a new value, as a security
+against the fraudulent refusal of the heir to satisfy the legatees;
+but to the last it was at the Testator's pleasure to rely
+exclusively on the testimony of the witnesses, and to declare
+by word of mouth the legacies which the <i>famili&aelig; emptor</i>
+was commissioned to pay.</p>
+
+<p>The terms of the expression <i>Emptor famili&aelig;</i> demand
+notice. "Emptor" indicates that the Will was literally a
+sale, and the word "famili&aelig;," when compared with the
+phraseology in the Testamentary clause in the Twelve Tables,
+leads us to some instructive conclusions. "Familia," in
+classical Latinity, means always a man's slaves. Here, however,
+and generally in the language of ancient Roman law,
+it includes all persons under his Potestas, and the Testator's
+material property or substance is understood to pass as an
+adjunct or appendage of his household. Turning to the law
+of the Twelve Tables, it will be seen that it speaks of <i>tutela
+rei su&aelig;</i>, "the guardianship of his substance," a form of
+expression which is the exact reverse of the phrase just
+examined. There does not therefore appear to be any mode
+of escaping from the conclusion, that, even at an era so
+comparatively recent as that of the Decemviral compromise,
+terms denoting "household" and "property" were blended
+in the current phraseology. If a man's household had been
+spoken of as his property we might have explained the
+expression as pointing to the extent of the Patria Potestas,
+but, as the interchange is reciprocal, we must allow that the
+form of speech carries us back to that primeval period in
+which property is owned by the family, and the family is<span class='pagenum'><a name="Page_123" id="Page_123">123</a></span>
+governed by the citizen, so that the members of the community
+do not own their property <i>and</i> their family, but rather
+own their property <i>through</i> their family.</p>
+
+<p>At an epoch not easy to settle with precision, the Roman
+Pr&aelig;tors fell into the habit of acting upon Testaments solemnised
+in closer conformity with the spirit than the letter of the
+law. Casual dispensations became insensibly the established
+practice, till at length a wholly new form of Will was matured
+and regularly engrafted on the Edictal Jurisprudence. The
+new or <i>Pr&aelig;torian</i> Testament derived the whole of its impregnability
+from the <i>Jus Honorarium</i> or Equity of Rome. The
+Pr&aelig;tor of some particular year must have inserted a clause
+in his inaugural Proclamation declaratory of his intention to
+sustain all Testaments which should have been executed with
+such and such solemnities; and, the reform having been
+found advantageous, the article relating to it must have been
+again introduced by the Pr&aelig;tor's successor, and repeated by
+the next in office, till at length it formed a recognised portion
+of that body of jurisprudence which from these successive
+incorporations was styled the Perpetual or Continuous Edict.
+On examining the conditions of a valid Pr&aelig;torian Will they
+will be plainly seen to have been determined by the requirements
+of the Mancipatory Testament, the innovating Pr&aelig;tor
+having obviously prescribed to himself the retention of the old
+formalities just so far as they were warrants of genuineness or
+securities against fraud. At the execution of the Mancipatory
+Testament seven persons had been present besides the
+Testator. Seven witnesses were accordingly essential to the
+Pr&aelig;torian Will: two of them corresponding to the <i>libripens</i>
+and <i>famili&aelig; emptor</i>, who were now stripped of their symbolical
+character, and were merely present for the purpose of supplying
+their testimony. No emblematic ceremony was gone
+through; the Will was merely recited; but then it is probable
+(though not absolutely certain) that a written instrument was
+necessary to perpetuate the evidence of the Testator's dispositions.
+At all events, whenever a writing was read or
+exhibited as a person's last Will, we know certainly that the
+Pr&aelig;torian Court would not sustain it by special intervention,
+unless each of the seven witnesses had severally affixed his
+seal to the outside. This is the first appearance of <i>sealing</i>
+in the history of jurisprudence, considered as a mode of
+authentication. It is to be observed that the seals of Roman<span class='pagenum'><a name="Page_124" id="Page_124">124</a></span>
+Wills, and other documents of importance, did not simply
+serve as the index of the presence or assent of the signatory,
+but were literally fastenings which had to be broken before the
+writing could be inspected.</p>
+
+<p>The Edictal Law would therefore enforce the dispositions
+of a Testator, when, instead of being symbolised through the
+forms of mancipation, they were simply evidenced by the
+seals of seven witnesses. But it may be laid down as a general
+proposition, that the principal qualities of Roman property
+were incommunicable except through processes which were
+supposed to be coeval with the origin of the Civil Law. The
+Pr&aelig;tor therefore could not confer an <i>Inheritance</i> on anybody.
+He could not place the Heir or Co-heirs in that very relation
+in which the Testator had himself stood to his own rights
+and obligations. All he could do was to confer on the person
+designated as Heir the practical enjoyment of the property
+bequeathed, and to give the force of legal acquittances to his
+payments of the Testator's debts. When he exerted his powers
+to these ends, the Pr&aelig;tor was technically said to communicate
+the <i>Bonorum Possessio</i>. The Heir specially inducted under
+these circumstances, or <i>Bonorum Possessor</i>, had every proprietary
+privilege of the Heir by the Civil Law. He took
+the profits and he could alienate, but then, for all his remedies
+for redress against wrong, he must go, as we should phrase
+it, not to the Common Law, but to the Equity side of the
+Pr&aelig;torian Court. No great chance of error would be incurred
+by describing him as having an <i>equitable</i> estate in the inheritance;
+but then, to secure ourselves against being deluded
+by the analogy, we must always recollect that in one year
+the <i>Bonorum Possessio</i> was operated upon a principle of
+Roman Law known as Usucapion, and the Possessor became
+Quiritarian owner of all the property comprised in the
+inheritance.</p>
+
+<p>We know too little of the older law of Civil Process to be
+able to strike the balance of advantage and disadvantage
+between the different classes of remedies supplied by the
+Pr&aelig;torian Tribunal. It is certain, however, that, in spite of
+its many defects, the Mancipatory Testament by which the
+<i>universitas juris</i> devolved at once and unimpaired was never
+entirely superseded by the new Will; and at a period less
+bigoted to antiquarian forms, and perhaps not quite alive to
+their significance, all the ingenuity of the Jurisconsults seems<span class='pagenum'><a name="Page_125" id="Page_125">125</a></span>
+to have been expended on the improvement of the more
+venerable instrument. At the era of Gaius, which is that of
+the Antonine C&aelig;sars, the great blemishes of the Mancipatory
+Will had been removed. Originally, as we have seen, the
+essential character of the formalities had required that the
+Heir himself should be the Purchaser of the Family, and
+the consequence was that he not only instantly acquired a
+vested interest in the Testator's Property, but was formally
+made aware of his rights. But the age of Gaius permitted
+some unconcerned person to officiate as Purchaser of the
+Family. The heir, therefore, was not necessarily informed of
+the succession to which he was destined; and Wills thenceforward
+acquired the property of <i>secrecy</i>. The substitution of
+a stranger for the actual Heir in the functions of "Famili&aelig;
+Emptor" had other ulterior consequences. As soon as it was
+legalised, a Roman Testament came to consist of two parts or
+stages&mdash;a conveyance, which was a pure form, and a Nuncupatio,
+or Publication. In this latter passage of the proceeding,
+the Testator either orally declared to the assistants
+the wishes which were to be executed after his death, or
+produced a written document in which his wishes were
+embodied. It was not probably till attention had been quite
+drawn off from the imaginary Conveyance, and concentrated
+on the Nuncupation as the essential part of the transaction,
+that Wills were allowed to become <i>revocable</i>.</p>
+
+<p>I have thus carried the pedigree of Wills some way down
+in legal history. The root of it is the old Testament "with
+the copper and the scales," founded on a Mancipation or
+Conveyance. This ancient Will has, however, manifold defects,
+which are remedied, though only indirectly, by the Pr&aelig;torian
+law. Meantime the ingenuity of the Jurisconsults effects, in
+the Common-Law Will or Mancipatory Testament, the very
+improvements which the Pr&aelig;tor may have concurrently
+carried out in Equity. These last ameliorations depend,
+however, on mere legal dexterity, and we see accordingly that
+the Testamentary Law of the day of Gaius or Ulpian is only
+transitional. What changes next ensued we know not; but
+at length, just before the reconstruction of the jurisprudence
+by Justinian, we find the subjects of the Eastern Roman
+Empire employing a form of Will of which the pedigree is
+traceable to the Pr&aelig;torian Testament on one side, and to the
+Testament "with the copper and the scales" on the other.<span class='pagenum'><a name="Page_126" id="Page_126">126</a></span>
+Like the Testament of the Pr&aelig;tor, it required no Mancipation,
+and was invalid unless sealed by seven witnesses. Like the
+Mancipatory Will, it passed the Inheritance and not merely
+a <i>Bonorum Possessio</i>. Several, however, of its most important
+features were annexed by positive enactments, and it is
+out of regard to this threefold derivation from the Pr&aelig;torian
+Edict, from the Civil Law, and from the Imperial Constitutions,
+that Justinian speaks of the Law of Wills in his own
+day as <i>Jus Tripertitum</i>. The new Testament thus described
+is the one generally known as the Roman Will. But it was
+the Will of the Eastern Empire only; and the researches of
+Savigny have shown that in Western Europe the old Mancipatory
+Testament, with all its apparatus of conveyance, copper,
+and scales, continued to be the form in use far down in the
+Middle Ages.<span class='pagenum'><a name="Page_127" id="Page_127">127</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_VII" id="CHAPTER_VII"></a>CHAPTER VII</h3>
+
+<h4><span class="smcap">ancient and modern ideas respecting wills and
+successions</span></h4>
+
+
+<p>Although there is much in the modern European Law of
+Wills which is intimately connected with the oldest rules of
+Testamentary disposition practised among men, there are
+nevertheless some important differences between ancient and
+modern ideas on the subject of Wills and Successions. Some
+of the points of difference I shall endeavour to illustrate in
+this chapter.</p>
+
+<p>At a period, removed several centuries from the era of the
+Twelve Tables, we find a variety of rules engrafted on the
+Roman Civil Law with the view of limiting the disinherison of
+children; we have the jurisdiction of the Pr&aelig;tor very actively
+exerted in the same interest; and we are also presented with
+a new remedy, very anomalous in character and of uncertain
+origin, called the Querela Inofficiosi Testamenti, "the Plaint
+of an Unduteous Will," directed to the reinstatement of the
+issue in inheritances from which they had been unjustifiably
+excluded by a father's Testament. Comparing this condition
+of the law with the text of the Twelve Tables which concedes
+in terms the utmost liberty of Testation, several writers have
+been tempted to interweave a good deal of dramatic incident
+into their history of the Law Testamentary. They tell us of
+the boundless license of disinherison in which the heads of
+families instantly began to indulge, of the scandal and injury
+to public morals which the new practices engendered, and of
+the applause of all good men which hailed the courage of the
+Pr&aelig;tor in arresting the progress of paternal depravity. This
+story, which is not without some foundation for the principal
+fact it relates, is often so told as to disclose very serious
+misconceptions of the principles of legal history. The Law
+of the Twelve Tables is to be explained by the character
+of the age in which it was enacted. It does not license a
+tendency which a later era thought itself bound to counteract,
+but it proceeds on the assumption that no such tendency<span class='pagenum'><a name="Page_128" id="Page_128">128</a></span>
+exists, or, perhaps we should say, in ignorance of the possibility
+of its existence. There is no likelihood that Roman
+citizens began immediately to avail themselves freely of the
+power to disinherit. It is against all reason and sound appreciation
+of history to suppose that the yoke of family bondage,
+still patiently submitted to, as we know, where its pressure
+galled most cruelly, would be cast off in the very particular in
+which its incidence in our own day is not otherwise than
+welcome. The Law of the Twelve Tables permitted the
+execution of Testaments in the only case in which it was
+thought possible that they could be executed, viz. on failure
+of children and proximate kindred. It did not forbid the
+disinherison of direct descendants, inasmuch as it did not
+legislate against a contingency which no Roman lawgiver of
+that era could have contemplated. No doubt, as the offices
+of family affection progressively lost the aspect of primary
+personal duties, the disinherison of children was occasionally
+attempted. But the interference of the Pr&aelig;tor, so far from
+being called for by the universality of the abuse, was doubtless
+first prompted by the fact that such instances of unnatural
+caprice were few and exceptional, and at conflict with the
+current morality.</p>
+
+<p>The indications furnished by this part of Roman Testamentary
+Law are of a very different kind. It is remarkable
+that a Will never seems to have been regarded by the Romans
+as a means of <i>disinheriting</i> a Family, or of effecting the unequal
+distribution of a patrimony. The rules of law preventing
+its being turned to such a purpose, increase in number and
+stringency as the jurisprudence unfolds itself; and these
+rules correspond doubtless with the abiding sentiment of
+Roman society, as distinguished from occasional variations
+of feeling in individuals. It would rather seem as if the
+Testamentary Power were chiefly valued for the assistance
+it gave in <i>making provision</i> for a Family, and in dividing the
+inheritance more evenly and fairly than the Law of Intestate
+Succession would have divided it. If this be the true
+reading of the general sentiment on the point, it explains to
+some extent the singular horror of Intestacy which always
+characterised the Roman. No evil seems to have been considered
+a heavier visitation than the forfeiture of Testamentary
+privileges; no curse appears to have been bitterer
+than that which imprecated on an enemy that he might die<span class='pagenum'><a name="Page_129" id="Page_129">129</a></span>
+without a Will. The feeling has no counterpart, or none that
+is easily recognisable, in the forms of opinion which exist
+at the present day. All men at all times will doubtless prefer
+chalking out the destination of their substance to having that
+office performed for them by the law; but the Roman passion
+for Testacy is distinguished from the mere desire to indulge
+caprice by its intensity; and it has of course nothing whatever
+in common with that pride of family, exclusively the
+creation of feudalism, which accumulates one description of
+property in the hands of a single representative. It is probable,
+<i>&agrave; priori</i>, that it was something in the rules of Intestate Succession
+which caused this vehement preference for the distribution
+of property under a Testament over its distribution
+by law. The difficulty, however, is, that on glancing at the
+Roman Law of Intestate Succession, in the form which it
+wore for many centuries before Justinian shaped it into that
+scheme of inheritance which has been almost universally
+adopted by modern lawgivers, it by no means strikes one as
+remarkably unreasonable or inequitable. On the contrary,
+the distribution it prescribes is so fair and rational, and differs
+so little from that with which modern society has been
+generally contented, that no reason suggests itself why it
+should have been regarded with extraordinary distaste,
+especially under a jurisprudence which pared down to a
+narrow compass the testamentary privileges of persons who
+had children to provide for. We should rather have expected
+that, as in France at this moment, the heads of families would
+generally save themselves the trouble of executing a Will,
+and allow the Law to do as it pleased with their assets. I
+think, however, if we look a little closely at the pre-Justinianean
+scale of Intestate Succession, we shall discover
+the key to the mystery. The texture of the law consists of
+two distinct parts. One department of rules comes from the
+Jus Civile, the Common-Law of Rome; the other from the
+Edict of the Pr&aelig;tor. The Civil Law, as I have already stated
+for another purpose, calls to the inheritance only three orders
+of successors in their turn; the Unemancipated children, the
+nearest class of Agnatic kindred, and the Gentiles. Between
+these three orders, the Pr&aelig;tor interpolates various classes of
+relatives, of whom the Civil Law took no notice whatever.
+Ultimately, the combination of the Edict and of the Civil
+Law forms a table of succession not materially different from<span class='pagenum'><a name="Page_130" id="Page_130">130</a></span>
+that which has descended to the generality of modern
+codes.</p>
+
+<p>The point for recollection is that there must anciently have
+been a time at which the rules of the Civil Law determined
+the scheme of Intestate Succession exclusively, and at which
+the arrangements of the Edict were non-existent, or not
+consistently carried out. We cannot doubt that, in its infancy,
+the Pr&aelig;torian jurisprudence had to contend with formidable
+obstructions, and it is more than probable that, long after
+popular sentiment and legal opinion had acquiesced in it,
+the modifications which it periodically introduced were
+governed by no certain principles, and fluctuated with the
+varying bias of successive magistrates. The rules of Intestate
+Succession, which the Romans must at this period have
+practised, account, I think&mdash;and more than account&mdash;for
+that vehement distaste for an Intestacy to which Roman
+society during so many ages remained constant. The order
+of succession was this: on the death of a citizen, having no
+will or no valid will, his Unemancipated children became his
+Heirs. His <i>emancipated</i> sons had no share in the inheritance.
+If he left no direct descendants living at his death, the nearest
+grade of the Agnatic kindred succeeded, but no part of the
+inheritance was given to any relative united (however closely)
+with the dead man through female descents. All the other
+branches of the family were excluded, and the inheritance
+escheated to the <i>Gentiles</i>, or entire body of Roman citizens
+bearing the same name with the deceased. So that on failing
+to execute an operative Testament, a Roman of the era under
+examination left his emancipated children absolutely without
+provision, while, on the assumption that he died childless,
+there was imminent risk that his possessions would escape
+from the family altogether, and devolve on a number of
+persons with whom he was merely connected by the sacerdotal
+fiction that assumed all members of the same <i>gens</i> to be
+descended from a common ancestor. The prospect of such an
+issue is in itself a nearly sufficient explanation of the popular
+sentiment; but, in point of fact, we shall only half understand
+it, if we forget that the state of things I have been describing
+is likely to have existed at the very moment when Roman
+society was in the first stage of its transition from its primitive
+organisation in detached families. The empire of the father
+had indeed received one of the earliest blows directed at it<span class='pagenum'><a name="Page_131" id="Page_131">131</a></span>
+through the recognition of Emancipation as a legitimate
+usage, but the law, still considering the Patria Potestas to be
+the root of family connection, persevered in looking on the
+emancipated children as strangers to the rights of Kinship
+and aliens from the blood. We cannot, however, for a moment
+suppose that the limitations of the family imposed by legal
+pedantry had their counterpart in the natural affection of
+parents. Family attachments must still have retained that
+nearly inconceivable sanctity and intensity which belonged to
+them under the Patriarchal system; and, so little are they
+likely to have been extinguished by the act of emancipation,
+that the probabilities are altogether the other way. It may
+be unhesitatingly taken for granted that enfranchisement
+from the father's power was a demonstration, rather than a
+severance, of affection&mdash;a mark of grace and favour accorded
+to the best-beloved and most esteemed of the children. If
+sons thus honoured above the rest were absolutely deprived
+of their heritage by an Intestacy, the reluctance to incur it
+requires no farther explanation. We might have assumed <i>&agrave;
+priori</i> that the passion for Testacy was generated by some
+moral injustice entailed by the rules of Intestate succession;
+and here we find them at variance with the very instinct by
+which early society was cemented together. It is possible to
+put all that has been urged in a very succinct form. Every
+dominant sentiment of the primitive Romans was entwined
+with the relations of the family. But what was the Family?
+The Law defined it one way&mdash;natural affection another. In the
+conflict between the two, the feeling we would analyse grew up,
+taking the form of an enthusiasm for the institution by which
+the dictates of affection were permitted to determine the
+fortunes of its objects.</p>
+
+<p>I regard, therefore, the Roman horror of Intestacy as a
+monument of a very early conflict between ancient law and
+slowly changing ancient sentiment on the subject of the
+Family. Some passages in the Roman Statute-Law, and one
+statute in particular which limited the capacity for inheritance
+possessed by women, must have contributed to keep
+alive the feeling; and it is the general belief that the system
+of creating Fidei-Commissa, or bequests in trust, was devised
+to evade the disabilities imposed by those statutes. But the
+feeling itself, in its remarkable intensity, seems to point back
+to some deeper antagonism between law and opinion; nor<span class='pagenum'><a name="Page_132" id="Page_132">132</a></span>
+is it at all wonderful that the improvements of jurisprudence
+by the Pr&aelig;tor should not have extinguished it. Everybody
+conversant with the philosophy of opinion is aware that a
+sentiment by no means dies out, of necessity, with the passing
+away of the circumstances which produced it. It may long
+survive them; nay, it may afterwards attain to a pitch and
+climax of intensity which it never attained during their actual
+continuance.</p>
+
+<p>The view of a Will which regards it as conferring the power
+of diverting property from the Family, or of distributing it
+in such uneven proportions as the fancy or good sense of the
+Testator may dictate, is not older than that later portion of
+the Middle Ages in which Feudalism had completely consolidated
+itself. When modern jurisprudence first shows itself
+in the rough, Wills are rarely allowed to dispose with absolute
+freedom of a dead man's assets. Wherever at this period
+the descent of property was regulated by Will&mdash;and over the
+greater part of Europe moveable or personal property was
+the subject of Testamentary disposition&mdash;the exercise of the
+Testamentary power was seldom allowed to interfere with
+the right of the widow to a definite share, and of the children
+to certain fixed proportions, of the devolving inheritance. The
+shares of the children, as their amount shows, were determined
+by the authority of Roman law. The provision for the
+widow was attributable to the exertions of the Church, which
+never relaxed its solicitude for the interest of wives surviving
+their husbands&mdash;winning, perhaps, one of the most arduous
+of its triumphs when, after exacting for two or three centuries
+an express promise from the husband at marriage to endow
+his wife, it at length succeeded in engrafting the principle
+of Dower on the Customary Law of all Western Europe.
+Curiously enough, the dower of lands proved a more stable
+institution than the analogous and more ancient reservation
+of certain shares of the personal property to the widow and
+children. A few local customs in France maintained the right
+down to the Revolution, and there are traces of similar usages
+in England; but on the whole the doctrine prevailed that
+moveables might be freely disposed of by Will, and, even when
+the claims of the widow continued to be respected, the privileges
+of the children were obliterated from jurisprudence.
+We need not hesitate to attribute the change to the influence
+of Primogeniture. As the Feudal law of land practically disinherited<span class='pagenum'><a name="Page_133" id="Page_133">133</a></span>
+all the children in favour of one, the equal distribution
+even of those sorts of property which might have
+been equally divided ceased to be viewed as a duty. Testaments
+were the principal instruments employed in producing
+inequality, and in this condition of things originated the
+shade of difference which shows itself between the ancient
+and the modern conception of a Will. But, though the liberty
+of bequest, enjoyed through Testaments, was thus an accidental
+fruit of Feudalism, there is no broader distinction
+than that which exists between a system of free Testamentary
+disposition and a system, like that of the Feudal land-law,
+under which property descends compulsorily in prescribed
+lines of devolution. This truth appears to have been lost sight
+of by the authors of the French Codes. In the social fabric
+which they determined to destroy, they saw Primogeniture
+resting chiefly on Family settlements, but they also perceived
+that Testaments were frequently employed to give the eldest
+son precisely the same preference which was reserved to him
+under the strictest of entails. In order, therefore, to make
+sure of their work, they not only rendered it impossible to
+prefer the eldest son to the rest in marriage-arrangements,
+but they almost expelled Testamentary succession from the
+law, lest it should be used to defeat their fundamental principle
+of an equal distribution of property among children at
+the parent's death. The result is that they have established
+a system of small perpetual entails, which is infinitely nearer
+akin to the system of feudal Europe than would be a perfect
+liberty of bequest. The land-law of England, "the Herculaneum
+of Feudalism," is certainly much more closely allied
+to the land-law of the Middle Ages than that of any Continental
+country, and Wills with us are frequently used to aid
+or imitate that preference of the eldest son and his line which
+is a nearly universal feature in marriage settlements of real
+property. But nevertheless feeling and opinion in this country
+have been profoundly affected by the practice of free Testamentary
+disposition; and it appears to me that the state of
+sentiment in a great part of French society, on the subject of
+the conservation of property in families, is much liker that
+which prevailed through Europe two or three centuries ago
+than are the current opinions of Englishmen.</p>
+
+<p>The mention of Primogeniture introduces one of the most
+difficult problems of historical jurisprudence. Though I have<span class='pagenum'><a name="Page_134" id="Page_134">134</a></span>
+not paused to explain my expressions, it may have been
+noticed that I have frequently spoken of a number of "co-heirs"
+as placed by the Roman Law of Succession on the
+same footing with a single Heir. In point of fact, we know of
+no period of Roman jurisprudence at which the place of the
+Heir, or Universal Successor, might not have been taken by
+a group of co-heirs. This group succeeded as a single unit, and
+the assets were afterwards divided among them in a separate
+legal proceeding. When the Succession was <i>ab intestato</i>, and
+the group consisted of the children of the deceased, they each
+took an equal share of the property; nor, though males had
+at one time some advantages over females, is there the faintest
+trace of Primogeniture. The mode of distribution is the same
+throughout archaic jurisprudence. It certainly seems that,
+when civil society begins and families cease to hold together
+through a series of generations, the idea which spontaneously
+suggests itself is to divide the domain equally among the
+members of each successive generation, and to reserve no
+privilege to the eldest son or stock. Some peculiarly significant
+hints as to the close relation of this phenomenon to
+primitive thought are furnished by systems yet more archaic
+than the Roman. Among the Hindoos, the instant a son is
+born, he acquires a vested right in his father's property,
+which cannot be sold without recognition of his joint ownership.
+On the son's attaining full age, he can sometimes compel
+a partition of the estate even against the consent of the
+parent; and, should the parent acquiesce, one son can always
+have a partition even against the will of the others. On such
+partition taking place, the father has no advantage over his
+children, except that he has two of the shares instead of one.
+The ancient law of the German tribes was exceedingly similar.
+The <i>allod</i> or domain of the family was the joint-property of
+the father and his sons. It does not, however, appear to have
+been habitually divided even at the death of the parent, and
+in the same way the possessions of a Hindoo, however divisible
+theoretically, are so rarely distributed in fact, that many
+generations constantly succeed each other without a partition
+taking place, and thus the Family in India has a perpetual
+tendency to expand into the Village Community, under conditions
+which I shall hereafter attempt to elucidate. All this
+points very clearly to the absolutely equal division of assets
+among the male children at death as the practice most usual<span class='pagenum'><a name="Page_135" id="Page_135">135</a></span>
+with society at the period when family-dependency is in the
+first stages of disintegration. Here then emerges the historical
+difficulty of Primogeniture. The more clearly we perceive
+that, when the Feudal institutions were in process of formation,
+there was no source in the world whence they could derive
+their elements but the Roman law of the provincials on the
+one hand and the archaic customs of the barbarians on the
+other, the more are we perplexed at first sight by our knowledge
+that neither Roman nor barbarian was accustomed to
+give any preference to the eldest son or his line in the succession
+to property.</p>
+
+<p>Primogeniture did not belong to the Customs which the
+barbarians practised on their first establishment within the
+Roman Empire. It is known to have had its origin in the
+<i>benefices</i> or beneficiary gifts of the invading chieftains. These
+benefices, which were occasionally conferred by the earlier
+immigrant kings, but were distributed on a great scale by
+Charlemagne, were grants of Roman provincial land to be
+holden by the beneficiary on condition of military service.
+The <i>allodial</i> proprietors do not seem to have followed their
+sovereign on distant or difficult enterprises, and all the grander
+expeditions of the Frankish chiefs and of Charlemagne were
+accomplished with forces composed of soldiers either personally
+dependent on the royal house or compelled to serve it
+by the tenure of their land. The benefices, however, were
+not at first in any sense hereditary. They were held at the
+pleasure of the grantor, or at most for the life of the grantee;
+but still, from the very outset, no effort seems to have been
+spared by the beneficiaries to enlarge the tenure, and to continue
+their lands in their family after death. Through the
+feebleness of Charlemagne's successors these attempts were
+universally successful, and the Benefice gradually transformed
+itself into the hereditary Fief. But, though the fiefs
+were hereditary, they did not necessarily descend to the
+eldest son. The rules of succession which they followed were
+entirely determined by the terms agreed upon between the
+grantor and the beneficiary, or imposed by one of them on
+the weakness of the other. The original tenures were therefore
+extremely various; not indeed so capriciously various as is
+sometimes asserted, for all which have hitherto been described
+present some combination of the modes of succession familiar
+to Romans and to barbarians, but still exceedingly miscel<span class='pagenum'><a name="Page_136" id="Page_136">136</a></span>laneous.
+In some of them, the eldest son and his stock undoubtedly
+succeeded to the fief before the others, but such
+successions, so far from being universal, do not even appear
+to have been general. Precisely the same phenomena recur
+during that more recent transmutation of European society
+which entirely substituted the feudal form of property for the
+domainial (or Roman) and the allodial (or German). The
+allods were wholly absorbed by the fiefs. The greater allodial
+proprietors transformed themselves into feudal lords by conditional
+alienations of portions of their land to dependants;
+the smaller sought an escape from the oppressions of that
+terrible time by surrendering their property to some powerful
+chieftain, and receiving it back at his hands on condition of
+service in his wars. Meantime, that vast mass of the population
+of Western Europe whose condition was servile or semi-servile&mdash;the
+Roman and German personal slaves, the Roman
+<i>coloni</i> and the German <i>lidi</i>&mdash;were concurrently absorbed by
+the feudal organisation, a few of them assuming a menial
+relation to the lords, but the greater part receiving land on
+terms which in those centuries were considered degrading.
+The tenures created during this era of universal infeudation
+were as various as the conditions which the tenants made
+with their new chiefs or were forced to accept from them.
+As in the case of the benefices, the succession to some, but by
+no means to all, of the estates followed the rule of Primogeniture.
+No sooner, however, has the feudal system prevailed
+throughout the West, than it becomes evident that Primogeniture
+has some great advantage over every other mode of
+succession. It spread over Europe with remarkable rapidity,
+the principal instrument of diffusion being Family Settlements,
+the Pactes de Famille of France and Haus-Gesetze of
+Germany, which universally stipulated that lands held by
+knightly service should descend to the eldest son. Ultimately
+the law resigned itself to follow inveterate practice, and we find
+that in all the bodies of Customary Law, which were gradually
+built up, the eldest son and stock are preferred in the succession
+to estates of which the tenure is free and military. As to
+lands held by servile tenures (and originally all tenures were
+servile which bound the tenant to pay money or bestow
+manual labour), the system of succession prescribed by
+custom differed greatly in different countries and different
+provinces. The more general rule was that such lands were<span class='pagenum'><a name="Page_137" id="Page_137">137</a></span>
+divided equally at death among all the children, but still in
+some instances the eldest son was preferred, in some the
+youngest. But Primogeniture usually governed the inheritance
+of that class of estates, in some respects the most important
+of all, which were held by tenures that, like the
+English Socage, were of later origin than the rest, and were
+neither altogether free nor altogether servile.</p>
+
+<p>The diffusion of Primogeniture is usually accounted for by
+assigning what are called Feudal reasons for it. It is asserted
+that the feudal superior had a better security for the military
+service he required when the fief descended to a single person,
+instead of being distributed among a number on the decease
+of the last holder. Without denying that this consideration
+may partially explain the favour gradually acquired by Primogeniture,
+I must point out that Primogeniture became a
+custom of Europe much more through its popularity with the
+tenants than through any advantage it conferred on the lords.
+For its origin, moreover, the reason given does not account
+at all. Nothing in law springs entirely from a sense of convenience.
+There are always certain ideas existing antecedently
+on which the sense of convenience works, and of which it can
+do no more than form some new combination; and to find
+these ideas in the present case is exactly the problem.</p>
+
+<p>A valuable hint is furnished to us from a quarter fruitful
+of such indications. Although in India the possessions of a
+parent are divisible at his death, and may be divisible during
+his life, among all his male children in equal shares, and though
+this principle of the equal distribution of <i>property</i> extends to
+every part of the Hindoo institutions, yet wherever <i>public
+office</i> or <i>political power</i> devolves at the decease of the last
+Incumbent, the succession is nearly universally according to
+the rules of Primogeniture. Sovereignties descend therefore
+to the eldest son, and where the affairs of the Village Community,
+the corporate unit of Hindoo society, are confided
+to a single manager, it is generally the eldest son who takes
+up the administration at his parent's death. All offices, indeed,
+in India, tend to become hereditary, and, when their nature
+permits it, to vest in the eldest member of the oldest stock.
+Comparing these Indian successions with some of the ruder
+social organisations which have survived in Europe almost
+to our own day, the conclusion suggests itself that, when
+Patriarchal power is not only <i>domestic</i> but <i>political</i>, it is not<span class='pagenum'><a name="Page_138" id="Page_138">138</a></span>
+distributed among all the issue at the parent's death, but is
+the birthright of the eldest son. The chieftainship of a Highland
+clan, for example, followed the order of Primogeniture.
+There seems, in truth, to be a form of family-dependency still
+more archaic than any of those which we know from the
+primitive records of organised civil societies. The Agnatic
+Union of the kindred in ancient Roman law, and a multitude
+of similar indications, point to a period at which all the ramifying
+branches of the family tree held together in one organic
+whole; and it is no presumptuous conjecture, that, when
+the corporation thus formed by the kindred was in itself an
+independent society, it was governed by the eldest male of
+the oldest line. It is true that we have no actual knowledge
+of any such society. Even in the most elementary communities,
+family-organisations, as we know them, are at most
+<i>imperia in imperio</i>. But the position of some of them, of the
+Celtic clans in particular, was sufficiently near independence
+within historical times to force on us the conviction that they
+were once separate <i>imperia</i>, and that Primogeniture regulated
+the succession to the chieftainship. It is, however,
+necessary to be on our guard against modern associations
+with the term of law. We are speaking of a family-connection
+still closer and more stringent than any with which we are
+made acquainted by Hindoo society or ancient Roman law.
+If the Roman Paterfamilias was visibly steward of the family
+possessions, if the Hindoo father is only joint-sharer with his
+sons, still more emphatically must the true patriarchal chieftain
+be merely the administrator of a common fund.</p>
+
+<p>The examples of succession by Primogeniture which were
+found among the Benefices may, therefore, have been imitated
+from a system of family-government known to the invading
+races, though not in general use. Some ruder tribes may have
+still practised it, or, what is still more probable, society may
+have been so slightly removed from its more archaic condition
+that the minds of some men spontaneously recurred to it,
+when they were called upon to settle the rules of inheritance
+for a new form of property. But there is still the question,
+Why did Primogeniture gradually supersede every other
+principle of succession? The answer, I think, is, that European
+society decidedly retrograded during the dissolution of the
+Carlovingian empire. It sank a point or two back even from
+the miserably low degree which it had marked during the<span class='pagenum'><a name="Page_139" id="Page_139">139</a></span>
+early barbarian monarchies. The great characteristic of the
+period was the feebleness, or rather the abeyance, of kingly
+and therefore of civil authority; and hence it seems as if,
+civil society no longer cohering, men universally flung themselves
+back on a social organisation older than the beginnings
+of civil communities. The lord with his vassals, during the
+ninth and tenth centuries, may be considered as a patriarchal
+household, recruited, not as in the primitive times by Adoption,
+but by Infeudation; and to such a confederacy, succession
+by Primogeniture was a source of strength and durability.
+So long as the land was kept together on which the entire
+organisation rested, it was powerful for defence and attack;
+to divide the land was to divide the little society, and voluntarily
+to invite aggression in an era of universal violence. We
+may be perfectly certain that into this preference for Primogeniture
+there entered no idea of disinheriting the bulk of the
+children in favour of one. Everybody would have suffered by
+the division of the fief. Everybody was a gainer by its consolidation.
+The Family grew stronger by the concentration
+of power in the same hands; nor is it likely that the lord who
+was invested with the inheritance had any advantage over
+his brethren and kinsfolk in occupations, interests, or indulgences.
+It would be a singular anachronism to estimate the
+privileges succeeded to by the heir of a fief, by the situation
+in which the eldest son is placed under an English strict
+settlement.</p>
+
+<p>I have said that I regard the early feudal confederacies as
+descended from an archaic form of the Family, and as wearing
+a strong resemblance to it. But then in the ancient world, and
+in the societies which have not passed through the crucible of
+feudalism, the Primogeniture which seems to have prevailed
+never transformed itself into the Primogeniture of the later
+feudal Europe. When the group of kinsmen ceased to be
+governed through a series of generations by a hereditary chief,
+the domain which had been managed for all appears to have
+been equally divided among all. Why did this not occur in
+the feudal world? If during the confusions of the first feudal
+period the eldest son held the land for the behoof of the whole
+family, why was it that when feudal Europe had consolidated
+itself, and regular communities were again established, the
+whole family did not resume that capacity for equal inheritance
+which had belonged to Roman and German alike? The<span class='pagenum'><a name="Page_140" id="Page_140">140</a></span>
+key which unlocks this difficulty has rarely been seized by
+the writers who occupy themselves in tracing the genealogy of
+Feudalism. They perceive the materials of the feudal institutions,
+but they miss the cement. The ideas and social forms
+which contributed to the formation of the system were unquestionably
+barbarian and archaic, but, as soon as Courts
+and lawyers were called in to interpret and define it, the principles
+of interpretation which they applied to it were those of
+the latest Roman jurisprudence, and were therefore excessively
+refined and matured. In a patriarchally governed
+society, the eldest son may succeed to the government of the
+Agnatic group, and to the absolute disposal of its property.
+But he is not therefore a true proprietor. He has correlative
+duties not involved in the conception of proprietorship, but
+quite undefined and quite incapable of definition. The later
+Roman jurisprudence, however, like our own law, looked
+upon uncontrolled power over property as equivalent to
+ownership, and did not, and, in fact, could not, take notice
+of liabilities of such a kind, that the very conception of them
+belonged to a period anterior to regular law. The contact of
+the refined and the barbarous notion had inevitably for its
+effect the conversion of the eldest son into legal proprietor of
+the inheritance. The clerical and secular lawyers so defined
+his position from the first; but it was only by insensible
+degrees that the younger brother, from participating on equal
+terms in all the dangers and enjoyments of his kinsman, sank
+into the priest, the soldier of fortune, or the hanger-on of the
+mansion. The legal revolution was identical with that which
+occurred on a smaller scale, and in quite recent times, through
+the greater part of the Highlands of Scotland. When called
+in to determine the legal powers of the chieftain over the
+domains which gave sustenance to the clan, Scottish jurisprudence
+had long since passed the point at which it could
+take notice of the vague limitations on completeness of
+dominion imposed by the claims of the clansmen, and it was
+inevitable therefore that it should convert the patrimony of
+many into the estate of one.</p>
+
+<p>For the sake of simplicity I have called the mode of succession
+Primogeniture whenever a single son or descendant
+succeeds to the authority over a household or society. It is
+remarkable, however, that in the few very ancient examples
+which remain to us of this sort of succession, it is not always<span class='pagenum'><a name="Page_141" id="Page_141">141</a></span>
+the eldest son, in the sense familiar to us, who takes up the
+representation. The form of Primogeniture which has spread
+over Western Europe has also been perpetuated among the
+Hindoos, and there is every reason to believe that it is the
+normal form. Under it, not only the eldest son, but the eldest
+line is always preferred. If the eldest son fails, his eldest son
+has precedence not only over brothers but over uncles; and,
+if he too fails, the same rule is followed in the next generation.
+But when the succession is not merely to <i>civil</i> but to <i>political</i>
+power, a difficulty may present itself which will appear of
+greater magnitude according as the cohesion of society is less
+perfect. The chieftain who last exercised authority may have
+outlived his eldest son, and the grandson who is primarily
+entitled to succeed may be too young and immature to undertake
+the actual guidance of the community, and the administration
+of its affairs. In such an event, the expedient which
+suggests itself to the more settled societies is to place the
+infant heir under guardianship till he reaches the age of
+fitness for government. The guardianship is generally that
+of the male Agnates; but it is remarkable that the contingency
+supposed is one of the rare cases in which ancient
+societies have consented to the exercise of power by women,
+doubtless out of respect to the overshadowing claims of the
+mother. In India, the widow of a Hindoo sovereign governs in
+the name of her infant son, and we cannot but remember
+that the custom regulating succession to the throne of France&mdash;which,
+whatever be its origin, is doubtless of the highest
+antiquity&mdash;preferred the queen-mother to all other claimants
+for the Regency, at the same time that it rigorously excluded
+all females from the throne. There is, however, another mode
+of obviating the inconvenience attending the devolution of
+sovereignty on an infant heir, and it is one which would
+doubtless occur spontaneously to rudely organised communities.
+This is to set aside the infant heir altogether, and
+confer the chieftainship on the eldest surviving male of the
+first generation. The Celtic clan-associations, among the
+many phenomena which they have preserved of an age in
+which civil and political society were not yet even rudimentarily
+separated, have brought down this rule of succession
+to historical times. With them, it seems to have existed
+in the form of a positive canon, that, failing the eldest son, his
+next brother succeeds in priority to all grandsons, whatever<span class='pagenum'><a name="Page_142" id="Page_142">142</a></span>
+be their age at the moment when the sovereignty devolves.
+Some writers have explained the principle by assuming that
+the Celtic customs took the last chieftain as a sort of root or
+stock, and then gave the succession to the descendant who
+should be least remote from him; the uncle thus being preferred
+to the grandson as being nearer to the common root.
+No objection can be taken to this statement if it be merely
+intended as a description of the system of succession; but it
+would be a serious error to conceive the men who first adopted
+the rule as applying a course of reasoning which evidently
+dates from the time when feudal schemes of succession begun
+to be debated among lawyers. The true origin of the preference
+of the uncle to the grandson is doubtless a simple calculation
+on the part of rude men in a rude society that it is
+better to be governed by a grown chieftain than by a child,
+and that the younger son is more likely to have come to
+maturity than any of the eldest son's descendants. At the
+same time, we have some evidence that the form of Primogeniture
+with which we are best acquainted is the primary
+form, in the tradition that the assent of the clan was asked
+when an infant heir was passed over in favour of his uncle.
+There is a tolerably well authenticated instance of this ceremony
+in the annals of the Macdonalds.</p>
+
+<p>Under Mahometan law, which has probably preserved an
+ancient Arabian custom, inheritances of property are divided
+equally among sons, the daughters taking a half share; but
+if any of the children die before the division of the inheritance,
+leaving issue behind, these grandchildren are entirely excluded
+by their uncles and aunts. Consistently with this principle,
+the succession, when political authority devolves, is according
+to the form of Primogeniture which appears to have obtained
+among the Celtic societies. In the two great Mahometan
+families of the West, the rule is believed to be, that the uncle
+succeeds to the throne in preference to the nephew, though
+the latter be the son of an elder brother; but though this
+rule has been followed quite recently in Egypt, I am informed
+that there is some doubt as to its governing the devolution
+of the Turkish sovereignty. The policy of the Sultans has
+in fact hitherto prevented cases for its application from
+occurring, and it is possible that their wholesale massacres
+of their younger brothers may have been perpetuated quite
+as much in the interest of their children as for the sake of<span class='pagenum'><a name="Page_143" id="Page_143">143</a></span>
+making away with dangerous competitors for the throne.
+It is evident, however, that in polygamous societies the form
+of Primogeniture will always tend to vary. Many considerations
+may constitute a claim on the succession, the rank of
+the mother, for example, or her degree in the affections of
+the father. Accordingly, some of the Indian Mahometan
+sovereigns, without pretending to any distinct testamentary
+power, claim the right of nominating the son who is to succeed.
+The <i>blessing</i> mentioned in the Scriptural history of Isaac and
+his sons has sometimes been spoken of as a will, but it seems
+rather to have been a mode of naming an eldest son.<span class='pagenum'><a name="Page_144" id="Page_144">144</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_VIII" id="CHAPTER_VIII"></a>CHAPTER VIII</h3>
+
+<h4><span class="smcap">the early history of property</span></h4>
+
+
+<p>The Roman Institutional Treatises, after giving their definition
+of the various forms and modifications of ownership,
+proceed to discuss the Natural Modes of Acquiring Property.
+Those who are unfamiliar with the history of jurisprudence
+are not likely to look upon these "natural modes" of acquisition
+as possessing, at first sight, either much speculative or
+much practical interest. The wild animal which is snared or
+killed by the hunter, the soil which is added to our field by
+the imperceptible deposits of a river, the tree which strikes
+its roots into our ground, are each said by the Roman lawyers
+to be acquired by us <i>naturally</i>. The older jurisconsults had
+doubtless observed that such acquisitions were universally
+sanctioned by the usages of the little societies around them,
+and thus the lawyers of a later age, finding them classed in
+the ancient Jus Gentium, and perceiving them to be of the
+simplest description, allotted them a place among the ordinances
+of Nature. The dignity with which they were invested
+has gone on increasing in modern times till it is quite out of
+proportion to their original importance. Theory has made
+them its favourite food, and has enabled them to exercise
+the most serious influence on practice.</p>
+
+<p>It will be necessary for us to attend to one only among these
+"natural modes of acquisition," Occupatio or Occupancy.
+Occupancy is the advisedly taking possession of that which
+at the moment is the property of no man, with the view (adds
+the technical definition) of acquiring property in it for yourself.
+The objects which the Roman lawyers called <i>res nullius</i>&mdash;things
+which have not or have never had an owner&mdash;can
+only be ascertained by enumerating them. Among things
+which <i>never had</i> an owner are wild animals, fishes, wild fowl,
+jewels disinterred for the first time, and lands newly discovered
+or never before cultivated. Among things which <i>have not</i>
+an owner are moveables which have been abandoned, lands
+which have been deserted, and (an anomalous but most<span class='pagenum'><a name="Page_145" id="Page_145">145</a></span>
+formidable item) the property of an enemy. In all these
+objects the full rights of dominion were acquired by the
+<i>Occupant</i> who first took possession of them with the intention
+of keeping them as his own&mdash;an intention which, in certain
+cases, had to be manifested by specific acts. It is not difficult,
+I think, to understand the universality which caused the
+practice of Occupancy to be placed by one generation of
+Roman lawyers in the Law common to all Nations, and the
+simplicity which occasioned its being attributed by another
+to the Law of Nature. But for its fortunes in modern legal
+history we are less prepared by <i>&agrave; priori</i> considerations. The
+Roman principle of Occupancy, and the rules into which the
+jurisconsults expanded it, are the source of all modern International
+Law on the subject of Capture in War and of the
+acquisition of sovereign rights in newly discovered countries.
+They have also supplied a theory of the Origin of Property,
+which is at once the popular theory, and the theory which,
+in one form or another, is acquiesced in by the great majority
+of speculative jurists.</p>
+
+<p>I have said that the Roman principle of Occupancy has
+determined the tenor of that chapter of International Law
+which is concerned with Capture in War. The Law of Warlike
+Capture derives its rules from the assumption that communities
+are remitted to a state of nature by the outbreak
+of hostilities, and that, in the artificial natural condition
+thus produced, the institution of private property falls into
+abeyance so far as concerns the belligerents. As the later
+writers on the Law of Nature have always been anxious to
+maintain that private property was in some sense sanctioned
+by the system which they were expounding, the hypothesis
+that an enemy's property is <i>res nullius</i> has seemed to them
+perverse and shocking, and they are careful to stigmatise
+it as a mere fiction of jurisprudence. But, as soon as the
+Law of Nature is traced to its source in the Jus Gentium, we
+see at once how the goods of an enemy came to be looked upon
+as nobody's property, and therefore as capable of being
+acquired by the first occupant. The idea would occur
+spontaneously to persons practising the ancient forms of
+Warfare, when victory dissolved the organisation of the
+conquering army and dismissed the soldiers to indiscriminate
+plunder. It is probable, however, that originally it was only
+moveable property which was thus permitted to be acquired<span class='pagenum'><a name="Page_146" id="Page_146">146</a></span>
+by the Captor. We know on independent authority that a very
+different rule prevailed in ancient Italy as to the acquisition
+of ownership in the soil of a conquered country, and we may
+therefore suspect that the application of the principle of
+occupancy to land (always a matter of difficulty) dates from
+the period when the Jus Gentium was becoming the Code of
+Nature, and that it is the result of a generalisation effected
+by the jurisconsults of the golden age. Their dogmas on the
+point are preserved in the Pandects of Justinian, and amount
+to an unqualified assertion that enemy's property of every
+sort is <i>res nullius</i> to the other belligerent, and that Occupancy,
+by which the Captor makes them his own, is an institution
+of Natural Law. The rules which International jurisprudence
+derives from these positions have sometimes been stigmatised
+as needlessly indulgent to the ferocity and cupidity of combatants,
+but the charge has been made, I think, by persons
+who are unacquainted with the history of wars, and who are
+consequently ignorant how great an exploit it is to command
+obedience for a rule of any kind. The Roman principle of
+Occupancy, when it was admitted into the modern law of
+Capture in War, drew with it a number of subordinate canons,
+limiting and giving precision to its operation, and if the
+contests which have been waged since the treatise of Grotius
+became an authority, are compared with those of an earlier
+date, it will be seen that, as soon as the Roman maxims were
+received, Warfare instantly assumed a more tolerable complexion.
+If the Roman law of Occupancy is to be taxed with
+having had pernicious influence on any part of the modern
+Law of Nations, there is another chapter in it which may be
+said, with some reason, to have been injuriously affected.
+In applying to the discovery of new countries the same
+principles which the Romans had applied to the finding of
+a jewel, the Publicists forced into their service a doctrine
+altogether unequal to the task expected from it. Elevated
+into extreme importance by the discoveries of the great
+navigators of the fifteenth and sixteenth centuries, it raised
+more disputes than it solved. The greatest uncertainty was
+very shortly found to exist on the very two points on which
+certainty was most required, the extent of the territory which
+was acquired for his sovereign by the discoverer, and the
+nature of the acts which were necessary to complete the
+<i>adprehensio</i> or assumption of sovereign possession. Moreover,<span class='pagenum'><a name="Page_147" id="Page_147">147</a></span>
+the principle itself, conferring as it did such enormous
+advantages as the consequence of a piece of good luck, was
+instinctively mutinied against by some of the most adventurous
+nations in Europe, the Dutch, the English, and the Portuguese.
+Our own countrymen, without expressly denying
+the rule of International Law, never did, in practice, admit
+the claim of the Spaniards to engross the whole of America
+south of the Gulf of Mexico, or that of the King of France to
+monopolise the valleys of the Ohio and the Mississippi. From
+the accession of Elizabeth to the accession of Charles the
+Second, it cannot be said that there was at any time thorough
+peace in the American waters, and the encroachments of the
+New England Colonists on the territory of the French King
+continued for almost a century longer. Bentham was so
+struck with the confusion attending the application of the
+legal principle, that he went out of his way to eulogise the
+famous Bull of Pope Alexander the Sixth, dividing the undiscovered
+countries of the world between the Spaniards and
+Portuguese by a line drawn one hundred leagues West of
+the Azores; and, grotesque as his praises may appear at
+first sight, it may be doubted whether the arrangement of
+Pope Alexander is absurder in principle than the rule of
+Public law, which gave half a continent to the monarch whose
+servants had fulfilled the conditions required by Roman
+jurisprudence for the acquisition of property in a valuable
+object which could be covered by the hand.</p>
+
+<p>To all who pursue the inquiries which are the subject of
+this volume, Occupancy is pre-eminently interesting on the
+score of the service it has been made to perform for speculative
+jurisprudence, in furnishing a supposed explanation of the
+origin of private property. It was once universally believed
+that the proceeding implied in Occupancy was identical with
+the process by which the earth and its fruits, which were at
+first in common, became the allowed property of individuals.
+The course of thought which led to this assumption is not
+difficult to understand, if we seize the shade of difference
+which separates the ancient from the modern conception of
+Natural Law. The Roman lawyers had laid down that
+Occupancy was one of the Natural modes of acquiring
+property, and they undoubtedly believed that, were mankind
+living under the institutions of Nature, Occupancy would be
+one of their practices. How far they persuaded themselves<span class='pagenum'><a name="Page_148" id="Page_148">148</a></span>
+that such a condition of the race had ever existed, is a point,
+as I have already stated, which their language leaves in much
+uncertainty; but they certainly do seem to have made the
+conjecture, which has at all times possessed much plausibility,
+that the institution of property was not so old as the existence
+of mankind. Modern jurisprudence, accepting all their
+dogmas without reservation, went far beyond them in the
+eager curiosity with which it dwelt on the supposed state of
+Nature. Since then it had received the position that the
+earth and its fruits were once <i>res nullius</i>, and since its peculiar
+view of Nature led it to assume without hesitation that the
+human race had actually practised the Occupancy of <i>res
+nullius</i> long before the organisation of civil societies, the
+inference immediately suggested itself that Occupancy was
+the process by which the "no man's goods" of the primitive
+world became the private property of individuals in the world
+of history. It would be wearisome to enumerate the jurists
+who have subscribed to this theory in one shape or another,
+and it is the less necessary to attempt it because Blackstone,
+who is always a faithful index of the average opinions of
+his day, has summed them up in his 2nd book and 1st
+chapter.</p>
+
+<p>"The earth," he writes, "and all things therein were the
+general property of mankind from the immediate gift of the
+Creator. Not that the communion of goods seems ever to
+have been applicable, even in the earliest ages, to aught but
+the substance of the thing; nor could be extended to the use
+of it. For, by the law of nature and reason he who first
+began to use it acquired therein a kind of transient property
+that lasted so long as he was using it, and no longer; or to
+speak with greater precision, the right of possession continued
+for the same time only that the act of possession lasted.
+Thus the ground was in common, and no part was the permanent
+property of any man in particular; yet whoever was
+in the occupation of any determined spot of it, for rest, for
+shade, or the like, acquired for the time a sort of ownership,
+from which it would have been unjust and contrary to the
+law of nature to have driven him by force, but the instant
+that he quitted the use of occupation of it, another might
+seize it without injustice." He then proceeds to argue that
+"when mankind increased in number, it became necessary
+to entertain conceptions of more permanent dominion, and<span class='pagenum'><a name="Page_149" id="Page_149">149</a></span>
+to appropriate to individuals not the immediate use only, but
+the very substance of the thing to be used."</p>
+
+<p>Some ambiguities of expression in this passage lead to
+the suspicion that Blackstone did not quite understand the
+meaning of the proposition which he found in his authorities,
+that property in the earth's surface was first acquired, under
+the law of Nature, by the <i>occupant</i>; but the limitation which
+designedly or through misapprehension he has imposed on
+the theory brings it into a form which it has not infrequently
+assumed. Many writers more famous than Blackstone for
+precision of language have laid down that, in the beginning
+of things, Occupancy first gave a right against the world to
+an exclusive but temporary enjoyment, and that afterwards
+this right, while it remained exclusive, became perpetual.
+Their object in so stating their theory was to reconcile the
+doctrine that in the state of Nature <i>res nullius</i> became
+property through Occupancy, with the inference which they
+drew from the Scriptural history that the Patriarchs did not
+at first permanently appropriate the soil which had been
+grazed over by their flocks and herds.</p>
+
+<p>The only criticism which could be directly applied to the
+theory of Blackstone would consist in inquiring whether the
+circumstances which make up his picture of a primitive
+society are more or less probable than other incidents which
+could be imagined with equal readiness. Pursuing this
+method of examination, we might fairly ask whether the man
+who had <i>occupied</i> (Blackstone evidently uses this word with
+its ordinary English meaning) a particular spot of ground for
+rest or shade would be permitted to retain it without disturbance.
+The chances surely are that his right to possession
+would be exactly coextensive with his power to keep it, and
+that he would be constantly liable to disturbance by the first
+comer who coveted the spot and thought himself strong
+enough to drive away the possessor. But the truth is that
+all such cavil at these positions is perfectly idle from the very
+baselessness of the positions themselves. What mankind
+did in the primitive state may not be a hopeless subject of
+inquiry, but of their motives for doing it it is impossible to
+know anything. These sketches of the plight of human
+beings in the first ages of the world are effected by first supposing
+mankind to be divested of a great part of the circumstances
+by which they are now surrounded, and by then<span class='pagenum'><a name="Page_150" id="Page_150">150</a></span>
+assuming that, in the condition thus imagined, they would
+preserve the same sentiments and prejudices by which they
+are now actuated,&mdash;although, in fact, these sentiments may
+have been created and engendered by those very circumstances
+of which, by the hypothesis, they are to be stripped.</p>
+
+<p>There is an aphorism of Savigny which has been sometimes
+thought to countenance a view of the origin of property
+somewhat similar to the theories epitomised by Blackstone.
+The great German jurist has laid down that all Property is
+founded on Adverse Possession ripened by Prescription. It
+is only with respect to Roman law that Savigny makes this
+statement, and before it can fully be appreciated much labour
+must be expended in explaining and defining the expressions
+employed. His meaning will, however, be indicated with
+sufficient accuracy if we consider him to assert that, how far
+soever we carry our inquiry into the ideas of property received
+among the Romans, however closely we approach in tracing
+them to the infancy of law, we can get no farther than a conception
+of ownership involving the three elements in the canon&mdash;Possession,
+Adverseness of Possession, that is a holding
+not permissive or subordinate, but exclusive against the
+world, and Prescription, or a period of time during which the
+Adverse Possession has uninterruptedly continued. It is
+exceedingly probable that this maxim might be enunciated
+with more generality than was allowed to it by its author,
+and that no sound or safe conclusion can be looked for from
+investigations into any system of laws which are pushed
+farther back than the point at which these combined ideas
+constitute the notion of proprietary right. Meantime, so
+far from bearing out the popular theory of the origin of
+property, Savigny's canon is particularly valuable as directing
+our attention to its weakest point. In the view of Blackstone
+and those whom he follows, it was the mode of assuming
+the exclusive enjoyment which mysteriously affected the
+minds of the fathers of our race. But the mystery does not
+reside here. It is not wonderful that property began in
+adverse possession. It is not surprising that the first proprietor
+should have been the strong man armed who kept his
+goods in peace. But why it was that lapse of time created
+a sentiment of respect for his possession&mdash;which is the exact
+source of the universal reverence of mankind for that which
+has for a long period <i>de facto</i> existed&mdash;are questions really<span class='pagenum'><a name="Page_151" id="Page_151">151</a></span>
+deserving the profoundest examination, but lying far beyond
+the boundary of our present inquiries.</p>
+
+<p>Before pointing out the quarter in which we may hope to
+glean some information, scanty and uncertain at best, concerning
+the early history of proprietary right, I venture to
+state my opinion that the popular impression in reference to
+the part played by Occupancy in the first stages of civilisation
+directly reverses the truth. Occupancy is the advised assumption
+of physical possession; and the notion that an act of this
+description confers a title to "res nullius," so far from being
+characteristic of very early societies, is in all probability the
+growth of a refined jurisprudence and of a settled condition
+of the laws. It is only when the rights of property have
+gained a sanction from long practical inviolability and when
+the vast majority of the objects of enjoyment have been
+subjected to private ownership, that mere possession is
+allowed to invest the first possessor with dominion over commodities
+in which no prior proprietorship has been asserted.
+The sentiment in which this doctrine originated is absolutely
+irreconcilable with that infrequency and uncertainty of proprietary
+rights which distinguish the beginnings of civilisation.
+Its true basis seems to be, not an instinctive bias towards
+the institution of Property, but a presumption arising out
+of the long continuance of that institution, that <i>everything
+ought to have an owner</i>. When possession is taken of a "res
+nullius," that is, of an object which <i>is</i> not, or has <i>never</i> been,
+reduced to dominion, the possessor is permitted to become
+proprietor from a feeling that all valuable things are naturally
+the subjects of an exclusive enjoyment, and that in the given
+case there is no one to invest with the right of property except
+the Occupant. The Occupant in short, becomes the owner,
+because all things are presumed to be somebody's property
+and because no one can be pointed out as having a better
+right than he to the proprietorship of this particular thing.</p>
+
+<p>Even were there no other objection to the descriptions of
+mankind in their natural state which we have been discussing,
+there is one particular in which they are fatally at variance
+with the authentic evidence possessed by us. It will be observed
+that the acts and motives which these theories suppose are
+the acts and motives of Individuals. It is each Individual
+who for himself subscribes the Social Compact. It is some
+shifting sandbank in which the grains are Individual men,<span class='pagenum'><a name="Page_152" id="Page_152">152</a></span>
+that according to the theory of Hobbes is hardened into the
+social rock by the wholesome discipline of force. It is an
+Individual who, in the picture drawn by Blackstone, "is in
+the occupation of a determined spot of ground for rest, for
+shade, or the like." The vice is one which necessarily afflicts
+all the theories descended from the Natural Law of the
+Romans, which differed principally from their Civil Law
+in the account which it took of Individuals, and which
+has rendered precisely its greatest service to civilisation in
+enfranchising the individual from the authority of archaic
+society. But Ancient Law, it must again be repeated, knows
+next to nothing of Individuals. It is concerned not with
+Individuals, but with Families, not with single human beings,
+but groups. Even when the law of the State has succeeded
+in permeating the small circles of kindred into which it had
+originally no means of penetrating, the view it takes of Individuals
+is curiously different from that taken by jurisprudence
+in its maturest stage. The life of each citizen is not regarded
+as limited by birth and death; it is but a continuation of the
+existence of his forefathers, and it will be prolonged in the
+existence of his descendants.</p>
+
+<p>The Roman distinction between the Law of Persons and
+the Law of Things, which though extremely convenient is
+entirely artificial, has evidently done much to divert inquiry
+on the subject before us from the true direction. The lessons
+learned in discussing the Jus Personarum have been forgotten
+where the Jus Rerum is reached, and Property, Contract, and
+Delict, have been considered as if no hints concerning their
+original nature were to be gained from the facts ascertained
+respecting the original condition of Persons. The futility
+of this method would be manifest if a system of pure archaic
+law could be brought before us, and if the experiment could
+be tried of applying to it the Roman classifications. It would
+soon be seen that the separation of the Law of Persons from
+that of Things has no meaning in the infancy of law, that the
+rules belonging to the two departments are inextricably
+mingled together, and that the distinctions of the later jurists
+are appropriate only to the later jurisprudence. From what
+has been said in the earlier portions of this treatise, it will be
+gathered that there is a strong <i>&agrave; priori</i> improbability of our
+obtaining any clue to the early history of property, if we
+confine our notice to the proprietary rights of individuals. It<span class='pagenum'><a name="Page_153" id="Page_153">153</a></span>
+is more than likely that joint-ownership, and not separate
+ownership, is the really archaic institution, and that the
+forms of property which will afford us instruction will be
+those which are associated with the rights of families and of
+groups of kindred. The Roman jurisprudence will not here
+assist in enlightening us, for it is exactly the Roman jurisprudence
+which, transformed by the theory of Natural Law,
+has bequeathed to the moderns the impression that individual
+ownership is the normal state of proprietary right, and that
+ownership in common by groups of men is only the exception
+to a general rule. There is, however, one community which
+will always be carefully examined by the inquirer who is in
+quest of any lost institution of primeval society. How far
+soever any such institution may have undergone change
+among the branch of the Indo-European family which has
+been settled for ages in India, it will seldom be found to have
+entirely cast aside the shell in which it was originally reared.
+It happens that, among the Hindoos, we do find a form of
+ownership which ought at once to rivet our attention from
+its exactly fitting in with the ideas which our studies in the
+Law of Persons would lead us to entertain respecting the
+original condition of property. The Village Community
+of India is at once an organised patriarchal society and
+an assemblage of co-proprietors. The personal relations to
+each other of the men who compose it are indistinguishably
+confounded with their proprietary rights, and to the attempts
+of English functionaries to separate the two may be assigned
+some of the most formidable miscarriages of Anglo-Indian
+administration. The Village Community is known to be of
+immense antiquity. In whatever direction research has been
+pushed into Indian history, general or local, it has always
+found the Community in existence at the farthest point of
+its progress. A great number of intelligent and observant
+writers, most of whom had no theory of any sort to support
+concerning its nature and origin, agree in considering it the
+least destructible institution of a society which never willingly
+surrenders any one of its usages to innovation. Conquests
+and revolutions seem to have swept over it without disturbing
+or displacing it, and the most beneficent systems of government
+in India have always been those which have recognised
+it as the basis of administration.</p>
+
+<p>The mature Roman law, and modern jurisprudence follow<span class='pagenum'><a name="Page_154" id="Page_154">154</a></span>ing
+in its wake, look upon co-ownership as an exceptional
+and momentary condition of the rights of property. This
+view is clearly indicated in the maxim which obtains universally
+in Western Europe, <i>Nemo in communione potest
+invitus detineri</i> ("No one can be kept in co-proprietorship
+against his will"). But in India this order of ideas is reversed,
+and it may be said that separate proprietorship is
+always on its way to become proprietorship in common. The
+process has been adverted to already. As soon as a son is
+born, he acquires a vested interest in his father's substance,
+and on attaining years of discretion he is even, in certain
+contingencies, permitted by the letter of the law to call for a
+partition of the family estate. As a fact, however, a division
+rarely takes place even at the death of the father, and the
+property constantly remains undivided for several generations,
+though every member of every generation has a legal
+right to an undivided share in it. The domain thus held
+in common is sometimes administered by an elected manager,
+but more generally, and in some provinces always, it is managed
+by the eldest agnate, by the eldest representative of
+the eldest line of the stock. Such an assemblage of joint
+proprietors, a body of kindred holding a domain in common,
+is the simplest form of an Indian Village Community, but the
+Community is more than a brotherhood of relatives and more
+than an association of partners. It is an organised society,
+and besides providing for the management of the common
+fund, it seldom fails to provide, by a complete staff of functionaries,
+for internal government, for police, for the administration
+of justice, and for the apportionment of taxes and
+public duties.</p>
+
+<p>The process which I have described as that under which
+a Village Community is formed, may be regarded as typical.
+Yet it is not to be supposed that every Village Community
+in India drew together in so simple a manner. Although,
+in the North of India, the archives, as I am informed, almost
+invariably show that the Community was founded by a single
+assemblage of blood-relations, they also supply information
+that men of alien extraction have always, from time to time,
+been engrafted on it, and a mere purchaser of a share may
+generally, under certain conditions, be admitted to the
+brotherhood. In the South of the Peninsula there are often
+Communities which appear to have sprung not from one but<span class='pagenum'><a name="Page_155" id="Page_155">155</a></span>
+from two or more families; and there are some whose composition
+is known to be entirely artificial; indeed, the occasional
+aggregation of men of different castes in the same society is
+fatal to the hypothesis of a common descent. Yet in all
+these brotherhoods either the tradition is preserved, or the
+assumption made, of an original common parentage. Mountstuart
+Elphinstone, who writes more particularly of the
+Southern Village Communities, observes of them (<i>History
+of India</i>, i. 126): "The popular notion is that the Village
+landholders are all descended from one or more individuals
+who settled the village; and that the only exceptions are
+formed by persons who have derived their rights by purchase
+or otherwise from members of the original stock. The
+supposition is confirmed by the fact that, to this day, there
+are only single families of landholders in small villages and
+not many in large ones; but each has branched out into so
+many members that it is not uncommon for the whole agricultural
+labour to be done by the landholders, without the
+aid either of tenants or of labourers. The rights of the
+landholders are theirs collectively and, though they almost
+always have a more or less perfect partition of them, they
+never have an entire separation. A landholder, for instance,
+can sell or mortgage his rights; but he must first have the
+consent of the Village, and the purchaser steps exactly into
+his place and takes up all his obligations. If a family becomes
+extinct, its share returns to the common stock."</p>
+
+<p>Some considerations which have been offered in the fifth
+chapter of this volume will assist the reader, I trust, in
+appreciating the significance of Elphinstone's language. No
+institution of the primitive world is likely to have been preserved
+to our day, unless it has acquired an elasticity foreign
+to its original nature through some vivifying legal fiction.
+The Village Community then is not necessarily an assemblage
+of blood-relations, but it is <i>either</i> such an assemblage <i>or</i> a
+body of co-proprietors formed on the model of an association
+of kinsmen. The type with which it should be compared
+is evidently not the Roman Family, but the Roman Gens or
+House. The Gens was also a group on the model of the
+family; it was the family extended by a variety of fictions
+of which the exact nature was lost in antiquity. In historical
+times, its leading characteristics were the very two which
+Elphinstone remarks in the Village Community. There was<span class='pagenum'><a name="Page_156" id="Page_156">156</a></span>
+always the assumption of a common origin, an assumption
+sometimes notoriously at variance with fact; and, to repeat
+the historian's words, "if a family became extinct, its share
+returned to the common stock." In old Roman law, unclaimed
+inheritances escheated to the Gentiles. It is further
+suspected by all who have examined their history that the
+Communities, like the Gentes, have been very generally
+adulterated by the admission of strangers, but the exact
+mode of absorption cannot now be ascertained. At present,
+they are recruited, as Elphinstone tells us, by the admission
+of purchasers, with the consent of the brotherhood. The
+acquisition of the adopted member is, however, of the nature
+of a universal succession; together with the share he has
+bought, he succeeds to the liabilities which the vendor had
+incurred towards the aggregate group. He is an Emptor
+Famili&aelig;, and inherits the legal clothing of the person whose
+place he begins to fill. The consent of the whole brotherhood
+required for his admission may remind us of the consent
+which the Comitia Curiata, the Parliament of that larger
+brotherhood of self-styled kinsmen, the ancient Roman
+commonwealth, so strenuously insisted on as essential to the
+legalisation of an Adoption or the confirmation of a Will.</p>
+
+<p>The tokens of an extreme antiquity are discoverable in
+almost every single feature of the Indian Village Communities.
+We have so many independent reasons for suspecting that
+the infancy of law is distinguished by the prevalence of co-ownership
+by the intermixture of personal with proprietary
+rights, and by the confusion of public with private duties,
+that we should be justified in deducing many important
+conclusions from our observation of these proprietary
+brotherhoods, even if no similarly compounded societies
+could be detected in any other part of the world. It happens,
+however, that much earnest curiosity has been very recently
+attracted to a similar set of phenomena in those parts of
+Europe which have been most slightly affected by the feudal
+transformation of property, and which in many important
+particulars have as close an affinity with the Eastern as with
+the Western world. The researches of M. de Haxthausen,
+M. Tengoborski, and others, have shown us that the Russian
+villages are not fortuitous assemblages of men, nor are they
+unions founded on contract; they are naturally organised
+communities like those of India. It is true that these villages<span class='pagenum'><a name="Page_157" id="Page_157">157</a></span>
+are always in theory the patrimony of some noble proprietor
+and the peasants have within historical times been converted
+into the predial, and to a great extent into the personal, serfs
+of the seignior. But the pressure of this superior ownership
+has never crushed the ancient organisation of the village, and
+it is probable that the enactment of the Czar of Russia, who
+is supposed to have introduced serfdom, was really intended
+to prevent the peasants from abandoning that co-operation
+without which the old social order could not long be maintained.
+In the assumption of an agnatic connection between
+the villagers, in the blending of personal rights with privileges
+of ownership, and in a variety of spontaneous provisions for
+internal administration, the Russian Village appears to be
+a nearly exact repetition of the Indian Community; but there
+is one important difference which we note with the greatest
+interest. The co-owners of an Indian village, though their
+property is blended, have their rights distinct, and this
+separation of rights is complete and continues indefinitely.
+The severance of rights is also theoretically complete in a
+Russian village, but there it is only temporary. After the
+expiration of a given, but not in all cases of the same, period
+separate ownerships are extinguished, the land of the village
+is thrown into a mass, and then it is re-distributed among
+the families composing the community, according to their
+number. This repartition having been effected, the rights of
+families and of individuals are again allowed to branch out
+into various lines, which they continue to follow till another
+period of division comes round. An even more curious
+variation from this type of ownership occurs in some of those
+countries which long formed a debateable land between the
+Turkish empire and the possessions of the House of Austria.
+In Servia, in Croatia, and the Austrian Sclavonia, the villages
+are also brotherhoods of persons who are at once co-owners
+and kinsmen; but there the internal arrangements of the
+community differ from those adverted to in the last two
+examples. The substance of the common property is in this
+case neither divided in practice nor considered in theory as
+divisible, but the entire land is cultivated by the combined
+labour of all the villagers, and the produce is annually distributed
+among the households, sometimes according to their
+supposed wants, sometimes according to rules which give
+to particular persons a fixed share of the usufruct. All these<span class='pagenum'><a name="Page_158" id="Page_158">158</a></span>
+practices are traced by the jurists of the East of Europe to
+a principle which is asserted to be found in the earliest
+Sclavonian laws, the principle that the property of families
+cannot be divided for a perpetuity.</p>
+
+<p>The great interest of these phenomena in an inquiry like
+the present arises from the light they throw on the development
+of distinct proprietary rights <i>inside</i> the groups by which
+property seems to have been originally held. We have the
+strongest reason for thinking that property once belonged
+not to individuals nor even to isolated families, but to larger
+societies composed on the patriarchal model; but the mode
+of transition from ancient to modern ownerships, obscure
+at best, would have been infinitely obscurer if several distinguishable
+forms of Village Communities had not been discovered
+and examined. It is worth while to attend to the
+varieties of internal arrangement within the patriarchal
+groups which are, or were till recently, observable among
+races of Indo-European blood. The chiefs of the ruder
+Highland clans used, it is said, to dole out food to the heads
+of the households under their jurisdiction at the very shortest
+intervals, and sometimes day by day. A periodical distribution
+is also made to the Sclavonian villagers of the Austrian
+and Turkish provinces by the elders of their body, but then
+it is a distribution once for all of the total produce of the year.
+In the Russian villages, however, the substance of the property
+ceases to be looked upon as indivisible, and separate
+proprietary claims are allowed freely to grow up, but then the
+progress of separation is peremptorily arrested after it has
+continued a certain time. In India, not only is there no
+indivisibility of the common fund, but separate proprietorship
+in parts of it may be indefinitely prolonged and may
+branch out into any number of derivative ownerships, the
+<i>de facto</i> partition of the stock being, however, checked by
+inveterate usage, and by the rule against the admission of
+strangers without the consent of the brotherhood. It is not
+of course intended to insist that these different forms of
+the Village Community represent distinct stages in a process
+of transmutation which has been everywhere accomplished
+in the same manner. But, though the evidence does not
+warrant our going so far as this, it renders less presumptuous
+the conjecture that private property, in the shape in which
+we know it, was chiefly formed by the gradual disentanglement<span class='pagenum'><a name="Page_159" id="Page_159">159</a></span>
+of the separate rights of individuals from the blended
+rights of a community. Our studies in the Law of Persons
+seemed to show us the Family expanding into the Agnatic
+group of kinsmen, then the Agnatic group dissolving into
+separate households; lastly the household supplanted by the
+individual; and it is now suggested that each step in the
+change corresponds to an analogous alteration in the nature
+of Ownership. If there be any truth in the suggestion, it is
+to be observed that it materially affects the problem which
+theorists on the origin of Property have generally proposed
+to themselves. The question&mdash;perhaps an insoluble one&mdash;which
+they have mostly agitated is, what were the motives
+which first induced men to respect each other's possessions?
+It may still be put, without much hope of finding an answer to
+it, in the form of any inquiry into the reasons which led one
+composite group to keep aloof from the domain of another.
+But, if it be true that far the most important passage in the
+history of Private Property is its gradual elimination from
+the co-ownership of kinsmen, then the great point of inquiry
+is identical with that which lies on the threshold of all
+historical law&mdash;what were the motives which originally
+prompted men to hold together in the family union? To
+such a question, Jurisprudence, unassisted by other sciences,
+is not competent to give a reply. The fact can only be
+noted.</p>
+
+<p>The undivided state of property in ancient societies is
+consistent with a peculiar sharpness of division, which shows
+itself as soon as any single share is completely separated from
+the patrimony of the group. This phenomenon springs, doubtless,
+from the circumstance that the property is supposed to
+become the domain of a new group, so that any dealing with
+it, in its divided state, is a transaction between two highly
+complex bodies. I have already compared Ancient Law to
+Modern International Law, in respect of the size and complexity
+of the corporate associations, whose rights and duties
+it settles. As the contracts and conveyances known to ancient
+law are contracts and conveyances to which not single individuals,
+but organised companies of men, are parties, they
+are in the highest degree ceremonious; they require a variety
+of symbolical acts and words intended to impress the business
+on the memory of all who take part in it; and they demand
+the presence of an inordinate number of witnesses. From these<span class='pagenum'><a name="Page_160" id="Page_160">160</a></span>
+peculiarities, and others allied to them, springs the universally
+unmalleable character of the ancient forms of property.
+Sometimes the patrimony of the family is absolutely inalienable,
+as was the case with the Sclavonians, and still oftener,
+though alienations may not be entirely illegitimate, they are
+virtually impracticable, as among most of the Germanic
+tribes, from the necessity of having the consent of a large
+number of persons to the transfer. Where these impediments
+do not exist, or can be surmounted, the act of conveyance
+itself is generally burdened with a perfect load of ceremony,
+in which not one iota can be safely neglected. Ancient law
+uniformly refuses to dispense with a single gesture, however
+grotesque; with a single syllable, however its meaning may
+have been forgotten; with a single witness, however superfluous
+may be his testimony. The entire solemnities must be
+scrupulously completed by persons legally entitled to take
+part in them, or else the conveyance is null, and the seller is
+re-established in the rights of which he had vainly attempted
+to divest himself.</p>
+
+<p>These various obstacles to the free circulation of the
+objects of use and enjoyment, begin of course to make themselves
+felt as soon as society has acquired even a slight degree
+of activity, and the expedients by which advancing communities
+endeavour to overcome them form the staple of the
+history of Property. Of such expedients there is one which
+takes precedence of the rest from its antiquity and universality.
+The idea seems to have spontaneously suggested itself to a
+great number of early societies, to classify property into kinds.
+One kind or sort of property is placed on a lower footing of
+dignity than the others, but at the same time is relieved from
+the fetters which antiquity has imposed on them. Subsequently,
+the superior convenience of the rules governing the
+transfer and descent of the lower order of property becomes
+generally recognised, and by a gradual course of innovation
+the plasticity of the less dignified class of valuable objects is
+communicated to the classes which stand conventionally
+higher. The history of Roman Property Law is the history
+of the assimilation of Res Mancipi to Res Nec Mancipi. The
+history of Property on the European Continent is the history
+of the subversion of the feudalised law of land by the
+Romanised law of moveables; and, though the history of
+ownership in England is not nearly completed, it is visibly<span class='pagenum'><a name="Page_161" id="Page_161">161</a></span>
+the law of personalty which threatens to absorb and annihilate
+the law of realty.</p>
+
+<p>The only <i>natural</i> classification of the objects of enjoyment,
+the only classification which corresponds with an essential
+difference in the subject-matter, is that which divides them
+into Moveables and Immoveables. Familiar as is this classification
+to jurisprudence, it was very slowly developed by
+Roman law, from which we inherit it, and was only finally
+adopted by it in its latest stage. The classifications of Ancient
+Law have sometimes a superficial resemblance to this. They
+occasionally divide property into categories, and place immoveables
+in one of them; but then it is found that they
+either class along with immoveables a number of objects
+which have no sort of relation with them, or else divorce them
+from various rights to which they have a close affinity. Thus,
+the Res Mancipi of Roman Law included not only land, but
+slaves, horses, and oxen. Scottish law ranks with land a
+certain class of securities, and Hindoo law associates it with
+slaves. English law, on the other hand, parts leases of land
+for years from other interests in the soil, and joins them to
+personalty under the name of chattels real. Moreover, the
+classifications of Ancient Law are classifications implying
+superiority and inferiority; while the distinction between
+moveables and immoveables, so long at least as it was confined
+to Roman jurisprudence, carried with it no suggestion
+whatever of a difference in dignity. The Res Mancipi, however,
+did certainly at first enjoy a precedence over the Res
+Nec Mancipi, as did heritable property in Scotland and realty
+in England, over the personalty to which they were opposed.
+The lawyers of all systems have spared no pains in striving
+to refer these classifications to some intelligible principle; but
+the reasons of the severance must ever be vainly sought for
+in the philosophy of law: they belong not to its philosophy,
+but to its history. The explanation which appears to cover
+the greatest number of instances is, that the objects of enjoyment
+honoured above the rest were the forms of property
+known first and earliest to each particular community, and
+dignified therefore emphatically with the designation of
+<i>Property</i>. On the other hand, the articles not enumerated
+among the favoured objects seem to have been placed on a
+lower standing, because the knowledge of their value was
+posterior to the epoch at which the catalogue of superior<span class='pagenum'><a name="Page_162" id="Page_162">162</a></span>
+property was settled. They were at first unknown, rare,
+limited in their uses, or else regarded as mere appendages to
+the privileged objects. Thus, though the Roman Res Mancipi
+included a number of moveable articles of great value, still
+the most costly jewels were never allowed to take rank as
+Res Mancipi, because they were unknown to the early Romans.
+In the same way chattels real in England are said to have
+been degraded to the footing of personalty, from the infrequency
+and valuelessness of such estates under the feudal
+land-law. But the grand point of interest is, the continued
+degradation of these commodities when their importance
+had increased and their number had multiplied. Why were
+they not successively included among the favoured objects of
+enjoyment? One reason is found in the stubbornness with
+which Ancient Law adheres to its classifications. It is a characteristic
+both of uneducated minds and of early societies,
+that they are little able to conceive a general rule apart from
+the particular applications of it with which they are practically
+familiar. They cannot dissociate a general term or
+maxim from the special examples which meet them in daily
+experience; and in this way the designation covering the
+best-known forms of property is denied to articles which
+exactly resemble them in being objects of enjoyment and
+subjects of right. But to these influences, which exert peculiar
+force in a subject-matter so stable as that of law, are afterwards
+added others more consistent with progress in enlightenment
+and in the conceptions of general expediency.
+Courts and lawyers become at last alive to the inconvenience
+of the embarrassing formalities required for the transfer,
+recovery, or devolution of the favoured commodities, and
+grow unwilling to fetter the newer descriptions of property
+with the technical trammels which characterised the infancy
+of law. Hence arises a disposition to keep these last on a
+lower grade in the arrangements of Jurisprudence, and to
+permit their transfer by simpler processes than those which,
+in archaic conveyances, serve as stumbling-blocks to good
+faith and stepping-stones to fraud. We are perhaps in some
+danger of underrating the inconveniences of the ancient
+modes of transfer. Our instruments of conveyance are
+written, so that their language, well pondered by the professional
+draftsman, is rarely defective in accuracy. But an
+ancient conveyance was not written, but <i>acted</i>. Gestures and<span class='pagenum'><a name="Page_163" id="Page_163">163</a></span>
+words took the place of written technical phraseology, and
+any formula mispronounced, or symbolical act omitted,
+would have vitiated the proceeding as fatally as a material
+mistake in stating the uses or setting out the remainders
+would, two hundred years ago, have vitiated an English deed.
+Indeed, the mischiefs of the archaic ceremonial are even thus
+only half stated. So long as elaborate conveyances, written
+or acted, are required for the alienation of <i>land</i> alone, the
+chances of mistake are not considerable in the transfer of a
+description of property which is seldom got rid of with much
+precipitation. But the higher class of property in the ancient
+world comprised not only land but several of the commonest
+and several of the most valuable moveables. When once the
+wheels of society had begun to move quickly, there must
+have been immense inconvenience in demanding a highly
+intricate form of transfer for a horse or an ox, or for the most
+costly chattel of the old world&mdash;the Slave. Such commodities
+must have been constantly and even ordinarily conveyed
+with incomplete forms, and held, therefore, under imperfect
+titles.</p>
+
+<p>The Res Mancipi of old Roman law were land&mdash;in historical
+times, land on Italian soil,&mdash;slaves and beasts of burden, such
+as horses and oxen. It is impossible to doubt that the objects
+which make up the class are the instruments of agricultural
+labour, the commodities of first consequence to a primitive
+people. Such commodities were at first, I imagine, called
+emphatically Things or Property, and the mode of conveyance
+by which they were transferred was called a Mancipium or
+Mancipation; but it was not probably till much later that
+they received the distinctive appellation of Res Mancipi,
+"Things which require a Mancipation." By their side there
+may have existed or grown up a class of objects, for which it
+was not worth while to insist upon the full ceremony of
+Mancipation. It would be enough if, in transferring these last
+from owner to owner, a part only of the ordinary formalities
+were proceeded with, namely, that actual delivery, physical
+transfer, or <i>tradition</i>, which is the most obvious index of a
+change of proprietorship. Such commodities were the Res
+Nec Mancipi of the ancient jurisprudence, "things which did
+not require a Mancipation," little prized probably at first,
+and not often passed from one group of proprietors to another,
+While, however, the list of the Res Mancipi was irrevocably<span class='pagenum'><a name="Page_164" id="Page_164">164</a></span>
+closed; that of the Res Nec Mancipi admitted of indefinite
+expansion; and hence every fresh conquest of man over
+material nature added an item to the Res Nec Mancipi,
+or effected an improvement in those already recognised.
+Insensibly, therefore, they mounted to an equality
+with the Res Mancipi, and the impression of an intrinsic
+inferiority being thus dissipated, men began to observe the
+manifold advantages of the simple formality which accompanied
+their transfer over the more intricate and more
+venerable ceremonial. Two of the agents of legal amelioration,
+Fictions and Equity, were assiduously employed by the
+Roman lawyers to give the practical effects of a Mancipation
+to a Tradition: and, though Roman legislators long shrank
+from enacting that the right of property in a Res Mancipi
+should be immediately transferred by bare delivery of the
+article, yet even this step was at last ventured upon by
+Justinian, in whose jurisprudence the difference between
+Res Mancipi and Res Nec Mancipi disappears, and Tradition
+or Delivery becomes the one great conveyance known to the
+law. The marked preference which the Roman lawyers very
+early gave to Tradition caused them to assign it a place in
+their theory which has helped to blind their modern disciples
+to its true history. It was classed among the "natural"
+modes of acquisition, both because it was generally practised
+among the Italian tribes, and because it was a process which
+attained its object by the simplest mechanism. If the expressions
+of the jurisconsults be pressed, they undoubtedly imply
+that Tradition, which belongs to the Law Natural, is more
+ancient than Mancipation, which is an institution of Civil
+Society; and this, I need not say, is the exact reverse of the
+truth.</p>
+
+<p>The distinction between Res Mancipi and Res Nec Mancipi
+is the type of a class of distinctions to which civilisation is
+much indebted, distinctions which run through the whole
+mass of commodities, placing a few of them in a class by
+themselves, and relegating the others to a lower category.
+The inferior kinds of property are first, from disdain and disregard,
+released from the perplexed ceremonies in which
+primitive law delights, and thus afterwards, in another state
+of intellectual progress, the simple methods of transfer and
+recovery which have been allowed to come into use serve as a
+model which condemns by its convenience and simplicity the<span class='pagenum'><a name="Page_165" id="Page_165">165</a></span>
+cumbrous solemnities inherited from ancient days. But, in
+some societies, the trammels in which Property is tied up are
+much too complicated and stringent to be relaxed in so easy
+a manner. Whenever male children have been born to a
+Hindoo, the law of India, as I have stated, gives them all an
+interest in his property, and makes their consent a necessary
+condition of its alienation. In the same spirit, the general
+usage of the old Germanic peoples&mdash;it is remarkable that the
+Anglo-Saxon customs seem to have been an exception&mdash;forbade
+alienations without the consent of the male children;
+and the primitive law of the Sclavonians even prohibited
+them altogether. It is evident that such impediments as these
+cannot be overcome by a distinction between kinds of property,
+inasmuch as the difficulty extends to commodities of
+all sorts; and accordingly, Ancient Law, when once launched
+on a course of improvement, encounters them with a distinction
+of another character, a distinction classifying property,
+not according to its nature but according to its origin.
+In India, where there are traces of both systems of classification,
+the one which we are considering is exemplified in the
+difference which Hindoo law establishes between Inheritances
+and Acquisitions. The inherited property of the father is
+shared by the children as soon as they are born; but according
+to the custom of most provinces, the acquisitions made
+by him during his lifetime are wholly his own, and can be
+transferred by him at pleasure. A similar distinction was not
+unknown to Roman law, in which the earliest innovation on
+the Parental Powers took the form of a permission given to
+the son to keep for himself whatever he might have acquired
+in military service. But the most extensive use ever made
+of this mode of classification appears to have been among the
+Germans. I have repeatedly stated that the <i>allod</i>, though not
+inalienable, was commonly transferable with the greatest
+difficulty; and moreover, it descended exclusively to the
+agnatic kindred. Hence an extraordinary variety of distinctions
+came to be recognised, all intended to diminish the inconveniences
+inseparable from allodial property. The <i>wehrgeld</i>,
+for example, or composition for the homicide of a relative,
+which occupies so large a space in German jurisprudence,
+formed no part of the family domain, and descended according
+to rules of succession altogether different. Similarly, the
+<i>reipus</i>, or fine leviable on the re-marriage of a widow, did not<span class='pagenum'><a name="Page_166" id="Page_166">166</a></span>
+enter into the <i>allod</i> of the person to whom it was paid, and
+followed a line of devolution in which the privileges of the
+agnates were neglected. The law, too, as among the Hindoos,
+distinguished the Acquisitions of the chief of the household
+from his Inherited property, and permitted him to deal with
+them under much more liberal conditions. Classifications of
+the other sort were also admitted, and the familiar distinction
+drawn between land and moveables; but moveable property
+was divided into several subordinate categories, to each of
+which different rules applied. This exuberance of classification,
+which may strike us as strange in so rude a people as the
+German conquerors of the Empire, is doubtless to be explained
+by the presence in their systems of a considerable element
+of Roman law, absorbed by them during their long sojourn
+on the confines of the Roman dominion. It is not difficult to
+trace a great number of the rules governing the transfer and
+devolution of the commodities which lay outside the <i>allod</i>,
+to their source in Roman jurisprudence, from which they were
+probably borrowed at widely distant epochs, and in fragmentary
+importations. How far the obstacles to the free
+circulation of property were surmounted by such contrivances,
+we have not the means even of conjecturing, for the distinctions
+adverted to have no modern history. As I before explained,
+the allodial form of property was entirely lost in the
+feudal, and when the consolidation of feudalism was once
+completed, there was practically but one distinction left
+standing of all those which had been known to the western
+world&mdash;the distinction between land and goods, immoveables
+and moveables. Externally this distinction was the
+same with that which Roman law had finally accepted, but
+the law of the middle ages differed from that of Rome in
+distinctly considering immoveable property to be more
+dignified than moveable. Yet this one sample is enough to
+show the importance of the class of expedients to which it
+belongs. In all the countries governed by systems based on
+the French codes, that is, through much the greatest part of
+the Continent of Europe, the law of moveables, which was
+always Roman law, has superseded and annulled the feudal
+law of land. England is the only country of importance in
+which this transmutation, though it has gone some way, is
+not nearly accomplished. Our own, too, it may be added, is
+the only considerable European country in which the separation<span class='pagenum'><a name="Page_167" id="Page_167">167</a></span>
+of moveables from immoveables has been somewhat disturbed
+by the same influences which caused the ancient
+classifications to depart from the only one which is countenanced
+by nature. In the main, the English distinction has
+been between land and goods; but a certain class of goods
+have gone as heir-looms with the land, and a certain description
+of interests in land have from historical causes been
+ranked with personalty. This is not the only instance in
+which English jurisprudence, standing apart from the main
+current of legal modification, has reproduced phenomena of
+archaic law.</p>
+
+<p>I proceed to notice one or two more contrivances by which
+the ancient trammels of proprietary right were more or less
+successfully relaxed, premising that the scheme of this treatise
+only permits me to mention those which are of great antiquity.
+On one of them in particular it is necessary to dwell for
+a moment or two, because persons unacquainted with the
+early history of law will not be easily persuaded that a principle,
+of which modern jurisprudence has very slowly and
+with the greatest difficulty obtained the recognition, was
+really familiar to the very infancy of legal science. There is
+no principle in all law which the moderns, in spite of its beneficial
+character, have been so loath to adopt and to carry to its
+legitimate consequences as that which was known to the
+Romans as Usucapion, and which has descended to modern
+jurisprudence under the name of Prescription. It was a positive
+rule of the oldest Roman law, a rule older than the Twelve
+Tables, that commodities which had been uninterruptedly
+possessed for a certain period became the property of the
+possessor. The period of possession was exceedingly short&mdash;one
+or two years according to the nature of the commodities&mdash;and
+in historical times Usucapion was only allowed to operate
+when possession had commenced in a particular way; but I
+think it likely that at a less advanced epoch possession was
+converted into ownership under conditions even less severe
+than we read of in our authorities. As I have said before, I
+am far from asserting that the respect of men for <i>de facto</i>
+possession is a phenomenon which jurisprudence can account
+for by itself, but it is very necessary to remark that primitive
+societies, in adopting the principle of Usucapion, were not
+beset with any of the speculative doubts and hesitations which
+have impeded its reception among the moderns. Prescriptions<span class='pagenum'><a name="Page_168" id="Page_168">168</a></span>
+were viewed by the modern lawyers, first with repugnance,
+afterwards with reluctant approval. In several countries,
+including our own, legislation long declined to advance
+beyond the rude device of barring all actions based on a
+wrong which had been suffered earlier than a fixed point of
+time in the past, generally the first year of some preceding
+reign; nor was it till the middle ages had finally closed, and
+James the First had ascended the throne of England, that we
+obtained a true statute of limitation of a very imperfect
+kind. This tardiness in copying one of the most famous
+chapters of Roman law, which was no doubt constantly read
+by the majority of European lawyers, the modern world owes
+to the influence of the Canon Law. The ecclesiastical customs
+out of which the Canon Law grew, concerned as they were
+with sacred or quasi-sacred interests, very naturally regarded
+the privileges which they conferred as incapable of being lost
+through disuse however prolonged; and in accordance with
+this view, the spiritual jurisprudence, when afterwards consolidated,
+was distinguished by a marked leaning against
+Prescriptions. It was the fate of the Canon Law, when held
+up by the clerical lawyers as a pattern to secular legislation,
+to have a peculiar influence on first principles. It gave to the
+bodies of custom which were formed throughout Europe far
+fewer express rules than did the Roman law, but then it
+seems to have communicated a bias to professional opinion on
+a surprising number of fundamental points, and the tendencies
+thus produced progressively gained strength as each system
+was developed. One of the dispositions it produced was a
+disrelish for Prescriptions; but I do not know that this prejudice
+would have operated as powerfully as it has done, if it
+had not fallen in with the doctrine of the scholastic jurists of
+the realist sect, who taught that, whatever turn actual legislation
+might take, a <i>right</i>, how long soever neglected, was in
+point of fact indestructible. The remains of this state of
+feeling still exist. Wherever the philosophy of law is earnestly
+discussed, questions respecting the speculative basis of Prescription
+are always hotly disputed; and it is still a point of
+the greatest interest in France and Germany, whether a person
+who has been out of possession for a series of years is deprived
+of his ownership as a penalty for his neglect, or loses it
+through the summary interposition of the law in its desire to
+have a <i>finis litium</i>. But no such scruples troubled the mind<span class='pagenum'><a name="Page_169" id="Page_169">169</a></span>
+of early Roman society. Their ancient usages directly took
+away the ownership of everybody who had been out of possession,
+under certain circumstances, during one or two years.
+What was the exact tenor of the rule of Usucapion in its
+earliest shape, it is not easy to say; but, taken with the limitations
+which we find attending it in the books, it was a most
+useful security against the mischiefs of a too cumbrous
+system of conveyance. In order to have the benefit of
+Usucapion, it was necessary that the adverse possession
+should have begun in good faith, that is, with belief on the
+part of the possessor that he was lawfully acquiring the property,
+and it was farther required that the commodity should
+have been transferred to him by some mode of alienation
+which, however unequal to conferring a complete title in the
+particular case, was at least recognised by the law. In the
+case therefore of a Mancipation, however slovenly the performance
+might have been, yet if it had been carried so far
+as to involve a Tradition or Delivery, the vice of the title
+would be cured by Usucapion in two years at most. I know
+nothing in the practice of the Romans which testifies so
+strongly to their legal genius as the use which they made of
+Usucapion. The difficulties which beset them were nearly the
+same with those which embarrassed and still embarrass the
+lawyers of England. Owing to the complexity of their system,
+which as yet they had neither the courage nor the power to
+reconstruct, actual right was constantly getting divorced
+from technical right, the equitable ownership from the legal.
+But Usucapion, as manipulated by the jurisconsults, supplied
+a self-acting machinery, by which the defects of titles to
+property were always in course of being cured, and by which
+the ownerships that were temporarily separated were again
+rapidly cemented together with the briefest possible delay.
+Usucapion did not lose its advantages till the reforms of
+Justinian. But as soon as law and equity had been completely
+fused, and when Mancipation ceased to be the
+Roman conveyance, there was no further necessity for
+the ancient contrivance, and Usucapion, with its periods
+of time considerably lengthened, became the Prescription
+which has at length been adopted by nearly all systems of
+modern law.</p>
+
+<p>I pass by with brief mention another expedient having the
+same object with the last, which, though it did not imme<span class='pagenum'><a name="Page_170" id="Page_170">170</a></span>diately
+make its appearance in English legal history, was of
+immemorial antiquity in Roman law; such indeed is its
+apparent age that some German civilians, not sufficiently
+aware of the light thrown on the subject by the analogies of
+English law, have thought it even older than the Mancipation.
+I speak of the Cessio in Jure, a collusive recovery, in a Court
+of law, of property sought to be conveyed. The plaintiff
+claimed the subject of this proceeding with the ordinary forms
+of a litigation; the defendant made default; and the commodity
+was of course adjudged to the plaintiff. I need scarcely
+remind the English lawyer that this expedient suggested itself
+to our forefathers, and produced those famous Fines and
+Recoveries which did so much to undo the harshest trammels
+of the feudal land-law. The Roman and English contrivances
+have very much in common and illustrate each other most instructively,
+but there is this difference between them, that the
+object of the English lawyers was to remove complications
+already introduced into the title, while the Roman jurisconsults
+sought to prevent them by substituting a mode of
+transfer necessarily unimpeachable for one which too often
+miscarried. The device is, in fact, one which suggests itself
+as soon as Courts of Law are in steady operation, but are
+nevertheless still under the empire of primitive notions. In
+an advanced state of legal opinion, tribunals regard collusive
+litigation as an abuse of their procedure; but there has
+always been a time when, if their forms were scrupulously
+complied with, they never dreamed of looking further.</p>
+
+<p>The influence of Courts of Law and of their procedure upon
+Property has been most extensive, but the subject is too
+large for the dimensions of this treatise, and would carry us
+further down the course of legal history than is consistent
+with its scheme. It is desirable, however, to mention, that
+to this influence we must attribute the importance of the distinction
+between Property and Possession&mdash;not, indeed, the
+distinction itself, which (in the language of an eminent
+English civilian) is the same thing as the distinction between
+the legal right to act upon a thing and the physical power to
+do so&mdash;but the extraordinary importance which the distinction
+has obtained in the philosophy of law. Few educated
+persons are so little versed in legal literature as not to have
+heard that the language of the Roman jurisconsults on the
+subject of Possession long occasioned the greatest possible<span class='pagenum'><a name="Page_171" id="Page_171">171</a></span>
+perplexity, and that the genius of Savigny is supposed to have
+chiefly proved itself by the solution which he discovered for
+the enigma. Possession, in fact, when employed by the Roman
+lawyers, appears to have contracted a shade of meaning not
+easily accounted for. The word, as appears from its etymology,
+must have originally denoted physical contact or
+physical contact resumeable at pleasure; but, as actually used
+without any qualifying epithet, it signifies not simply physical
+detention, but physical detention coupled with the intention
+to hold the thing detained as one's own. Savigny, following
+Niebuhr, perceived that for this anomaly there could only
+be a historical origin. He pointed out that the Patrician
+burghers of Rome, who had become tenants of the greatest
+part of the public domain at nominal rents, were, in the
+view of the old Roman law, mere possessors, but then
+they were possessors intending to keep their land against all
+comers. They, in truth, put forward a claim almost identical
+with that which has recently been advanced in England by
+the lessees of Church lands. Admitting that in theory they
+were the tenants-at-will of the state, they contended that
+time and undisturbed enjoyment had ripened their holding
+into a species of ownership, and that it would be unjust to
+eject them for the purpose of redistributing the domain. The
+association of this claim with the Patrician tenancies, permanently
+influenced the sense of "possession." Meanwhile
+the only legal remedies of which the tenants could avail themselves,
+if ejected or threatened with disturbance, were the
+Possessory Interdicts, summary processes of Roman law
+which were either expressly devised by the Pr&aelig;tor for their
+protection, or else, according to another theory, had in older
+times been employed for the provisional maintenance of possessions
+pending the settlement of questions of legal right.
+It came, therefore, to be understood that everybody who
+possessed property <i>as his own</i> had the power of demanding the
+Interdicts, and, by a system of highly artificial pleading, the
+Interdictal process was moulded into a shape fitted for the
+trial of conflicting claims to a disputed possession. Then
+commenced a movement which, as Mr. John Austin pointed
+out, exactly reproduced itself in English law. Proprietors,
+<i>domini</i>, began to prefer the simpler forms or speedier course
+of the Interdict to the lagging and intricate formalities of
+the Real Action, and for the purpose of availing themselves of<span class='pagenum'><a name="Page_172" id="Page_172">172</a></span>
+the possessory remedy fell back upon the possession which was
+supposed to be involved in their proprietorship. The liberty
+conceded to persons who were not true Possessors, but Owners,
+to vindicate their rights by possessory remedies, though it
+may have been at first a boon, had ultimately the effect of
+seriously deteriorating both English and Roman jurisprudence.
+The Roman law owes to it those subtleties on the subject
+of Possession which have done so much to discredit it,
+while English law, after the actions which it appropriated to
+the recovery of real property had fallen into the most hopeless
+confusion, got rid at last of the whole tangled mass by a
+heroic remedy. No one can doubt that the virtual abolition
+of the English real actions which took place nearly thirty
+years since was a public benefit, but still persons sensitive to
+the harmonies of jurisprudence will lament that, instead of
+cleansing, improving, and simplifying the true proprietary
+actions, we sacrificed them all to the possessory action of
+ejectment, thus basing our whole system of land recovery
+upon a legal fiction.</p>
+
+<p>Legal tribunals have also powerfully assisted to shape and
+modify conceptions of proprietary right by means of the distinction
+between Law and Equity, which always makes its
+first appearance as a distinction between jurisdictions. Equitable
+property in England is simply property held under the
+jurisdiction of the Court of Chancery. At Rome, the Pr&aelig;tor's
+Edict introduced its novel principles in the guise of a promise
+that under certain circumstances a particular action or a
+particular plea would be granted; and, accordingly, the
+property <i>in bonis</i>, or Equitable Property, of Roman law was
+property exclusively protected by remedies which had their
+source in the Edict. The mechanism by which equitable
+rights were saved from being overridden by the claims of the
+legal owner was somewhat different in the two systems. With
+us their independence is secured by the Injunction of the
+Court of Chancery. Since however Law and Equity, while not
+as yet consolidated, were administered under the Roman
+system by the same Court, nothing like the Injunction was
+required, and the Magistrate took the simpler course of refusing
+to grant to the Civil Law Owner those actions and
+pleas by which alone he could obtain the property that
+belonged in equity to another. But the practical operation
+of both systems was nearly the same. Both, by means of a<span class='pagenum'><a name="Page_173" id="Page_173">173</a></span>
+distinction in procedure, were able to preserve new forms of
+property in a sort of provisional existence, until the time
+should come when they were recognised by the whole law.
+In this way, the Roman Pr&aelig;tor gave an immediate right of
+property to the person who had acquired a Res Mancipi by
+mere delivery, without waiting for the ripening of Usucapion.
+Similarly he in time recognised an ownership in the Mortgagee
+who had at first been a mere "bailee" or depositary,
+and in the Emphyteuta, or tenant of land which was subject
+to a fixed perpetual rent. Following a parallel line of progress,
+the English Court of Chancery created a special proprietorship
+for the Mortgagor, for the Cestui que Trust, for the
+Married Woman who had the advantage of a particular kind
+of settlement, and for the Purchaser who had not yet acquired
+a complete legal ownership. All these are examples in which
+forms of proprietory right, distinctly new, were recognised
+and preserved. But indirectly Property has been affected in
+a thousand ways by equity both in England and at Rome.
+Into whatever corner of jurisprudence its authors pushed the
+powerful instrument in their command, they were sure to
+meet, and touch, and more or less materially modify the law
+of property. When in the preceding pages I have spoken of
+certain ancient legal distinctions and expedients as having
+powerfully affected the history of ownership, I must be understood
+to mean that the greatest part of their influence has
+arisen from the hints and suggestions of improvement infused
+by them into the mental atmosphere which was breathed by
+the fabricators of equitable systems.</p>
+
+<p>But to describe the influence of Equity on Ownership would
+be to write its history down to our own days. I have alluded
+to it principally because several esteemed contemporary
+writers have thought that in the Roman severance of Equitable
+from Legal property we have the clue to that difference
+in the conception of Ownership, which apparently distinguishes
+the law of the middle ages from the law of the Roman
+Empire. The leading characteristic of the feudal conception
+is its recognition of a double proprietorship, the superior
+ownership of the lord of the fief co-existing with the inferior
+property or estate of the tenant. Now, this duplication of
+proprietary right looks, it is urged, extremely like a generalised
+form of the Roman distribution of rights over property into
+<i>Quiritarian</i> or legal, and (to use a word of late origin) <i>Bonitarian</i><span class='pagenum'><a name="Page_174" id="Page_174">174</a></span>
+or equitable. Gaius himself observes upon the splitting of <i>dominion</i> into two parts as a singularity of Roman law,
+and expressly contrasts it with the entire or allodial ownership
+to which other nations were accustomed. Justinian, it
+is true, re-consolidated dominion into one, but then it was
+the partially reformed system of the Western Empire, and
+not Justinian's jurisprudence, with which the barbarians were
+in contact during so many centuries. While they remained
+poised on the edge of the Empire, it may well be that they
+learned this distinction, which afterwards bore remarkable
+fruit. In favour of this theory, it must at all events be
+admitted that the element of Roman law in the various
+bodies of barbarian custom has been very imperfectly
+examined. The erroneous or insufficient theories which have
+served to explain Feudalism resemble each other in their
+tendency to draw off attention from this particular ingredient
+in its texture. The older investigators, who have been mostly
+followed in this country, attached an exclusive importance
+to the circumstances of the turbulent period during which the
+Feudal system grew to maturity; and in later times a new
+source of error has been added to those already existing, in
+that pride of nationality which has led German writers to
+exaggerate the completeness of the social fabric which their
+forefathers had built up before their appearance in the Roman
+world. One or two English inquirers who looked in the right
+quarter for the foundations of the feudal system, failed nevertheless
+to conduct their investigations to any satisfactory
+result, either from searching too exclusively for analogies in
+the compilations of Justinian, or from confining their attention
+to the compendia of Roman law which are found
+appended to some of the extant barbarian codes. But, if
+Roman jurisprudence had any influence on the barbarous
+societies, it had probably produced the greatest part of its
+effects before the legislation of Justinian, and before the
+preparation of these compendia. It was not the reformed
+and purified jurisprudence of Justinian, but the undigested
+system which prevailed in the Western Empire, and which the
+Eastern <i>Corpus Juris</i> never succeeded in displacing, that I
+conceive to have clothed with flesh and muscle the scanty
+skeleton of barbarous usage. The change must be supposed
+to have taken place before the Germanic tribes had distinctly
+appropriated, as conquerors, any portion of the Roman<span class='pagenum'><a name="Page_175" id="Page_175">175</a></span>
+dominions, and therefore long before Germanic monarchs had
+ordered breviaries of Roman law to be drawn up for the use
+of their Roman subjects. The necessity for some such
+hypothesis will be felt by everybody who can appreciate the
+difference between archaic and developed law. Rude as are
+the <i>Leges Barbarorum</i> which remain to us, they are not rude
+enough to satisfy the theory of their purely barbarous origin;
+nor have we any reason for believing that we have received,
+in written records, more than a fraction of the fixed rules
+which were practised among themselves by the members of
+the conquering tribes. If we can once persuade ourselves that
+a considerable element of debased Roman law already existed
+in the barbarian systems, we shall have done something to
+remove a grave difficulty. The German law of the conquerors
+and the Roman law of their subjects would not have combined
+if they had not possessed more affinity for each other than
+refined jurisprudence has usually for the customs of savages.
+It is extremely likely that the codes of the barbarians,
+archaic as they seem, are only a compound of true primitive
+usage with half-understood Roman rules, and that it was the
+foreign ingredient which enabled them to coalesce with a
+Roman jurisprudence that had already receded somewhat
+from the comparative finish which it had acquired under the
+Western Emperors.</p>
+
+<p>But, though all this must be allowed, there are several
+considerations which render it unlikely that the feudal form
+of ownership was directly suggested by the Roman duplication
+of domainial rights. The distinction between legal and
+equitable property strikes one as a subtlety little likely to be
+appreciated by barbarians; and, moreover, it can scarcely
+be understood unless Courts of Law are contemplated in
+regular operation. But the strongest reason against this
+theory is the existence in Roman Law of a form of property&mdash;a
+creation of Equity, it is true&mdash;which supplies a much simpler
+explanation of the transition from one set of ideas to the
+other. This is the Emphyteusis, upon which the Fief of the
+middle ages has often been fathered, though without much
+knowledge of the exact share which it had in bringing feudal
+ownership into the world. The truth is that the Emphyteusis,
+not probably as yet known by its Greek designation,
+marks one stage in a current of ideas which led ultimately to
+feudalism. The first mention in Roman history of estates larger<span class='pagenum'><a name="Page_176" id="Page_176">176</a></span>
+than could be farmed by a Paterfamilias, with his household
+of sons and slaves, occurs when we come to the holdings of
+the Roman patricians. These great proprietors appear to
+have had no idea of any system of farming by free tenants.
+Their <i>latifundia</i> seem to have been universally cultivated by
+slave-gangs, under bailiffs who were themselves slaves or
+freedmen; and the only organisation attempted appears to
+have consisted in dividing the inferior slaves into small bodies,
+and making them the <i>peculium</i> of the better and trustier sort,
+who thus acquired a kind of interest in the efficiency of their
+labour. This system was, however, especially disadvantageous
+to one class of estated proprietors, the Municipalities.
+Functionaries in Italy were changed with the rapidity which
+often surprises us in the administration of Rome herself; so
+that the superintendence of a large landed domain by an
+Italian corporation must have been excessively imperfect.
+Accordingly, we are told that with the municipalities began
+the practice of letting out <i>agri vectigules</i>, that is, of leasing
+land for a perpetuity to a free tenant, at a fixed rent, and
+under certain conditions. The plan was afterwards extensively
+imitated by individual proprietors, and the tenant,
+whose relation to the owner had originally been determined
+by his contract, was subsequently recognised by the Pr&aelig;tor
+as having himself a qualified proprietorship, which in time
+became known as an Emphyteusis. From this point the
+history of tenure parts into two branches. In the course of
+that long period during which our records of the Roman
+Empire are most incomplete, the slave-gangs of the great
+Roman families became transformed into the <i>coloni</i>, whose
+origin and situation constitute one of the obscurest questions
+in all history. We may suspect that they were formed partly
+by the elevation of the slaves, and partly by the degradation
+of the free farmers; and that they prove the richer classes of
+the Roman Empire to have become aware of the increased
+value which landed property obtains when the cultivator
+had an interest in the produce of the land. We know that
+their servitude was predial; that it wanted many of the
+characteristics of absolute slavery, and that they acquitted
+their service to the landlord in rendering to him a fixed
+portion of the annual crop. We know further that they
+survived all the mutations of society in the ancient and
+<span class='pagenum'><a name="Page_177" id="Page_177">177</a></span>modern worlds. Though included in the lower courses of the
+feudal structure, they continued in many countries to render
+to the landlord precisely the same dues which they had paid
+to the Roman <i>dominus</i>, and from a particular class among
+them, the <i>coloni medietarii</i> who reserved half the produce for
+the owner, are descended the <i>metayer</i> tenantry, who still
+conduct the cultivation of the soil in almost all the South of
+Europe. On the other hand, the Emphyteusis, if we may so
+interpret the allusions to it in the <i>Corpus Juris</i>, became a
+favourite and beneficial modification of property; and it may
+be conjectured that wherever free farmers existed, it was
+this tenure which regulated their interest in the land. The
+Pr&aelig;tor, as has been said, treated the Emphyteuta as a true
+proprietor. When ejected, he was allowed to reinstate himself
+by a Real Action, the distinctive badge of proprietory
+right, and he was protected from disturbance by the author
+of his lease so long as the <i>canon</i>, or quit-rent, was punctually
+paid. But at the same time it must not be supposed that the
+ownership of the author of the lease was either extinct or
+dormant. It was kept alive by a power of re-entry on nonpayment
+of the rent, a right of pre-emption in case of sale,
+and a certain control over the mode of cultivation. We have,
+therefore, in the Emphyteusis a striking example of the
+double ownership which characterised feudal property, and
+one, moreover, which is much simpler and much more easily
+imitated than the juxtaposition of legal and equitable rights.
+The history of the Roman tenure does not end, however, at
+this point. We have clear evidence that between the great
+fortresses which, disposed along the line of the Rhine and
+Danube, long secured the frontier of the Empire against its
+barbarian neighbours, there extended a succession of strips
+of land, the <i>agri limitrophi</i>, which were occupied by veteran
+soldiers of the Roman army on the terms of an Emphyteusis.
+There was a double ownership. The Roman State was landlord
+of the soil, but the soldiers cultivated it without disturbance
+so long as they held themselves ready to be called out
+for military service whenever the state of the border should
+require it. In fact, a sort of garrison-duty, under a system
+closely resembling that of the military colonies on the Austro-Turkish
+border, had taken the place of the quit-rent which
+was the service of the ordinary Emphyteuta. It seems impossible
+to doubt that this was the precedent copied by the
+<span class='pagenum'><a name="Page_178" id="Page_178">178</a></span>barbarian monarchs who founded feudalism. It had been
+within their view for some hundred years, and many of the
+veterans who guarded the border were, it is to be remembered,
+themselves of barbarian extraction, who probably spoke the
+Germanic tongues. Not only does the proximity of so easily
+followed a model explain whence the Frankish and Lombard
+Sovereigns got the idea of securing the military service of
+their followers by granting away portions of their public
+domain; but it perhaps explains the tendency which immediately
+showed itself in the Benefices to become hereditary,
+for an Emphyteusis, though capable of being moulded to the
+terms of the original contract, nevertheless descended as a
+general rule to the heirs of the grantee. It is true that the
+holder of a benefice, and more recently the lord of one of those
+fiefs into which the benefices were transformed, appears to
+have owed certain services which were not likely to have
+been rendered by the military colonist, and were certainly
+not rendered by the Emphyteuta. The duty of respect and
+gratitude to the feudal superior, the obligation to assist in
+endowing his daughter and equipping his son, the liability to
+his guardianship in minority, and many other similar incidents
+of tenure, must have been literally borrowed from
+the relations of Patron and Freedman under Roman law,
+that is, of quondam-master and quondam-slave. But then
+it is known that the earliest beneficiaries were the personal
+companions of the sovereign, and it is indisputable that this
+position, brilliant as it seems, was at first attended by some
+shade of servile debasement. The person who ministered to
+the Sovereign in his Court had given up something of that
+absolute personal freedom which was the proudest privilege
+of the allodial proprietor.<span class='pagenum'><a name="Page_179" id="Page_179">179</a></span></p>
+
+
+
+<hr style="width: 65%;" />
+<h3><a name="CHAPTER_IX" id="CHAPTER_IX"></a>CHAPTER IX</h3>
+
+<h4><span class="smcap">the early history of contract</span></h4>
+
+
+<p>There are few general propositions concerning the age to
+which we belong which seem at first sight likely to be received
+with readier concurrence than the assertion that the society
+of our day is mainly distinguished from that of preceding
+generations by the largeness of the sphere which is occupied
+in it by Contract. Some of the phenomena on which this
+proposition rests are among those most frequently singled
+out for notice, for comment, and for eulogy. Not many of
+us are so unobservant as not to perceive that in innumerable
+cases where old law fixed a man's social position irreversibly
+at his birth, modern law allows him to create it for himself
+by convention; and indeed several of the few exceptions
+which remain to this rule are constantly denounced with
+passionate indignation. The point, for instance, which is really
+debated in the vigorous controversy still carried on upon the
+subject of negro servitude, is whether the status of the slave
+does not belong to bygone institutions, and whether the only
+relation between employer and labourer which commends
+itself to modern morality be not a relation determined exclusively
+by contract. The recognition of this difference between
+past ages and the present enters into the very essence of the
+most famous contemporary speculations. It is certain that
+the science of Political Economy, the only department of
+moral inquiry which has made any considerable progress in
+our day, would fail to correspond with the facts of life if it
+were not true that Imperative Law had abandoned the largest
+part of the field which it once occupied, and had left men to
+settle rules of conduct for themselves with a liberty never
+allowed to them till recently. The bias indeed of most persons
+trained in political economy is to consider the general truth
+on which their science reposes as entitled to become universal,
+and, when they apply it as an art, their efforts are
+ordinarily directed to enlarging the province of Contract and
+to curtailing that of Imperative Law, except so far as law<span class='pagenum'><a name="Page_180" id="Page_180">180</a></span>
+is necessary to enforce the performance of Contracts. The
+impulse given by thinkers who are under the influence of these
+ideas is beginning to be very strongly felt in the Western
+world. Legislation has nearly confessed its inability to keep
+pace with the activity of man in discovery, in invention, and
+in the manipulation of accumulated wealth; and the law
+even of the least advanced communities tends more and more
+to become a mere surface-stratum having under it an ever-changing
+assemblage of contractual rules with which it rarely
+interferes except to compel compliance with a few fundamental
+principles or unless it be called in to punish the
+violation of good faith.</p>
+
+<p>Social inquiries, so far as they depend on the consideration
+of legal phenomena, are in so backward a condition that we
+need not be surprised at not finding these truths recognised
+in the commonplaces which pass current concerning the
+progress of society. These commonplaces answer much more
+to our prejudices than to our convictions. The strong disinclination
+of most men to regard morality as advancing seems
+to be especially powerful when the virtues on which Contract
+depends are in question, and many of us have almost instinctive
+reluctance to admitting that good faith and trust in our
+fellows are more widely diffused than of old, or that there
+is anything in contemporary manners which parallels the
+loyalty of the antique world. From time to time, these prepossessions
+are greatly strengthened by the spectacle of
+frauds, unheard of before the period at which they were
+observed, and astonishing from their complication as well
+as shocking from criminality. But the very character of these
+frauds shows clearly that, before they became possible, the
+moral obligations of which they are the breach must have been
+more than proportionately developed. It is the confidence
+reposed and deserved by the many which affords facilities
+for the bad faith of the few, so that, if colossal examples of
+dishonesty occur, there is no surer conclusion than that
+scrupulous honesty is displayed in the average of the transactions
+which, in the particular case, have supplied the
+delinquent with his opportunity. If we insist on reading the
+history of morality as reflected in jurisprudence, by turning
+our eyes not on the law of Contract but on the law of Crime,
+we must be careful that we read it aright. The only form of
+dishonesty treated of in the most ancient Roman law is<span class='pagenum'><a name="Page_181" id="Page_181">181</a></span>
+Theft. At the moment at which I write, the newest chapter
+in the English criminal law is one which attempts to prescribe
+punishment for the frauds of Trustees. The proper inference
+from this contrast is not that the primitive Romans practised
+a higher morality than ourselves. We should rather say that,
+in the interval between their days and ours, morality has
+advanced from a very rude to a highly refined conception&mdash;from
+viewing the rights of property as exclusively sacred, to
+looking upon the rights growing out of the mere unilateral
+reposal of confidence as entitled to the protection of the
+penal law.</p>
+
+<p>The definite theories of jurists are scarcely nearer the truth
+in this point than the opinions of the multitude. To begin
+with the views of the Roman lawyers, we find them inconsistent
+with the true history of moral and legal progress. One
+class of contracts, in which the plighted faith of the contracting
+parties was the only material ingredient, they
+specifically denominated Contracts <i>juris gentium</i>, and though
+these contracts were undoubtedly the latest born into the
+Roman system, the expression employed implies, if a definite
+meaning be extracted from it, that they were more ancient
+than certain other forms of engagement treated of in Roman
+law, in which the neglect of a mere technical formality was as
+fatal to the obligation as misunderstanding or deceit. But
+then the antiquity to which they were referred was vague,
+shadowy, and only capable of being understood through the
+Present; nor was it until the language of the Roman lawyers
+became the language of an age which had lost the key to their
+mode of thought that a "Contract of the Law of Nations"
+came to be distinctly looked upon as a Contract known to
+man in a State of Nature. Rousseau adopted both the juridical
+and the popular error. In the Dissertation on the effects
+of Art and Science upon Morals, the first of his works which
+attracted attention and the one in which he states most
+unreservedly the opinions which made him the founder of a
+sect, the veracity and good faith attributed to the ancient
+Persians are repeatedly pointed out as traits of primitive
+innocence which have been gradually obliterated by civilisation;
+and at a later period he found a basis for all his speculations
+in the doctrine of an original Social Contract. The
+Social Contract or Compact is the most systematic form
+which has ever been assumed by the error we are discussing.<span class='pagenum'><a name="Page_182" id="Page_182">182</a></span>
+It is a theory which, though nursed into importance by political
+passions, derived all its sap from the speculations of
+lawyers. True it certainly is that the famous Englishmen, for
+whom it had first had attraction, valued it chiefly for its
+political serviceableness, but, as I shall presently attempt
+to explain, they would never have arrived at it, if politicians
+had not long conducted their controversies in legal phraseology.
+Nor were the English authors of the theory blind to
+that speculative amplitude which recommended it so strongly
+to the Frenchmen who inherited it from them. Their writings
+show they perceived that it could be made to account for all
+social, quite as well as for all political phenomena. They
+had observed the fact, already striking in their day, that of
+the positive rules obeyed by men, the greater part were
+created by Contract, the lesser by Imperative Law. But
+they were ignorant or careless of the historical relation of
+these two constituents of jurisprudence. It was for the purpose,
+therefore, of gratifying their speculative tastes by
+attributing all jurisprudence to a uniform source, as much
+as with the view of eluding the doctrines which claimed a
+divine parentage for Imperative Law, that they devised the
+theory that all Law had its origin in Contract. In another
+stage of thought, they would have been satisfied to leave
+their theory in the condition of an ingenious hypothesis or
+a convenient verbal formula. But that age was under the
+dominion of legal superstitions. The State of Nature had been
+talked about till it had ceased to be regarded as paradoxical,
+and hence it seemed easy to give a fallacious reality and
+definiteness to the contractual origin of Law by insisting on
+the Social Compact as a historical fact.</p>
+
+<p>Our own generation has got rid of these erroneous juridical
+theories, partly by outgrowing the intellectual state to which
+they belong, and partly by almost ceasing to theorise on such
+subjects altogether. The favourite occupation of active minds
+at the present moment, and the one which answers to the
+speculations of our forefathers on the origin of the social state,
+is the analysis of society as it exists and moves before our
+eyes; but, through omitting to call in the assistance of history,
+this analysis too often degenerates into an idle exercise
+of curiosity, and is especially apt to incapacitate the inquirer
+for comprehending states of society which differ considerably
+from that to which he is accustomed. The mistake of judging<span class='pagenum'><a name="Page_183" id="Page_183">183</a></span>
+the men of other periods by the morality of our own day has
+its parallel in the mistake of supposing that every wheel
+and bolt in the modern social machine had its counterpart
+in more rudimentary societies. Such impressions ramify very
+widely, and masque themselves very subtly, in historical
+works written in the modern fashion; but I find the trace
+of their presence in the domain of jurisprudence in the praise
+which is frequently bestowed on the little apologue of Montesquieu
+concerning the Troglodytes, inserted in the <i>Lettres
+Persanes</i>. The Troglodytes were a people who systematically
+violated their Contracts, and so perished utterly. If the story
+bears the moral which its author intended, and is employed to
+expose an anti-social heresy by which this century and the
+last have been threatened, it is most unexceptionable; but
+if the inference be obtained from it that society could not
+possibly hold together without attaching a sacredness to
+promises and agreements which should be on something like
+a par with the respect that is paid to them by a mature civilisation,
+it involves an error so grave as to be fatal to all sound
+understanding of legal history. The fact is that the Troglodytes
+have flourished and founded powerful states with very
+small attention to the obligations of Contract. The point
+which before all others has to be apprehended in the constitution
+of primitive societies is that the individual creates for
+himself few or no rights, and few or no duties. The rules which
+he obeys are derived first from the station into which he is
+born, and next from the imperative commands addressed to
+him by the chief of the household of which he forms part.
+Such a system leaves the very smallest room for Contract.
+The members of the same family (for so we may interpret
+the evidence) are wholly incapable of contracting with each
+other, and the family is entitled to disregard the engagements
+by which any one of its subordinate members has attempted
+to bind it. Family, it is true, may contract with family,
+chieftain with chieftain, but the transaction is one of the same
+nature, and encumbered by as many formalities, as the
+alienation of property, and the disregard of one iota of the
+performance is fatal to the obligation. The positive duty
+resulting from one man's reliance on the word of another is
+among the slowest conquests of advancing civilisation.</p>
+
+<p>Neither Ancient Law nor any other source of evidence
+discloses to us society entirely destitute of the conception of<span class='pagenum'><a name="Page_184" id="Page_184">184</a></span>
+Contract. But the conception, when it first shows itself, is
+obviously rudimentary. No trustworthy primitive record
+can be read without perceiving that the habit of mind which
+induces us to make good a promise is as yet imperfectly
+developed, and that acts of flagrant perfidy are often mentioned
+without blame and sometimes described with approbation.
+In the Homeric literature, for instance, the deceitful
+cunning of Ulysses appears as a virtue of the same rank with
+the prudence of Nestor, the constancy of Hector, and the
+gallantry of Achilles. Ancient law is still more suggestive
+of the distance which separates the crude form of Contract
+from its maturity. At first, nothing is seen like the interposition
+of law to compel the performance of a promise.
+That which the law arms with its sanctions is not a promise,
+but a promise accompanied with a solemn ceremonial. Not
+only are formalities of equal importance with the promise
+itself, but they are, if anything, of greater importance; for
+that delicate analysis which mature jurisprudence applies
+to the conditions of mind under which a particular verbal
+assent is given appears, in ancient law, to be transferred to
+the words and gestures of the accompanying performance.
+No pledge is enforced if a single form be omitted or misplaced,
+but, on the other hand, if the forms can be shown
+to have been accurately proceeded with, it is of no avail
+to plead that the promise was made under duress or deception.
+The transmutation of this ancient view into the
+familiar notion of a Contract is plainly seen in the history of
+jurisprudence. First one or two steps in the ceremonial are
+dispensed with; then the others are simplified or permitted
+to be neglected on certain conditions; lastly, a few specific
+contracts are separated from the rest and allowed to be
+entered into without form, the selected contracts being those
+on which the activity and energy of social intercourse depends.
+Slowly, but most distinctly, the mental engagement isolates
+itself amid the technicalities, and gradually becomes the sole
+ingredient on which the interest of the jurisconsult is concentrated.
+Such a mental engagement, signified through external
+acts, the Romans called a Pact or Convention; and
+when the Convention has once been conceived as the nucleus
+of a Contract, it soon becomes the tendency of advancing
+jurisprudence to break away the external shell of form and
+ceremony. Forms are thenceforward only retained so far<span class='pagenum'><a name="Page_185" id="Page_185">185</a></span>
+as they are guarantees of authenticity, and securities for
+caution and deliberation. The idea of a Contract is fully
+developed, or, to employ the Roman phrase, Contracts are
+absorbed in Pacts.</p>
+
+<p>The history of this course of change in Roman law is
+exceedingly instructive. At the earliest dawn of the jurisprudence,
+the term in use for a Contract was one which is
+very familiar to the students of historical Latinity. It was
+<i>nexum</i>, and the parties to the contract were said to be <i>nexi</i>,
+expressions which must be carefully attended to on account
+of the singular durableness of the metaphor on which they
+are founded. The notion that persons under a contractual
+engagement are connected together by a strong <i>bond</i> or
+<i>chain</i>, continued till the last to influence the Roman jurisprudence
+of Contract; and flowing thence it has mixed
+itself with modern ideas. What then was involved in this
+nexum or bond? A definition which has descended to us
+from one of the Latin antiquarians describes <i>nexum</i> as <i>omne
+quod geritur per &aelig;s et libram</i>, "every transaction with the
+copper and the balance," and these words have occasioned
+a good deal of perplexity. The copper and the balance are
+the well-known accompaniments of the Mancipation, the
+ancient solemnity described in a former chapter, by which
+the right of ownership in the highest form of Roman Property
+was transferred from one person to another. Mancipation
+was a <i>conveyance</i>, and hence has arisen the difficulty, for the
+definition thus cited appears to confound Contracts and Conveyances,
+which in the philosophy of jurisprudence are not
+simply kept apart, but are actually opposed to each other.
+The <i>jus in re</i>, right <i>in rem</i>, right "availing against all the
+world," or Proprietary Right, is sharply distinguished by the
+analyst of mature jurisprudence from the <i>jus ad rem</i>, right
+<i>in personam</i>, right "availing a single individual or group,"
+or obligation. Now Conveyances transfer Proprietary Rights,
+Contracts create Obligations&mdash;how then can the two be included
+under the same name or same general conception?
+This, like many similar embarrassments, has been occasioned
+by the error of ascribing to the mental condition of an unformed
+society a faculty which pre-eminently belongs to an
+advanced stage of intellectual development, the faculty of
+distinguishing in speculation ideas which are blended in
+practice. We have indications not to be mistaken of a state<span class='pagenum'><a name="Page_186" id="Page_186">186</a></span>
+of social affairs in which Conveyances and Contracts were
+practically confounded; nor did the discrepance of the
+conceptions become perceptible till men had begun to adopt
+a distinct practice in contracting and conveying.</p>
+
+<p>It may here be observed that we know enough of ancient
+Roman law to give some idea of the mode of transformation
+followed by legal conceptions and by legal phraseology in the
+infancy of Jurisprudence. The change which they undergo
+appears to be a change from general to special; or, as we
+might otherwise express it, the ancient conceptions and
+the ancient terms are subjected to a process of gradual
+specialisation. An ancient legal conception corresponds
+not to one but to several modern conceptions. An ancient
+technical expression serves to indicate a variety of things
+which in modern law have separate names allotted to
+them. If however we take up the history of Jurisprudence
+at the next stage, we find that the subordinate conceptions
+have gradually disengaged themselves and that the old
+general names are giving way to special appellations. The
+old general conception is not obliterated, but it has ceased
+to cover more than one or a few of the notions which it first
+included. So too the old technical name remains, but it discharges
+only one of the functions which it once performed.
+We may exemplify this phenomenon in various ways. Patriarchal
+Power of all sorts appears, for instance, to have been
+once conceived as identical in character, and it was doubtless
+distinguished by one name. The Power exercised by the
+ancestor was the same whether it was exercised over the
+family or the material property&mdash;over flocks, herds, slaves,
+children, or wife. We cannot be absolutely certain of its old
+Roman name, but there is very strong reason for believing,
+from the number of expressions indicating shades of the notion
+of <i>power</i> into which the word <i>manus</i> enters, that the ancient
+general term was <i>manus</i>. But, when Roman law has advanced
+a little, both the name and the idea have become
+specialised. Power is discriminated, both in word and in
+conception, according to the object over which it is exerted.
+Exercised over material commodities or slaves, it has become
+<i>dominium</i>&mdash;over children, it is <i>Potestas</i>&mdash;over free persons
+whose services have been made away to another by their
+own ancestor, it is <i>mancipium</i>&mdash;over a wife, it is still <i>manus</i>.
+The old word, it will be perceived, has not altogether fallen<span class='pagenum'><a name="Page_187" id="Page_187">187</a></span>
+into desuetude, but is confined to one very special exercise
+of the authority it had formerly denoted. This example will
+enable us to comprehend the nature of the historical alliance
+between Contracts and Conveyances. There seems to have
+been one solemn ceremonial at first for all solemn transactions,
+and its name at Rome appears to have been <i>nexum</i>.
+Precisely the same forms which were in use when a conveyance
+of property was effected seem to have been employed
+in the making of a contract. But we have not very far to
+move onwards before we come to a period at which the
+notion of a Contract has disengaged itself from the notion of
+a Conveyance. A double change has thus taken place. The
+transaction "with the copper and the balance," when intended
+to have for its office the transfer of property, is known
+by the new and special name of Mancipation. The ancient
+Nexum still designates the same ceremony, but only when
+it is employed for the special purpose of solemnising a
+contract.</p>
+
+<p>When two or three legal conceptions are spoken of as
+anciently blended in one, it is not intended to imply that
+some one of the included notions may not be older than the
+others, or, when those others have been formed, may not
+greatly predominate over and take precedence over them.
+The reason why one legal conception continues so long to
+cover several conceptions, and one technical phrase to do
+instead of several, is doubtless that practical changes are
+accomplished in the law of primitive societies long before
+men see occasion to notice or name them. Though I have
+said that Patriarchal Power was not at first distinguished
+according to the objects over which it was exercised, I feel
+sure that Power over Children was the root of the old conception
+of Power; and I cannot doubt that the earliest use
+of the Nexum, and the one primarily regarded by those who
+resorted to it, was to give proper solemnity to the alienation
+of property. It is likely that a very slight perversion of the
+Nexum from its original functions first gave rise to its employment
+in Contracts, and that the very slightness of the
+change long prevented its being appreciated or noticed. The
+old name remained because men had not become conscious
+that they wanted a new one; the old notion clung to the
+mind because nobody had seen reason to be at the pains
+of examining it. We have had the process clearly exemplified<span class='pagenum'><a name="Page_188" id="Page_188">188</a></span>
+in the history of Testaments. A Will was at first a simple
+conveyance of property. It was only the enormous practical
+difference that gradually showed itself between this particular
+conveyance and all others which caused it to be regarded
+separately, and even as it was, centuries elapsed before the
+ameliorators of law cleared away the useless encumbrance of
+the nominal mancipation, and consented to care for nothing
+in the Will but the expressed intentions of the Testator. It is
+unfortunate that we cannot track the early history of Contracts
+with the same absolute confidence as the early history
+of Wills, but we are not quite without hints that contracts
+first showed themselves through the <i>nexum</i> being put to a
+new use and afterwards obtained recognition as distinct
+transactions through the important practical consequences of
+the experiment. There is some, but not very violent, conjecture
+in the following delineation of the process. Let us
+conceive a sale for ready money as the normal type of the
+Nexum. The seller brought the property of which he intended
+to dispose&mdash;a slave, for example&mdash;the purchaser attended
+with the rough ingots of copper which served for money&mdash;and
+an indispensable assistant, the <i>libripens</i>, presented himself
+with a pair of scales. The slave with certain fixed formalities
+was handed over to the vendee&mdash;the copper was weighed
+by the <i>libripens</i> and passed to the vendor. So long as the
+business lasted it was a <i>nexum</i>, and the parties were <i>nexi</i>; but
+the moment it was completed, the <i>nexum</i> ended, and the
+vendor and purchaser ceased to bear the name derived from
+their momentary relation. But now, let us move a step onward
+in commercial history. Suppose the slave transferred,
+but the money not paid. In <i>that</i> case, the <i>nexum</i> is finished,
+so far as the seller is concerned, and when he has once handed
+over his property, he is no longer <i>nexus</i>; but, in regard to
+the purchaser, the <i>nexum</i> continues. The transaction, as to
+his part of it, is incomplete, and he is still considered to be
+<i>nexus</i>. It follows, therefore, that the same term described
+the Conveyance by which the right of property was transmitted,
+and the personal obligation of the debtor for the unpaid
+purchase-money. We may still go forward, and picture
+to ourselves a proceeding wholly formal, in which <i>nothing</i>
+is handed over and <i>nothing</i> paid; we are brought at once to
+a transaction indicative of much higher commercial activity,
+an <i>executory Contract of Sale</i>.<span class='pagenum'><a name="Page_189" id="Page_189">189</a></span></p>
+
+<p>If it be true that, both in the popular and in the professional
+view, a <i>Contract</i> was long regarded as an <i>incomplete
+Conveyance</i>, the truth has importance for many reasons. The
+speculations of the last century concerning mankind in a
+state of nature, are not unfairly summed up in the doctrine
+that "in the primitive society property was nothing, and
+obligation everything;" and it will now be seen that, if
+the proposition were reversed, it would be nearer the reality.
+On the other hand, considered historically, the primitive
+association of Conveyances and Contracts explains something
+which often strikes the scholar and jurist as singularly
+enigmatical, I mean the extraordinary and uniform severity
+of very ancient systems of law to <i>debtors</i>, and the extravagant
+powers which they lodge with <i>creditors</i>. When once we
+understand that the <i>nexum</i> was artificially prolonged to give
+time to the debtor, we can better comprehend his position
+in the eye of the public and of the law. His indebtedness was
+doubtless regarded as an anomaly, and suspense of payment
+in general as an artifice and a distortion of strict rule. The
+person who had duly consummated his part in the transaction
+must, on the contrary, have stood in peculiar favour; and
+nothing would seem more natural than to arm him with
+stringent facilities for enforcing the completion of a proceeding
+which, of strict right, ought never to have been
+extended or deferred.</p>
+
+<p>Nexum, therefore, which originally signified a Conveyance of
+property, came insensibly to denote a Contract also, and ultimately
+so constant became the association between this word
+and the notion of a Contract, that a special term, Mancipium
+or Mancipatio, had to be used for the purpose of designating
+the true nexum or transaction in which the property was
+really transferred. Contracts are therefore now severed from
+Conveyances, and the first stage in their history is accomplished,
+but still they are far enough from that epoch of their
+development when the promise of the contractor has a
+higher sacredness than the formalities with which it is coupled.
+In attempting to indicate the character of the changes passed
+through in this interval, it is necessary to trespass a little
+on a subject which lies properly beyond the range of these
+pages, the analysis of Agreement effected by the Roman
+jurisconsults. Of this analysis, the most beautiful monument
+of their sagacity, I need not say more than that it is<span class='pagenum'><a name="Page_190" id="Page_190">190</a></span>
+based on the theoretical separation of the Obligation from
+the Convention or Pact. Bentham and Mr. Austin have laid
+down that the "two main essentials of a contract are these:
+first, a signification by the promising party of his <i>intention</i>
+to do the acts or to observe the forbearances which he promises
+to do or to observe. Secondly, a signification by the
+promisee that he <i>expects</i> the promising party will fulfil the
+proffered promise." This is virtually identical with the doctrine
+of the Roman lawyers, but then, in their view, the
+result of these "significations" was not a Contract, but a
+Convention or Pact. A Pact was the utmost product of the
+engagements of individuals agreeing among themselves, and
+it distinctly fell short of a Contract. Whether it ultimately
+became a Contract depended on the question whether the
+law annexed an Obligation to it. A Contract was a Pact (or
+Convention) <i>plus</i> an Obligation. So long as the Pact remained
+unclothed with the Obligation, it was called <i>nude</i>
+or <i>naked</i>.</p>
+
+<p>What was an Obligation? It is defined by the Roman
+lawyers as "Juris vinculum, quo necessitate adstringimur
+alicujus solvend&aelig; rei." This definition connects the Obligation
+with the Nexum through the common metaphor on
+which they are founded, and shows us with much clearness
+the pedigree of a peculiar conception. The Obligation is the
+"bond" or "chain" with which the law joins together persons
+or groups of persons, in consequence of certain voluntary
+acts. The acts which have the effect of attracting an Obligation
+are chiefly those classed under the heads of Contract and
+Delict, of Agreement and Wrong; but a variety of other
+acts have a similar consequence which are not capable of
+being comprised in an exact classification. It is to be remarked,
+however, that the act does not draw to itself the Obligation
+in consequence of any moral necessity; it is the law which
+annexes it in the plenitude of its power, a point the more
+necessary to be noted, because a different doctrine has
+sometimes been propounded by modern interpreters of the
+Civil Law who had moral or metaphysical theories of their
+own to support. The image of a <i>vinculum juris</i> colours and
+pervades every part of the Roman law of Contract and Delict.
+The law bound the parties together, and the <i>chain</i> could only
+be undone by the process called <i>solutio</i>, an expression still
+figurative, to which our word "payment" is only occasionally<span class='pagenum'><a name="Page_191" id="Page_191">191</a></span>
+and incidentally equivalent. The consistency with which
+the figurative image was allowed to present itself, explains
+an otherwise puzzling peculiarity of Roman legal phraseology,
+the fact that "Obligation" signified rights as well as duties,
+the right, for example, to have a debt paid as well as the duty
+of paying it. The Romans kept in fact the entire picture of the
+"legal chain" before their eyes, and regarded one end of it no
+more and no less than the other.</p>
+
+<p>In the developed Roman law, the Convention, as soon as
+it was completed, was, in almost all cases, at once crowned
+with the Obligation, and so became a Contract; and this
+was the result to which contract-law was surely tending. But
+for the purpose of this inquiry, we must attend particularly
+to the intermediate stage&mdash;that in which something more
+than a perfect agreement was required to attract the Obligation.
+This epoch is synchronous with the period at which
+the famous Roman classification of Contracts into four sorts&mdash;the
+Verbal, the Literal, the Real, and the Consensual&mdash;had
+come into use, and during which these four orders of
+Contracts constituted the only descriptions of engagement
+which the law would enforce. The meaning of the fourfold
+distribution is readily understood as soon as we apprehend
+the theory which severed the Obligation from the Convention.
+Each class of contracts was in fact named from certain
+formalities which were required over and above the mere
+agreement of the contracting parties. In the Verbal Contract,
+as soon as the Convention was effected, a form of words had
+to be gone through before the vinculum juris was attached
+to it. In the Literal Contract, an entry in a ledger or table-book
+had the effect of clothing the Convention with the
+Obligation, and the same result followed, in the case of the
+Real Contract, from the delivery of the Res or Thing which was
+the subject of the preliminary engagement. The contracting
+parties came, in short, to an understanding in each case; but,
+if they went no further, they were not <i>obliged</i> to one another,
+and could not compel performance or ask redress for a breach
+of faith. But let them comply with certain prescribed formalities,
+and the Contract was immediately complete, taking
+its name from the particular form which it had suited them
+to adopt. The exceptions to this practice will be noticed
+presently.</p>
+
+<p>I have enumerated the four Contracts in their historical<span class='pagenum'><a name="Page_192" id="Page_192">192</a></span>
+order, which order, however, the Roman Institutional writers
+did not invariably follow. There can be no doubt that the
+Verbal Contract was the most ancient of the four, and that
+it is the eldest known descendant of the primitive Nexum.
+Several species of Verbal Contract were anciently in use,
+but the most important of all, and the only one treated of by
+our authorities, was effected by means of a <i>stipulation</i>, that is,
+a Question and Answer; a question addressed by the person
+who exacted the promise, and an answer given by the person
+who made it. This question and answer constituted the
+additional ingredient which, as I have just explained, was
+demanded by the primitive notion over and above the mere
+agreement of the persons interested. They formed the agency
+by which the Obligation was annexed. The old Nexum has
+now bequeathed to maturer jurisprudence first of all the
+conception of a chain uniting the contracting parties, and
+this has become the Obligation. It has further transmitted
+the notion of a ceremonial accompanying and consecrating
+the engagement, and this ceremonial has been transmuted
+into the Stipulation. The conversion of the solemn conveyance,
+which was the prominent feature of the original Nexum,
+into a mere question and answer, would be more of a mystery
+than it is if we had not the analogous history of Roman
+Testaments to enlighten us. Looking to that history, we can
+understand how the formal Conveyance was first separated
+from the part of the proceeding which had immediate reference
+to the business in hand, and how afterwards it was
+omitted altogether. As then the question and answer of the
+Stipulation were unquestionably the Nexum in a simplified
+shape, we are prepared to find that they long partook of the
+nature of a technical form. It would be a mistake to consider
+them as exclusively recommending themselves to the older
+Roman lawyers through their usefulness in furnishing persons
+meditating an agreement with an opportunity for consideration
+and reflection. It is not to be disputed that they had a
+value of this kind, which was gradually recognised; but there
+is proof that their function in respect to Contracts was at
+first formal and ceremonial in the statement of our authorities,
+that not every question and answer was of old sufficient to
+constitute a Stipulation, but only a question and answer
+couched in technical phraseology specially appropriated to
+the particular occasion.<span class='pagenum'><a name="Page_193" id="Page_193">193</a></span></p>
+
+<p>But although it is essential for the proper appreciation of
+the history of contract-law that the Stipulation should be
+understood to have been looked upon as a solemn form before
+it was recognised as a useful security, it would be wrong on
+the other hand to shut our eyes to its real usefulness. The
+Verbal Contract, though it had lost much of its ancient
+importance, survived to the latest period of Roman jurisprudence;
+and we may take it for granted that no institution
+of Roman law had so extended a longevity unless it served
+some practical advantage. I observe in an English writer
+some expressions of surprise that the Romans even of the
+earliest times were content with so meagre a protection
+against haste and irreflection. But on examining the Stipulation
+closely, and remembering that we have to do with a
+state of society in which written evidence was not easily
+procurable, I think we must admit that this Question and
+Answer, had it been expressly devised to answer the purpose
+which it served, would have been justly designated a highly
+ingenious expedient. It was the <i>promisee</i> who, in the character
+of stipulator, put all the terms of the contract into the
+form of a question, and the answer was given by the <i>promisor</i>.
+"Do you promise that you will deliver me such and
+such a slave, at such and such a place, on such and such a
+day?" "I do promise." Now, if we reflect for a moment, we
+shall see that this obligation to put the promise interrogatively
+inverts the natural position of the parties, and, by
+effectually breaking the tenor of the conversation, prevents
+the attention from gliding over a dangerous pledge. With us,
+a verbal promise is, generally speaking, to be gathered exclusively
+from the words of the promisor. In old Roman law,
+another step was absolutely required; it was necessary for
+the promisee, after the agreement had been made, to sum
+up all its terms in a solemn interrogation; and it was of this
+interrogation, of course, and of the assent to it, that proof
+had to be given at the trial&mdash;<i>not</i> of the promise, which was not
+in itself binding. How great a difference this seemingly
+insignificant peculiarity may make in the phraseology of
+contract-law is speedily realised by the beginner in Roman
+jurisprudence, one of whose first stumbling-blocks is almost
+universally created by it. When we in English have occasion,
+in mentioning a contract, to connect it for convenience'
+sake with one of the parties&mdash;for example, if we wished to<span class='pagenum'><a name="Page_194" id="Page_194">194</a></span>
+speak generally of a contractor&mdash;it is always the promis<i>or</i>
+at whom our words are pointing. But the general language
+of Roman law takes a different turn; it always regards the
+contract, if we may so speak, from the point of view of the
+promis<i>ee</i>; in speaking of a party to a contract, it is always
+the Stipulator, the person who asks the question, who is
+primarily alluded to. But the serviceableness of the stipulation
+is most vividly illustrated by referring to the actual
+examples in the pages of the Latin comic dramatists. If the
+entire scenes are read down in which these passages occur
+(ex. gra. Plautus, <i>Pseudolus</i>, Act I. sc. i; Act IV. sc. 6; <i>Trinummus</i>,
+Act V. sc. 2), it will be perceived how effectually the
+attention of the person meditating the promise must have
+been arrested by the question, and how ample was the opportunity
+for withdrawal from an improvident undertaking.</p>
+
+<p>In the Literal or Written Contract, the formal act, by
+which an Obligation was superinduced on the Convention,
+was an entry of the sum due, where it could be specifically
+ascertained, on the debit side of a ledger. The explanation
+of this Contract turns on a point of Roman domestic manners,
+the systematic character and exceeding regularity of bookkeeping
+in ancient times. There are several minor difficulties
+of old Roman law, as, for example, the nature of the Slave's
+Peculium, which are only cleared up when we recollect that
+a Roman household consisted of a number of persons strictly
+accountable to its head, and that every single item of domestic
+receipt and expenditure, after being entered in waste books,
+was transferred at stated periods to a general household ledger.
+There are some obscurities, however, in the descriptions we
+have received of the Literal Contract, the fact being that the
+habit of keeping books ceased to be universal in later times,
+and the expression "Literal Contract" came to signify a
+form of engagement entirely different from that originally
+understood. We are not, therefore, in a position to say, with
+respect to the primitive Literal Contract, whether the obligation
+was created by a simple entry on the part of the creditor,
+or whether the consent of the debtor or a corresponding entry
+in his own books was necessary to give it legal effect. The
+essential point is however established that, in the case of this
+Contract, all formalities were dispensed with on a condition
+being complied with. This is another step downwards in the
+history of contract-law.<span class='pagenum'><a name="Page_195" id="Page_195">195</a></span></p>
+
+<p>The Contract which stands next in historical succession,
+the Real Contract, shows a great advance in ethical conceptions.
+Whenever any agreement had for its object the delivery
+of a specific thing&mdash;and this is the case with the large majority
+of simple engagements&mdash;the Obligation was drawn down as
+soon as the delivery had actually taken place. Such a result
+must have involved a serious innovation on the oldest ideas
+of Contract; for doubtless, in the primitive times, when a
+contracting party had neglected to clothe his agreement in a
+stipulation, nothing done in pursuance of the agreement
+would be recognised by the law. A person who had paid
+over money on loan would be unable to sue for its repayment
+unless he had formally <i>stipulated</i> for it. But, in the Real
+Contract, performance on one side is allowed to impose a
+legal duty on the other&mdash;evidently on ethical grounds. For
+the first time then moral considerations appear as an ingredient
+in Contract-law, and the Real Contract differs from its
+two predecessors in being founded on these, rather than on
+respect for technical forms or on deference to Roman domestic
+habits.</p>
+
+<p>We now reach the fourth class, or Consensual Contracts,
+the most interesting and important of all. Four specified
+Contracts were distinguished by this name: Mandatum, <i>i.e.</i>
+Commission or Agency; Societas or Partnership; Emtio
+Venditio or Sale; and Locatio Conductio or Letting and
+Hiring. A few pages ago, after stating that a Contract consisted
+of a Pact or Convention to which an Obligation had
+been superadded, I spoke of certain acts or formalities by
+which the law permitted the Obligation to be attracted to the
+Pact. I used this language on account of the advantage of a
+general expression, but it is not strictly correct unless it be
+understood to include the negative as well as the positive.
+For, in truth, the peculiarity of these Consensual Contracts
+is that <i>no</i> formalities, are required to create them out of the
+Pact. Much that is indefensible, and much more that is
+obscure, has been written about the Consensual Contracts, and
+it has even been asserted that in them the <i>consent</i> of the
+Parties is more emphatically given than in any other species
+of agreement. But the term Consensual merely indicates that
+the Obligation is here annexed at once to the <i>Consensus</i>. The
+Consensus, or mutual assent of the parties, is the final and
+crowning ingredient in the Convention, and it is the special<span class='pagenum'><a name="Page_196" id="Page_196">196</a></span>
+characteristic of agreements falling under one of the four
+heads of Sale, Partnership, Agency, and Hiring, that, as
+soon as the assent of the parties has supplied this ingredient,
+there is <i>at once</i> a Contract. The Consensus draws with it the
+Obligation, performing, in transactions of the sort specified,
+the exact functions which are discharged, in the other contracts,
+by the <i>Res</i> or Thing, by the <i>Verba</i> stipulationis, and
+by the <i>Liter&aelig;</i> or written entry in a ledger. Consensual is
+therefore a term which does not involve the slightest anomaly,
+but is exactly analogous to Real, Verbal, and Literal.</p>
+
+<p>In the intercourse of life the commonest and most important
+of all the contracts are unquestionably the four styled
+Consensual. The larger part of the collective existence of
+every community is consumed in transactions of buying and
+selling, of letting and hiring, of alliances between men for
+purposes of business, of delegation of business from one man
+to another; and this is no doubt the consideration which led
+the Romans, as it has led most societies, to relieve these
+transactions from technical incumbrance, to abstain as much
+as possible from clogging the most efficient springs of social
+movement. Such motives were not of course confined to
+Rome, and the commerce of the Romans with their neighbours
+must have given them abundant opportunities for
+observing that the contracts before us tended everywhere to
+become <i>Consensual</i>, obligatory on the mere signification of
+mutual assent. Hence, following their usual practice, they
+distinguished these contracts as contracts <i>Juris Gentium</i>.
+Yet I do not think that they were so named at a very early
+period. The first notions of a Jus Gentium may have been
+deposited in the minds of the Roman lawyers long before the
+appointment of a Pr&aelig;tor Peregrinus, but it would only be
+through extensive and regular trade that they would be
+familiarised with the contractual system of other Italian
+communities, and such a trade would scarcely attain considerable
+proportions before Italy had been thoroughly
+pacified, and the supremacy of Rome conclusively assured.
+Although, however, there is strong probability that the
+Consensual Contracts were the latest-born into the Roman
+system, and though it is likely that the qualification, <i>Juris
+Gentium</i>, stamps the recency of their origin, yet this very
+expression, which attributes them to the "Law of Nations,"
+has in modern times produced the notion of their extreme<span class='pagenum'><a name="Page_197" id="Page_197">197</a></span>
+antiquity. For, when the "Law of Nations" had been converted
+into the "Law of Nature," it seemed to be implied
+that the Consensual Contracts were the type of the agreements
+most congenial to the natural state; and hence arose the
+singular belief that the younger the civilisation, the simpler
+must be its forms of contract.</p>
+
+<p>The Consensual Contracts, it will be observed, were extremely
+limited in number. But it cannot be doubted that
+they constituted the stage in the history of Contract-law from
+which all modern conceptions of contract took their start.
+The motion of the will which constitutes agreement was now
+completely insulated, and became the subject of separate
+contemplation; forms were entirely eliminated from the
+notion of contract, and external acts were only regarded as
+symbols of the internal act of volition. The Consensual
+Contracts had, moreover, been classed in the Jus Gentium,
+and it was not long before this classification drew with it
+the inference that they were the species of agreement which
+represented the engagements approved of by Nature and
+included in her code. This point once reached, we are prepared
+for several celebrated doctrines and distinctions of the
+Roman lawyers. One of them is the distinction between
+Natural and Civil Obligations. When a person of full intellectual
+maturity had deliberately bound himself by an
+engagement, he was said to be under a <i>natural obligation</i>,
+even though he had omitted some necessary formality, and
+even though through some technical impediment he was
+devoid of the formal capacity for making a valid contract.
+The law (and this is what the distinction implies) would
+not enforce the obligation, but it did not absolutely refuse to
+recognise it; and <i>natural obligations</i> differed in many respects
+from obligations which were merely null and void, more
+particularly in the circumstance that they could be civilly
+confirmed, if the capacity for contract were subsequently
+acquired. Another very peculiar doctrine of the jurisconsults
+could not have had its origin earlier than the period at which
+the Convention was severed from the technical ingredients of
+Contract. They taught that though nothing but a Contract
+could be the foundation of an <i>action</i>, a mere Pact or Convention
+could be the basis of a <i>plea</i>. It followed from this, that
+though nobody could sue upon an agreement which he had
+not taken the precaution to mature into a Contract by<span class='pagenum'><a name="Page_198" id="Page_198">198</a></span>
+complying with the proper forms, nevertheless a claim arising
+out of a valid contract could be rebutted by proving a counter-agreement
+which had never got beyond the state of a simple
+convention. An action for the recovery of a debt could be
+met by showing a mere informal agreement to waive or
+postpone the payment.</p>
+
+<p>The doctrine just stated indicates the hesitation of the
+Pr&aelig;tors in making their advances towards the greatest of
+their innovations. Their theory of Natural law must have
+led them to look with especial favour on the Consensual
+Contracts and on those Pacts or Conventions of which the
+Consensual Contracts were only particular instances; but
+they did not at once venture on extending to all Conventions
+the liberty of the Consensual Contracts. They took advantage
+of that special superintendence over procedure which had
+been confided to them since the first beginnings of Roman
+law, and, while they still declined to permit a suit to be
+launched which was not based on a formal contract, they gave
+full play to their new theory of agreement in directing the
+ulterior stages of the proceeding. But, when they had proceeded
+thus far, it was inevitable that they should proceed
+farther. The revolution of the ancient law of Contract was
+consummated when the Pr&aelig;tor of some one year announced
+in his Edict that he would grant equitable actions upon Pacts
+which had never been matured at all into Contracts, provided
+only that the Pacts in question had been founded on a consideration
+(<i>causa</i>). Pacts of this sort are always enforced under
+the advanced Roman jurisprudence. The principle is merely
+the principle of the Consensual Contract carried to its proper
+consequence; and, in fact, if the technical language of the
+Romans had been as plastic as their legal theories, these
+Pacts enforced by the Pr&aelig;tor would have been styled new
+Contracts, new Consensual Contracts. Legal phraseology
+is, however, the part of the law which is the last to alter, and
+the Pacts equitably enforced continued to be designated
+simply Pr&aelig;torian Pacts. It will be remarked that unless there
+were consideration for the Pact, it would continue <i>nude</i> so
+far as the new jurisprudence was concerned; in order to give
+it effect, it would be necessary to convert it by a stipulation
+into a Verbal Contract.</p>
+
+<p>The extreme importance of this history of Contract, as a
+safeguard against almost innumerable delusions, must be<span class='pagenum'><a name="Page_199" id="Page_199">199</a></span>
+my justification for discussing it at so considerable a length.
+It gives a complete account of the march of ideas from one
+great landmark of jurisprudence to another. We begin with
+Nexum, in which a Contract and a Conveyance are blended,
+and in which the formalities which accompany the agreement
+are even more important than the agreement itself. From
+the Nexum we pass to the Stipulation, which is a simplified
+form of the older ceremonial. The Literal Contract comes
+next, and here all formalities are waived, if proof of the
+agreement can be supplied from the rigid observances of a
+Roman household. In the Real Contract a moral duty is for
+the first time recognised, and persons who have joined or
+acquiesced in the partial performance of an engagement are
+forbidden to repudiate it on account of defects in form.
+Lastly, the Consensual Contracts emerge, in which the mental
+attitude of the contractors is solely regarded, and external
+circumstances have no title to notice except as evidence of
+the inward undertaking. It is of course uncertain how far
+this progress of Roman ideas from a gross to a refined conception
+exemplifies the necessary progress of human thought
+on the subject of Contract. The Contract-law of all other
+ancient societies but the Roman is either too scanty to furnish
+information, or else is entirely lost; and modern jurisprudence
+is so thoroughly leavened with the Roman notions
+that it furnishes us with no contrasts or parallels from which
+instruction can be gleaned. From the absence, however,
+of everything violent, marvellous, or unintelligible in the
+changes I have described, it may be reasonably believed that
+the history of ancient Roman Contracts is, up to a certain
+point, typical of the history of this class of legal conceptions
+in other ancient societies. But it is only up to a certain point
+that the progress of Roman law can be taken to represent the
+progress of other systems of jurisprudence. The theory of
+Natural law is exclusively Roman. The notion of the <i>vinculum
+juris</i>, so far as my knowledge extends, is exclusively
+Roman. The many peculiarities of the mature Roman law
+of Contract and Delict which are traceable to these two ideas,
+whether singly or in combination, are therefore among the
+exclusive products of one particular society. These later
+legal conceptions are important, not because they typify
+the necessary results of advancing thought under all conditions,
+but because they have exercised perfectly enormous<span class='pagenum'><a name="Page_200" id="Page_200">200</a></span>
+influence on the intellectual diathesis of the modern
+world.</p>
+
+<p>I know nothing more wonderful than the variety of
+sciences to which Roman law, Roman Contract-law more
+particularly, has contributed modes of thought, courses of
+reasoning, and a technical language. Of the subjects which
+have whetted the intellectual appetite of the moderns, there
+is scarcely one, except Physics, which has not been filtered
+through Roman jurisprudence. The science of pure Metaphysics
+had, indeed, rather a Greek than a Roman parentage,
+but Politics, Moral Philosophy, and even Theology, found
+in Roman law not only a vehicle of expression, but a nidus in
+which some of their profoundest inquiries were nourished
+into maturity. For the purpose of accounting for this phenomenon,
+it is not absolutely necessary to discuss the mysterious
+relation between words and ideas, or to explain how it is that
+the human mind has never grappled with any subject of
+thought, unless it has been provided beforehand with a proper
+store of language and with an apparatus of appropriate logical
+methods. It is enough to remark, that, when the philosophical
+interests of the Eastern and Western worlds were separated,
+the founders of Western thought belonged to a society which
+spoke Latin and reflected in Latin. But in the Western
+provinces the only language which retained sufficient precision
+for philosophical purposes was the language of Roman
+law, which by a singular fortune had preserved nearly all
+the purity of the Augustan age, while vernacular Latin was
+degenerating into a dialect of portentous barbarism. And if
+Roman jurisprudence supplied the only means of exactness
+in speech, still more emphatically did it furnish the only
+means of exactness, subtlety, or depth in thought. For at
+least three centuries, philosophy and science were without
+a home in the West; and though metaphysics and metaphysical
+theology were engrossing the mental energies of
+multitudes of Roman subjects, the phraseology employed
+in these ardent inquiries was exclusively Greek, and their
+theatre was the Eastern half of the Empire. Sometimes,
+indeed, the conclusions of the Eastern disputants became
+so important that every man's assent to them, or dissent
+from them, had to be recorded, and then the West was introduced
+to the results of Eastern controversy, which it generally
+acquiesced in without interest and without resistance.<span class='pagenum'><a name="Page_201" id="Page_201">201</a></span>
+Meanwhile, one department of inquiry, difficult enough for
+the most laborious, deep enough for the most subtle, delicate
+enough for the most refined, had never lost its attractions for
+the educated classes of the Western provinces. To the cultivated
+citizen of Africa, of Spain, of Gaul and of Northern
+Italy, it was jurisprudence, and jurisprudence only, which
+stood in the place of poetry and history, of philosophy and
+science. So far then from there being anything mysterious
+in the palpably legal complexion of the earliest efforts of
+Western thought it would rather be astonishing if it had
+assumed any other hue. I can only express my surprise at
+the scantiness of the attention which has been given to the
+difference between Western ideas and Eastern, between
+Western theology and Eastern, caused by the presence of a
+new ingredient. It is precisely because the influence of
+jurisprudence begins to be powerful that the foundation of
+Constantinople and the subsequent separation of the Western
+Empire from the Eastern, are epochs in philosophical history.
+But continental thinkers are doubtless less capable of appreciating
+the importance of this crisis by the very intimacy with
+which notions derived from Roman Law are mingled up
+with every-day ideas. Englishmen, on the other hand, are
+blind to it through the monstrous ignorance to which they
+condemn themselves of the most plentiful source of the
+stream of modern knowledge, of the one intellectual result
+of the Roman civilisation. At the same time, an Englishman,
+who will be at the pains to familiarise himself with the
+classical Roman law, is perhaps, from the very slightness of
+the interest which his countrymen have hitherto taken in the
+subject, a better judge than a Frenchman or a German of the
+value of the assertions I have ventured to make. Anybody
+who knows what Roman jurisprudence is, as actually practised
+by the Romans, and who will observe in what characteristics
+the earliest Western theology and philosophy differ
+from the phases of thought which preceded them, may be
+safely left to pronounce what was the new element which
+had begun to pervade and govern speculation.</p>
+
+<p>The part of Roman law which has had most extensive
+influence on foreign subjects of inquiry has been the law of
+Obligation, or what comes nearly to the same thing, of Contract
+and Delict. The Romans themselves were not unaware
+of the offices which the copious and malleable terminology<span class='pagenum'><a name="Page_202" id="Page_202">202</a></span>
+belonging to this part of their system might be made to
+discharge, and this is proved by their employment of the
+peculiar adjunct <i>quasi</i> in such expressions as Quasi-Contract
+and Quasi-Delict. "Quasi," so used, is exclusively a term
+of classification. It has been usual with English critics to
+identify the Quasi-contracts with <i>implied</i> contracts, but this
+is an error, for implied contracts are true contracts, which
+quasi-contracts are not. In implied contracts, acts and
+circumstances are the symbols of the same ingredients which
+are symbolised, in express contracts, by words; and whether
+a man employs one set of symbols or the other must be a
+matter of indifference so far as concerns the theory of agreement.
+But a Quasi-Contract is not a contract at all. The
+commonest sample of the class is the relation subsisting
+between two persons one of whom has paid money to the
+other through mistake. The law, consulting the interests
+of morality, imposes an obligation on the receiver to refund,
+but the very nature of the transaction indicates that it is not
+a contract, inasmuch as the Convention, the most essential
+ingredient of Contract, is wanting. This word "quasi,"
+prefixed to a term of Roman law, implies that the conception
+to which it serves as an index is connected with the conception
+with which the comparison is instituted by a strong
+superficial analogy or resemblance. It does not denote that
+the two conceptions are the same or that they belong to the
+same genus. On the contrary, it negatives the notion of an
+identity between them; but it points out that they are
+sufficiently similar for one to be classed as the sequel to the
+other, and that the phraseology taken from one department
+of law may be transferred to the other and employed without
+violent straining in the statement of rules which would otherwise
+be imperfectly expressed.</p>
+
+<p>It has been shrewdly remarked, that the confusion between
+Implied Contracts, which are true contracts, and Quasi
+Contracts, which are not contracts at all, has much in common
+with the famous error which attributed political rights and
+duties to an Original Compact between the governed and
+the governor. Long before this theory had clothed itself in
+definite shape, the phraseology of Roman contract-law had
+been largely drawn upon to describe that reciprocity of rights
+and duties which men had always conceived as existing between
+sovereigns and subjects. While the world was full of<span class='pagenum'><a name="Page_203" id="Page_203">203</a></span>
+maxims setting forth with the utmost positiveness the claims
+of kings to implicit obedience&mdash;maxims which pretended to
+have had their origin in the New Testament, but which were
+really derived from indelible recollections of the C&aelig;sarian
+despotism&mdash;the consciousness of correlative rights possessed
+by the governed would have been entirely without the means
+of expression if the Roman law of Obligation had not supplied
+a language capable of shadowing forth an idea which was as
+yet imperfectly developed. The antagonism between the
+privileges of kings and their duties to their subjects was
+never, I believe, lost sight of since Western history began,
+but it had interest for few except speculative writers so long
+as feudalism continued in vigour, for feudalism effectually
+controlled by express customs the exorbitant theoretical
+pretensions of most European sovereigns. It is notorious,
+however, that as soon as the decay of the Feudal System had
+thrown the medi&aelig;val constitutions out of working order, and
+when the Reformation had discredited the authority of the
+Pope, the doctrine of the divine right of Kings rose immediately
+into an importance which had never before attended it.
+The vogue which it obtained entailed still more constant
+resort to the phraseology of Roman law, and a controversy
+which had originally worn a theological aspect assumed more
+and more the air of a legal disputation. A phenomenon
+then appeared which has repeatedly shown itself in the history
+of opinion. Just when the argument for monarchical
+authority rounded itself into the definite doctrine of Filmer,
+the phraseology, borrowed from the Law of Contract, which
+had been used in defence of the rights of subjects, crystallised
+into the theory of an actual original compact between king
+and people, a theory which, first in English and afterwards,
+and more particularly, in French hands, expanded into a
+comprehensive explanation of all the phenomena of society
+and law. But the only real connection between political and
+legal science had consisted in the last giving to the first the
+benefit of its peculiarly plastic terminology. The Roman
+jurisprudence of Contract had performed for the relation of
+sovereign and subject precisely the same service which, in a
+humbler sphere, it rendered to the relation of persons bound
+together by an obligation of "quasi-contract." It had furnished
+a body of words and phrases which approximated with
+sufficient accuracy to the ideas which then were from time<span class='pagenum'><a name="Page_204" id="Page_204">204</a></span>
+to time forming on the subject of political obligation. The
+doctrine of an Original Compact can never be put higher
+than it is placed by Dr. Whewell, when he suggests that,
+though unsound, "it may be a <i>convenient</i> form for the expression
+of moral truths."</p>
+
+<p>The extensive employment of legal language on political
+subjects previously to the invention of the Original Compact,
+and the powerful influence which that assumption has
+exercised subsequently, amply account for the plentifulness
+in political science of words and conceptions, which were the
+exclusive creation of Roman jurisprudence. Of their plentifulness
+in Moral Philosophy a rather different explanation
+must be given, inasmuch as ethical writings have laid
+Roman law under contribution much more directly than
+political speculations, and their authors have been much
+more conscious of the extent of their obligation. In speaking
+of moral philosophy as extraordinarily indebted to Roman
+jurisprudence, I must be understood to intend moral philosophy
+as understood previously to the break in its history
+effected by Kant, that is, as the science of the rules governing
+human conduct, of their proper interpretation and of the
+limitations to which they are subject. Since the rise of the
+Critical Philosophy, moral science has almost wholly lost its
+older meaning, and, except where it is preserved under a
+debased form in the casuistry still cultivated by Roman
+Catholic theologians, it seems to be regarded nearly universally
+as a branch of ontological inquiry. I do not know that
+there is a single contemporary English writer, with the exception
+of Dr. Whewell, who understands moral philosophy
+as it was understood before it was absorbed by metaphysics
+and before the groundwork of its rules came to be a more
+important consideration than the rules themselves. So long,
+however, as ethical science had to do with the practical
+regimen of conduct, it was more or less saturated with Roman
+law. Like all the great subjects of modern thought, it was
+originally incorporated with theology. The science of Moral
+Theology, as it was at first called, and as it is still designated
+by the Roman Catholic divines, was undoubtedly constructed,
+to the full knowledge of its authors, by taking principles of
+conduct from the system of the Church, and by using the
+language and methods of jurisprudence for their expression
+and expansion. While this process went on, it was inevitable<span class='pagenum'><a name="Page_205" id="Page_205">205</a></span>
+that jurisprudence, though merely intended to be the vehicle
+of thought, should communicate its colour to the thought
+itself. The tinge received through contact with legal conceptions
+is perfectly perceptible in the earliest ethical literature
+of the modern world, and it is evident, I think, that the
+Law of Contract, based as it is on the complete reciprocity
+and indissoluble connection of rights and duties, has acted as
+a wholesome corrective to the predispositions of writers who,
+if left to themselves, might have exclusively viewed a moral
+obligation as the public duty of a citizen in the Civitas Dei.
+But the amount of Roman Law in moral theology becomes
+sensibly smaller at the time of its cultivation by the great
+Spanish moralists. Moral theology, developed by the juridical
+method of doctor commenting on doctor, provided itself
+with a phraseology of its own, and Aristotelian peculiarities
+of reasoning and expression, imbibed doubtless in great
+part from the Disputations on Morals in the academical
+schools, take the place of that special turn of thought and
+speech which can never be mistaken by any person conversant
+with the Roman law. If the credit of the Spanish school of
+moral theologians had continued, the juridical ingredient
+in ethical science would have been insignificant, but the use
+made of their conclusions by the next generation of Roman
+Catholic writers on these subjects almost entirely destroyed
+their influence. Moral Theology, degraded into Casuistry,
+lost all interest for the leaders of European speculation;
+and the new science of Moral Philosophy, which was entirely
+in the hands of the Protestants, swerved greatly aside from
+the path which the moral theologians had followed. The
+effect was vastly to increase the influence of Roman law on
+ethical inquiry.</p>
+
+<p>Shortly<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">5</a> after the Reformation, we find two great schools
+of thought dividing this class of subjects between them. The
+most influential of the two was at first the sect of school
+known to us as the Casuists, all of them in spiritual communion
+with the Roman Catholic Church, and nearly all of
+them affiliated to one or other of her religious orders. On the
+other side were a body of writers connected with each other
+by a common intellectual descent from the great author of
+the treatise <i>De Jure Belli et Pacis</i>, Hugo Grotius. Almost
+<span class='pagenum'><a name="Page_206" id="Page_206">206</a></span>all of the latter were adherents of the Reformation, and though
+it cannot be said that they were formally and avowedly at
+conflict with the Casuists, the origin and object of their
+system were nevertheless essentially different from those of
+Casuistry. It is necessary to call attention to this difference,
+because it involves the question of the influence of Roman
+law on that department of thought with which both systems
+are concerned. The book of Grotius, though it touches questions
+of pure Ethics in every page, and though it is the parent
+immediate or remote of innumerable volumes of formal
+morality, is not, as is well known, a professed treatise on
+Moral Philosophy; it is an attempt to determine the Law
+of Nature, or Natural Law. Now, without entering upon the
+question, whether the conception of a Law Natural be not
+exclusively a creation of the Roman jurisconsults, we may
+lay down that, even on the admission of Grotius himself,
+the dicta of the Roman jurisprudence as to what parts of
+known positive law must be taken to be parts of the Law
+of Nature, are, if not infallible, to be received at all events
+with the profoundest respect. Hence the system of Grotius
+is implicated with Roman law at its very foundation, and
+this connection rendered inevitable&mdash;what the legal training
+of the writer would perhaps have entailed without it&mdash;the
+free employment in every paragraph of technical phraseology,
+and of modes of reasoning, defining, and illustrating, which
+must sometimes conceal the sense, and almost always the
+force and cogency, of the argument from the reader who is
+unfamiliar with the sources whence they have been derived.
+On the other hand, Casuistry borrows little from Roman law,
+and the views of morality contended for have nothing whatever
+in common with the undertaking of Grotius. All that
+philosophy of right and wrong which has become famous, or
+infamous, under the name of Casuistry, had its origin in the
+distinction between Mortal and Venial Sin. A natural anxiety
+to escape the awful consequences of determining a particular
+act to be mortally sinful, and a desire, equally intelligible, to
+assist the Roman Catholic Church in its conflict with Protestantism
+by disburthening it of an inconvenient theory, were
+the motives which impelled the authors of the Casuistical
+philosophy to the invention of an elaborate system of criteria,
+intended to remove immoral actions, in as many cases as
+possible, out of the category of mortal offences, and to<span class='pagenum'><a name="Page_207" id="Page_207">207</a></span>
+stamp them as venial sins. The fate of this experiment is
+matter of ordinary history. We know that the distinctions of
+Casuistry, by enabling the priesthood to adjust spiritual control
+to all the varieties of human character, did really confer
+on it an influence with princes, statesmen, and generals, unheard
+of in the ages before the Reformation, and did really
+contribute largely to that great reaction which checked and
+narrowed the first successes of Protestantism. But beginning
+in the attempt, not to establish, but to evade&mdash;not to discover
+a principle, but to escape a postulate&mdash;not to settle
+the nature of right and wrong, but to determine what was
+not wrong of a particular nature,&mdash;Casuistry went on with
+its dexterous refinements till it ended in so attenuating the
+moral features of actions, and so belying the moral instincts
+of our being, that at length the conscience of mankind rose
+suddenly in revolt against it, and consigned to one common
+ruin the system and its doctors. The blow, long pending, was
+finally struck in the <i>Provincial Letters</i> of Pascal, and since the
+appearance of those memorable Papers, no moralist of the
+smallest influence or credit has ever avowedly conducted his
+speculations in the footsteps of the Casuists. The whole field
+of ethical science was thus left at the exclusive command of
+the writers who followed Grotius; and it still exhibits in an
+extraordinary degree the traces of that entanglement with
+Roman law which is sometimes imputed as a fault, and sometimes
+the highest of its recommendations, to the Grotian
+theory. Many inquirers since Grotius's day have modified his
+principles, and many, of course, since the rise of the Critical
+Philosophy, have quite deserted them; but even those who
+have departed most widely from his fundamental assumptions
+have inherited much of his method of statement, of his train
+of thought, and of his mode of illustration; and these have
+little meaning and no point to the person ignorant of Roman
+jurisprudence.</p>
+
+<p>I have already said that, with the exception of the physical
+sciences, there is no walk of knowledge which has been so
+slightly affected by Roman law as Metaphysics. The reason
+is that discussion on metaphysical subjects has always been
+conducted in Greek, first in pure Greek, and afterwards in a
+dialect of Latin expressly constructed to give expression to
+Greek conceptions. The modern languages have only been
+fitted to metaphysical inquiries by adopting this Latin dialect,<span class='pagenum'><a name="Page_208" id="Page_208">208</a></span>
+or by imitating the process which was originally followed in
+its formation. The source of the phraseology which has been
+always employed for metaphysical discussion in modern
+times was the Latin translations of Aristotle, in which,
+whether derived or not from Arabic versions, the plan of the
+translator was not to seek for analogous expressions in any
+part of Latin literature, but to construct anew from Latin
+roots a set of phrases equal to the expression of Greek philosophical
+ideas. Over such a process the terminology of
+Roman law can have exercised little influence; at most, a
+few Latin law terms in a transmuted shape have made their
+way into metaphysical language. At the same time it is
+worthy of remark that whenever the problems of metaphysics
+are those which have been most strongly agitated in Western
+Europe, the thought, if not the language, betrays a legal
+parentage. Few things in the history of speculation are more
+impressive than the fact that no Greek-speaking people has
+ever felt itself seriously perplexed by the great question of
+Free-will and Necessity. I do not pretend to offer any summary
+explanation of this, but it does not seem an irrelevant
+suggestion that neither the Greeks, nor any society speaking
+and thinking in their language, ever showed the smallest
+capacity for producing a philosophy of law. Legal science
+is a Roman creation, and the problem of Free-will arises when
+we contemplate a metaphysical conception under a legal
+aspect. How came it to be a question whether invariable
+sequence was identical with necessary connection? I can
+only say that the tendency of Roman law, which became
+stronger as it advanced, was to look upon legal consequences
+as united to legal causes by an inexorable necessity, a tendency
+most markedly exemplified in the definition of Obligation
+which I have repeatedly cited, "Juris vinculum quo
+necessitate adstringimur alicujus solvend&aelig; rei."</p>
+
+<p>But the problem of Free-will was theological before it
+became philosophical, and, if its terms have been affected
+by jurisprudence, it will be because Jurisprudence had made
+itself felt in Theology. The great point of inquiry which is
+here suggested has never been satisfactorily elucidated. What
+has to be determined, is whether jurisprudence has ever
+served as the medium through which theological principles
+have been viewed; whether, by supplying a peculiar language,
+a peculiar mode of reasoning, and a peculiar solution of many<span class='pagenum'><a name="Page_209" id="Page_209">209</a></span>
+of the problems of life, it has ever opened new channels in
+which theological speculation could flow out and expand
+itself. For the purpose of giving an answer it is necessary
+to recollect what is already agreed upon by the best writers
+as to the intellectual food which theology first assimilated.
+It is conceded on all sides that the earliest language of the
+Christian Church was Greek, and that the problems to which
+it first addressed itself were those for which Greek philosophy
+in its later forms had prepared the way. Greek metaphysical
+literature contained the sole stock of words and ideas out of
+which the human mind could provide itself with the means
+of engaging in the profound controversies as to the Divine
+Persons, the Divine Substance, and the Divine Natures. The
+Latin language and the meagre Latin philosophy were quite
+unequal to the undertaking, and accordingly the Western
+or Latin-speaking provinces of the Empire adopted the conclusions
+of the East without disputing or reviewing them.
+"Latin Christianity," says Dean Milman, "accepted the
+creed which its narrow and barren vocabulary could hardly
+express in adequate terms. Yet, throughout, the adhesion
+of Rome and the West was a passive acquiescence in the
+dogmatic system which had been wrought out by the profounder
+theology of the Eastern divines, rather than a
+vigorous and original examination on her part of those
+mysteries. The Latin Church was the scholar as well as the
+loyal partizan of Athanasius." But when the separation of
+East and West became wider, and the Latin-speaking Western
+Empire began to live with an intellectual life of its own, its
+deference to the East was all at once exchanged for the
+agitation of a number of questions entirely foreign to Eastern
+speculation. "While Greek theology (Milman, <i>Latin Christianity</i>,
+Preface, 5) went on defining with still more exquisite
+subtlety the Godhead and the nature of Christ"&mdash;"while
+the interminable controversy still lengthened out and cast
+forth sect after sect from the enfeebled community"&mdash;the
+Western Church threw itself with passionate ardour into a
+new order of disputes, the same which from those days to
+this have never lost their interest for any family of mankind
+at any time included in the Latin communion. The nature
+of Sin and its transmission by inheritance&mdash;the debt owed by
+man and its vicarious satisfaction&mdash;the necessity and sufficiency
+of the Atonement&mdash;above all the apparent antagonism<span class='pagenum'><a name="Page_210" id="Page_210">210</a></span>
+between Free-will and the Divine Providence&mdash;these were
+the points which the West began to debate as ardently as
+ever the East had discussed the articles of its more special
+creed. Why is it then that on the two sides of the line which
+divides the Greek-speaking from the Latin-speaking provinces
+there lie two classes of theological problems so strikingly
+different from one another? The historians of the Church
+have come close upon the solution when they remark that
+the new problems were more "practical," less absolutely
+speculative, than those which had torn Eastern Christianity
+asunder, but none of them, so far as I am aware, has quite
+reached it. I affirm without hesitation that the difference
+between the two theological systems is accounted for by the
+fact that, in passing from the East to the West, theological
+speculation had passed from a climate of Greek metaphysics
+to a climate of Roman law. For some centuries before these
+controversies rose into overwhelming importance, all the
+intellectual activity of the Western Romans had been expended
+on jurisprudence exclusively. They had been occupied
+in applying a peculiar set of principles to all the combinations
+in which the circumstances of life are capable of being
+arranged. No foreign pursuit or taste called off their attention
+from this engrossing occupation, and for carrying it on they
+possessed a vocabulary as accurate as it was copious, a strict
+method of reasoning, a stock of general propositions on conduct
+more or less verified by experience, and a rigid moral
+philosophy. It was impossible that they should not select
+from the questions indicated by the Christian records those
+which had some affinity with the order of speculations to
+which they were accustomed, and that their manner of
+dealing with them should borrow something from their
+forensic habits. Almost everybody who has knowledge enough
+of Roman law to appreciate the Roman penal system, the
+Roman theory of the obligations established by Contract or
+Delict, the Roman view of Debts and of the modes of incurring,
+extinguishing, and transmitting them, the Roman
+notion of the continuance of individual existence by Universal
+Succession, may be trusted to say whence arose the frame
+of mind to which the problems of Western theology proved
+so congenial, whence came the phraseology in which these
+problems were stated, and whence the description of reasoning
+employed in their solution. It must only be recollected that<span class='pagenum'><a name="Page_211" id="Page_211">211</a></span>
+Roman law which had worked itself into Western thought
+was neither the archaic system of the ancient city, nor the
+pruned and curtailed jurisprudence of the Byzantine Emperors;
+still less, of course, was it the mass of rules, nearly
+buried in a parasitical overgrowth of modern speculative
+doctrine, which passes by the name of Modern Civil Law.
+I speak only of that philosophy of jurisprudence, wrought
+out by the great juridical thinkers of the Antonine age, which
+may still be partially reproduced from the Pandects of
+Justinian, a system to which few faults can be attributed
+except it perhaps aimed at a higher degree of elegance,
+certainty, and precision, than human affairs will permit to
+the limits within which human laws seek to confine them.</p>
+
+<p>It is a singular result of that ignorance of Roman law which
+Englishmen readily confess, and of which they are sometimes
+not ashamed to boast, that many English writers of note
+and credit have been led by it to put forward the most
+untenable of paradoxes concerning the condition of human
+intellect during the Roman Empire. It has been constantly
+asserted, as unhesitatingly as if there were no temerity in
+advancing the proposition, that from the close of the Augustan
+era to the general awakening of interest on the points of the
+Christian faith, the mental energies of the civilised world
+were smitten with a paralysis. Now there are two subjects
+of thought&mdash;the only two perhaps with the exception of
+physical science&mdash;which are able to give employment to all
+the powers and capacities which the mind possesses. One
+of them is Metaphysical inquiry, which knows no limits so
+long as the mind is satisfied to work on itself; the other is
+Law, which is as extensive as the concerns of mankind. It
+happens that, during the very period indicated, the Greek-speaking
+provinces were devoted to one, the Latin-speaking
+provinces to the other, of these studies. I say nothing of the
+fruits of speculation in Alexandria and the East, but I confidently
+affirm that Rome and the West had an occupation
+in hand fully capable of compensating them for the absence
+of every other mental exercise, and I add that the results
+achieved, so far as we know them, were not unworthy of the
+continuous and exclusive labour bestowed on producing them.
+Nobody except a professional lawyer is perhaps in a position
+completely to understand how much of the intellectual
+strength of individuals Law is capable of absorbing, but a<span class='pagenum'><a name="Page_212" id="Page_212">212</a></span>
+layman has no difficulty in comprehending why it was that
+an unusual share of the collective intellect of Rome was
+engrossed by jurisprudence. "The proficiency<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">6</a>] of a given
+community in jurisprudence depends in the long run on the
+same conditions as its progress in any other line of inquiry;
+and the chief of these are the proportion of the national
+intellect devoted to it, and the length of time during which
+it is so devoted. Now, a combination of all the causes, direct
+and indirect, which contribute to the advancing and perfecting
+of a science continued to operate on the jurisprudence
+of Rome through the entire space between the Twelve Tables
+and the severance of the two Empires,&mdash;and that not irregularly
+or at intervals, but in steadily increasing force and constantly
+augmenting number. We should reflect that the
+earliest intellectual exercise to which a young nation devotes
+itself is the study of its laws. As soon as the mind makes its
+first conscious efforts towards generalisation, the concerns
+of every-day life are the first to press for inclusion within
+general rules and comprehensive formulas. The popularity
+of the pursuit on which all the energies of the young commonwealth
+are bent is at the outset unbounded; but it ceases in
+time. The monopoly of mind by law is broken down. The
+crowd at the morning audience of the great Roman jurisconsult
+lessens. The students are counted by hundreds
+instead of thousands in the English Inns of Court. Art,
+Literature, Science, and Politics, claim their share of the
+national intellect; and the practice of jurisprudence is confined
+within the circle of a profession, never indeed limited
+or insignificant, but attracted as much by the rewards as by
+the intrinsic recommendations of their science. This succession
+of changes exhibited itself even more strikingly
+at Rome than in England. To the close of the Republic the
+law was the sole field for all ability except the special talent
+of a capacity for generalship. But a new stage of intellectual
+progress began with the Augustan age, as it did with our
+own Elizabethan era. We all know what were its achievements
+in poetry and prose; but there are some indications,
+it should be remarked, that, besides its efflorescence in
+ornamental literature, it was on the eve of throwing out
+new aptitudes for conquest in physical science. Here, however,
+is the point at which the history of mind in the Roman
+<span class='pagenum'><a name="Page_213" id="Page_213">213</a></span>State ceases to be parallel to the routes which mental progress
+had since then pursued. The brief span of Roman
+literature, strictly so called, was suddenly closed under a
+variety of influences, which though they may partially be
+traced it would be improper in this place to analyse. Ancient
+intellect was forcibly thrust back into its old courses, and
+law again became no less exclusively the proper sphere for
+talent than it had been in the days when the Romans despised
+philosophy and poetry as the toys of a childish race.
+Of what nature were the external inducements which, during
+the Imperial period, tended to draw a man of inherent
+capacity to the pursuits of the jurisconsult may best be
+understood by considering the option which was practically
+before him in his choice of a profession. He might become a
+teacher of rhetoric, a commander of frontier-posts, or a professional
+writer of panegyrics. The only other walk of active
+life which was open to him was the practice of the law. Through
+<i>that</i> lay the approach to wealth, to fame, to office, to the
+council-chamber of the monarch&mdash;it may be to the very
+throne itself."</p>
+
+<p>The premium on the study of jurisprudence was so enormous
+that there were schools of law in every part of the Empire,
+even in the very domain of Metaphysics. But, though the
+transfer of the seat of empire to Byzantium gave a perceptible
+impetus to its cultivation in the East, jurisprudence never
+dethroned the pursuits which there competed with it. Its
+language was Latin, an exotic dialect in the Eastern half of
+the Empire. It is only of the West that we can lay down
+that law was not only the mental food of the ambitious and
+aspiring, but the sole aliment of all intellectual activity.
+Greek philosophy had never been more than a transient
+fashionable taste with the educated class of Rome itself, and
+when the new Eastern capital had been created, and the
+Empire subsequently divided into two, the divorce of the
+Western provinces from Greek speculation, and their exclusive
+devotion to jurisprudence, became more decided than
+ever. As soon then as they ceased to sit at the feet of the
+Greeks and began to ponder out a theology of their own, the
+theology proved to be permeated with forensic ideas and
+couched in a forensic phraseology. It is certain that this
+substratum of law in Western theology lies exceedingly
+deep. A new set of Greek theories, the Aristotelian philosophy,<span class='pagenum'><a name="Page_214" id="Page_214">214</a></span>
+made their way afterwards into the West and almost
+entirely buried its indigenous doctrines. But when at the
+Reformation it partially shook itself free from their influence,
+it instantly supplied their place with Law. It is difficult
+to say whether the religious system of Calvin or the religious
+system of the Arminians has the more markedly legal
+character.</p>
+
+<p>The vast influence of the specific jurisprudence of Contract
+produced by the Romans upon the corresponding department
+of modern Law belongs rather to the history of mature jurisprudence
+than to a treatise like the present. It did not make
+itself felt till the school of Bologna founded the legal science
+of modern Europe. But the fact that the Romans, before
+their Empire fell, had so fully developed the conception of
+Contract becomes of importance at a much earlier period than
+this. Feudalism, I have repeatedly asserted, was a compound of
+archaic barbarian usage with Roman law; no other explanation
+of it is tenable, or even intelligible. The earliest social
+forms of the feudal period differ in little from the ordinary
+associations in which the men of primitive civilisations are
+everywhere seen united. A Fief was an organically complete
+brotherhood of associates whose proprietary and personal
+rights were inextricably blended together. It had much in
+common with an Indian Village Community and much in
+common with a Highland clan. But still it presents some
+phenomena which we never find in the associations which
+are spontaneously formed by beginners in civilisation. True
+archaic communities are held together not by express rules,
+but by sentiment, or, we should perhaps say, by instinct;
+and new comers into the brotherhood are brought within the
+range of this instinct by falsely pretending to share in the blood-relationship
+from which it naturally springs. But the earliest
+feudal communities were neither bound together by mere
+sentiment nor recruited by a fiction. The tie which united
+them was Contract, and they obtained new associates by
+contracting with them. The relation of the lord to the vassals
+had originally been settled by express engagement, and a
+person wishing to engraft himself on the brotherhood by
+<i>commendation</i> or <i>infeudation</i> came to a distinct understanding
+as to the conditions on which he was to be admitted. It is
+therefore the sphere occupied in them by Contract which
+principally distinguishes the feudal institutions from the<span class='pagenum'><a name="Page_215" id="Page_215">215</a></span>
+unadulterated usages of primitive races. The lord had many
+of the characteristics of a patriarchal chieftain, but his prerogative
+was limited by a variety of settled customs traceable
+to the express conditions which had been agreed upon when
+the infeudation took place. Hence flow the chief differences
+which forbid us to class the feudal societies with true archaic
+communities. They were much more durable and much more
+various; more durable, because express rules are less destructible
+than instinctive habits, and more various, because
+the contracts on which they were founded were adjusted to
+the minutest circumstances and wishes of the persons who
+surrendered or granted away their lands. This last consideration
+may serve to indicate how greatly the vulgar opinions
+current among us as to the origin of modern society stand
+in need of revision. It is often said that the irregular and
+various contour of modern civilisation is due to the exuberant
+and erratic genius of the Germanic races, and it is often contrasted
+with the dull routine of the Roman Empire. The
+truth is that the Empire bequeathed to modern society the
+legal conception to which all this irregularity is attributable;
+if the customs and institutions of barbarians have one
+characteristic more striking than another, it is their extreme
+uniformity.<span class='pagenum'><a name="Page_216" id="Page_216">216</a></span></p>
+
+<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">5</span></a> The passage quoted is transcribed with slight alterations from a
+paper contributed by the author to the <i>Cambridge Essays</i> for 1856.</p></div>
+
+<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">6</span></a> <i>Cambridge Essays</i>, 1856.</p></div>
+
+
+<h3><a name="CHAPTER_X" id="CHAPTER_X"></a>CHAPTER X</h3>
+
+<h4><span class="smcap">the early history of delict and crime</span></h4>
+
+
+<p>The Teutonic Codes, including those of our Anglo-Saxon
+ancestors, are the only bodies of archaic secular law which
+have come down to us in such a state that we can form an
+exact notion of their original dimensions. Although the
+extant fragments of Roman and Hellenic codes suffice to
+prove to us their general character, there does not remain
+enough of them for us to be quite sure of their precise magnitude
+or of the proportion of their parts to each other. But
+still on the whole all the known collections of ancient law
+are characterised by a feature which broadly distinguishes
+them from systems of mature jurisprudence. The proportion
+of criminal to civil law is exceedingly different. In the
+German codes, the civil part of the law has trifling dimensions
+as compared with the criminal. The traditions which speak
+of the sanguinary penalties inflicted by the code of Draco
+seem to indicate that it had the same characteristic. In
+the Twelve Tables alone, produced by a society of greater
+legal genius and at first of gentler manners, the civil law has
+something like its modern precedence; but the relative
+amount of space given to the modes of redressing wrong,
+though not enormous, appears to have been large. It may
+be laid down, I think, that the more archaic the code, the
+fuller and the minuter is its penal legislation. The phenomenon
+has often been observed, and has been explained, no
+doubt to a great extent correctly, by the violence habitual
+to the communities which for the first time reduced their
+laws to writing. The legislator, it is said, proportioned the
+divisions of his work to the frequency of a certain class of
+incidents in barbarian life. I imagine, however, that this
+account is not quite complete. It should be recollected that
+the comparative barrenness of civil law in archaic collections
+is consistent with those other characteristics of ancient jurisprudence
+which have been discussed in this treatise. Nine-tenths
+of the civil part of the law practised by civilised societies<span class='pagenum'><a name="Page_217" id="Page_217">217</a></span>
+are made up of the Law of Persons, of the Law of Property
+and of Inheritance, and of the Law of Contract. But it is
+plain that all these provinces of jurisprudence must shrink
+within narrower boundaries, the nearer we make our approaches
+to the infancy of social brotherhood. The Law of Persons,
+which is nothing else than the Law of Status, will be restricted
+to the scantiest limits as long as all forms of status are merged
+in common subjection to Paternal Power, as long as the
+Wife has no rights against her Husband, the Son none against
+his Father, and the infant Ward none against the Agnates
+who are his Guardians. Similarly, the rules relating to
+Property and Succession can never be plentiful, so long as
+land and goods devolve within the family, and, if distributed
+at all, are distributed inside its circle. But the greatest gap
+in ancient civil law will always be caused by the absence of
+Contract, which some archaic codes do not mention at all,
+while others significantly attest the immaturity of the moral
+notions on which Contract depends by supplying its place
+with an elaborate jurisprudence of Oaths. There are no
+corresponding reasons for the poverty of penal law, and
+accordingly, even if it be hazardous to pronounce that the
+childhood of nations is always a period of ungoverned violence,
+we shall still be able to understand why the modern relation
+of criminal law to civil should be inverted in ancient
+codes.</p>
+
+<p>I have spoken of primitive jurisprudence as giving to
+<i>criminal</i> law a priority unknown in a later age. The expression
+has been used for convenience' sake, but in fact the
+inspection of ancient codes shows that the law which they
+exhibit in unusual quantities is not true criminal law. All
+civilised systems agree in drawing a distinction between
+offences against the State or Community and offences against
+the Individual, and the two classes of injuries, thus kept
+apart, I may here, without pretending that the terms have
+always been employed consistently in jurisprudence, call
+Crimes and Wrongs, <i>crimina</i> and <i>delicta</i>. Now the penal law
+of ancient communities is not the law of Crimes; it is the
+law of Wrongs, or, to use the English technical word, of Torts.
+The person injured proceeds against the wrong-doer by an
+ordinary civil action, and recovers compensation in the shape
+of money-damages if he succeeds. If the Commentaries of
+Gaius be opened at the place where the writer treats of the<span class='pagenum'><a name="Page_218" id="Page_218">218</a></span>
+penal jurisprudence founded on the Twelve Tables, it will be
+seen that at the head of the civil wrongs recognised by the
+Roman law stood <i>Furtum</i> or <i>Theft</i>. Offences which we are
+accustomed to regard exclusively as <i>crimes</i> are exclusively
+treated as <i>torts</i>, and not theft only, but assault and violent
+robbery, are associated by the jurisconsult with trespass,
+libel and slander. All alike gave rise to an Obligation or
+<i>vinculum juris</i>, and were all requited by a payment of money.
+This peculiarity, however, is most strongly brought out in
+the consolidated Laws of the Germanic tribes. Without an
+exception, they describe an immense system of money compensations
+for homicide, and with few exceptions, as large
+a scheme of compensations for minor injuries. "Under
+Anglo-Saxon law," writes Mr. Kemble (<i>Anglo-Saxons</i>, i. 177),
+"a sum was placed on the life of every free man, according to
+his rank, and a corresponding sum on every wound that could
+be inflicted on his person, for nearly every injury that could
+be done to his civil rights, honour or peace; the sum being
+aggravated according to adventitious circumstances." These
+compositions are evidently regarded as a valuable source of
+income; highly complex rules regulate the title to them and
+the responsibility for them; and, as I have already had occasion
+to state, they often follow a very peculiar line of devolution,
+if they have not been acquitted at the decease of the
+person to whom they belong. If therefore the criterion of a
+<i>delict</i>, <i>wrong</i>, or <i>tort</i> be that the person who suffers it, and not
+the State, is conceived to be wronged, it may be asserted that
+in the infancy of jurisprudence the citizen depends for protection
+against violence or fraud not on the Law of Crime but
+on the Law of Tort.</p>
+
+<p>Torts then are copiously enlarged upon in primitive jurisprudence.
+It must be added that Sins are known to it also.
+Of the Teutonic codes it is almost unnecessary to make this
+assertion, because those codes, in the form in which we have
+received them, were compiled or recast by Christian legislators.
+But it is also true that non-Christian bodies of archaic law
+entail penal consequences on certain classes of acts and on
+certain classes of omissions, as being violations of divine
+prescriptions and commands. The law administered at
+Athens by the Senate of Areopagus was probably a special
+religious code, and at Rome, apparently from a very early
+period, the Pontifical jurisprudence punished adultery,<span class='pagenum'><a name="Page_219" id="Page_219">219</a></span>
+sacrilege and perhaps murder. There were therefore in
+the Athenian and in the Roman States laws punishing <i>sins</i>.
+There were also laws punishing <i>torts</i>. The conception of
+offence against God produced the first class of ordinances;
+the conception of offence against one's neighbour produced
+the second; but the idea of offence against the State or
+aggregate community did not at first produce a true criminal
+jurisprudence.</p>
+
+<p>Yet it is not to be supposed that a conception so simple
+and elementary as that of wrong done to the State was wanting
+in any primitive society. It seems rather that the very
+distinctness with which this conception is realised is the true
+cause which at first prevents the growth of a criminal law.
+At all events, when the Roman community conceived itself
+to be injured, the analogy of a personal wrong received was
+carried out to its consequences with absolute literalness, and
+the State avenged itself by a single act on the individual
+wrong-doer. The result was that, in the infancy of the
+commonwealth, every offence vitally touching its security
+or its interests was punished by a separate enactment of the
+legislature. And this is the earliest conception of a <i>crimen</i>
+or Crime&mdash;an act involving such high issues that the State,
+instead of leaving its cognisance to the civil tribunal or the
+religious court, directed a special law or <i>privilegium</i> against
+the perpetrator. Every indictment therefore took the form
+of a bill of pains and penalties, and the trial of a <i>criminal</i> was
+a proceeding wholly extraordinary, wholly irregular, wholly
+independent of settled rules and fixed conditions. Consequently,
+both for the reason that the tribunal dispensing
+justice was the sovereign state itself and also for the reason
+that no classification of the acts prescribed or forbidden was
+possible, there was not at this epoch any <i>Law</i> of crimes, any
+criminal jurisprudence. The procedure was identical with
+the forms of passing an ordinary statute; it was set in motion
+by the same persons and conducted with precisely the same
+solemnities. And it is to be observed that, when a regular
+criminal law with an apparatus of Courts and officers for its
+administration had afterwards come into being, the old
+procedure, as might be supposed from its conformity with
+theory, still in strictness remained practicable; and, much
+as resort to such an expedient was discredited, the people of
+Rome always retained the power of punishing by a special<span class='pagenum'><a name="Page_220" id="Page_220">220</a></span>
+law offences against its majesty. The classical scholar does
+not require to be reminded that in exactly the same manner
+the Athenian Bill of Pains and Penalties, or &#949;&#7984;&#963;&#945;&#947;&#947;&#949;&#955;&#8055;&#945;, survived
+the establishment of regular tribunals. It is known
+too that when the freemen of the Teutonic races assembled
+for legislation, they also claimed authority to punish offences
+of peculiar blackness or perpetrated by criminals of exalted
+station. Of this nature was the criminal jurisdiction of the
+Anglo-Saxon Witenagemot.</p>
+
+<p>It may be thought that the difference which I have asserted
+to exist between the ancient and modern view of penal law
+has only a verbal existence. The community, it may be
+said, besides interposing to punish crimes legislatively, has
+from the earliest times interfered by its tribunals to compel
+the wrong-doer to compound for his wrong, and, if it does
+this, it must always have supposed that in some way it was
+injured through his offence. But, however rigorous this
+inference may seem to us now-a-days, it is very doubtful
+whether it was actually drawn by the men of primitive antiquity.
+How little the notion of injury to the community
+had to do with the earliest interferences of the State <i>through
+its tribunals</i>, is shown by the curious circumstances that in
+the original administration of justice, the proceedings were a
+close imitation of the series of acts which were likely to be
+gone through in private life by persons who were disputing,
+but who afterwards suffered their quarrel to be appeased.
+The magistrate carefully simulated the demeanour of a
+private arbitrator casually called in.</p>
+
+<p>In order to show that this statement is not a mere fanciful
+conceit, I will produce the evidence on which it rests. Very
+far the most ancient judicial proceeding known to us is the
+Legis Actio Sacramenti of the Romans, out of which all the
+later Roman Law of Actions may be proved to have grown.
+Gaius carefully describes its ceremonial. Unmeaning and
+grotesque as it appears at first sight, a little attention enables
+us to decipher and interpret it.</p>
+
+<p>The subject of litigation is supposed to be in Court. If it
+is moveable, it is actually there. If it be immoveable, a
+fragment or sample of it is brought in its place; land, for
+instance, is represented by a clod, a house by a single brick.
+In the example selected by Gaius, the suit is for a slave. The
+proceeding begins by the plaintiff's advancing with a rod,<span class='pagenum'><a name="Page_221" id="Page_221">221</a></span>
+which, as Gaius expressly tells, symbolised a spear. He lays
+hold of the slave and asserts a right to him with the words,
+"<i>Hunc ego hominem ex Jure Quiritium meum esse dico secundum
+suam causam sicut dixi</i>;" and then saying, "<i>Ecce tibi
+Vindictam imposui</i>," he touches him with the spear. The
+defendant goes through the same series of acts and gestures.
+On this the Pr&aelig;tor intervenes, and bids the litigants relax
+their hold, "<i>Mittite ambo hominem</i>." They obey, and the
+plaintiff demands from the defendant the reason of his interference,
+"<i>Postulo anne dicas qu&acirc; ex caus&acirc; vindicaveris</i>," a
+question which is replied to by a fresh assertion of right,
+"<i>Jus peregi sicut vindictam imposui</i>." On this, the first
+claimant offers to stake a sum of money, called a Sacramentum,
+on the justice of his own case, "<i>Quando tu injuri&acirc;
+provocasti, D &aelig;ris Sacramento te provoco</i>," and the defendant,
+in the phrase "<i>Similiter ego te</i>," accepts the wager. The
+subsequent proceedings were no longer of a formal kind, but
+it is to be observed that the Pr&aelig;tor took security for the
+Sacramentum, which always went into the coffers of the State.</p>
+
+<p>Such was the necessary preface of every ancient Roman
+suit. It is impossible, I think, to refuse assent to the suggestion
+of those who see in it a dramatisation of the Origin of
+Justice. Two armed men are wrangling about some disputed
+property. The Pr&aelig;tor, <i>vir pietate gravis</i>, happens to be
+going by, and interposes to stop the contest. The disputants
+state their case to him, and agree that he shall arbitrate
+between them, it being arranged that the loser, besides
+resigning the subject of the quarrel, shall pay a sum of money
+to the umpire as remuneration for his trouble and loss of
+time. This interpretation would be less plausible than it is,
+were it not that, by a surprising coincidence, the ceremony
+described by Gaius as the imperative course of proceeding
+in a Legis Actio is substantially the same with one of the two
+subjects which the God Heph&aelig;stus is described by Homer
+as moulding into the First Compartment of the Shield of
+Achilles. In the Homeric trial-scene, the dispute, as if
+expressly intended to bring out the characteristics of primitive
+society, is not about property but about the composition for
+a homicide. One person asserts that he has paid it, the other
+that he has never received it. The point of detail, however,
+which stamps the picture as the counterpart of the archaic
+Roman practice is the reward designed for the judges. Two<span class='pagenum'><a name="Page_222" id="Page_222">222</a></span>
+talents of gold lie in the middle, to be given to him who shall
+explain the grounds of the decision most to the satisfaction of
+the audience. The magnitude of this sum as compared with
+the trifling amount of the Sacramentum seems to me indicative
+of the indifference between fluctuating usage and usage
+consolidated into law. The scene introduced by the poet
+as a striking and characteristic, but still only occasional,
+feature of city-life in the heroic age has stiffened, at the
+opening of the history of civil process, into the regular,
+ordinary formalities of a lawsuit. It is natural therefore
+that in the Legis Actio the remuneration of the Judge should
+be reduced to a reasonable sum, and that, instead of being
+adjudged to one of a number of arbitrators by popular
+acclamation, it should be paid as a matter of course to the
+State which the Pr&aelig;tor represents. But that the incidents
+described so vividly by Homer, and by Gaius with even more
+than the usual crudity of technical language, have substantially
+the same meaning, I cannot doubt; and, in confirmation
+of this view, it may be added that many observers of the earliest
+judicial usages of modern Europe have remarked that the
+fines inflicted by Courts on offenders were originally <i>sacramenta</i>.
+The State did not take from the defendant a composition
+for any wrong supposed to be done to itself, but claimed
+a share in the compensation awarded to the plaintiff simply
+as the fair price of its time and trouble. Mr. Kemble expressly
+assigns this character to the Anglo-Saxon <i>bannum</i> or
+<i>fredum</i>.</p>
+
+<p>Ancient law furnishes other proofs that the earliest
+administrators of justice simulated the probable acts of
+persons engaged in a private quarrel. In settling the damages
+to be awarded, they took as their guide the measure of
+vengeance likely to be exacted by an aggrieved person under
+the circumstances of the case. This is the true explanation
+of the very different penalties imposed by ancient law on
+offenders caught in the act or soon after it and on offenders
+detected after considerable delay. Some strange exemplifications
+of this peculiarity are supplied by the old Roman law
+of Theft. The Laws of the Twelve Tables seem to have
+divided Thefts into Manifest and Non-Manifest, and to have
+allotted extraordinarily different penalties to the offence
+according as it fell under one head or the other. The Manifest
+Thief was he who was caught within the house in which he<span class='pagenum'><a name="Page_223" id="Page_223">223</a></span>
+had been pilfering, or who was taken while making off to a
+place of safety with the stolen goods; the Twelve Tables
+condemned him to be put to death if he were already a slave,
+and, if he was a freeman, they made him the bondsman of
+the owner of the property. The Non-Manifest Thief was he
+who was detected under any other circumstances than those
+described; and the old code simply directed that an offender
+of this sort should refund double the value of what he had
+stolen. In Gaius's day the excessive severity of the Twelve
+Tables to the Manifest Thief had naturally been much mitigated,
+but the law still maintained the old principle by mulcting
+him in fourfold the value of the stolen goods, while the
+Non-Manifest Thief still continued to pay merely the double.
+The ancient lawgiver doubtless considered that the injured
+proprietor, if left to himself, would inflict a very different
+punishment when his blood was hot from that with which
+he would be satisfied when the Thief was detected after a
+considerable interval; and to this calculation the legal scale
+of penalties was adjusted. The principle is precisely the
+same as that followed in the Anglo-Saxon and other Germanic
+codes, when they suffer a thief chased down and caught with
+the booty to be hanged or decapitated on the spot, while they
+exact the full penalties of homicide from anybody who kills
+him after the pursuit has been intermitted. These archaic
+distinctions bring home to us very forcibly the distance of a
+refined from a rude jurisprudence. The modern administrator
+of justice has confessedly one of the hardest tasks before
+him when he undertakes to discriminate between the degrees
+of criminality which belong to offences falling within the same
+technical description. It is always easy to say that a man
+is guilty of manslaughter, larceny, or bigamy, but it is often
+most difficult to pronounce what extent of moral guilt he
+has incurred, and consequently what measure of punishment
+he has deserved. There is hardly any perplexity in casuistry,
+or in the analysis of motive, which we may not be called upon
+to confront, if we attempt to settle such a point with precision;
+and accordingly the law of our day shows an increasing
+tendency to abstain as much as possible from laying down
+positive rules on the subject. In France, the jury is left
+to decide whether the offence which it finds committed has
+been attended by extenuating circumstances; in England, a
+nearly unbounded latitude in the selection of punishments<span class='pagenum'><a name="Page_224" id="Page_224">224</a></span>
+is now allowed to the judge; while all States have in reserve an
+ultimate remedy for the miscarriages of law in the Prerogative
+of Pardon, universally lodged with the Chief Magistrate.
+It is curious to observe how little the men of primitive
+times were troubled with these scruples, how completely
+they were persuaded that the impulses of the injured person
+were the proper measure of the vengeance he was entitled to
+exact, and how literally they imitated the probable rise and
+fall of his passions in fixing their scale of punishment. I wish
+it could be said that their method of legislation is quite
+extinct. There are, however, several modern systems of
+law which, in cases of graver wrong, admit the fact of the
+wrong-doer having been taken in the act to be pleaded in
+justification of inordinate punishment inflicted on him by
+the sufferer&mdash;an indulgence which, though superficially regarded
+it may seem intelligible, is based, as it seems to me,
+on a very low morality.</p>
+
+<p>Nothing, I have said, can be simpler than the considerations
+which ultimately led ancient societies to the formation of a
+true criminal jurisprudence. The State conceived itself to
+be wronged, and the Popular Assembly struck straight at
+the offender with the same movement which accompanied
+its legislative action. It is further true of the ancient world&mdash;though
+not precisely of the modern, as I shall have occasion
+to point out&mdash;that the earliest criminal tribunals were merely
+subdivisions, or committees, of the legislature. This, at all
+events, is the conclusion pointed at by the legal history of
+the two great states of antiquity, with tolerable clearness in
+one case, and with absolute distinctness in the other. The
+primitive penal law of Athens entrusted the castigation of
+offences partly to the Archons, who seem to have punished
+them as <i>torts</i>, and partly to the Senate of Areopagus, which
+punished them as <i>sins</i>. Both jurisdictions were substantially
+transferred in the end to the Heli&aelig;a, the High Court of
+Popular Justice, and the functions of the Archons and of the
+Areopagus became either merely ministerial or quite insignificant.
+But "Heli&aelig;a" is only an old word for Assembly;
+the Heli&aelig;a of classical times was simply the Popular Assembly
+convened for judicial purposes, and the famous Dikasteries
+of Athens were only its subdivisions or panels. The corresponding
+changes which occurred at Rome are still more easily
+interpreted, because the Romans confined their experiments<span class='pagenum'><a name="Page_225" id="Page_225">225</a></span>
+to the penal law, and did not, like the Athenians, construct
+popular courts with a civil as well as a criminal jurisdiction.
+The history of Roman criminal jurisprudence begins with
+the old Judicia Populi, at which the Kings are said to have
+presided. These were simply solemn trials of great offenders
+under legislative forms. It seems, however, that from an
+early period the Comitia had occasionally delegated its
+criminal jurisdiction to a Qu&aelig;stio or Commission, which bore
+much the same relation to the Assembly as a Committee of
+the House of Commons bears to the House itself, except that
+the Roman Commissioners or Qu&aelig;stores did not merely <i>report</i>
+to the Comitia, but exercised all powers which that body
+was itself in the habit of exercising, even to the passing
+sentence on the Accused. A Qu&aelig;stio of this sort was only
+appointed to try a particular offender, but there was nothing
+to prevent two or three Qu&aelig;stiones sitting at the same time;
+and it is probable that several of them were appointed
+simultaneously, when several grave cases of wrong to the
+community had occurred together. There are also indications
+that now and then these Qu&aelig;stiones approached the
+character of our <i>Standing</i> Committees, in that they were
+appointed periodically, and without waiting for occasion
+to arise in the commission of some serious crime. The old
+Qu&aelig;stores Parricidii, who are mentioned in connection with
+transactions of very ancient date, as being deputed to try
+(or, as some take it, to search out and try) all cases of parricide
+and murder, seem to have been appointed regularly every
+year; and the Duumviri Perduellionis, or Commission of
+Two for trial of violent injury to the Commonwealth, are
+also believed by most writers to have been named periodically.
+The delegations of power to these latter functionaries bring
+us some way forwards. Instead of being appointed <i>when and
+as</i> state-offences were committed, they had a general, though
+a temporary jurisdiction over such as <i>might</i> be perpetrated.
+Our proximity to a regular criminal jurisprudence is also
+indicated by the general terms "Parricidium" and "Perduellio"
+which mark the approach to something like a
+classification of crimes.</p>
+
+<p>The true criminal law did not however come into existence
+till the year <span class="smcap">B.C.</span> 149, when L. Calpurnius Piso carried the
+statute known as the Lex Calpurnia de Repetundis. The law
+applied to cases Repetundarum Pecuniarum, that is, claims by<span class='pagenum'><a name="Page_226" id="Page_226">226</a></span>
+Provincials to recover monies improperly received by a Governor-General,
+but the great and permanent importance of this
+statute arose from its establishing the first Qu&aelig;stio Perpetua.
+A Qu&aelig;stio Perpetua was a <i>Permanent</i> Commission as opposed
+to those which were occasional and to those which were
+temporary. It was a regular criminal tribunal whose existence
+dated from the passing of the statute creating it and
+continued till another statute should pass abolishing it. Its
+members were not specially nominated, as were the members
+of the older Qu&aelig;stiones, but provision was made in the law
+constituting it for selecting from particular classes the judges
+who were to officiate, and for renewing them in conformity
+with definite rules. The offences of which it took cognisance
+were also expressly named and defined in this statute, and
+the new Qu&aelig;stio had authority to try and sentence all persons
+in future whose acts should fall under the definitions of
+crime supplied by the law. It was therefore a regular
+criminal judicature, administering a true criminal jurisprudence.</p>
+
+<p>The primitive history of criminal law divides itself therefore
+into four stages. Understanding that the conception of
+<i>Crime</i>, as distinguished from that of <i>Wrong</i> or <i>Tort</i> and from
+that of <i>Sin</i>, involves the idea of injury to the State or collective
+community, we first find that the commonwealth, in
+literal conformity with the conception, itself interposed
+directly, and by isolated acts, to avenge itself on the author
+of the evil which it had suffered. This is the point from which
+we start; each indictment is now a bill of pains and penalties,
+a special law naming the criminal and prescribing his punishment.
+A <i>second</i> step is accomplished, when the multiplicity
+of crimes compels the legislature to delegate its powers to
+particular Qu&aelig;stiones or Commissions, each of which is deputed
+to investigate a particular accusation, and if it be
+proved, to punish the particular offender. Yet <i>another</i> movement
+is made when the legislature, instead of waiting for the
+alleged commission of a crime as the occasion of appointing
+a Qu&aelig;stio, periodically nominates Commissioners like the
+Qu&aelig;stores Parricidii and the Duumviri Perduellionis, on the
+chance of certain classes of crimes being committed, and in
+the expectation that they <i>will</i> be perpetrated. The <i>last</i> stage is
+reached when the Qu&aelig;stiones from being periodical or occasional
+become permanent Benches or Chambers&mdash;when the<span class='pagenum'><a name="Page_227" id="Page_227">227</a></span>
+judges, instead of being named in the particular law nominating
+the Commission, are directed to be chosen through all
+future time in a particular way and from a particular class&mdash;and
+when certain acts are described in general language and
+declared to be crimes, to be visited, in the event of their
+perpetration, with specified penalties appropriated to each
+description.</p>
+
+<p>If the Qu&aelig;stiones Perpetu&aelig; had had a longer history, they
+would doubtless have come to be regarded as a distinct institution,
+and their relation to the Comitia would have
+seemed no closer than the connection of our own Courts of
+Law with the Sovereign, who is theoretically the fountain of
+justice. But the Imperial despotism destroyed them before
+their origin had been completely forgotten, and, so long as
+they lasted, these Permanent Commissions were looked upon
+by the Romans as the mere depositaries of a delegated power.
+The cognisance of crimes was considered a natural attribute of
+the legislature, and the mind of the citizen never ceased to be
+carried back from the Qu&aelig;stiones, to the Comitia which had
+deputed them to put into exercise some of its own inalienable
+functions. The view which regarded the Qu&aelig;stiones, even
+when they became permanent, as mere Committees of the
+Popular Assembly&mdash;as bodies which only ministered to a
+higher authority&mdash;had some important legal consequences
+which left their mark on the criminal law to the very latest
+period. One immediate result was that the Comitia continued
+to exercise criminal jurisdiction by way of bill of pains
+and penalties, long after the Qu&aelig;stiones had been established.
+Though the legislature had consented to delegate its powers
+for the sake of convenience to bodies external to itself, it
+did not follow that it surrendered them. The Comitia and
+the Qu&aelig;stiones went on trying and punishing offenders side
+by side; and any unusual outburst of popular indignation
+was sure, until the extinction of the Republic, to call down
+upon its object an indictment before the Assembly of the
+Tribes.</p>
+
+<p>One of the most remarkable peculiarities of the institutions
+of the Republic is also traceable to this dependance of
+the Qu&aelig;stiones on the Comitia. The disappearance of the
+punishment of Death from the penal system of Republican
+Rome used to be a very favourite topic with the writers of
+the last century, who were perpetually using it to point some<span class='pagenum'><a name="Page_228" id="Page_228">228</a></span>
+theory of the Roman character or of modern social economy.
+The reason which can be confidently assigned for it stamps it
+as purely fortuitous. Of the three forms which the Roman
+legislature successively assumed, one, it is well known&mdash;the
+Comitia Centuriata&mdash;was exclusively taken to represent the
+State as embodied for military operations. The Assembly of
+the Centuries, therefore, had all powers which may be supposed
+to be properly lodged with a General commanding an
+army, and, among them, it had authority to subject all
+offenders to the same correction to which a soldier rendered
+himself liable by breaches of discipline. The Comitia Centuriata
+could therefore inflict capital punishment. Not so,
+however, the Comitia Curiata or Comitia Tributa. They were
+fettered on this point by the sacredness with which the person
+of a Roman citizen, inside the walls of the city, was invested
+by religion and law; and, with respect to the last of them, the
+Comitia Tributa, we know for certain that it became a fixed
+principle that the Assembly of the Tribes could at most impose
+a fine. So long as criminal jurisdiction was confined to
+the legislature, and so long as the assemblies of the centuries
+and of the Tribes continued to exercise co-ordinate powers,
+it was easy to prefer indictments for graver crimes before the
+legislative body which dispensed the heavier penalties; but
+then it happened that the more democratic assembly, that of
+the Tribes, almost entirely superseded the others, and became
+the ordinary legislature of the later Republic. Now the
+decline of the Republic was exactly the period during which
+the Qu&aelig;stiones Perpetu&aelig; were established, so that the statutes
+creating them were all passed by a legislative assembly which
+itself could not, at its ordinary sittings, punish a criminal
+with death. It followed that the Permanent Judicial Commissions,
+holding a delegated authority, were circumscribed
+in their attributes and capacities by the limits of the powers
+residing with the body which deputed them. They could do
+nothing which the Assembly of the Tribes could not have
+done; and, as the Assembly could not sentence to death,
+the Qu&aelig;stiones were equally incompetent to award capital
+punishment. The anomaly thus resulting was not viewed in
+ancient times with anything like the favour which it has
+attracted among the moderns, and indeed, while it is questionable
+whether the Roman character was at all the better for
+it, it is certain that the Roman Constitution was a great deal<span class='pagenum'><a name="Page_229" id="Page_229">229</a></span>
+the worse. Like every other institution which has accompanied
+the human race down the current of its history, the
+punishment of death is a necessity of society in certain stages
+of the civilising process. There is a time when the attempt
+to dispense with it baulks both of the two great instincts
+which lie at the root of all penal law. Without it, the community
+neither feels that it is sufficiently revenged on the
+criminal, nor thinks that the example of his punishment is
+adequate to deter others from imitating him. The incompetence
+of the Roman Tribunals to pass sentence of death
+led distinctly and directly to those frightful Revolutionary
+intervals, known as the Proscriptions, during which all law
+was formally suspended simply because party violence could
+find no other avenue to the vengeance for which it was thirsting.
+No cause contributed so powerfully to the decay of
+political capacity in the Roman people as this periodical
+abeyance of the laws; and, when it had once been resorted
+to, we need not hesitate to assert that the ruin of Roman
+liberty became merely a question of time. If the practice of
+the Tribunals had afforded an adequate vent for popular
+passion, the forms of judicial procedure would no doubt have
+been as flagrantly perverted as with us in the reigns of the
+later Stuarts, but national character would not have suffered
+as deeply as it did, nor would the stability of Roman institutions
+have been as seriously enfeebled.</p>
+
+<p>I will mention two more singularities of the Roman Criminal
+System which were produced by the same theory of judicial
+authority. They are, the extreme multiplicity of the Roman
+criminal tribunals, and the capricious and anomalous classification
+of crimes which characterised Roman penal jurisprudence
+throughout its entire history. Every <i>Qu&aelig;stio</i>, it
+has been said, whether Perpetual or otherwise, had its origin
+in a distinct statute. From the law which created it, it
+derived its authority; it rigorously observed the limits which
+its charter prescribed to it, and touched no form of criminality
+which that charter did not expressly define. As then
+the statutes which constituted the various Qu&aelig;stiones were
+all called forth by particular emergencies, each of them being
+in fact passed to punish a class of acts which the circumstances
+of the time rendered particularly odious or particularly
+dangerous, these enactments made not the slightest reference
+to each other, and were connected by no common principle.<span class='pagenum'><a name="Page_230" id="Page_230">230</a></span>
+Twenty or thirty different criminal laws were in existence
+together, with exactly the same number of Qu&aelig;stiones to
+administer them; nor was any attempt made during the
+Republic to fuse these distinct judicial bodies into one, or
+to give symmetry to the provisions of the statutes which
+appointed them and defined their duties. The state of the
+Roman criminal jurisdiction at this period, exhibited some resemblances
+to the administration of civil remedies in England
+at the time when the English Courts of Common Law had not
+as yet introduced those fictitious averments into their writs
+which enabled them to trespass on each other's peculiar
+province. Like the Qu&aelig;stiones, the Courts of Queen's Bench,
+Common Pleas, and Exchequer were all theoretical emanations
+from a higher authority, and each entertained a special
+class of cases supposed to be committed to it by the fountain
+of its jurisdiction; but then the Roman Qu&aelig;stiones were
+many more than three in number, and it was infinitely less
+easy to discriminate the acts which fell under the cognisance
+of each Qu&aelig;stio, than to distinguish between the provinces of
+the three Courts in Westminster Hall. The difficulty of drawing
+exact lines between the spheres of the different Qu&aelig;stiones
+made the multiplicity of Roman tribunals something
+more than a mere inconvenience; for we read with astonishment
+that when it was not immediately clear under what
+general description a man's alleged offences ranged themselves,
+he might be indicted at once or successively before
+several different Commissions, on the chance of some one of
+them declaring itself competent to convict him; and, although
+conviction by one Qu&aelig;stio ousted the jurisdiction of the rest,
+acquittal by one of them could not be pleaded to an accusation
+before another. This was directly contrary to the rule
+of the Roman civil law; and we may be sure that a people so
+sensitive as the Romans to anomalies (or, as their significant
+phrase was, to <i>inelegancies</i>) in jurisprudence, would not long
+have tolerated it, had not the melancholy history of the
+Qu&aelig;stiones caused them to be regarded much more as temporary
+weapons in the hands of factions than as permanent
+institutions for the correction of crime. The Emperors soon
+abolished this multiplicity and conflict of jurisdiction; but
+it is remarkable that they did not remove another singularity
+of the criminal law which stands in close connection with the
+number of the Courts. The classifications of crimes which are<span class='pagenum'><a name="Page_231" id="Page_231">231</a></span>
+contained even in the Corpus Juris of Justinian are remarkably
+capricious. Each Qu&aelig;stio had, in fact, confined itself to
+the crimes committed to its cognisance by its charter. These
+crimes, however, were only classed together in the original
+statute because they happened to call simultaneously for
+castigation at the moment of passing it. They had not therefore
+anything necessarily in common; but the fact of their
+constituting the particular subject-matter of trials before a
+particular Qu&aelig;stio impressed itself naturally on the public
+attention, and so inveterate did the association become between
+the offences mentioned in the same statute that, even
+when formal attempts were made by Sylla and by the Emperor
+Augustus to consolidate the Roman criminal law, the legislator
+preserved the old grouping. The Statutes of Sylla and
+Augustus were the foundation of the penal jurisprudence of
+the Empire, and nothing can be more extraordinary than
+some of the classifications which they bequeathed to it. I
+need only give a single example in the fact that <i>perjury</i> was
+always classed with <i>cutting and wounding</i> and with <i>poisoning</i>,
+no doubt because a law of Sylla, the Lex Cornelia de
+Sicariis et Veneficis, had given jurisdiction over all these three
+forms of crime to the same Permanent Commission. It seems
+too that this capricious grouping of crimes affected the
+vernacular speech of the Romans. People naturally fell into
+the habit of designating all the offences enumerated in one
+law by the first name on the list, which doubtless gave its
+style to the Law Court deputed to try them all. All the
+offences tried by the Qu&aelig;stio De Adulteriis would thus be
+called Adultery.</p>
+
+<p>I have dwelt on the history and characteristics of the
+Roman Qu&aelig;stiones because the formation of a criminal jurisprudence
+is nowhere else so instructively exemplified. The
+last Qu&aelig;stiones were added by the Emperor Augustus, and
+from that time the Romans may be said to have had a tolerably
+complete criminal law. Concurrently with its growth,
+the analogous process had gone on, which I have called the
+conversion of Wrongs into Crimes, for, though the Roman
+legislature did not extinguish the civil remedy for the more
+heinous offences, it offered the sufferer a redress which he was
+sure to prefer. Still, even after Augustus had completed his
+legislation, several offences continued to be regarded as
+Wrongs, which modern societies look upon exclusively as<span class='pagenum'><a name="Page_232" id="Page_232">232</a></span>
+Crimes; nor did they become criminally punishable till some
+late but uncertain date, at which the law began to take notice
+of a new description of offences called in the Digest <i>crimina
+extraordinaria</i>. These were doubtless a class of acts which the
+theory of Roman jurisprudence treated merely as wrongs;
+but the growing sense of the majesty of society revolted from
+their entailing nothing worse on their perpetrator than the
+payment of money damages, and accordingly the injured
+person seems to have been permitted, if he pleased, to pursue
+them as crimes <i>extra ordinem</i>, that is by a mode of redress
+departing in some respect or other from the ordinary procedure.
+From the period at which these <i>crimina extraordinaria</i>
+were first recognised, the list of crimes in the Roman State
+must have been as long as in any community of the modern
+world.</p>
+
+<p>It is unnecessary to describe with any minuteness the mode
+of administering criminal justice under the Roman Empire,
+but it is to be noted that both its theory and practice have
+had powerful effect on modern society. The Emperors did
+not immediately abolish the Qu&aelig;stiones, and at first they
+committed an extensive criminal jurisdiction to the Senate,
+in which, however servile it might show itself in fact, the
+Emperor was no more nominally than a Senator like the rest.
+But some sort of collateral criminal jurisdiction had been
+claimed by the Prince from the first; and this, as recollections
+of the free commonwealth decayed, tended steadily to gain
+at the expense of the old tribunals. Gradually the punishment
+of crimes was transferred to magistrates directly
+nominated by the Emperor and the privileges of the Senate
+passed to the Imperial Privy Council, which also became a
+Court of ultimate criminal appeal. Under these influences the
+doctrine, familiar to the moderns, insensibly shaped itself
+that the Sovereign is the fountain of all Justice and the depositary
+of all Grace. It was not so much the fruit of increasing
+adulation and servility as of the centralisation of the
+Empire which had by this time perfected itself. The theory
+of criminal justice had, in fact, worked round almost to the
+point from which it started. It had begun in the belief that it
+was the business of the collective community to avenge its
+own wrongs by its own hand; and it ended in the doctrine
+that the chastisement of crimes belonged in an especial
+manner to the Sovereign as representative and mandatary of<span class='pagenum'><a name="Page_233" id="Page_233">233</a></span>
+his people. The new view differed from the old one chiefly
+in the air of awfulness and majesty which the guardianship of
+justice appeared to throw around the person of the Sovereign.</p>
+
+<p>This later Roman view of the Sovereign's relation to
+justice certainly assisted in saving modern societies from the
+necessity of travelling through the series of changes which I
+have illustrated by the history of the Qu&aelig;stiones. In the
+primitive law of almost all the races which have peopled
+Western Europe there are vestiges of the archaic notion that
+the punishment of crimes belongs to the general assembly
+of freemen; and there are some States&mdash;Scotland is said to
+be one of them&mdash;in which the parentage of the existing
+judicature can be traced up to a Committee of the legislative
+body. But the development of the criminal law was universally
+hastened by two causes, the memory of the Roman
+Empire and the influence of the Church. On the one hand
+traditions of the majesty of the C&aelig;sars, perpetuated by the
+temporary ascendency of the House of Charlemagne, were
+surrounding Sovereigns with a prestige which a mere barbarous
+chieftain could never otherwise have acquired and
+were communicating to the pettiest feudal potentate the
+character of guardian of society and representative of the
+State. On the other hand, the Church, in its anxiety to put
+a curb on sanguinary ferocity, sought about for authority to
+punish the graver misdeeds, and found it in those passages of
+Scripture which speak with approval of the powers of punishment
+committed to the civil magistrate. The New Testament
+was appealed to as proving that secular rulers exist for the
+terror of evildoers; the Old Testament, as laying down that
+"Whoso sheddeth man's blood, by man shall his blood be
+shed." There can be no doubt, I imagine, that modern ideas
+on the subject of crime are based upon two assumptions contended
+for by the Church in the Dark Ages&mdash;first, that each
+feudal ruler, in his degree, might be assimilated to the Roman
+Magistrates spoken of by Saint Paul; and next, that the
+offences which he was to chastise were those selected for
+prohibition in the Mosaic Commandments, or rather such of
+them as the Church did not reserve to her own cognisance.
+Heresy (supposed to be included in the First and Second
+Commandments), Adultery, and Perjury were ecclesiastical
+offences, and the Church only admitted the co-operation of
+the secular arm for the purpose of inflicting severer punishment<span class='pagenum'><a name="Page_234" id="Page_234">234</a></span>
+in cases of extraordinary aggravation. At the same
+time, she taught that murder and robbery with their various
+modifications were under the jurisdiction of civil rulers, not
+as an accident of their position but by the express ordinance
+of God.</p>
+
+<p>There is a passage in the writings of King Alfred (Kemble,
+ii. 209) which brings out into remarkable clearness the struggle
+of the various ideas that prevailed in his day as to the origin
+of criminal jurisdiction. It will be seen that Alfred attributes
+it partly to the authority of the Church and partly to that
+of the Witan, while he expressly claims for treason against
+the lord the same immunity from ordinary rules which the
+Roman Law of Majestas had assigned to treason against the
+C&aelig;sar. "After this it happened," he writes, "that many
+nations received the faith of Christ, and there were many
+synods assembled throughout the earth, and among the English
+race also after they had received the faith of Christ, both of
+holy bishops and of their exalted Witan. They then ordained
+that, out of that mercy which Christ had taught, secular lords,
+with their leave, might without sin take for every misdeed
+the <i>bot</i> in money which they ordained; except in cases of
+treason against a lord, to which they dared not assign any
+mercy because Almighty God adjudged none to them that
+despised Him, nor did Christ adjudge any to them which sold
+Him to death; and He commanded that a lord should be
+loved like Himself."</p>
+
+
+
+<hr style="width: 65%;" />
+<p><span class='pagenum'><a name="Page_235" id="Page_235">235</a></span></p>
+<h3><a name="INDEX" id="INDEX"></a>INDEX</h3>
+
+
+
+<ul class="IX">
+<li>
+Austin, <a href="#Page_69">69</a>, <a href="#Page_171">171</a>;
+<ul><li>
+<i>Province of Jurisprudence Determined</i>, <a href="#Page_4">4</a>
+</li></ul>
+</li><li>
+Ayala, <a href="#Page_64">64</a>
+</li><li>
+&nbsp;
+</li><li>
+Bentham, <a href="#Page_18">18</a>, <a href="#Page_46">46</a>,
+<a href="#Page_54">54</a>, <a href="#Page_70">70</a>, <a href="#Page_147">147</a>;
+<ul><li>
+<i>Fragment on Government</i>, <a href="#Page_4">4</a>
+</li></ul>
+</li><li>
+Blackstone, <a href="#Page_67">67</a>, <a href="#Page_89">89</a>, <a href="#Page_150">150</a>, <a href="#Page_152">152</a>
+</li><li>
+&nbsp;
+</li><li>
+<i>Cambridge Essays</i>, 1856, Maine, <a href="#Page_205">205</a>, <a href="#Page_212">212</a>
+</li><li>
+Capture in war, <a href="#Page_145">145</a>, <a href="#Page_146">146</a>
+</li><li>
+Casuistry, <a href="#Page_205">205</a>, <a href="#Page_206">206</a>, <a href="#Page_207">207</a>
+</li><li>
+Charlemagne, <a href="#Page_62">62</a>, <a href="#Page_233">233</a>
+</li><li>
+Codes, Attic of Solon, <a href="#Page_9">9</a>;
+<ul><li>
+  era of, <a href="#Page_8">8</a>;
+</li><li>
+first introduced into the West, <a href="#Page_10">10</a>;
+</li><li>
+Hindoo Law of Menu, <a href="#Page_10">10</a>-12;
+</li><li>
+Justinian, <a href="#Page_25">25</a>, <a href="#Page_27">27</a>;
+</li><li>
+Napoléon, <a href="#Page_104">104</a>;
+</li><li>
+Roman, superiority over Hindoo, <a href="#Page_10">10</a>-12;
+</li><li>
+Twelve Tables of Rome, <a href="#Page_1">1</a>, <a href="#Page_8">8</a>, <a href="#Page_9">9</a>, <a href="#Page_12">12</a>, <a href="#Page_20">20</a>
+</li></ul>
+</li><li>
+Contract, Austin on, <a href="#Page_190">190</a>;
+<ul><li>
+Bentham on, <a href="#Page_190">190</a>;
+</li><li>
+Imperative Law, <a href="#Page_182">182</a>;
+</li><li>
+judicial and popular error, <a href="#Page_181">181</a>;
+</li><li>
+Law of Nations, <a href="#Page_181">181</a>, <a href="#Page_196">196</a>, <a href="#Page_197">197</a>;
+</li><li>
+literal or written, <a href="#Page_194">194</a>;
+</li><li>
+  origin lies in the family, <a href="#Page_99">99</a>;
+</li><li>
+pact or convention, <a href="#Page_184">184</a>, <a href="#Page_185">185</a>;
+</li><li>
+real, <a href="#Page_195">195</a>;
+</li><li>
+Roman, classification, <a href="#Page_191">191</a>, <a href="#Page_192">192</a>;
+</li><li>
+consensual, <a href="#Page_195">195</a>-198;
+</li><li>
+Domestic System, <a href="#Page_194">194</a>;
+</li><li>
+Nexum, definition of, <a href="#Page_185">185</a>-189;
+</li><li>
+Rousseau, <a href="#Page_181">181</a>;
+</li><li>
+sale, <a href="#Page_188">188</a>
+</li></ul>
+</li><li>
+Conveyances and contracts, confusion between, <a href="#Page_185">185</a>-187;
+<ul><li>
+and mancipation, <a href="#Page_185">185</a>
+</li></ul>
+</li><li>
+<i>Corpus juris civilis</i>, <a href="#Page_26">26</a>
+</li><li>
+Creditors, powers of, in ancient system, <a href="#Page_189">189</a>
+</li><li>
+Crimes and wrongs, confusion between, <a href="#Page_231">231</a>, <a href="#Page_232">232</a>;
+<ul><li>
+distinction between primitive and modern, <a href="#Page_217">217</a>, <a href="#Page_218">218</a>;
+</li><li>
+Kemble in <i>Anglo-Saxons</i>, <a href="#Page_218">218</a>
+</li></ul>
+</li><li>
+Criminal Law, Athens, <a href="#Page_224">224</a>;
+<ul><li>
+degree of guilt, <a href="#Page_223">223</a>;
+</li><li>
+four stages of primitive history, <a href="#Page_226">226</a>;
+</li><li>
+influence of Church, <a href="#Page_233">233</a>;
+</li><li>
+primitive religious code, <a href="#Page_218">218</a>, <a href="#Page_219">219</a>;
+</li><li>
+Roman, crime against State, <a href="#Page_219">219</a>;
+</li><li>
+<span class="smcap">B.C.</span> <a href="#Page_149">149</a>, <a href="#Page_225">225</a>;
+</li><li>
+origin of, <a href="#Page_225">225</a>;
+</li><li>
+sentence of death, <a href="#Page_227">227</a>-229;
+</li><li>
+theft, <a href="#Page_222">222</a>, <a href="#Page_223">223</a>;
+</li><li>
+tribunals, <a href="#Page_228">228</a>-230;
+</li><li>
+under emperors, <a href="#Page_230">230</a>-232
+</li></ul>
+</li><li>
+Customary Law, epoch of, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>;
+<ul><li>
+Hindoo, <a href="#Page_4">4</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Dangers of Law, rigidity, too rapid development, <a href="#Page_44">44</a>, <a href="#Page_45">45</a>
+</li><li>
+Debtors, severity of ancient system, <a href="#Page_189">189</a>
+</li><li>
+&nbsp;
+</li><li>
+Equity, <a href="#Page_172">172</a>;
+<ul><li>
+early history of, <a href="#Page_15">15</a>;
+</li><li>
+Lord Eldon on, <a href="#Page_40">40</a>;
+</li><li>
+English, <a href="#Page_40">40</a>, <a href="#Page_41">41</a>;
+</li><li>
+meaning of, <a href="#Page_17">17</a>;
+</li><li>
+origin, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>;
+</li><li>
+Roman compared with English, <a href="#Page_40">40</a>-42
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Feudalism, explanation of, <a href="#Page_214">214</a>
+</li><li>
+&nbsp;
+</li><li>
+Gaius, <a href="#Page_90">90</a>, <a href="#Page_174">174</a>, <a href="#Page_220">220</a>-223
+</li><li>
+Grote, decline of kingly rule, <a href="#Page_6">6</a>;
+<ul><li>
+<i>History of Greece</i>, <a href="#Page_3">3</a>, <a href="#Page_5">5</a>;
+</li><li>
+law administered by aristocracies, <a href="#Page_7">7</a>
+</li></ul>
+</li><li>
+Grotius, Hugo, <a href="#Page_56">56</a>, <a href="#Page_58">58</a>, <a href="#Page_59">59</a>, <a href="#Page_64">64</a>;
+<ul><li>
+<i>De Jure Belli et Pacis</i>, <a href="#Page_205">205</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Homer, earliest notions of law derived from, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>;
+<ul><li>
+Themis, Themistes, <a href="#Page_2">2</a>-5
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Indian (Hindoo) Law, <i>see</i> separate headings  Codes, Customary, Primogeniture, Property, Testamentary
+Law, Village communities
+</li><li>
+Institutional Treatise (Justinian), <a href="#Page_27">27</a>
+</li><li>
+International Law, <a href="#Page_64">64</a>;
+<ul><li>
+and occupancy, <a href="#Page_145">145</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Law of Nations (Jus Gentium), incorporation with Roman Law, <a href="#Page_36">36</a>, <a href="#Page_37">37</a>;
+<ul><li>
+origin of, <a href="#Page_27">27</a>-31
+</li></ul>
+</li><li>
+Legal fictions, benefit of, <a href="#Page_77">77</a>;
+<ul><li>
+  examples in English Law, <a href="#Page_18">18</a>;
+</li><li>
+  in Roman Law, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>;
+</li><li>
+  meaning, useful purpose of, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>
+</li></ul>
+</li><li>
+Legis Actio Sacramenti, Gaius on, <a href="#Page_220">220</a>, <a href="#Page_221">221</a>
+</li><li>
+Legislation, the agent of legal
+<ul><li>
+  improvement, <a href="#Page_17">17</a>;
+</li><li>
+  differing from equity, legal fictions, <a href="#Page_17">17</a>, <a href="#Page_18">18</a>
+</li></ul>
+</li><li>
+<i>Lettres Persanes</i>, <a href="#Page_183">183</a>
+</li><li>
+&nbsp;
+</li><li>
+Maine, <i>Cambridge Essays</i>, 1856, <a href="#Page_205">205</a>, <a href="#Page_212">212</a>
+</li><li>
+Mancipation, <a href="#Page_120">120</a>, <a href="#Page_121">121</a>, <a href="#Page_163">163</a>-169, <a href="#Page_185">185</a>
+</li><li>
+Menu, Laws of, <a href="#Page_10">10</a>-12
+</li><li>
+Montesquieu, <a href="#Page_49">49</a>, <a href="#Page_51">51</a>, <a href="#Page_183">183</a>
+</li><li>
+&nbsp;
+</li><li>
+Natural Law (Law of Nature), American Law and, <a href="#Page_56">56</a>;
+<ul><li>
+antagonistic to historical method, <a href="#Page_53">53</a>;
+</li><li>
+confusing past with present, <a href="#Page_43">43</a>;
+</li><li>
+equality of man, <a href="#Page_54">54</a>-56;
+</li><li>
+equality of sex, <a href="#Page_90">90</a>;
+</li><li>
+feudalism, <a href="#Page_62">62</a>, <a href="#Page_65">65</a>;
+</li><li>
+French history, <a href="#Page_47">47</a>, <a href="#Page_48">48</a>, <a href="#Page_50">50</a>, <a href="#Page_53">53</a>;
+</li><li>
+French Law, <a href="#Page_56">56</a>;
+</li><li>
+Greek interpretation of, <a href="#Page_44">44</a>;
+</li><li>
+Grotian system, <a href="#Page_56">56</a>, <a href="#Page_58">58</a>, <a href="#Page_59">59</a>, <a href="#Page_64">64</a>-66;
+</li><li>
+incorporated with Roman Law, <a href="#Page_36">36</a>, <a href="#Page_37">37</a>;
+</li><li>
+influence of Stoics, <a href="#Page_32">32</a>, <a href="#Page_33">33</a>;
+</li><li>
+Modern International Law, <a href="#Page_56">56</a>-60;
+</li><li>
+most critical period, <a href="#Page_50">50</a>;
+</li><li>
+modern society, <a href="#Page_54">54</a>;
+</li><li>
+occupancy, <a href="#Page_145">145</a>-147, <a href="#Page_153">153</a>;
+</li><li>
+origin of, <a href="#Page_31">31</a>, <a href="#Page_32">32</a>;
+</li><li>
+private property, <a href="#Page_164">164</a>;
+</li><li>
+Rousseau on, <a href="#Page_51">51</a>;
+</li><li>
+slavery, <a href="#Page_95">95</a>;
+</li><li>
+territorial sovereignty, <a href="#Page_60">60</a>-63;
+</li><li>
+Testamentary Law, <a href="#Page_103">103</a>, <a href="#Page_104">104</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Occupancy, <a href="#Page_144">144</a>, <a href="#Page_145">145</a>;
+<ul><li>
+in Roman Law, <a href="#Page_145">145</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Pascal, <i>Provincial Letters</i>, <a href="#Page_207">207</a>
+</li><li>
+Prescriptions, <a href="#Page_167">167</a>, <a href="#Page_168">168</a>;
+<ul><li>
+and Canon Law, <a href="#Page_168">168</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Primogeniture, Celtic customs, <a href="#Page_141">141</a>, <a href="#Page_142">142</a>;
+<ul><li>
+feudal system, <a href="#Page_135">135</a>-137;
+</li><li>
+Hindoo Law, <a href="#Page_134">134</a>, <a href="#Page_137">137</a>, <a href="#Page_141">141</a>;
+</li><li>
+Mahometan Law, <a href="#Page_142">142</a>;
+</li><li>
+Roman Law, <a href="#Page_133">133</a>, <a href="#Page_134">134</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Property, natural modes of acquiring, <a href="#Page_144">144</a>
+</li><li>
+Property Law, ancient Germanic, <a href="#Page_165">165</a>,
+<ul><li>
+ancient Sclavonic, <a href="#Page_165">165</a>;
+</li><li>
+descent in Middle Ages, <a href="#Page_132">132</a>;
+</li><li>
+Indian Law, <a href="#Page_165">165</a>;
+</li><li>
+origin of, <a href="#Page_145">145</a>;
+</li><li>
+possession, <a href="#Page_170">170</a>, <a href="#Page_172">172</a>;
+</li><li>
+private, ancient forms of transfer, <a href="#Page_160">160</a>, <a href="#Page_162">162</a>-164;
+</li><li>
+Roman, <a href="#Page_60">60</a>, <a href="#Page_66">66</a>, <a href="#Page_166">166</a>;
+</li><li>
+Cessio in Jure, <a href="#Page_170">170</a>;
+</li><li>
+Edictum Perpetuum, <a href="#Page_37">37</a>;
+</li><li>
+Emphyteusis, <a href="#Page_175">175</a>-178;
+</li><li>
+Gaius on, <a href="#Page_174">174</a>;
+</li><li>
+Justinian, <a href="#Page_174">174</a>;
+</li><li>
+law of persons and things, <a href="#Page_152">152</a>;
+</li><li>
+mancipation, <a href="#Page_163">163</a>, <a href="#Page_169">169</a>;
+</li><li>
+possessory interdicts, <a href="#Page_171">171</a>;
+</li><li>
+Praetor's interdict, <a href="#Page_172">172</a>;
+</li><li>
+Res Mancipi, <a href="#Page_160">160</a>-164, <a href="#Page_173">173</a>;
+</li><li>
+Res Nec Mancipi, <a href="#Page_164">164</a>;
+</li><li>
+system of farming, <a href="#Page_176">176</a>;
+</li><li>
+usucapion, <a href="#Page_167">167</a>, <a href="#Page_169">169</a>, <a href="#Page_173">173</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Roman Law, <i>see</i> separate headings Contracts, Criminal, Property, Occupancy, Testamentary;
+<ul><li>
+Decemviral Law, <a href="#Page_20">20</a>;
+</li><li>definition of inheritance, <a href="#Page_107">107</a>;
+</li><li>end of period of jurists, <a href="#Page_40">40</a>;
+</li><li>influence of Praetor, <a href="#Page_38">38</a>;
+</li><li>intestacy, <a href="#Page_127">127</a>-130;
+</li><li>law of inheritance, <a href="#Page_111">111</a>;
+</li><li>Leges Corneliae, <a href="#Page_24">24</a>, <a href="#Page_25">25</a>;
+</li><li>Leges Juliae, <a href="#Page_25">25</a>;
+</li><li>marriage, <a href="#Page_91">91</a>;
+</li><li>obligation in, <a href="#Page_190">190</a>, <a href="#Page_191">191</a>, <a href="#Page_195">195</a>, <a href="#Page_197">197</a>;
+</li><li>Pandects of Justinian, <a href="#Page_39">39</a>;
+</li><li>powers of Praetor, <a href="#Page_37">37</a>, <a href="#Page_39">39</a>;
+</li><li>Praetorian edict, <a href="#Page_24">24</a>, <a href="#Page_25">25</a>;
+</li><li>Responsa Prudentum, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>, <a href="#Page_24">24</a>;
+</li><li>reverence of Romans for, <a href="#Page_22">22</a>;
+</li><li>Statute Law, <a href="#Page_25">25</a>;
+</li><li>Twelve Tables, 1, 8, 9, <a href="#Page_12">12</a>, <a href="#Page_20">20</a>
+</li></ul>
+</li><li>
+Rousseau, on Social Contract, <a href="#Page_181">181</a>
+</li><li>
+&nbsp;
+</li><li>
+Savigny, <a href="#Page_171">171</a>;
+<ul><li>
+on occupancy, <a href="#Page_150">150</a>
+</li></ul>
+</li><li>
+Slavery, American opinions of, <a href="#Page_96">96</a>;
+<ul><li>
+influence of Law of Nature upon, <a href="#Page_97">97</a>;
+</li><li>
+Roman system, <a href="#Page_95">95</a>-97
+</li></ul>
+</li><li>
+Status, definition of, <a href="#Page_100">100</a>
+</li><li>
+&nbsp;
+</li><li>
+Testamentary Law, adoption and testation, <a href="#Page_114">114</a>, <a href="#Page_115">115</a>;
+<ul><li>
+Church's influence upon, <a href="#Page_102">102</a>;
+</li><li>corporation, aggregate and sole, <a href="#Page_110">110</a>;
+</li><li>Hindoo Law, <a href="#Page_113">113</a>, <a href="#Page_114">114</a>;
+</li><li>Hindoo compared with Roman, <a href="#Page_113">113</a>;
+</li><li>Law of Nature, <a href="#Page_103">103</a>, <a href="#Page_104">104</a>;
+</li><li>Roman Law, <a href="#Page_111">111</a>, <a href="#Page_112">112</a>, <a href="#Page_117">117</a>-123;
+</li><li>mancipation, <a href="#Page_120">120</a>, <a href="#Page_123">123</a>;
+</li><li>Praetorian testament, <a href="#Page_123">123</a>-125;
+</li><li>Twelve Tables, <a href="#Page_112">112</a>, <a href="#Page_119">119</a>, <a href="#Page_122">122</a>;
+</li><li>Roman family, agnatic and cognatic relationship, <a href="#Page_86">86</a>-89;
+</li><li>duties and rights of father, <a href="#Page_85">85</a>;
+</li><li>effects of Christianity, <a href="#Page_92">92</a>;
+</li><li>family, the basis of State, <a href="#Page_75">75</a>, <a href="#Page_76">76</a>;
+</li><li>kinship, <a href="#Page_86">86</a>, <a href="#Page_88">88</a>;
+</li><li>modification of parental privileges, <a href="#Page_84">84</a>;
+</li><li>origin of contract in, <a href="#Page_99">99</a>;
+</li><li>origin of law of persons, <a href="#Page_89">89</a>;
+</li><li>parental powers, <a href="#Page_80">80</a>-82, <a href="#Page_88">88</a>
+</li></ul>
+</li><li>
+Theology, and Jurisprudence, <a href="#Page_208">208</a>-210;
+<ul><li>
+moral, <a href="#Page_204">204</a>, <a href="#Page_205">205</a>
+</li></ul>
+</li><li>
+Theories, based on Roman doctrine, Bentham, <a href="#Page_69">69</a>;
+<ul><li>
+Blackstone, <a href="#Page_67">67</a>;
+</li><li>differing from Roman Glossators, annotations of, <a href="#Page_67">67</a>;
+</li><li>Grotius, <a href="#Page_67">67</a>;
+</li><li>Jurisprudence, dissatisfaction with, <a href="#Page_70">70</a>;
+</li><li>Locke, <a href="#Page_67">67</a>;
+</li><li>Montesquieu, <a href="#Page_68">68</a>;
+</li><li>patriarchal, <a href="#Page_72">72</a>-75
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Universal succession, <a href="#Page_106">106</a>;
+<ul><li>
+in Roman Law, <a href="#Page_106">106</a>, <a href="#Page_107">107</a>
+</li></ul>
+</li><li>
+"Universatis Juris," <a href="#Page_105">105</a>
+</li><li>
+&nbsp;
+</li><li>
+Village communities, Indian, <a href="#Page_153">153</a>, <a href="#Page_154">154</a>, <a href="#Page_156">156</a>, <a href="#Page_158">158</a>;
+<ul><li>
+Indian, compared with Roman gens, <a href="#Page_155">155</a>;
+</li><li>Indian, Elphinstone, <i>History of India</i>, <a href="#Page_155">155</a>, <a href="#Page_156">156</a>;
+</li><li>Russian <a href="#Page_157">157</a>
+</li></ul>
+</li><li>
+&nbsp;
+</li><li>
+Women, ancient rules defeated by Natural Law, <a href="#Page_90">90</a>;
+<ul><li>
+Canon Law, <a href="#Page_93">93</a>;
+</li><li>English Common Law, <a href="#Page_93">93</a>, <a href="#Page_94">94</a>;
+</li><li>Roman family, <a href="#Page_90">90</a>, <a href="#Page_91">91</a>;
+</li><li>gradual independence under Roman Law, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>;
+</li><li>Roman, perpetual tutelage of, <a href="#Page_90">90</a>;
+</li><li>under Roman Law, <a href="#Page_89">89</a>, <a href="#Page_90">90</a>;
+</li><li>subordination to husband in Middle Ages, <a href="#Page_92">92</a>;
+</li><li>subordination of Roman to relations, <a href="#Page_90">90</a>
+</li></ul>
+</li>
+</ul>
+
+<p><span class="smcap">Made at The<br />
+Temple Press<br />
+<br />
+Letchworth<br />
+in Great Britain</span>
+</p>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of Project Gutenberg's Ancient Law, by Sir Henry James Sumner Maine
+
+*** END OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+***** This file should be named 22910-h.htm or 22910-h.zip *****
+This and all associated files of various formats will be found in:
+        https://www.gutenberg.org/2/2/9/1/22910/
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+Updated editions will replace the previous one--the old editions
+will be renamed.
+
+Creating the works from public domain print editions means that no
+one owns a United States copyright in these works, so the Foundation
+(and you!) can copy and distribute it in the United States without
+permission and without paying copyright royalties.  Special rules,
+set forth in the General Terms of Use part of this license, apply to
+copying and distributing Project Gutenberg-tm electronic works to
+protect the PROJECT GUTENBERG-tm concept and trademark.  Project
+Gutenberg is a registered trademark, and may not be used if you
+charge for the eBooks, unless you receive specific permission.  If you
+do not charge anything for copies of this eBook, complying with the
+rules is very easy.  You may use this eBook for nearly any purpose
+such as creation of derivative works, reports, performances and
+research.  They may be modified and printed and given away--you may do
+practically ANYTHING with public domain eBooks.  Redistribution is
+subject to the trademark license, especially commercial
+redistribution.
+
+
+
+*** START: FULL LICENSE ***
+
+THE FULL PROJECT GUTENBERG LICENSE
+PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK
+
+To protect the Project Gutenberg-tm mission of promoting the free
+distribution of electronic works, by using or distributing this work
+(or any other work associated in any way with the phrase "Project
+Gutenberg"), you agree to comply with all the terms of the Full Project
+Gutenberg-tm License (available with this file or online at
+https://gutenberg.org/license).
+
+
+Section 1.  General Terms of Use and Redistributing Project Gutenberg-tm
+electronic works
+
+1.A.  By reading or using any part of this Project Gutenberg-tm
+electronic work, you indicate that you have read, understand, agree to
+and accept all the terms of this license and intellectual property
+(trademark/copyright) agreement.  If you do not agree to abide by all
+the terms of this agreement, you must cease using and return or destroy
+all copies of Project Gutenberg-tm electronic works in your possession.
+If you paid a fee for obtaining a copy of or access to a Project
+Gutenberg-tm electronic work and you do not agree to be bound by the
+terms of this agreement, you may obtain a refund from the person or
+entity to whom you paid the fee as set forth in paragraph 1.E.8.
+
+1.B.  "Project Gutenberg" is a registered trademark.  It may only be
+used on or associated in any way with an electronic work by people who
+agree to be bound by the terms of this agreement.  There are a few
+things that you can do with most Project Gutenberg-tm electronic works
+even without complying with the full terms of this agreement.  See
+paragraph 1.C below.  There are a lot of things you can do with Project
+Gutenberg-tm electronic works if you follow the terms of this agreement
+and help preserve free future access to Project Gutenberg-tm electronic
+works.  See paragraph 1.E below.
+
+1.C.  The Project Gutenberg Literary Archive Foundation ("the Foundation"
+or PGLAF), owns a compilation copyright in the collection of Project
+Gutenberg-tm electronic works.  Nearly all the individual works in the
+collection are in the public domain in the United States.  If an
+individual work is in the public domain in the United States and you are
+located in the United States, we do not claim a right to prevent you from
+copying, distributing, performing, displaying or creating derivative
+works based on the work as long as all references to Project Gutenberg
+are removed.  Of course, we hope that you will support the Project
+Gutenberg-tm mission of promoting free access to electronic works by
+freely sharing Project Gutenberg-tm works in compliance with the terms of
+this agreement for keeping the Project Gutenberg-tm name associated with
+the work.  You can easily comply with the terms of this agreement by
+keeping this work in the same format with its attached full Project
+Gutenberg-tm License when you share it without charge with others.
+
+1.D.  The copyright laws of the place where you are located also govern
+what you can do with this work.  Copyright laws in most countries are in
+a constant state of change.  If you are outside the United States, check
+the laws of your country in addition to the terms of this agreement
+before downloading, copying, displaying, performing, distributing or
+creating derivative works based on this work or any other Project
+Gutenberg-tm work.  The Foundation makes no representations concerning
+the copyright status of any work in any country outside the United
+States.
+
+1.E.  Unless you have removed all references to Project Gutenberg:
+
+1.E.1.  The following sentence, with active links to, or other immediate
+access to, the full Project Gutenberg-tm License must appear prominently
+whenever any copy of a Project Gutenberg-tm work (any work on which the
+phrase "Project Gutenberg" appears, or with which the phrase "Project
+Gutenberg" is associated) is accessed, displayed, performed, viewed,
+copied or distributed:
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+1.E.2.  If an individual Project Gutenberg-tm electronic work is derived
+from the public domain (does not contain a notice indicating that it is
+posted with permission of the copyright holder), the work can be copied
+and distributed to anyone in the United States without paying any fees
+or charges.  If you are redistributing or providing access to a work
+with the phrase "Project Gutenberg" associated with or appearing on the
+work, you must comply either with the requirements of paragraphs 1.E.1
+through 1.E.7 or obtain permission for the use of the work and the
+Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or
+1.E.9.
+
+1.E.3.  If an individual Project Gutenberg-tm electronic work is posted
+with the permission of the copyright holder, your use and distribution
+must comply with both paragraphs 1.E.1 through 1.E.7 and any additional
+terms imposed by the copyright holder.  Additional terms will be linked
+to the Project Gutenberg-tm License for all works posted with the
+permission of the copyright holder found at the beginning of this work.
+
+1.E.4.  Do not unlink or detach or remove the full Project Gutenberg-tm
+License terms from this work, or any files containing a part of this
+work or any other work associated with Project Gutenberg-tm.
+
+1.E.5.  Do not copy, display, perform, distribute or redistribute this
+electronic work, or any part of this electronic work, without
+prominently displaying the sentence set forth in paragraph 1.E.1 with
+active links or immediate access to the full terms of the Project
+Gutenberg-tm License.
+
+1.E.6.  You may convert to and distribute this work in any binary,
+compressed, marked up, nonproprietary or proprietary form, including any
+word processing or hypertext form.  However, if you provide access to or
+distribute copies of a Project Gutenberg-tm work in a format other than
+"Plain Vanilla ASCII" or other format used in the official version
+posted on the official Project Gutenberg-tm web site (www.gutenberg.org),
+you must, at no additional cost, fee or expense to the user, provide a
+copy, a means of exporting a copy, or a means of obtaining a copy upon
+request, of the work in its original "Plain Vanilla ASCII" or other
+form.  Any alternate format must include the full Project Gutenberg-tm
+License as specified in paragraph 1.E.1.
+
+1.E.7.  Do not charge a fee for access to, viewing, displaying,
+performing, copying or distributing any Project Gutenberg-tm works
+unless you comply with paragraph 1.E.8 or 1.E.9.
+
+1.E.8.  You may charge a reasonable fee for copies of or providing
+access to or distributing Project Gutenberg-tm electronic works provided
+that
+
+- You pay a royalty fee of 20% of the gross profits you derive from
+     the use of Project Gutenberg-tm works calculated using the method
+     you already use to calculate your applicable taxes.  The fee is
+     owed to the owner of the Project Gutenberg-tm trademark, but he
+     has agreed to donate royalties under this paragraph to the
+     Project Gutenberg Literary Archive Foundation.  Royalty payments
+     must be paid within 60 days following each date on which you
+     prepare (or are legally required to prepare) your periodic tax
+     returns.  Royalty payments should be clearly marked as such and
+     sent to the Project Gutenberg Literary Archive Foundation at the
+     address specified in Section 4, "Information about donations to
+     the Project Gutenberg Literary Archive Foundation."
+
+- You provide a full refund of any money paid by a user who notifies
+     you in writing (or by e-mail) within 30 days of receipt that s/he
+     does not agree to the terms of the full Project Gutenberg-tm
+     License.  You must require such a user to return or
+     destroy all copies of the works possessed in a physical medium
+     and discontinue all use of and all access to other copies of
+     Project Gutenberg-tm works.
+
+- You provide, in accordance with paragraph 1.F.3, a full refund of any
+     money paid for a work or a replacement copy, if a defect in the
+     electronic work is discovered and reported to you within 90 days
+     of receipt of the work.
+
+- You comply with all other terms of this agreement for free
+     distribution of Project Gutenberg-tm works.
+
+1.E.9.  If you wish to charge a fee or distribute a Project Gutenberg-tm
+electronic work or group of works on different terms than are set
+forth in this agreement, you must obtain permission in writing from
+both the Project Gutenberg Literary Archive Foundation and Michael
+Hart, the owner of the Project Gutenberg-tm trademark.  Contact the
+Foundation as set forth in Section 3 below.
+
+1.F.
+
+1.F.1.  Project Gutenberg volunteers and employees expend considerable
+effort to identify, do copyright research on, transcribe and proofread
+public domain works in creating the Project Gutenberg-tm
+collection.  Despite these efforts, Project Gutenberg-tm electronic
+works, and the medium on which they may be stored, may contain
+"Defects," such as, but not limited to, incomplete, inaccurate or
+corrupt data, transcription errors, a copyright or other intellectual
+property infringement, a defective or damaged disk or other medium, a
+computer virus, or computer codes that damage or cannot be read by
+your equipment.
+
+1.F.2.  LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right
+of Replacement or Refund" described in paragraph 1.F.3, the Project
+Gutenberg Literary Archive Foundation, the owner of the Project
+Gutenberg-tm trademark, and any other party distributing a Project
+Gutenberg-tm electronic work under this agreement, disclaim all
+liability to you for damages, costs and expenses, including legal
+fees.  YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
+LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE
+PROVIDED IN PARAGRAPH F3.  YOU AGREE THAT THE FOUNDATION, THE
+TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE
+LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
+INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH
+DAMAGE.
+
+1.F.3.  LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a
+defect in this electronic work within 90 days of receiving it, you can
+receive a refund of the money (if any) you paid for it by sending a
+written explanation to the person you received the work from.  If you
+received the work on a physical medium, you must return the medium with
+your written explanation.  The person or entity that provided you with
+the defective work may elect to provide a replacement copy in lieu of a
+refund.  If you received the work electronically, the person or entity
+providing it to you may choose to give you a second opportunity to
+receive the work electronically in lieu of a refund.  If the second copy
+is also defective, you may demand a refund in writing without further
+opportunities to fix the problem.
+
+1.F.4.  Except for the limited right of replacement or refund set forth
+in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER
+WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
+WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE.
+
+1.F.5.  Some states do not allow disclaimers of certain implied
+warranties or the exclusion or limitation of certain types of damages.
+If any disclaimer or limitation set forth in this agreement violates the
+law of the state applicable to this agreement, the agreement shall be
+interpreted to make the maximum disclaimer or limitation permitted by
+the applicable state law.  The invalidity or unenforceability of any
+provision of this agreement shall not void the remaining provisions.
+
+1.F.6.  INDEMNITY - You agree to indemnify and hold the Foundation, the
+trademark owner, any agent or employee of the Foundation, anyone
+providing copies of Project Gutenberg-tm electronic works in accordance
+with this agreement, and any volunteers associated with the production,
+promotion and distribution of Project Gutenberg-tm electronic works,
+harmless from all liability, costs and expenses, including legal fees,
+that arise directly or indirectly from any of the following which you do
+or cause to occur: (a) distribution of this or any Project Gutenberg-tm
+work, (b) alteration, modification, or additions or deletions to any
+Project Gutenberg-tm work, and (c) any Defect you cause.
+
+
+Section  2.  Information about the Mission of Project Gutenberg-tm
+
+Project Gutenberg-tm is synonymous with the free distribution of
+electronic works in formats readable by the widest variety of computers
+including obsolete, old, middle-aged and new computers.  It exists
+because of the efforts of hundreds of volunteers and donations from
+people in all walks of life.
+
+Volunteers and financial support to provide volunteers with the
+assistance they need, is critical to reaching Project Gutenberg-tm's
+goals and ensuring that the Project Gutenberg-tm collection will
+remain freely available for generations to come.  In 2001, the Project
+Gutenberg Literary Archive Foundation was created to provide a secure
+and permanent future for Project Gutenberg-tm and future generations.
+To learn more about the Project Gutenberg Literary Archive Foundation
+and how your efforts and donations can help, see Sections 3 and 4
+and the Foundation web page at https://www.pglaf.org.
+
+
+Section 3.  Information about the Project Gutenberg Literary Archive
+Foundation
+
+The Project Gutenberg Literary Archive Foundation is a non profit
+501(c)(3) educational corporation organized under the laws of the
+state of Mississippi and granted tax exempt status by the Internal
+Revenue Service.  The Foundation's EIN or federal tax identification
+number is 64-6221541.  Its 501(c)(3) letter is posted at
+https://pglaf.org/fundraising.  Contributions to the Project Gutenberg
+Literary Archive Foundation are tax deductible to the full extent
+permitted by U.S. federal laws and your state's laws.
+
+The Foundation's principal office is located at 4557 Melan Dr. S.
+Fairbanks, AK, 99712., but its volunteers and employees are scattered
+throughout numerous locations.  Its business office is located at
+809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email
+business@pglaf.org.  Email contact links and up to date contact
+information can be found at the Foundation's web site and official
+page at https://pglaf.org
+
+For additional contact information:
+     Dr. Gregory B. Newby
+     Chief Executive and Director
+     gbnewby@pglaf.org
+
+
+Section 4.  Information about Donations to the Project Gutenberg
+Literary Archive Foundation
+
+Project Gutenberg-tm depends upon and cannot survive without wide
+spread public support and donations to carry out its mission of
+increasing the number of public domain and licensed works that can be
+freely distributed in machine readable form accessible by the widest
+array of equipment including outdated equipment.  Many small donations
+($1 to $5,000) are particularly important to maintaining tax exempt
+status with the IRS.
+
+The Foundation is committed to complying with the laws regulating
+charities and charitable donations in all 50 states of the United
+States.  Compliance requirements are not uniform and it takes a
+considerable effort, much paperwork and many fees to meet and keep up
+with these requirements.  We do not solicit donations in locations
+where we have not received written confirmation of compliance.  To
+SEND DONATIONS or determine the status of compliance for any
+particular state visit https://pglaf.org
+
+While we cannot and do not solicit contributions from states where we
+have not met the solicitation requirements, we know of no prohibition
+against accepting unsolicited donations from donors in such states who
+approach us with offers to donate.
+
+International donations are gratefully accepted, but we cannot make
+any statements concerning tax treatment of donations received from
+outside the United States.  U.S. laws alone swamp our small staff.
+
+Please check the Project Gutenberg Web pages for current donation
+methods and addresses.  Donations are accepted in a number of other
+ways including including checks, online payments and credit card
+donations.  To donate, please visit: https://pglaf.org/donate
+
+
+Section 5.  General Information About Project Gutenberg-tm electronic
+works.
+
+Professor Michael S. Hart was the originator of the Project Gutenberg-tm
+concept of a library of electronic works that could be freely shared
+with anyone.  For thirty years, he produced and distributed Project
+Gutenberg-tm eBooks with only a loose network of volunteer support.
+
+
+Project Gutenberg-tm eBooks are often created from several printed
+editions, all of which are confirmed as Public Domain in the U.S.
+unless a copyright notice is included.  Thus, we do not necessarily
+keep eBooks in compliance with any particular paper edition.
+
+
+Most people start at our Web site which has the main PG search facility:
+
+     https://www.gutenberg.org
+
+This Web site includes information about Project Gutenberg-tm,
+including how to make donations to the Project Gutenberg Literary
+Archive Foundation, how to help produce our new eBooks, and how to
+subscribe to our email newsletter to hear about new eBooks.
+
+
+</pre>
+
+</body>
+</html>
diff --git a/22910-h/images/printers.png b/22910-h/images/printers.png
new file mode 100644
index 0000000..9c46637
--- /dev/null
+++ b/22910-h/images/printers.png
diff --git a/22910-page-images/f001.png b/22910-page-images/f001.png
new file mode 100644
index 0000000..326fa47
--- /dev/null
+++ b/22910-page-images/f001.png
diff --git a/22910-page-images/f002.png b/22910-page-images/f002.png
new file mode 100644
index 0000000..2a99ab0
--- /dev/null
+++ b/22910-page-images/f002.png
diff --git a/22910-page-images/f003.png b/22910-page-images/f003.png
new file mode 100644
index 0000000..573a27b
--- /dev/null
+++ b/22910-page-images/f003.png
diff --git a/22910-page-images/f004.png b/22910-page-images/f004.png
new file mode 100644
index 0000000..7c94d12
--- /dev/null
+++ b/22910-page-images/f004.png
diff --git a/22910-page-images/f005.png b/22910-page-images/f005.png
new file mode 100644
index 0000000..6d1c1f1
--- /dev/null
+++ b/22910-page-images/f005.png
diff --git a/22910-page-images/f006.png b/22910-page-images/f006.png
new file mode 100644
index 0000000..c99102f
--- /dev/null
+++ b/22910-page-images/f006.png
diff --git a/22910-page-images/f007.png b/22910-page-images/f007.png
new file mode 100644
index 0000000..a4191ae
--- /dev/null
+++ b/22910-page-images/f007.png
diff --git a/22910-page-images/f008.png b/22910-page-images/f008.png
new file mode 100644
index 0000000..3137ada
--- /dev/null
+++ b/22910-page-images/f008.png
diff --git a/22910-page-images/f009.png b/22910-page-images/f009.png
new file mode 100644
index 0000000..883f2ba
--- /dev/null
+++ b/22910-page-images/f009.png
diff --git a/22910-page-images/f010.png b/22910-page-images/f010.png
new file mode 100644
index 0000000..b56a435
--- /dev/null
+++ b/22910-page-images/f010.png
diff --git a/22910-page-images/f011.png b/22910-page-images/f011.png
new file mode 100644
index 0000000..ea65156
--- /dev/null
+++ b/22910-page-images/f011.png
diff --git a/22910-page-images/f012.png b/22910-page-images/f012.png
new file mode 100644
index 0000000..6a69c1a
--- /dev/null
+++ b/22910-page-images/f012.png
diff --git a/22910-page-images/f013.png b/22910-page-images/f013.png
new file mode 100644
index 0000000..81b2c42
--- /dev/null
+++ b/22910-page-images/f013.png
diff --git a/22910-page-images/f014.png b/22910-page-images/f014.png
new file mode 100644
index 0000000..40c5f65
--- /dev/null
+++ b/22910-page-images/f014.png
diff --git a/22910-page-images/f015.png b/22910-page-images/f015.png
new file mode 100644
index 0000000..6811714
--- /dev/null
+++ b/22910-page-images/f015.png
diff --git a/22910-page-images/f016.png b/22910-page-images/f016.png
new file mode 100644
index 0000000..3dad9a5
--- /dev/null
+++ b/22910-page-images/f016.png
diff --git a/22910-page-images/f017.png b/22910-page-images/f017.png
new file mode 100644
index 0000000..a2b039d
--- /dev/null
+++ b/22910-page-images/f017.png
diff --git a/22910-page-images/f018.png b/22910-page-images/f018.png
new file mode 100644
index 0000000..06483f9
--- /dev/null
+++ b/22910-page-images/f018.png
diff --git a/22910-page-images/p001.png b/22910-page-images/p001.png
new file mode 100644
index 0000000..b5a8f1b
--- /dev/null
+++ b/22910-page-images/p001.png
diff --git a/22910-page-images/p002.png b/22910-page-images/p002.png
new file mode 100644
index 0000000..cbe077c
--- /dev/null
+++ b/22910-page-images/p002.png
diff --git a/22910-page-images/p003.png b/22910-page-images/p003.png
new file mode 100644
index 0000000..06d43c2
--- /dev/null
+++ b/22910-page-images/p003.png
diff --git a/22910-page-images/p004.png b/22910-page-images/p004.png
new file mode 100644
index 0000000..220f76d
--- /dev/null
+++ b/22910-page-images/p004.png
diff --git a/22910-page-images/p005.png b/22910-page-images/p005.png
new file mode 100644
index 0000000..d663f83
--- /dev/null
+++ b/22910-page-images/p005.png
diff --git a/22910-page-images/p006.png b/22910-page-images/p006.png
new file mode 100644
index 0000000..02e1f2a
--- /dev/null
+++ b/22910-page-images/p006.png
diff --git a/22910-page-images/p007.png b/22910-page-images/p007.png
new file mode 100644
index 0000000..cb1fdfb
--- /dev/null
+++ b/22910-page-images/p007.png
diff --git a/22910-page-images/p008.png b/22910-page-images/p008.png
new file mode 100644
index 0000000..3197108
--- /dev/null
+++ b/22910-page-images/p008.png
diff --git a/22910-page-images/p009.png b/22910-page-images/p009.png
new file mode 100644
index 0000000..966d14e
--- /dev/null
+++ b/22910-page-images/p009.png
diff --git a/22910-page-images/p010.png b/22910-page-images/p010.png
new file mode 100644
index 0000000..73ea023
--- /dev/null
+++ b/22910-page-images/p010.png
diff --git a/22910-page-images/p011.png b/22910-page-images/p011.png
new file mode 100644
index 0000000..a414fcd
--- /dev/null
+++ b/22910-page-images/p011.png
diff --git a/22910-page-images/p012.png b/22910-page-images/p012.png
new file mode 100644
index 0000000..1c69056
--- /dev/null
+++ b/22910-page-images/p012.png
diff --git a/22910-page-images/p013.png b/22910-page-images/p013.png
new file mode 100644
index 0000000..276691e
--- /dev/null
+++ b/22910-page-images/p013.png
diff --git a/22910-page-images/p014.png b/22910-page-images/p014.png
new file mode 100644
index 0000000..cd049f5
--- /dev/null
+++ b/22910-page-images/p014.png
diff --git a/22910-page-images/p015.png b/22910-page-images/p015.png
new file mode 100644
index 0000000..ff9a7f3
--- /dev/null
+++ b/22910-page-images/p015.png
diff --git a/22910-page-images/p016.png b/22910-page-images/p016.png
new file mode 100644
index 0000000..8b497eb
--- /dev/null
+++ b/22910-page-images/p016.png
diff --git a/22910-page-images/p017.png b/22910-page-images/p017.png
new file mode 100644
index 0000000..b34dcb9
--- /dev/null
+++ b/22910-page-images/p017.png
diff --git a/22910-page-images/p018.png b/22910-page-images/p018.png
new file mode 100644
index 0000000..df9238d
--- /dev/null
+++ b/22910-page-images/p018.png
diff --git a/22910-page-images/p019.png b/22910-page-images/p019.png
new file mode 100644
index 0000000..352af67
--- /dev/null
+++ b/22910-page-images/p019.png
diff --git a/22910-page-images/p020.png b/22910-page-images/p020.png
new file mode 100644
index 0000000..60cf9b9
--- /dev/null
+++ b/22910-page-images/p020.png
diff --git a/22910-page-images/p021.png b/22910-page-images/p021.png
new file mode 100644
index 0000000..9d4494a
--- /dev/null
+++ b/22910-page-images/p021.png
diff --git a/22910-page-images/p022.png b/22910-page-images/p022.png
new file mode 100644
index 0000000..4b1ef56
--- /dev/null
+++ b/22910-page-images/p022.png
diff --git a/22910-page-images/p023.png b/22910-page-images/p023.png
new file mode 100644
index 0000000..2a7aff9
--- /dev/null
+++ b/22910-page-images/p023.png
diff --git a/22910-page-images/p024.png b/22910-page-images/p024.png
new file mode 100644
index 0000000..5d5d966
--- /dev/null
+++ b/22910-page-images/p024.png
diff --git a/22910-page-images/p025.png b/22910-page-images/p025.png
new file mode 100644
index 0000000..6e812ad
--- /dev/null
+++ b/22910-page-images/p025.png
diff --git a/22910-page-images/p026.png b/22910-page-images/p026.png
new file mode 100644
index 0000000..3142790
--- /dev/null
+++ b/22910-page-images/p026.png
diff --git a/22910-page-images/p027.png b/22910-page-images/p027.png
new file mode 100644
index 0000000..111c553
--- /dev/null
+++ b/22910-page-images/p027.png
diff --git a/22910-page-images/p028.png b/22910-page-images/p028.png
new file mode 100644
index 0000000..01d9168
--- /dev/null
+++ b/22910-page-images/p028.png
diff --git a/22910-page-images/p029.png b/22910-page-images/p029.png
new file mode 100644
index 0000000..be63a77
--- /dev/null
+++ b/22910-page-images/p029.png
diff --git a/22910-page-images/p030.png b/22910-page-images/p030.png
new file mode 100644
index 0000000..4f793d4
--- /dev/null
+++ b/22910-page-images/p030.png
diff --git a/22910-page-images/p031.png b/22910-page-images/p031.png
new file mode 100644
index 0000000..ce29494
--- /dev/null
+++ b/22910-page-images/p031.png
diff --git a/22910-page-images/p032.png b/22910-page-images/p032.png
new file mode 100644
index 0000000..ce66d20
--- /dev/null
+++ b/22910-page-images/p032.png
diff --git a/22910-page-images/p033.png b/22910-page-images/p033.png
new file mode 100644
index 0000000..e7d9749
--- /dev/null
+++ b/22910-page-images/p033.png
diff --git a/22910-page-images/p034.png b/22910-page-images/p034.png
new file mode 100644
index 0000000..6259405
--- /dev/null
+++ b/22910-page-images/p034.png
diff --git a/22910-page-images/p035.png b/22910-page-images/p035.png
new file mode 100644
index 0000000..b47a6aa
--- /dev/null
+++ b/22910-page-images/p035.png
diff --git a/22910-page-images/p036.png b/22910-page-images/p036.png
new file mode 100644
index 0000000..5947440
--- /dev/null
+++ b/22910-page-images/p036.png
diff --git a/22910-page-images/p037.png b/22910-page-images/p037.png
new file mode 100644
index 0000000..e4b8529
--- /dev/null
+++ b/22910-page-images/p037.png
diff --git a/22910-page-images/p038.png b/22910-page-images/p038.png
new file mode 100644
index 0000000..3a60712
--- /dev/null
+++ b/22910-page-images/p038.png
diff --git a/22910-page-images/p039.png b/22910-page-images/p039.png
new file mode 100644
index 0000000..4dee422
--- /dev/null
+++ b/22910-page-images/p039.png
diff --git a/22910-page-images/p040.png b/22910-page-images/p040.png
new file mode 100644
index 0000000..024e41d
--- /dev/null
+++ b/22910-page-images/p040.png
diff --git a/22910-page-images/p041.png b/22910-page-images/p041.png
new file mode 100644
index 0000000..1f7de5c
--- /dev/null
+++ b/22910-page-images/p041.png
diff --git a/22910-page-images/p042.png b/22910-page-images/p042.png
new file mode 100644
index 0000000..810e7a0
--- /dev/null
+++ b/22910-page-images/p042.png
diff --git a/22910-page-images/p043.png b/22910-page-images/p043.png
new file mode 100644
index 0000000..d553fbb
--- /dev/null
+++ b/22910-page-images/p043.png
diff --git a/22910-page-images/p044.png b/22910-page-images/p044.png
new file mode 100644
index 0000000..2dfb704
--- /dev/null
+++ b/22910-page-images/p044.png
diff --git a/22910-page-images/p045.png b/22910-page-images/p045.png
new file mode 100644
index 0000000..8a15750
--- /dev/null
+++ b/22910-page-images/p045.png
diff --git a/22910-page-images/p046.png b/22910-page-images/p046.png
new file mode 100644
index 0000000..e1d14ab
--- /dev/null
+++ b/22910-page-images/p046.png
diff --git a/22910-page-images/p047.png b/22910-page-images/p047.png
new file mode 100644
index 0000000..0f11579
--- /dev/null
+++ b/22910-page-images/p047.png
diff --git a/22910-page-images/p048.png b/22910-page-images/p048.png
new file mode 100644
index 0000000..478bf06
--- /dev/null
+++ b/22910-page-images/p048.png
diff --git a/22910-page-images/p049.png b/22910-page-images/p049.png
new file mode 100644
index 0000000..f5c20fd
--- /dev/null
+++ b/22910-page-images/p049.png
diff --git a/22910-page-images/p050.png b/22910-page-images/p050.png
new file mode 100644
index 0000000..9bf03df
--- /dev/null
+++ b/22910-page-images/p050.png
diff --git a/22910-page-images/p051.png b/22910-page-images/p051.png
new file mode 100644
index 0000000..2815375
--- /dev/null
+++ b/22910-page-images/p051.png
diff --git a/22910-page-images/p052.png b/22910-page-images/p052.png
new file mode 100644
index 0000000..f29e0d8
--- /dev/null
+++ b/22910-page-images/p052.png
diff --git a/22910-page-images/p053.png b/22910-page-images/p053.png
new file mode 100644
index 0000000..869af8a
--- /dev/null
+++ b/22910-page-images/p053.png
diff --git a/22910-page-images/p054.png b/22910-page-images/p054.png
new file mode 100644
index 0000000..ee2c68a
--- /dev/null
+++ b/22910-page-images/p054.png
diff --git a/22910-page-images/p055.png b/22910-page-images/p055.png
new file mode 100644
index 0000000..5483b93
--- /dev/null
+++ b/22910-page-images/p055.png
diff --git a/22910-page-images/p056.png b/22910-page-images/p056.png
new file mode 100644
index 0000000..976b9e3
--- /dev/null
+++ b/22910-page-images/p056.png
diff --git a/22910-page-images/p057.png b/22910-page-images/p057.png
new file mode 100644
index 0000000..3a2c37d
--- /dev/null
+++ b/22910-page-images/p057.png
diff --git a/22910-page-images/p058.png b/22910-page-images/p058.png
new file mode 100644
index 0000000..0302e60
--- /dev/null
+++ b/22910-page-images/p058.png
diff --git a/22910-page-images/p059.png b/22910-page-images/p059.png
new file mode 100644
index 0000000..d9fa05f
--- /dev/null
+++ b/22910-page-images/p059.png
diff --git a/22910-page-images/p060.png b/22910-page-images/p060.png
new file mode 100644
index 0000000..008932e
--- /dev/null
+++ b/22910-page-images/p060.png
diff --git a/22910-page-images/p061.png b/22910-page-images/p061.png
new file mode 100644
index 0000000..77d41f3
--- /dev/null
+++ b/22910-page-images/p061.png
diff --git a/22910-page-images/p062.png b/22910-page-images/p062.png
new file mode 100644
index 0000000..b52bc49
--- /dev/null
+++ b/22910-page-images/p062.png
diff --git a/22910-page-images/p063.png b/22910-page-images/p063.png
new file mode 100644
index 0000000..5caf897
--- /dev/null
+++ b/22910-page-images/p063.png
diff --git a/22910-page-images/p064.png b/22910-page-images/p064.png
new file mode 100644
index 0000000..d769d16
--- /dev/null
+++ b/22910-page-images/p064.png
diff --git a/22910-page-images/p065.png b/22910-page-images/p065.png
new file mode 100644
index 0000000..40f9a8e
--- /dev/null
+++ b/22910-page-images/p065.png
diff --git a/22910-page-images/p066.png b/22910-page-images/p066.png
new file mode 100644
index 0000000..4bc87c2
--- /dev/null
+++ b/22910-page-images/p066.png
diff --git a/22910-page-images/p067.png b/22910-page-images/p067.png
new file mode 100644
index 0000000..3da227d
--- /dev/null
+++ b/22910-page-images/p067.png
diff --git a/22910-page-images/p068.png b/22910-page-images/p068.png
new file mode 100644
index 0000000..fd82b48
--- /dev/null
+++ b/22910-page-images/p068.png
diff --git a/22910-page-images/p069.png b/22910-page-images/p069.png
new file mode 100644
index 0000000..b13f7ba
--- /dev/null
+++ b/22910-page-images/p069.png
diff --git a/22910-page-images/p070.png b/22910-page-images/p070.png
new file mode 100644
index 0000000..a3a1678
--- /dev/null
+++ b/22910-page-images/p070.png
diff --git a/22910-page-images/p071.png b/22910-page-images/p071.png
new file mode 100644
index 0000000..bc8a2a6
--- /dev/null
+++ b/22910-page-images/p071.png
diff --git a/22910-page-images/p072.png b/22910-page-images/p072.png
new file mode 100644
index 0000000..6c80c9b
--- /dev/null
+++ b/22910-page-images/p072.png
diff --git a/22910-page-images/p073.png b/22910-page-images/p073.png
new file mode 100644
index 0000000..30aefbe
--- /dev/null
+++ b/22910-page-images/p073.png
diff --git a/22910-page-images/p074.png b/22910-page-images/p074.png
new file mode 100644
index 0000000..27919c9
--- /dev/null
+++ b/22910-page-images/p074.png
diff --git a/22910-page-images/p075.png b/22910-page-images/p075.png
new file mode 100644
index 0000000..e236a2b
--- /dev/null
+++ b/22910-page-images/p075.png
diff --git a/22910-page-images/p076.png b/22910-page-images/p076.png
new file mode 100644
index 0000000..027e735
--- /dev/null
+++ b/22910-page-images/p076.png
diff --git a/22910-page-images/p077.png b/22910-page-images/p077.png
new file mode 100644
index 0000000..429afd7
--- /dev/null
+++ b/22910-page-images/p077.png
diff --git a/22910-page-images/p078.png b/22910-page-images/p078.png
new file mode 100644
index 0000000..e8eccb0
--- /dev/null
+++ b/22910-page-images/p078.png
diff --git a/22910-page-images/p079.png b/22910-page-images/p079.png
new file mode 100644
index 0000000..94b723f
--- /dev/null
+++ b/22910-page-images/p079.png
diff --git a/22910-page-images/p080.png b/22910-page-images/p080.png
new file mode 100644
index 0000000..aa59983
--- /dev/null
+++ b/22910-page-images/p080.png
diff --git a/22910-page-images/p081.png b/22910-page-images/p081.png
new file mode 100644
index 0000000..5a98095
--- /dev/null
+++ b/22910-page-images/p081.png
diff --git a/22910-page-images/p082.png b/22910-page-images/p082.png
new file mode 100644
index 0000000..59bae50
--- /dev/null
+++ b/22910-page-images/p082.png
diff --git a/22910-page-images/p083.png b/22910-page-images/p083.png
new file mode 100644
index 0000000..84b4996
--- /dev/null
+++ b/22910-page-images/p083.png
diff --git a/22910-page-images/p084.png b/22910-page-images/p084.png
new file mode 100644
index 0000000..cf18a60
--- /dev/null
+++ b/22910-page-images/p084.png
diff --git a/22910-page-images/p085.png b/22910-page-images/p085.png
new file mode 100644
index 0000000..18c1075
--- /dev/null
+++ b/22910-page-images/p085.png
diff --git a/22910-page-images/p086.png b/22910-page-images/p086.png
new file mode 100644
index 0000000..cf327ad
--- /dev/null
+++ b/22910-page-images/p086.png
diff --git a/22910-page-images/p087.png b/22910-page-images/p087.png
new file mode 100644
index 0000000..1e1e26b
--- /dev/null
+++ b/22910-page-images/p087.png
diff --git a/22910-page-images/p088.png b/22910-page-images/p088.png
new file mode 100644
index 0000000..a478868
--- /dev/null
+++ b/22910-page-images/p088.png
diff --git a/22910-page-images/p089.png b/22910-page-images/p089.png
new file mode 100644
index 0000000..23f15ba
--- /dev/null
+++ b/22910-page-images/p089.png
diff --git a/22910-page-images/p090.png b/22910-page-images/p090.png
new file mode 100644
index 0000000..52f2d54
--- /dev/null
+++ b/22910-page-images/p090.png
diff --git a/22910-page-images/p091.png b/22910-page-images/p091.png
new file mode 100644
index 0000000..f313ada
--- /dev/null
+++ b/22910-page-images/p091.png
diff --git a/22910-page-images/p092.png b/22910-page-images/p092.png
new file mode 100644
index 0000000..9af78e5
--- /dev/null
+++ b/22910-page-images/p092.png
diff --git a/22910-page-images/p093.png b/22910-page-images/p093.png
new file mode 100644
index 0000000..1efaa52
--- /dev/null
+++ b/22910-page-images/p093.png
diff --git a/22910-page-images/p094.png b/22910-page-images/p094.png
new file mode 100644
index 0000000..5a317b3
--- /dev/null
+++ b/22910-page-images/p094.png
diff --git a/22910-page-images/p095.png b/22910-page-images/p095.png
new file mode 100644
index 0000000..5f14950
--- /dev/null
+++ b/22910-page-images/p095.png
diff --git a/22910-page-images/p096.png b/22910-page-images/p096.png
new file mode 100644
index 0000000..63add83
--- /dev/null
+++ b/22910-page-images/p096.png
diff --git a/22910-page-images/p097.png b/22910-page-images/p097.png
new file mode 100644
index 0000000..9cbc2fc
--- /dev/null
+++ b/22910-page-images/p097.png
diff --git a/22910-page-images/p098.png b/22910-page-images/p098.png
new file mode 100644
index 0000000..2008856
--- /dev/null
+++ b/22910-page-images/p098.png
diff --git a/22910-page-images/p099.png b/22910-page-images/p099.png
new file mode 100644
index 0000000..0ec3a6d
--- /dev/null
+++ b/22910-page-images/p099.png
diff --git a/22910-page-images/p100.png b/22910-page-images/p100.png
new file mode 100644
index 0000000..fc9b96e
--- /dev/null
+++ b/22910-page-images/p100.png
diff --git a/22910-page-images/p101.png b/22910-page-images/p101.png
new file mode 100644
index 0000000..9793128
--- /dev/null
+++ b/22910-page-images/p101.png
diff --git a/22910-page-images/p102.png b/22910-page-images/p102.png
new file mode 100644
index 0000000..2db9a72
--- /dev/null
+++ b/22910-page-images/p102.png
diff --git a/22910-page-images/p103.png b/22910-page-images/p103.png
new file mode 100644
index 0000000..1d2ed8f
--- /dev/null
+++ b/22910-page-images/p103.png
diff --git a/22910-page-images/p104.png b/22910-page-images/p104.png
new file mode 100644
index 0000000..2b7b3fb
--- /dev/null
+++ b/22910-page-images/p104.png
diff --git a/22910-page-images/p105.png b/22910-page-images/p105.png
new file mode 100644
index 0000000..3883405
--- /dev/null
+++ b/22910-page-images/p105.png
diff --git a/22910-page-images/p106.png b/22910-page-images/p106.png
new file mode 100644
index 0000000..70f84b8
--- /dev/null
+++ b/22910-page-images/p106.png
diff --git a/22910-page-images/p107.png b/22910-page-images/p107.png
new file mode 100644
index 0000000..3dcc1e0
--- /dev/null
+++ b/22910-page-images/p107.png
diff --git a/22910-page-images/p108.png b/22910-page-images/p108.png
new file mode 100644
index 0000000..10a48bd
--- /dev/null
+++ b/22910-page-images/p108.png
diff --git a/22910-page-images/p109.png b/22910-page-images/p109.png
new file mode 100644
index 0000000..499f376
--- /dev/null
+++ b/22910-page-images/p109.png
diff --git a/22910-page-images/p110.png b/22910-page-images/p110.png
new file mode 100644
index 0000000..e30c426
--- /dev/null
+++ b/22910-page-images/p110.png
diff --git a/22910-page-images/p111.png b/22910-page-images/p111.png
new file mode 100644
index 0000000..fdaefe2
--- /dev/null
+++ b/22910-page-images/p111.png
diff --git a/22910-page-images/p112.png b/22910-page-images/p112.png
new file mode 100644
index 0000000..5564420
--- /dev/null
+++ b/22910-page-images/p112.png
diff --git a/22910-page-images/p113.png b/22910-page-images/p113.png
new file mode 100644
index 0000000..990c11b
--- /dev/null
+++ b/22910-page-images/p113.png
diff --git a/22910-page-images/p114.png b/22910-page-images/p114.png
new file mode 100644
index 0000000..208ce6d
--- /dev/null
+++ b/22910-page-images/p114.png
diff --git a/22910-page-images/p115.png b/22910-page-images/p115.png
new file mode 100644
index 0000000..5671438
--- /dev/null
+++ b/22910-page-images/p115.png
diff --git a/22910-page-images/p116.png b/22910-page-images/p116.png
new file mode 100644
index 0000000..307dcf5
--- /dev/null
+++ b/22910-page-images/p116.png
diff --git a/22910-page-images/p117.png b/22910-page-images/p117.png
new file mode 100644
index 0000000..d8d9e0f
--- /dev/null
+++ b/22910-page-images/p117.png
diff --git a/22910-page-images/p118.png b/22910-page-images/p118.png
new file mode 100644
index 0000000..7554517
--- /dev/null
+++ b/22910-page-images/p118.png
diff --git a/22910-page-images/p119.png b/22910-page-images/p119.png
new file mode 100644
index 0000000..c2f3f47
--- /dev/null
+++ b/22910-page-images/p119.png
diff --git a/22910-page-images/p120.png b/22910-page-images/p120.png
new file mode 100644
index 0000000..8e8ad5c
--- /dev/null
+++ b/22910-page-images/p120.png
diff --git a/22910-page-images/p121.png b/22910-page-images/p121.png
new file mode 100644
index 0000000..28c9b36
--- /dev/null
+++ b/22910-page-images/p121.png
diff --git a/22910-page-images/p122.png b/22910-page-images/p122.png
new file mode 100644
index 0000000..f1c4c5c
--- /dev/null
+++ b/22910-page-images/p122.png
diff --git a/22910-page-images/p123.png b/22910-page-images/p123.png
new file mode 100644
index 0000000..d7c911f
--- /dev/null
+++ b/22910-page-images/p123.png
diff --git a/22910-page-images/p124.png b/22910-page-images/p124.png
new file mode 100644
index 0000000..4d3732c
--- /dev/null
+++ b/22910-page-images/p124.png
diff --git a/22910-page-images/p125.png b/22910-page-images/p125.png
new file mode 100644
index 0000000..204c1c4
--- /dev/null
+++ b/22910-page-images/p125.png
diff --git a/22910-page-images/p126.png b/22910-page-images/p126.png
new file mode 100644
index 0000000..9480486
--- /dev/null
+++ b/22910-page-images/p126.png
diff --git a/22910-page-images/p127.png b/22910-page-images/p127.png
new file mode 100644
index 0000000..681dc36
--- /dev/null
+++ b/22910-page-images/p127.png
diff --git a/22910-page-images/p128.png b/22910-page-images/p128.png
new file mode 100644
index 0000000..b3352a1
--- /dev/null
+++ b/22910-page-images/p128.png
diff --git a/22910-page-images/p129.png b/22910-page-images/p129.png
new file mode 100644
index 0000000..4b8165a
--- /dev/null
+++ b/22910-page-images/p129.png
diff --git a/22910-page-images/p130.png b/22910-page-images/p130.png
new file mode 100644
index 0000000..43fb359
--- /dev/null
+++ b/22910-page-images/p130.png
diff --git a/22910-page-images/p131.png b/22910-page-images/p131.png
new file mode 100644
index 0000000..17ec9ed
--- /dev/null
+++ b/22910-page-images/p131.png
diff --git a/22910-page-images/p132.png b/22910-page-images/p132.png
new file mode 100644
index 0000000..f0805b3
--- /dev/null
+++ b/22910-page-images/p132.png
diff --git a/22910-page-images/p133.png b/22910-page-images/p133.png
new file mode 100644
index 0000000..9b75a59
--- /dev/null
+++ b/22910-page-images/p133.png
diff --git a/22910-page-images/p134.png b/22910-page-images/p134.png
new file mode 100644
index 0000000..ce7437e
--- /dev/null
+++ b/22910-page-images/p134.png
diff --git a/22910-page-images/p135.png b/22910-page-images/p135.png
new file mode 100644
index 0000000..3436c1a
--- /dev/null
+++ b/22910-page-images/p135.png
diff --git a/22910-page-images/p136.png b/22910-page-images/p136.png
new file mode 100644
index 0000000..ce8ac45
--- /dev/null
+++ b/22910-page-images/p136.png
diff --git a/22910-page-images/p137.png b/22910-page-images/p137.png
new file mode 100644
index 0000000..e6a9532
--- /dev/null
+++ b/22910-page-images/p137.png
diff --git a/22910-page-images/p138.png b/22910-page-images/p138.png
new file mode 100644
index 0000000..3954d9a
--- /dev/null
+++ b/22910-page-images/p138.png
diff --git a/22910-page-images/p139.png b/22910-page-images/p139.png
new file mode 100644
index 0000000..7042b61
--- /dev/null
+++ b/22910-page-images/p139.png
diff --git a/22910-page-images/p140.png b/22910-page-images/p140.png
new file mode 100644
index 0000000..30d7863
--- /dev/null
+++ b/22910-page-images/p140.png
diff --git a/22910-page-images/p141.png b/22910-page-images/p141.png
new file mode 100644
index 0000000..ed7f5e9
--- /dev/null
+++ b/22910-page-images/p141.png
diff --git a/22910-page-images/p142.png b/22910-page-images/p142.png
new file mode 100644
index 0000000..da066bf
--- /dev/null
+++ b/22910-page-images/p142.png
diff --git a/22910-page-images/p143.png b/22910-page-images/p143.png
new file mode 100644
index 0000000..e46f37a
--- /dev/null
+++ b/22910-page-images/p143.png
diff --git a/22910-page-images/p144.png b/22910-page-images/p144.png
new file mode 100644
index 0000000..27a99c3
--- /dev/null
+++ b/22910-page-images/p144.png
diff --git a/22910-page-images/p145.png b/22910-page-images/p145.png
new file mode 100644
index 0000000..42a09c2
--- /dev/null
+++ b/22910-page-images/p145.png
diff --git a/22910-page-images/p146.png b/22910-page-images/p146.png
new file mode 100644
index 0000000..28dc9df
--- /dev/null
+++ b/22910-page-images/p146.png
diff --git a/22910-page-images/p147.png b/22910-page-images/p147.png
new file mode 100644
index 0000000..0aed35d
--- /dev/null
+++ b/22910-page-images/p147.png
diff --git a/22910-page-images/p148.png b/22910-page-images/p148.png
new file mode 100644
index 0000000..0be3378
--- /dev/null
+++ b/22910-page-images/p148.png
diff --git a/22910-page-images/p149.png b/22910-page-images/p149.png
new file mode 100644
index 0000000..a471d80
--- /dev/null
+++ b/22910-page-images/p149.png
diff --git a/22910-page-images/p150.png b/22910-page-images/p150.png
new file mode 100644
index 0000000..d1290f8
--- /dev/null
+++ b/22910-page-images/p150.png
diff --git a/22910-page-images/p151.png b/22910-page-images/p151.png
new file mode 100644
index 0000000..f2745f2
--- /dev/null
+++ b/22910-page-images/p151.png
diff --git a/22910-page-images/p152.png b/22910-page-images/p152.png
new file mode 100644
index 0000000..03471cb
--- /dev/null
+++ b/22910-page-images/p152.png
diff --git a/22910-page-images/p153.png b/22910-page-images/p153.png
new file mode 100644
index 0000000..b89f38a
--- /dev/null
+++ b/22910-page-images/p153.png
diff --git a/22910-page-images/p154.png b/22910-page-images/p154.png
new file mode 100644
index 0000000..8b24d82
--- /dev/null
+++ b/22910-page-images/p154.png
diff --git a/22910-page-images/p155.png b/22910-page-images/p155.png
new file mode 100644
index 0000000..32ae5cd
--- /dev/null
+++ b/22910-page-images/p155.png
diff --git a/22910-page-images/p156.png b/22910-page-images/p156.png
new file mode 100644
index 0000000..37ead71
--- /dev/null
+++ b/22910-page-images/p156.png
diff --git a/22910-page-images/p157.png b/22910-page-images/p157.png
new file mode 100644
index 0000000..f5e1936
--- /dev/null
+++ b/22910-page-images/p157.png
diff --git a/22910-page-images/p158.png b/22910-page-images/p158.png
new file mode 100644
index 0000000..8b0a08b
--- /dev/null
+++ b/22910-page-images/p158.png
diff --git a/22910-page-images/p159.png b/22910-page-images/p159.png
new file mode 100644
index 0000000..304aa88
--- /dev/null
+++ b/22910-page-images/p159.png
diff --git a/22910-page-images/p160.png b/22910-page-images/p160.png
new file mode 100644
index 0000000..8c8c9e5
--- /dev/null
+++ b/22910-page-images/p160.png
diff --git a/22910-page-images/p161.png b/22910-page-images/p161.png
new file mode 100644
index 0000000..69564dd
--- /dev/null
+++ b/22910-page-images/p161.png
diff --git a/22910-page-images/p162.png b/22910-page-images/p162.png
new file mode 100644
index 0000000..2707e9b
--- /dev/null
+++ b/22910-page-images/p162.png
diff --git a/22910-page-images/p163.png b/22910-page-images/p163.png
new file mode 100644
index 0000000..a4973b4
--- /dev/null
+++ b/22910-page-images/p163.png
diff --git a/22910-page-images/p164.png b/22910-page-images/p164.png
new file mode 100644
index 0000000..4d678cf
--- /dev/null
+++ b/22910-page-images/p164.png
diff --git a/22910-page-images/p165.png b/22910-page-images/p165.png
new file mode 100644
index 0000000..0da0089
--- /dev/null
+++ b/22910-page-images/p165.png
diff --git a/22910-page-images/p166.png b/22910-page-images/p166.png
new file mode 100644
index 0000000..990f032
--- /dev/null
+++ b/22910-page-images/p166.png
diff --git a/22910-page-images/p167.png b/22910-page-images/p167.png
new file mode 100644
index 0000000..1119700
--- /dev/null
+++ b/22910-page-images/p167.png
diff --git a/22910-page-images/p168.png b/22910-page-images/p168.png
new file mode 100644
index 0000000..510d108
--- /dev/null
+++ b/22910-page-images/p168.png
diff --git a/22910-page-images/p169.png b/22910-page-images/p169.png
new file mode 100644
index 0000000..62e42a3
--- /dev/null
+++ b/22910-page-images/p169.png
diff --git a/22910-page-images/p170.png b/22910-page-images/p170.png
new file mode 100644
index 0000000..de886aa
--- /dev/null
+++ b/22910-page-images/p170.png
diff --git a/22910-page-images/p171.png b/22910-page-images/p171.png
new file mode 100644
index 0000000..14007fc
--- /dev/null
+++ b/22910-page-images/p171.png
diff --git a/22910-page-images/p172.png b/22910-page-images/p172.png
new file mode 100644
index 0000000..23b9701
--- /dev/null
+++ b/22910-page-images/p172.png
diff --git a/22910-page-images/p173.png b/22910-page-images/p173.png
new file mode 100644
index 0000000..0180438
--- /dev/null
+++ b/22910-page-images/p173.png
diff --git a/22910-page-images/p174.png b/22910-page-images/p174.png
new file mode 100644
index 0000000..bb56ea0
--- /dev/null
+++ b/22910-page-images/p174.png
diff --git a/22910-page-images/p175.png b/22910-page-images/p175.png
new file mode 100644
index 0000000..6bf0a33
--- /dev/null
+++ b/22910-page-images/p175.png
diff --git a/22910-page-images/p176.png b/22910-page-images/p176.png
new file mode 100644
index 0000000..4cde900
--- /dev/null
+++ b/22910-page-images/p176.png
diff --git a/22910-page-images/p177.png b/22910-page-images/p177.png
new file mode 100644
index 0000000..631339a
--- /dev/null
+++ b/22910-page-images/p177.png
diff --git a/22910-page-images/p178.png b/22910-page-images/p178.png
new file mode 100644
index 0000000..7d1ba0b
--- /dev/null
+++ b/22910-page-images/p178.png
diff --git a/22910-page-images/p179.png b/22910-page-images/p179.png
new file mode 100644
index 0000000..ec5e4c9
--- /dev/null
+++ b/22910-page-images/p179.png
diff --git a/22910-page-images/p180.png b/22910-page-images/p180.png
new file mode 100644
index 0000000..7f6e97e
--- /dev/null
+++ b/22910-page-images/p180.png
diff --git a/22910-page-images/p181.png b/22910-page-images/p181.png
new file mode 100644
index 0000000..da7237f
--- /dev/null
+++ b/22910-page-images/p181.png
diff --git a/22910-page-images/p182.png b/22910-page-images/p182.png
new file mode 100644
index 0000000..7d95729
--- /dev/null
+++ b/22910-page-images/p182.png
diff --git a/22910-page-images/p183.png b/22910-page-images/p183.png
new file mode 100644
index 0000000..4a28ddd
--- /dev/null
+++ b/22910-page-images/p183.png
diff --git a/22910-page-images/p184.png b/22910-page-images/p184.png
new file mode 100644
index 0000000..88ca40a
--- /dev/null
+++ b/22910-page-images/p184.png
diff --git a/22910-page-images/p185.png b/22910-page-images/p185.png
new file mode 100644
index 0000000..a692a12
--- /dev/null
+++ b/22910-page-images/p185.png
diff --git a/22910-page-images/p186.png b/22910-page-images/p186.png
new file mode 100644
index 0000000..dd56c6b
--- /dev/null
+++ b/22910-page-images/p186.png
diff --git a/22910-page-images/p187.png b/22910-page-images/p187.png
new file mode 100644
index 0000000..a25706b
--- /dev/null
+++ b/22910-page-images/p187.png
diff --git a/22910-page-images/p188.png b/22910-page-images/p188.png
new file mode 100644
index 0000000..4a6e97d
--- /dev/null
+++ b/22910-page-images/p188.png
diff --git a/22910-page-images/p189.png b/22910-page-images/p189.png
new file mode 100644
index 0000000..2cf543e
--- /dev/null
+++ b/22910-page-images/p189.png
diff --git a/22910-page-images/p190.png b/22910-page-images/p190.png
new file mode 100644
index 0000000..14b5d2d
--- /dev/null
+++ b/22910-page-images/p190.png
diff --git a/22910-page-images/p191.png b/22910-page-images/p191.png
new file mode 100644
index 0000000..029fa3e
--- /dev/null
+++ b/22910-page-images/p191.png
diff --git a/22910-page-images/p192.png b/22910-page-images/p192.png
new file mode 100644
index 0000000..d69e9ef
--- /dev/null
+++ b/22910-page-images/p192.png
diff --git a/22910-page-images/p193.png b/22910-page-images/p193.png
new file mode 100644
index 0000000..8019617
--- /dev/null
+++ b/22910-page-images/p193.png
diff --git a/22910-page-images/p194.png b/22910-page-images/p194.png
new file mode 100644
index 0000000..9b7a741
--- /dev/null
+++ b/22910-page-images/p194.png
diff --git a/22910-page-images/p195.png b/22910-page-images/p195.png
new file mode 100644
index 0000000..0858a8d
--- /dev/null
+++ b/22910-page-images/p195.png
diff --git a/22910-page-images/p196.png b/22910-page-images/p196.png
new file mode 100644
index 0000000..02ad66c
--- /dev/null
+++ b/22910-page-images/p196.png
diff --git a/22910-page-images/p197.png b/22910-page-images/p197.png
new file mode 100644
index 0000000..1976a49
--- /dev/null
+++ b/22910-page-images/p197.png
diff --git a/22910-page-images/p198.png b/22910-page-images/p198.png
new file mode 100644
index 0000000..0f88b9c
--- /dev/null
+++ b/22910-page-images/p198.png
diff --git a/22910-page-images/p199.png b/22910-page-images/p199.png
new file mode 100644
index 0000000..4333be2
--- /dev/null
+++ b/22910-page-images/p199.png
diff --git a/22910-page-images/p200.png b/22910-page-images/p200.png
new file mode 100644
index 0000000..6cb1ee9
--- /dev/null
+++ b/22910-page-images/p200.png
diff --git a/22910-page-images/p201.png b/22910-page-images/p201.png
new file mode 100644
index 0000000..b64fc2d
--- /dev/null
+++ b/22910-page-images/p201.png
diff --git a/22910-page-images/p202.png b/22910-page-images/p202.png
new file mode 100644
index 0000000..0446903
--- /dev/null
+++ b/22910-page-images/p202.png
diff --git a/22910-page-images/p203.png b/22910-page-images/p203.png
new file mode 100644
index 0000000..a80b54f
--- /dev/null
+++ b/22910-page-images/p203.png
diff --git a/22910-page-images/p204.png b/22910-page-images/p204.png
new file mode 100644
index 0000000..ee11b98
--- /dev/null
+++ b/22910-page-images/p204.png
diff --git a/22910-page-images/p205.png b/22910-page-images/p205.png
new file mode 100644
index 0000000..b57447f
--- /dev/null
+++ b/22910-page-images/p205.png
diff --git a/22910-page-images/p206.png b/22910-page-images/p206.png
new file mode 100644
index 0000000..cd64590
--- /dev/null
+++ b/22910-page-images/p206.png
diff --git a/22910-page-images/p207.png b/22910-page-images/p207.png
new file mode 100644
index 0000000..cccd32d
--- /dev/null
+++ b/22910-page-images/p207.png
diff --git a/22910-page-images/p208.png b/22910-page-images/p208.png
new file mode 100644
index 0000000..e24962a
--- /dev/null
+++ b/22910-page-images/p208.png
diff --git a/22910-page-images/p209.png b/22910-page-images/p209.png
new file mode 100644
index 0000000..c3dfb92
--- /dev/null
+++ b/22910-page-images/p209.png
diff --git a/22910-page-images/p210.png b/22910-page-images/p210.png
new file mode 100644
index 0000000..87d52c1
--- /dev/null
+++ b/22910-page-images/p210.png
diff --git a/22910-page-images/p211.png b/22910-page-images/p211.png
new file mode 100644
index 0000000..5f7a7dc
--- /dev/null
+++ b/22910-page-images/p211.png
diff --git a/22910-page-images/p212.png b/22910-page-images/p212.png
new file mode 100644
index 0000000..cb393f7
--- /dev/null
+++ b/22910-page-images/p212.png
diff --git a/22910-page-images/p213.png b/22910-page-images/p213.png
new file mode 100644
index 0000000..67ada75
--- /dev/null
+++ b/22910-page-images/p213.png
diff --git a/22910-page-images/p214.png b/22910-page-images/p214.png
new file mode 100644
index 0000000..3771522
--- /dev/null
+++ b/22910-page-images/p214.png
diff --git a/22910-page-images/p215.png b/22910-page-images/p215.png
new file mode 100644
index 0000000..b00d30b
--- /dev/null
+++ b/22910-page-images/p215.png
diff --git a/22910-page-images/p216.png b/22910-page-images/p216.png
new file mode 100644
index 0000000..e232111
--- /dev/null
+++ b/22910-page-images/p216.png
diff --git a/22910-page-images/p217.png b/22910-page-images/p217.png
new file mode 100644
index 0000000..02e754a
--- /dev/null
+++ b/22910-page-images/p217.png
diff --git a/22910-page-images/p218.png b/22910-page-images/p218.png
new file mode 100644
index 0000000..45a856d
--- /dev/null
+++ b/22910-page-images/p218.png
diff --git a/22910-page-images/p219.png b/22910-page-images/p219.png
new file mode 100644
index 0000000..0bd5d6c
--- /dev/null
+++ b/22910-page-images/p219.png
diff --git a/22910-page-images/p220.png b/22910-page-images/p220.png
new file mode 100644
index 0000000..ca81b42
--- /dev/null
+++ b/22910-page-images/p220.png
diff --git a/22910-page-images/p221.png b/22910-page-images/p221.png
new file mode 100644
index 0000000..24d86e6
--- /dev/null
+++ b/22910-page-images/p221.png
diff --git a/22910-page-images/p222.png b/22910-page-images/p222.png
new file mode 100644
index 0000000..a7b6b5d
--- /dev/null
+++ b/22910-page-images/p222.png
diff --git a/22910-page-images/p223.png b/22910-page-images/p223.png
new file mode 100644
index 0000000..39d6de7
--- /dev/null
+++ b/22910-page-images/p223.png
diff --git a/22910-page-images/p224.png b/22910-page-images/p224.png
new file mode 100644
index 0000000..87c1dfb
--- /dev/null
+++ b/22910-page-images/p224.png
diff --git a/22910-page-images/p225.png b/22910-page-images/p225.png
new file mode 100644
index 0000000..aedb4cc
--- /dev/null
+++ b/22910-page-images/p225.png
diff --git a/22910-page-images/p226.png b/22910-page-images/p226.png
new file mode 100644
index 0000000..14e79fe
--- /dev/null
+++ b/22910-page-images/p226.png
diff --git a/22910-page-images/p227.png b/22910-page-images/p227.png
new file mode 100644
index 0000000..98ed9c8
--- /dev/null
+++ b/22910-page-images/p227.png
diff --git a/22910-page-images/p228.png b/22910-page-images/p228.png
new file mode 100644
index 0000000..84d52fd
--- /dev/null
+++ b/22910-page-images/p228.png
diff --git a/22910-page-images/p229.png b/22910-page-images/p229.png
new file mode 100644
index 0000000..e63489e
--- /dev/null
+++ b/22910-page-images/p229.png
diff --git a/22910-page-images/p230.png b/22910-page-images/p230.png
new file mode 100644
index 0000000..eb1486c
--- /dev/null
+++ b/22910-page-images/p230.png
diff --git a/22910-page-images/p231.png b/22910-page-images/p231.png
new file mode 100644
index 0000000..9776382
--- /dev/null
+++ b/22910-page-images/p231.png
diff --git a/22910-page-images/p232.png b/22910-page-images/p232.png
new file mode 100644
index 0000000..f468d56
--- /dev/null
+++ b/22910-page-images/p232.png
diff --git a/22910-page-images/p233.png b/22910-page-images/p233.png
new file mode 100644
index 0000000..4683199
--- /dev/null
+++ b/22910-page-images/p233.png
diff --git a/22910-page-images/p234.png b/22910-page-images/p234.png
new file mode 100644
index 0000000..97b76c9
--- /dev/null
+++ b/22910-page-images/p234.png
diff --git a/22910-page-images/p235.png b/22910-page-images/p235.png
new file mode 100644
index 0000000..bcc0f3d
--- /dev/null
+++ b/22910-page-images/p235.png
diff --git a/22910-page-images/p236.png b/22910-page-images/p236.png
new file mode 100644
index 0000000..51d18a1
--- /dev/null
+++ b/22910-page-images/p236.png
diff --git a/22910-page-images/p237.png b/22910-page-images/p237.png
new file mode 100644
index 0000000..86bd500
--- /dev/null
+++ b/22910-page-images/p237.png
diff --git a/22910.txt b/22910.txt
new file mode 100644
index 0000000..20571ea
--- /dev/null
+++ b/22910.txt
@@ -0,0 +1,9909 @@
+The Project Gutenberg EBook of Ancient Law, by Sir Henry James Sumner Maine
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Ancient Law
+       Its Connection to the History of Early Society
+
+Author: Sir Henry James Sumner Maine
+
+Release Date: October 7, 2007 [EBook #22910]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+
+
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+
+
+
+
+
+Everyman, I will go with thee, and be thy guide,
+      In thy most need to go by thy side.
+
+
+This is No. 734 of Everyman's Library. A
+list of authors and their works in this series
+will be found at the end of this volume. The
+publishers will be pleased to send freely to all
+applicants a separate, annotated list of the
+Library.
+
+
+
+
+J. M. DENT & SONS LIMITED
+10-13 BEDFORD STREET LONDON W.C.2
+
+E. P. DUTTON & CO. INC.
+286-302 FOURTH AVENUE
+NEW YORK
+
+
+
+
+EVERYMAN'S LIBRARY
+EDITED BY ERNEST RHYS
+
+
+HISTORY
+
+
+ANCIENT LAW
+
+BY SIR HENRY JAMES SUMNER MAINE
+
+INTRODUCTION BY PROF. J. H. MORGAN
+
+
+
+
+  SIR HENRY JAMES SUMNER MAINE, the
+  son of a doctor, born 1822 in India. Educated
+  at Christ's Hospital and Pembroke College,
+  Cambridge. In 1847 professor of civil law
+  at Cambridge; 1850, called to the Bar.
+  Member of Indian Council for seven years.
+
+  Died at Cannes, 1888.
+
+
+
+
+           ANCIENT LAW
+
+
+         [Illustration]
+
+
+         SIR HENRY MAINE
+
+
+   LONDON: J. M. DENT & SONS LTD.
+  NEW YORK: E. P. DUTTON & CO. INC.
+
+
+
+    _All rights reserved
+     Made in Great Britain
+  at The Temple Press Letchworth
+  and decorated by Eric Ravilious
+             for
+      J. M. Dent & Sons Ltd.
+  Aldine House Bedford St. London
+First Published in this Edition 1917
+   Reprinted 1927, 1931, 1936_
+
+
+
+
+INTRODUCTION
+
+
+No one who is interested in the growth of human ideas or the origins
+of human society can afford to neglect Maine's _Ancient Law_.
+Published some fifty-six years ago it immediately took rank as a
+classic, and its epoch-making influence may not unfitly be compared to
+that exercised by Darwin's _Origin of Species_. The revolution
+effected by the latter in the study of biology was hardly more
+remarkable than that effected by Maine's brilliant treatise in the
+study of early institutions. Well does one of Maine's latest and most
+learned commentators say of his work that "he did nothing less than
+create the natural history of law." This is only another way of saying
+that he demonstrated that our legal conceptions--using that term in
+its largest sense to include social and political institutions--are as
+much the product of historical development as biological organisms are
+the outcome of evolution. This was a new departure, inasmuch as the
+school of jurists, represented by Bentham and Austin, and of political
+philosophers, headed by Hobbes, Locke, and their nineteenth-century
+disciples, had approached the study of law and political society
+almost entirely from an unhistoric point of view and had substituted
+dogmatism for historical investigation. They had read history, so far
+as they troubled to read it at all, "backwards," and had invested
+early man and early society with conceptions which, as a matter of
+fact, are themselves historical products. The jurists, for example,
+had in their analysis of legal sovereignty postulated the commands of
+a supreme lawgiver by simply ignoring the fact that, in point of time,
+custom precedes legislation and that early law is, to use Maine's own
+phrase, "a habit" and not a conscious exercise of the volition of a
+lawgiver or a legislature. The political philosophers, similarly, had
+sought the origin of political society in a "state of nature"--humane,
+according to Locke and Rousseau, barbarous, according to Hobbes--in
+which men freely subscribed to an "original contract" whereby each
+submitted to the will of all. It was not difficult to show, as Maine
+has done, that contract--_i.e._ the recognition of a mutual agreement
+as binding upon the parties who make it--is a conception which comes
+very late to the human mind. But Maine's work covers much wider ground
+than this. It may be summed up by saying that he shows that early
+society, so far as we have any recognisable legal traces of it, begins
+with the group, not with the individual.
+
+This group was, according to Maine's theory, the Family--that is to
+say the Family as resting upon the patriarchal power of the father to
+whom all its members, wife, sons, daughters, and slaves, were
+absolutely subject. This, the central feature of Maine's speculation,
+is worked out with infinite suggestiveness and great felicity of style
+in chapter V. ("Primitive Society and Ancient Law") of the present
+work, and his chief illustrations are sought in the history of Roman
+law. The topics of the other chapters are selected largely with a view
+to supplying confirmation of the theory in question and, as we shall
+see in a moment, Maine's later works do but serve to carry the train
+of reasoning a step further by the use of the Comparative Method in
+invoking evidence from other sources, notably from Irish and Hindu
+Law. Let us, however, confine ourselves for the moment to "Ancient
+Law." Maine works out the implications of his theory by showing that
+it, and it alone, can serve to explain such features of early Roman
+law as Agnation, _i.e._ the tracing of descent exclusively through
+males, and Adoption, _i.e._ the preservation of the family against the
+extinction of male heirs. The perpetual tutelage of women is the
+consequence of this position. Moreover, all the members of the family,
+except its head, are in a condition best described as _status_: they
+have no power to acquire property, or to bequeath it, or to enter into
+contracts in relation to it. The traces of this state of society are
+clearly visible in the pages of that classical text-book of Roman Law,
+the _Institutes_ of Justinian,[1] compiled in the sixth century A.D.,
+though equally visible is the disintegration wrought in it by the
+reforming activity of the praetor's edicts. That reformation followed
+the course of a gradual emancipation of the members of the family,
+except those under age, from the despotic authority of the father.
+This gradual substitution of the Individual for the Family was
+effected in a variety of ways, but in none more conspicuously than by
+the development of the idea of contract, _i.e._ of the capacity of the
+individual to enter into independent agreements with strangers to his
+family-group by which he was legally bound--an historical process
+which Maine sums up in his famous aphorism that the movement of
+progressive societies has hitherto been a movement from Status to
+Contract.
+
+In the chapters on the early history of Wills, Property, and Contract,
+Maine supports his theory by showing that it is the key which unlocks
+many, if not all, of the problems which those topics present. The
+chapter on Wills--particularly the passage in which he explains what
+is meant by Universal Succession--is a brilliant example of Maine's
+analytic power. He shows that a Will--in the sense of a secret and
+revocable disposition of property only taking effect after the death
+of the testator--is a conception unknown to early law, and that it
+makes its first appearance as a means of transmitting the exercise of
+domestic sovereignty, the transfer of the property being only a
+subsidiary feature; wills only being permitted, in early times, in
+cases where there was likely to be a failure of proper heirs. The
+subsequent popularity of wills, and the indulgence with which the law
+came to regard them, were due to a desire to correct the rigidity of
+the Patria Potestas, as reflected in the law of intestate succession,
+by giving free scope to natural affection. In other words, the
+conception of relationship as reckoned only through males, and as
+resting on the continuance of the children within their father's
+power, gave way, through the instrumentality of the will, to the more
+modern and more natural conception of relationship.
+
+In the chapter on Property Maine again shows that the theory of its
+origin in occupancy is too individualistic and that not separate
+ownership but joint ownership is the really archaic institution. The
+father was in some sense (we must avoid importing modern terms) the
+trustee of the joint property of the family. Here Maine makes an
+excursion into the fields of the Early Village Community, and has,
+too, to look elsewhere than to Rome, where the village community had
+already been transformed by coalescence into the city-state. He
+therefore seeks his examples from India and points to the Indian
+village as an example of the expansion of the family into a larger
+group of co-proprietors, larger but still bearing traces of its origin
+to the patriarchal power. And, to quote his own words, "the most
+important passage in the history of Private Property is its gradual
+separation from the co-ownership of kinsmen." The chapter on Contract,
+although it contains some of Maine's most suggestive writing, and the
+chapter on Delict and Crime, have a less direct bearing on his main
+thesis except in so far as they go to show that the reason why there
+is so little in early law of what we call civil, as distinct from
+criminal, law, and in particular of the Law of Contract, is to be
+found in the fact that, in the infancy of society, the Law of Persons,
+and with it the law of civil rights, is merged in the common
+subjection to Paternal Power.
+
+Such, putting it in the simplest possible language, is the main
+argument of _Ancient Law_. The exigencies of space and of simplicity
+compel me to pass by, to a large extent, most of the other topics with
+which Maine deals--the place of custom, code, and fiction in the
+development of early law, the affiliation of international Law to the
+_Jus Gentium_ and the Law of Nature, the origins of feudalism and of
+primogeniture, the early history of delict and crime, and that most
+remarkable and profound passage in which Maine shows the heavy debt of
+the various sciences to Roman law and the influence which it has
+exerted on the vocabulary of political science, the concepts of moral
+philosophy, and the doctrines of theology. I must confine myself to
+two questions: how far did Maine develop or modify in his subsequent
+writings the main thesis of _Ancient Law_? to what extent has this
+thesis stood the test of the criticism and research of others? As
+regards the first point, it is to be remembered that _Ancient Law_ is
+but the first, though doubtless the most important, of a whole series
+of works by its author on the subject of early law. It was followed at
+intervals by three volumes: _Village Communities in the East and
+West_, _Early Institutions_, and _Early Law and_ _Custom_. In the
+first of these he dealt with a subject which has excited an enormous
+degree of attention and not a little controversy among English,
+French, German, and Russian scholars,[2] amounting as it does to
+nothing less than an investigation into the origin of private property
+in land. The question has been put in various forms: did it commence
+with joint (or, as some would put it, less justifiably, communal or
+corporate) ownership or with individual ownership, and again was the
+village community free or servile? It is now pretty generally
+recognised that there was more than one type, though common
+cultivation was doubtless a feature of them all, and even in India
+there were at least two types, of which the one presenting several, as
+opposed to communal, ownership is not the less ancient. But it may
+well be that, as Maitland so often pointed out, much of the
+controversy has been literally an anachronism; that is to say, that
+nineteenth-century men have been asking the Early Ages questions which
+they could not answer and reading back into early history distinctions
+which are themselves historical products. Ownership is itself a late
+abstraction developed out of use. We may say with some certainty that
+family "ownership" preceded individual ownership, but in what sense
+there was communal ownership by a whole village it is not so easy to
+say.
+
+Maine was on surer ground when, as in his studies of Irish and Hindu
+law, he confined himself to the more immediate circle of the family
+group. In his _Early Institutions_ he subjects the Brehon Laws of
+early Ireland to a suggestive examination as presenting an example of
+Celtic law largely unaffected by Roman influences. He there shows, as
+he has shown in _Ancient Law_, that in early times the only social
+brotherhood recognised was that of kinship, and that almost every form
+of social organisation, tribe, guild, and religious fraternity, was
+conceived of under a similitude of it. Feudalism converted the village
+community, based on a real or assumed consanguinity of its members,
+into the fief in which the relations of tenant and lord were those of
+contract, while those of the unfree tenant rested on status. In his
+_Early Law and Custom_ he pursues much the same theme by an
+examination of Hindu Law as presenting a peculiarly close implication
+of early law with religion. Here he devotes his attention chiefly to
+Ancestor-worship, a subject which about this time had engaged the
+attention, as regards its Greek and Roman forms, of that brilliant
+Frenchman, Fustel de Coulanges, whose monograph _La Cite Antique_ is
+now a classic. As is well known, the right of inheriting a dead man's
+property and the duty of performing his obsequies are co-relative to
+this day in Hindu law, and his investigation of this subject brings
+Maine back to the subject of the Patriarchal Power. He points out that
+both worshipper and the object of worship were exclusively males, and
+concludes that it was the power of the father which generated the
+practice of worshipping him, while this practice in turn, by the
+gradual admission of women to participate in the ceremonies, gradually
+acted as a solvent upon the power itself. The necessity of finding
+some one to perform these rites, on failure of direct male heirs,
+marked the beginning of the recognition of a right in women to
+inherit. The conception of the family becomes less intense and more
+extensive. These discussions brought Maine, in chapter VII. of _Early
+Law and Custom_, to reconsider the main theory of _Ancient Law_ in the
+light of the criticism to which it had been exposed, and every reader
+of _Ancient Law_ who desires to understand Maine's exact position in
+regard to the scope of his generalisations should read for himself the
+chapter in the later work entitled "Theories of Primitive Society."
+His theory of the patriarchal power had been criticised by two able
+and industrious anthropologists, M'Lennan and Morgan, who, by their
+investigation of "survivals" among barbarous tribes in our own day,
+had arrived at the conclusion that, broadly speaking, the normal
+process through which society had passed was not patriarchal but
+"matriarchal," _i.e._ understanding by that term a system in which
+descent is traced through females. It would take up far too much space
+to enter into this controversy in detail. It is sufficient to say that
+the counter-theory rested on the assumption that society originated
+not in families, based on the authority of the father and relationship
+through him, but in promiscuous hordes among whom the only certain
+fact, and, consequently, the only recognised basis of relationship,
+was maternity. Maine's answer to this was that his generalisations as
+to the prevalence of the patriarchal power were confined to
+Indo-European races, and that he did not pretend to dogmatise about
+other races, also that he was dealing not with all societies but all
+that had any permanence. He argues that the promiscuous horde, where
+and when it is found, is to be explained as an abnormal case of
+retrogression due to a fortuitous scarcity of females resulting in
+polyandry, and he opposes to the theory of its predominance the
+potency of sexual jealousy which might serve as only another name for
+the patriarchal power. On the whole the better opinion is certainly
+with Maine. His theory, at any rate, alone accords with a view of
+society so soon as it is seen to possess any degree of civilisation
+and social cohesion.
+
+It will be seen that Maine's work, like that of most great thinkers,
+presents a singular coherence and intellectual elegance. It is
+distinguished also by an extraordinary wide range of vision. He lays
+under contribution with equal felicity and suggestiveness the Old
+Testament, the Homeric poems, the Latin dramatists, the laws of the
+Barbarians, the sacerdotal laws of the Hindus, the oracles of the
+Brehon caste, and the writings of the Roman jurists. In other words,
+he was a master of the Comparative Method. Few writers have thrown so
+much light on the development of the human mind in its social
+relations. We know now--a hundred disciples have followed in Maine's
+footsteps and applied his teaching--how slow is the growth of the
+human intellect in these matters, with what painful steps man learns
+to generalise, how convulsively he clings in the infancy of
+civilisation to the formal, the material, the realistic aspects of
+things, how late he develops such abstractions as "the State." In all
+this Maine first showed the way. As Sir Frederick Pollock has
+admirably put it--
+
+
+     Nowadays it may be said that "all have got the seed,"
+     but this is no justification for forgetting who first
+     cleared and sowed the ground. We may till fields that
+     the master left untouched, and one man will bring a
+     better ox to yoke to the plough, and another a worse;
+     but it is the master's plough still.
+
+
+We may conclude with some remarks on Maine's views of the
+contemporary problems of political society. Maine was what, for want
+of a better term, may be called a Conservative, and, indeed, it may be
+doubted whether, with the single exception of Burke, any English
+writer has done more to provide English Conservatives with reasons for
+the faith that is in them. He has set forth his views in a collection
+of polemical essays under the title of _Popular Government_, which
+were given to the world in book form in 1885. He viewed the advent of
+Democracy with more distrust than alarm--he appears to have thought it
+a form of government which could not last--and he has an unerring eye
+for its weaknesses.[3] Indeed, his remarks on the facility with which
+Democracy yields itself to manipulation by wire-pullers, newspapers,
+and demagogues, have found not a little confirmation in such studies
+of the actual working of democratic government as M. Ostrogorski's
+_Democracy and the Organisation of Political Parties_. Maine
+emphasised the tyranny of majorities, the enslavement of untutored
+minds by political catchwords, their susceptibility to "suggestion,"
+their readiness to adopt vicarious opinion in preference to an
+intellectual exercise of their own volition. It is not surprising that
+the writer who had subjected the theories of the Social Contract to
+such merciless criticism sighed for a scientific analysis of political
+terms as the first step to clear thinking about politics. Here he was
+on strong ground, but for such an analysis we have yet to wait.[4] He
+seems to have placed his hopes in the adoption of some kind of written
+constitution which, like the American prototype, would safeguard us
+from fundamental changes by the caprice of a single assembly. But this
+is not the place to pursue such highly debateable matters. Enough if
+we say that the man who wishes to serve an apprenticeship to an
+intelligent understanding of the political society of the present
+cannot do better than begin by a careful study of Maine's researches
+into the political society of the past.
+
+J.H. MORGAN.
+
+
+     _Note._--The reader who desires to study Maine in the
+     light of modern criticism is recommended to read Sir F.
+     Pollock's "Notes on Maine's _Ancient Law_" (published
+     by John Murray at 2_s._ 6_d._, or, with the text, at
+     5_s._). The best short study of Maine with which I am
+     acquainted is the article by Professor Vinogradoff in
+     the _Law Quarterly Review_ for April 1904. The field of
+     research covered by Maine in his various writings is so
+     vast that it is impossible to refer the reader, except
+     at great length, to anything like an adequate list of
+     later books on the subjects of his investigation. In
+     addition to the works on the Village Community
+     mentioned in a previous footnote, I may, however, refer
+     the beginner to Mr. Edward Jenks' little book on _The
+     History of Politics_ in Dent's Primers, to Professor
+     Ashley's translation of a fragment of Fustel de
+     Coulanges under the title of _The Origin of Property in
+     Land_, and to Sir Frederick Pollock's brilliant little
+     book, _The Expansion of the Common Law_. The reader is
+     also recommended to study Mr. H.A.L. Fisher's succinct
+     survey of the contributions of Maitland to legal
+     history under the title of _F.W. Maitland; an
+     Appreciation_ (Cambridge University Press). One of the
+     most brilliant and ingenious studies of the origins of
+     European civilisation is to be found in the work of the
+     great German jurist, Ihering, _Die Vorgeschichte der
+     Indo-Europder_, translated into English under the title
+     of _The Early History of the Indo-European Races_
+     (Sonnenschein, 1897).
+
+    [1] The reader who desires to pursue the subject by
+    reference to one of Maine's chief authorities is
+    recommended to read the translation of the _Institutes_
+    by Sandars.
+
+    [2] English literature on the subject is best studied in
+    Maitland's _Domesday Book and Beyond_, Vinogradoff's
+    _The Growth of the Manor_ and _Villeinage in England_
+    (with an excellent historical introduction), and
+    Seebohm's _English Village Community_.
+
+    [3] Witness the characteristic sentence: "On the whole
+    they [_i.e._ the studies of earlier society] suggest
+    that the differences which, after ages of change,
+    separate the civilised man from savage or barbarian, are
+    not so great as the vulgar opinion would have them....
+    Like the savage, he is a man of party with a newspaper
+    for a totem ... and like a savage he is apt to make of
+    his totem his God."
+
+    [4] Something of the kind was done many years ago by Sir
+    George Cornewall Lewis in his little book on the _Use
+    and Abuse of Political Terms_. I have attempted to carry
+    the task a step farther in an article which appeared in
+    the form of a review of Lord Morley's "History and
+    Politics" in the _Nineteenth Century_ for March 1913.
+
+
+
+
+BIBLIOGRAPHY
+
+
+Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The
+Birth of the Prince of Wales (Prize Poem), 1842; Caesar ad Rubiconem
+constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law
+and Legal Education (Essay), 1856; Ancient Law: its Connection with
+the Early History of Society and its Relation to Modern Ideas, 1861;
+Short Essays and Reviews on the Educational Policy of the Government
+of India, 1866; Village Communities in the East and West (Lectures),
+1871; The Early History of the Property of Married Women as collected
+from Roman and Hindoo Law (Lecture), 1873; The Effects of Observation
+of India on Modern European Thought (Lecture), 1875; Lectures on the
+Early History of Institutions, 1875; Village Communities, etc.; third
+ed. with other Lectures and Addresses, 1876; Dissertations on Early
+Law and Custom (selected from Lectures), 1883; Popular Government
+(four Essays), 1885; India [1837-1887] (in "The Reign of Queen
+Victoria," ed. by Thos. Humphry Ward, vol. i.), 1887; The Whewell
+Lectures: International Law, 1887, 1888; Ancient Law (ed. with
+introduction and notes by Sir Frederick Pollock), 1906; Ancient Law
+(Allahabad ed., with introduction by K.C. Banerji), 1912.
+
+Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine,"
+1871; "Quarterly Review," 1886; "Saturday Review," and "St. James's
+Gazette."
+
+A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant Duff;
+with some of his Indian speeches and minutes, selected by Whitley
+Stokes, 1892.
+
+
+
+
+PREFACE
+
+
+The chief object of the following pages is to indicate some of the
+earliest ideas of mankind, as they are reflected in Ancient Law, and
+to point out the relation of those ideas to modern thought. Much of
+the inquiry attempted could not have been prosecuted with the
+slightest hope of a useful result if there had not existed a body of
+law, like that of the Romans, bearing in its earliest portions the
+traces of the most remote antiquity and supplying from its later rules
+the staple of the civil institutions by which modern society is even
+now controlled. The necessity of taking the Roman law as a typical
+system has compelled the author to draw from it what may appear a
+disproportionate number of his illustrations; but it has not been his
+intention to write a treatise on Roman jurisprudence, and he has as
+much as possible avoided all discussions which might give that
+appearance to his work. The space allotted in the third and fourth
+chapters to certain philosophical theories of the Roman Jurisconsults
+has been appropriated to them for two reasons. In the first place,
+those theories appear to the author to have had a wider and more
+permanent influence on the thought and action of the world than is
+usually supposed. Secondly, they are believed to be the ultimate
+source of most of the views which have been prevalent, till quite
+recently, on the subjects treated of in this volume. It was impossible
+for the author to proceed far with his undertaking without stating his
+opinion on the origin, meaning, and value of those speculations.
+
+H.S.M.
+
+LONDON, _January 1861_.
+
+
+
+
+CONTENTS
+
+
+
+CHAP.                                                        PAGE
+
+   I. ANCIENT CODES                                             1
+
+  II. LEGAL FICTIONS                                           13
+
+ III. LAW OF NATURE AND EQUITY                                 26
+
+  IV. THE MODERN HISTORY OF THE LAW OF NATURE                  43
+
+   V. PRIMITIVE SOCIETY AND ANCIENT LAW                        67
+
+  VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION            101
+
+ VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS
+        AND SUCCESSIONS                                       127
+
+VIII. THE EARLY HISTORY OF PROPERTY                           144
+
+  IX. THE EARLY HISTORY OF CONTRACT                           179
+
+   X. THE EARLY HISTORY OF DELICT AND CRIME                   216
+
+      INDEX                                                   235
+
+
+
+
+
+CHAPTER I
+
+ANCIENT CODES
+
+
+The most celebrated system of jurisprudence known to the world begins,
+as it ends, with a Code. From the commencement to the close of its
+history, the expositors of Roman Law consistently employed language
+which implied that the body of their system rested on the Twelve
+Decemviral Tables, and therefore on a basis of written law. Except in
+one particular, no institutions anterior to the Twelve Tables were
+recognised at Rome. The theoretical descent of Roman jurisprudence
+from a code, the theoretical ascription of English law to immemorial
+unwritten tradition, were the chief reasons why the development of
+their system differed from the development of ours. Neither theory
+corresponded exactly with the facts, but each produced consequences of
+the utmost importance.
+
+I need hardly say that the publication of the Twelve Tables is not the
+earliest point at which we can take up the history of law. The ancient
+Roman code belongs to a class of which almost every civilised nation
+in the world can show a sample, and which, so far as the Roman and
+Hellenic worlds were concerned, were largely diffused over them at
+epochs not widely distant from one another. They appeared under
+exceedingly similar circumstances, and were produced, to our
+knowledge, by very similar causes. Unquestionably, many jural
+phenomena lie behind these codes and preceded them in point of time.
+Not a few documentary records exist which profess to give us
+information concerning the early phenomena of law; but, until
+philology has effected a complete analysis of the Sanskrit literature,
+our best sources of knowledge are undoubtedly the Greek Homeric poems,
+considered of course not as a history of actual occurrences, but as a
+description, not wholly idealised, of a state of society known to the
+writer. However the fancy of the poet may have exaggerated certain
+features of the heroic age, the prowess of warriors and the potency of
+gods, there is no reason to believe that it has tampered with moral or
+metaphysical conceptions which were not yet the subjects of conscious
+observation; and in this respect the Homeric literature is far more
+trustworthy than those relatively later documents which pretend to
+give an account of times similarly early, but which were compiled
+under philosophical or theological influences. If by any means we can
+determine the early forms of jural conceptions, they will be
+invaluable to us. These rudimentary ideas are to the jurist what the
+primary crusts of the earth are to the geologist. They contain,
+potentially, all the forms in which law has subsequently exhibited
+itself. The haste or the prejudice which has generally refused them
+all but the most superficial examination, must bear the blame of the
+unsatisfactory condition in which we find the science of
+jurisprudence. The inquiries of the jurist are in truth prosecuted
+much as inquiry in physics and physiology was prosecuted before
+observation had taken the place of assumption. Theories, plausible and
+comprehensive, but absolutely unverified, such as the Law of Nature or
+the Social Compact, enjoy a universal preference over sober research
+into the primitive history of society and law; and they obscure the
+truth not only by diverting attention from the only quarter in which
+it can be found, but by that most real and most important influence
+which, when once entertained and believed in, they are enabled to
+exercise on the later stages of jurisprudence.
+
+The earliest notions connected with the conception, now so fully
+developed, of a law or rule of life, are those contained in the
+Homeric words "Themis" and "Themistes." "Themis," it is well known,
+appears in the later Greek pantheon as the Goddess of Justice, but
+this is a modern and much developed idea, and it is in a very
+different sense that Themis is described in the Iliad as the assessor
+of Zeus. It is now clearly seen by all trustworthy observers of the
+primitive condition of mankind that, in the infancy of the race, men
+could only account for sustained or periodically recurring action by
+supposing a personal agent. Thus, the wind blowing was a person and of
+course a divine person; the sun rising, culminating, and setting was
+a person and a divine person; the earth yielding her increase was a
+person and divine. As, then, in the physical world, so in the moral.
+When a king decided a dispute by a sentence, the judgment was assumed
+to be the result of direct inspiration. The divine agent, suggesting
+judicial awards to kings or to gods, the greatest of kings, was
+_Themis_. The peculiarity of the conception is brought out by the use
+of the plural. _Themistes_, Themises, the plural of _Themis_, are the
+awards themselves, divinely dictated to the judge. Kings are spoken of
+as if they had a store of "Themistes" ready to hand for use; but it
+must be distinctly understood that they are not laws, but judgments.
+"Zeus, or the human king on earth," says Mr. Grote, in his History of
+Greece, "is not a lawmaker, but a judge." He is provided with
+Themistes, but, consistently with the belief in their emanation from
+above, they cannot be supposed to be connected by any thread of
+principle; they are separate, isolated judgments.
+
+Even in the Homeric poems, we can see that these ideas are transient.
+Parities of circumstance were probably commoner in the simple
+mechanism of ancient society than they are now, and in the succession
+of similar cases awards are likely to follow and resemble each other.
+Here we have the germ or rudiment of a Custom, a conception posterior
+to that of Themistes or judgments. However strongly we, with our
+modern associations, may be inclined to lay down _a priori_ that the
+notion of a Custom must precede that of a judicial sentence, and that
+a judgment must affirm a Custom or punish its breach, it seems quite
+certain that the historical order of the ideas is that in which I have
+placed them. The Homeric word for a custom in the embryo is sometimes
+"Themis" in the singular--more often "Dike," the meaning of which
+visibly fluctuates between a "judgment" and a "custom" or "usage."
+[Greek: Nomos], a Law, so great and famous a term in the political
+vocabulary of the later Greek society, does not occur in Homer.
+
+This notion of a divine agency, suggesting the Themistes, and itself
+impersonated in Themis, must be kept apart from other primitive
+beliefs with which a superficial inquirer might confound it. The
+conception of the Deity dictating an entire code or body of law, as in
+the case of the Hindoo laws of Menu, seems to belong to a range of
+ideas more recent and more advanced. "Themis" and "Themistes" are
+much less remotely linked with that persuasion which clung so long and
+so tenaciously to the human mind, of a divine influence underlying and
+supporting every relation of life, every social institution. In early
+law, and amid the rudiments of political thought, symptoms of this
+belief meet us on all sides. A supernatural presidency is supposed to
+consecrate and keep together all the cardinal institutions of those
+times, the State, the Race, and the Family. Men, grouped together in
+the different relations which those institutions imply, are bound to
+celebrate periodically common rites and to offer common sacrifices;
+and every now and then the same duty is even more significantly
+recognised in the purifications and expiations which they perform, and
+which appear intended to deprecate punishment for involuntary or
+neglectful disrespect. Everybody acquainted with ordinary classical
+literature will remember the _sacra gentilicia_, which exercised so
+important an influence on the early Roman law of adoption and of
+wills. And to this hour the Hindoo Customary Law, in which some of the
+most curious features of primitive society are stereotyped, makes
+almost all the rights of persons and all the rules of succession hinge
+on the due solemnisation of fixed ceremonies at the dead man's
+funeral, that is, at every point where a breach occurs in the
+continuity of the family.
+
+Before we quit this stage of jurisprudence, a caution may be usefully
+given to the English student. Bentham, in his _Fragment on
+Government_, and Austin, in his _Province of Jurisprudence
+Determined_, resolve every law into a _command_ of the lawgiver, _an
+obligation_ imposed thereby on the citizen, and a _sanction_
+threatened in the event of disobedience; and it is further predicated
+of the _command_, which is the first element in a law, that it must
+prescribe, not a single act, but a series or number of acts of the
+same class or kind. The results of this separation of ingredients
+tally exactly with the facts of mature jurisprudence; and, by a little
+straining of language, they may be made to correspond in form with all
+law, of all kinds, at all epochs. It is not, however, asserted that
+the notion of law entertained by the generality is even now quite in
+conformity with this dissection; and it is curious that, the farther
+we penetrate into the primitive history of thought, the farther we
+find ourselves from a conception of law which at all resembles a
+compound of the elements which Bentham determined. It is certain
+that, in the infancy of mankind, no sort of legislature, not even a
+distinct author of law, is contemplated or conceived of. Law has
+scarcely reached the footing of custom; it is rather a habit. It is,
+to use a French phrase, "in the air." The only authoritative statement
+of right and wrong is a judicial sentence after the facts, not one
+presupposing a law which has been violated, but one which is breathed
+for the first time by a higher power into the judge's mind at the
+moment of adjudication. It is of course extremely difficult for us to
+realise a view so far removed from us in point both of time and of
+association, but it will become more credible when we dwell more at
+length on the constitution of ancient society, in which every man,
+living during the greater part of his life under the patriarchal
+despotism, was practically controlled in all his actions by a regimen
+not of law but of caprice. I may add that an Englishman should be
+better able than a foreigner to appreciate the historical fact that
+the "Themistes" preceded any conception of law, because, amid the many
+inconsistent theories which prevail concerning the character of
+English jurisprudence, the most popular, or at all events the one
+which most affects practice, is certainly a theory which assumes that
+adjudged cases and precedents exist antecedently to rules, principles,
+and distinctions. The "Themistes" have too, it should be remarked, the
+characteristic which, in the view of Bentham and Austin, distinguishes
+single or mere commands from laws. A true law enjoins on all the
+citizens indifferently a number of acts similar in class or kind; and
+this is exactly the feature of a law which has most deeply impressed
+itself on the popular mind, causing the term "law" to be applied to
+mere uniformities, successions, and similitudes. A _command_
+prescribes only a single act, and it is to commands, therefore, that
+"Themistes" are more akin than to laws. They are simply adjudications
+on insulated states of fact, and do not necessarily follow each other
+in any orderly sequence.
+
+The literature of the heroic age discloses to us law in the germ under
+the "Themistes" and a little more developed in the conception of
+"Dike." The next stage which we reach in the history of jurisprudence
+is strongly marked and surrounded by the utmost interest. Mr. Grote,
+in the second part and second chapter of his History, has fully
+described the mode in which society gradually clothed itself with a
+different character from that delineated by Homer. Heroic kingship
+depended partly on divinely given prerogative, and partly on the
+possession of supereminent strength, courage, and wisdom. Gradually,
+as the impression of the monarch's sacredness became weakened, and
+feeble members occurred in the series of hereditary kings, the royal
+power decayed, and at last gave way to the dominion of aristocracies.
+If language so precise can be used of the revolution, we might say
+that the office of the king was usurped by that council of chiefs
+which Homer repeatedly alludes to and depicts. At all events from an
+epoch of kingly rule we come everywhere in Europe to an era of
+oligarchies; and even where the name of the monarchical functions does
+not absolutely disappear, the authority of the king is reduced to a
+mere shadow. He becomes a mere hereditary general, as in Lacedaemon, a
+mere functionary, as the King Archon at Athens, or a mere formal
+hierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, and
+Asia Minor, the dominant orders seem to have universally consisted of
+a number of families united by an assumed relationship in blood, and,
+though they all appear at first to have laid claim to a quasi-sacred
+character, their strength does not seem to have resided in their
+pretended sanctity. Unless they were prematurely overthrown by the
+popular party, they all ultimately approached very closely to what we
+should now understand by a political aristocracy. The changes which
+society underwent in the communities of the further Asia occurred of
+course at periods long anterior in point of time to these revolutions
+of the Italian and Hellenic worlds; but their relative place in
+civilisation appears to have been the same, and they seem to have been
+exceedingly similar in general character. There is some evidence that
+the races which were subsequently united under the Persian monarchy,
+and those which peopled the peninsula of India, had all their heroic
+age and their era of aristocracies; but a military and a religious
+oligarchy appear to have grown up separately, nor was the authority of
+the king generally superseded. Contrary, too, to the course of events
+in the West, the religious element in the East tended to get the
+better of the military and political. Military and civil aristocracies
+disappear, annihilated or crushed into insignificance between the
+kings and the sacerdotal order; and the ultimate result at which we
+arrive is, a monarch enjoying great power, but circumscribed by the
+privileges of a caste of priests. With these differences, however,
+that in the East aristocracies became religious, in the West civil or
+political, the proposition that a historical era of aristocracies
+succeeded a historical era of heroic kings may be considered as true,
+if not of all mankind, at all events of all branches of the
+Indo-European family of nations.
+
+The important point for the jurist is that these aristocracies were
+universally the depositaries and administrators of law. They seem to
+have succeeded to the prerogatives of the king, with the important
+difference, however, that they do not appear to have pretended to
+direct inspiration for each sentence. The connection of ideas which
+caused the judgments of the patriarchal chieftain to be attributed to
+superhuman dictation still shows itself here and there in the claim of
+a divine origin for the entire body of rules, or for certain parts of
+it, but the progress of thought no longer permits the solution of
+particular disputes to be explained by supposing an extra-human
+interposition. What the juristical oligarchy now claims is to
+monopolise the _knowledge_ of the laws, to have the exclusive
+possession of the principles by which quarrels are decided. We have in
+fact arrived at the epoch of Customary Law. Customs or Observances now
+exist as a substantive aggregate, and are assumed to be precisely
+known to the aristocratic order or caste. Our authorities leave us no
+doubt that the trust lodged with the oligarchy was sometimes abused,
+but it certainly ought not to be regarded as a mere usurpation or
+engine of tyranny. Before the invention of writing, and during the
+infancy of the art, an aristocracy invested with judicial privileges
+formed the only expedient by which accurate preservation of the
+customs of the race or tribe could be at all approximated to. Their
+genuineness was, so far as possible, insured by confiding them to the
+recollection of a limited portion of the community.
+
+The epoch of Customary Law, and of its custody by a privileged order,
+is a very remarkable one. The condition of the jurisprudence which it
+implies has left traces which may still be detected in legal and
+popular phraseology. The law, thus known exclusively to a privileged
+minority, whether a caste, an aristocracy, a priestly tribe, or a
+sacerdotal college is true unwritten law. Except this, there is no
+such thing as unwritten law in the world. English case-law is
+sometimes spoken of as unwritten, and there are some English theorists
+who assure us that if a code of English jurisprudence were prepared we
+should be turning unwritten law into written--a conversion, as they
+insist, if not of doubtful policy, at all events of the greatest
+seriousness. Now, it is quite true that there was once a period at
+which the English common law might reasonably have been termed
+unwritten. The elder English judges did really pretend to knowledge of
+rules, principles, and distinctions which were not entirely revealed
+to the bar and to the lay-public. Whether all the law which they
+claimed to monopolise was really unwritten, is exceedingly
+questionable; but at all events, on the assumption that there was once
+a large mass of civil and criminal rules known exclusively to the
+judges, it presently ceased to be unwritten law. As soon as the Courts
+at Westminster Hall began to base their judgments on cases recorded,
+whether in the year books or elsewhere, the law which they
+administered became written law. At the present moment a rule of
+English law has first to be disentangled from the recorded facts of
+adjudged printed precedents, then thrown into a form of words varying
+with the taste, precision, and knowledge of the particular judge, and
+then applied to the circumstances of the case for adjudication. But at
+no stage of this process has it any characteristic which distinguishes
+it from written law. It is written case-law, and only different from
+code-law because it is written in a different way.
+
+From the period of Customary Law we come to another sharply defined
+epoch in the history of jurisprudence. We arrive at the era of Codes,
+those ancient codes of which the Twelve Tables of Rome were the most
+famous specimen. In Greece, in Italy, on the Hellenised sea-board of
+Western Asia, these codes all made their appearance at periods much
+the same everywhere, not, I mean, at periods identical in point of
+time, but similar in point of the relative progress of each community.
+Everywhere, in the countries I have named, laws engraven on tablets
+and published to the people take the place of usages deposited with
+the recollection of a privileged oligarchy. It must not for a moment
+be supposed that the refined considerations now urged in favour of
+what is called codification had any part or place in the change I have
+described. The ancient codes were doubtless originally suggested by
+the discovery and diffusion of the art of writing. It is true that the
+aristocracies seem to have abused their monopoly of legal knowledge;
+and at all events their exclusive possession of the law was a
+formidable impediment to the success of those popular movements which
+began to be universal in the western world. But, though democratic
+sentiment may have added to their popularity, the codes were certainly
+in the main a direct result of the invention of writing. Inscribed
+tablets were seen to be a better depositary of law, and a better
+security for its accurate preservation, than the memory of a number of
+persons however strengthened by habitual exercise.
+
+The Roman code belongs to the class of codes I have been describing.
+Their value did not consist in any approach to symmetrical
+classifications, or to terseness and clearness of expression, but in
+their publicity, and in the knowledge which they furnished to
+everybody, as to what he was to do, and what not to do. It is, indeed,
+true that the Twelve Tables of Rome do exhibit some traces of
+systematic arrangement, but this is probably explained by the
+tradition that the framers of that body of law called in the
+assistance of Greeks who enjoyed the later Greek experience in the art
+of law-making. The fragments of the Attic Code of Solon show, however,
+that it had but little order, and probably the laws of Draco had even
+less. Quite enough too remains of these collections, both in the East
+and in the West, to show that they mingled up religious, civil, and
+merely moral ordinances, without any regard to differences in their
+essential character; and this is consistent with all we know of early
+thought from other sources, the severance of law from morality, and of
+religion from law, belonging very distinctly to the _later_ stages of
+mental progress.
+
+But, whatever to a modern eye are the singularities of these Codes,
+their importance to ancient societies was unspeakable. The
+question--and it was one which affected the whole future of each
+community--was not so much whether there should be a code at all, for
+the majority of ancient societies seem to have obtained them sooner or
+later, and, but for the great interruption in the history of
+jurisprudence created by feudalism, it is likely that all modern law
+would be distinctly traceable to one or more of these fountain-heads.
+But the point on which turned the history of the race was, at what
+period, at what stage of their social progress, they should have their
+laws put into writing. In the western world the plebeian or popular
+element in each state successfully assailed the oligarchical monopoly,
+and a code was nearly universally obtained _early_ in the history of
+the Commonwealth. But in the East, as I have before mentioned, the
+ruling aristocracies tended to become religious rather than military
+or political, and gained, therefore, rather than lost in power; while
+in some instances the physical conformation of Asiatic countries had
+the effect of making individual communities larger and more numerous
+than in the West; and it is a known social law that the larger the
+space over which a particular set of institutions is diffused, the
+greater is its tenacity and vitality. From whatever cause, the codes
+obtained by Eastern societies were obtained, relatively, much later
+than by Western, and wore a very different character. The religious
+oligarchies of Asia, either for their own guidance, or for the relief
+of their memory, or for the instruction of their disciples, seem in
+all cases to have ultimately embodied their legal learning in a code;
+but the opportunity of increasing and consolidating their influence
+was probably too tempting to be resisted. Their complete monopoly of
+legal knowledge appears to have enabled them to put off on the world
+collections, not so much of the rules actually observed as of the
+rules which the priestly order considered proper to be observed. The
+Hindoo code, called the Laws of Menu, which is certainly a Brahmin
+compilation, undoubtedly enshrines many genuine observances of the
+Hindoo race, but the opinion of the best contemporary orientalists is,
+that it does not, as a whole, represent a set of rules ever actually
+administered in Hindostan. It is, in great part, an ideal picture of
+that which, in the view of the Brahmins, _ought_ to be the law. It is
+consistent with human nature and with the special motives of their
+authors, that codes like that of Menu should pretend to the highest
+antiquity and claim to have emanated in their complete form from the
+Deity. Menu, according to Hindoo mythology, is an emanation from the
+supreme God; but the compilation which bears his name, though its
+exact date is not easily discovered, is, in point of the relative
+progress of Hindoo jurisprudence, a recent production.
+
+Among the chief advantages which the Twelve Tables and similar codes
+conferred on the societies which obtained them, was the protection
+which they afforded against the frauds of the privileged oligarchy and
+also against the spontaneous depravation and debasement of the
+national institutions. The Roman Code was merely an enunciation in
+words of the existing customs of the Roman people. Relatively to the
+progress of the Romans in civilisation, it was a remarkably early
+code, and it was published at a time when Roman society had barely
+emerged from that intellectual condition in which civil obligation and
+religious duty are inevitably confounded. Now a barbarous society
+practising a body of customs, is exposed to some especial dangers
+which may be absolutely fatal to its progress in civilisation. The
+usages which a particular community is found to have adopted in its
+infancy and in its primitive seats are generally those which are on
+the whole best suited to promote its physical and moral well-being;
+and, if they are retained in their integrity until new social wants
+have taught new practices, the upward march of society is almost
+certain. But unhappily there is a law of development which ever
+threatens to operate upon unwritten usage. The customs are of course
+obeyed by multitudes who are incapable of understanding the true
+ground of their expediency, and who are therefore left inevitably to
+invent superstitious reasons for their permanence. A process then
+commences which may be shortly described by saying that usage which is
+reasonable generates usage which is unreasonable. Analogy, the most
+valuable of instruments in the maturity of jurisprudence, is the most
+dangerous of snares in its infancy. Prohibitions and ordinances,
+originally confined, for good reasons, to a single description of
+acts, are made to apply to all acts of the same class, because a man
+menaced with the anger of the gods for doing one thing, feels a
+natural terror in doing any other thing which is remotely like it.
+After one kind of food has been interdicted for sanitary reasons, the
+prohibition is extended to all food resembling it, though the
+resemblance occasionally depends on analogies the most fanciful. So,
+again, a wise provision for insuring general cleanliness dictates in
+time long routines of ceremonial ablution; and that division into
+classes which at a particular crisis of social history is necessary
+for the maintenance of the national existence degenerates into the
+most disastrous and blighting of all human institutions--Caste. The
+fate of the Hindoo law is, in fact, the measure of the value of the
+Roman code. Ethnology shows us that the Romans and the Hindoos sprang
+from the same original stock, and there is indeed a striking
+resemblance between what appear to have been their original customs.
+Even now, Hindoo jurisprudence has a substratum of forethought and
+sound judgment, but irrational imitation has engrafted in it an
+immense apparatus of cruel absurdities. From these corruptions the
+Romans were protected by their code. It was compiled while the usage
+was still wholesome, and a hundred years afterwards it might have been
+too late. The Hindoo law has been to a great extent embodied in
+writing, but, ancient as in one sense are the compendia which still
+exist in Sanskrit, they contain ample evidence that they were drawn up
+after the mischief had been done. We are not of course entitled to say
+that if the Twelve Tables had not been published the Romans would have
+been condemned to a civilisation as feeble and perverted as that of
+the Hindoos, but thus much at least is certain, that _with_ their code
+they were exempt from the very chance of so unhappy a destiny.
+
+
+
+
+CHAPTER II
+
+LEGAL FICTIONS
+
+
+When primitive law has once been embodied in a Code, there is an end
+to what may be called its spontaneous development. Henceforward the
+changes effected in it, if effected at all, are effected deliberately
+and from without. It is impossible to suppose that the customs of any
+race or tribe remained unaltered during the whole of the long--in some
+instances the immense--interval between their declaration by a
+patriarchal monarch and their publication in writing. It would be
+unsafe too to affirm that no part of the alteration was effected
+deliberately. But from the little we know of the progress of law
+during this period, we are justified in assuming that set purpose had
+the very smallest share in producing change. Such innovations on the
+earliest usages as disclose themselves appear to have been dictated by
+feelings and modes of thought which, under our present mental
+conditions, we are unable to comprehend. A new era begins, however,
+with the Codes. Wherever, after this epoch, we trace the course of
+legal modification we are able to attribute it to the conscious desire
+of improvement, or at all events of compassing objects other than
+those which were aimed at in the primitive times.
+
+It may seem at first sight that no general propositions worth trusting
+can be elicited from the history of legal systems subsequent to the
+codes. The field is too vast. We cannot be sure that we have included
+a sufficient number of phenomena in our observations, or that we
+accurately understand those which we have observed. But the
+undertaking will be seen to be more feasible, if we consider that
+after the epoch of codes the distinction between stationary and
+progressive societies begins to make itself felt. It is only with the
+progressive that we are concerned, and nothing is more remarkable than
+their extreme fewness. In spite of overwhelming evidence, it is most
+difficult for a citizen of western Europe to bring thoroughly home to
+himself the truth that the civilisation which surrounds him is a rare
+exception in the history of the world. The tone of thought common
+among us, all our hopes, fears, and speculations, would be materially
+affected, if we had vividly before us the relation of the progressive
+races to the totality of human life. It is indisputable that much the
+greatest part of mankind has never shown a particle of desire that its
+civil institutions should be improved since the moment when external
+completeness was first given to them by their embodiment in some
+permanent record. One set of usages has occasionally been violently
+overthrown and superseded by another; here and there a primitive code,
+pretending to a supernatural origin, has been greatly extended, and
+distorted into the most surprising forms, by the perversity of
+sacerdotal commentators; but, except in a small section of the world,
+there has been nothing like the gradual amelioration of a legal
+system. There has been material civilisation, but, instead of the
+civilisation expanding the law, the law has limited the civilisation.
+The study of races in their primitive condition affords us some clue
+to the point at which the development of certain societies has
+stopped. We can see that Brahminical India has not passed beyond a
+stage which occurs in the history of all the families of mankind, the
+stage at which a rule of law is not yet discriminated from a rule of
+religion. The members of such a society consider that the
+transgression of a religious ordinance should be punished by civil
+penalties, and that the violation of a civil duty exposes the
+delinquent to divine correction. In China this point has been passed,
+but progress seems to have been there arrested, because the civil laws
+are coextensive with all the ideas of which the race is capable. The
+difference between the stationary and progressive societies is,
+however, one of the great secrets which inquiry has yet to penetrate.
+Among partial explanations of it I venture to place the considerations
+urged at the end of the last chapter. It may further be remarked that
+no one is likely to succeed in the investigation who does not clearly
+realise that the stationary condition of the human race is the rule,
+the progressive the exception. And another indispensable condition of
+success is an accurate knowledge of Roman law in all its principal
+stages. The Roman jurisprudence has the longest known history of any
+set of human institutions. The character of all the changes which it
+underwent is tolerably well ascertained. From its commencement to its
+close, it was progressively modified for the better, or for what
+the authors of the modification conceived to be the better, and the
+course of improvement was continued through periods at which all the
+rest of human thought and action materially slackened its pace, and
+repeatedly threatened to settle down into stagnation.
+
+I confine myself in what follows to the progressive societies. With
+respect to them it may be laid down that social necessities and social
+opinion are always more or less in advance of Law. We may come
+indefinitely near to the closing of the gap between them, but it has a
+perpetual tendency to reopen. Law is stable; the societies we are
+speaking of are progressive. The greater or less happiness of a people
+depends on the degree of promptitude with which the gulf is narrowed.
+
+A general proposition of some value may be advanced with respect to
+the agencies by which Law is brought into harmony with society. These
+instrumentalities seem to me to be three in number, Legal Fictions,
+Equity, and Legislation. Their historical order is that in which I
+have placed them. Sometimes two of them will be seen operating
+together, and there are legal systems which have escaped the influence
+of one or other of them. But I know of no instance in which the order
+of their appearance has been changed or inverted. The early history of
+one of them, Equity, is universally obscure, and hence it may be
+thought by some that certain isolated statutes, reformatory of the
+civil law, are older than any equitable jurisdiction. My own belief is
+that remedial Equity is everywhere older than remedial Legislation;
+but, should this be not strictly true, it would only be necessary to
+limit the proposition respecting their order of sequence to the
+periods at which they exercise a sustained and substantial influence
+in transforming the original law.
+
+I employ the word "fiction" in a sense considerably wider than that in
+which English lawyers are accustomed to use it, and with a meaning
+much more extensive than that which belonged to the Roman "fictiones."
+Fictio, in old Roman law, is properly a term of pleading, and
+signifies a false averment on the part of the plaintiff which the
+defendant was not allowed to traverse; such, for example, as an
+averment that the plaintiff was a Roman citizen, when in truth he was
+a foreigner. The object of these "fictiones" was, of course, to give
+jurisdiction, and they therefore strongly resembled the allegations
+in the writs of the English Queen's Bench, and Exchequer, by which
+those Courts contrived to usurp the jurisdiction of the Common
+Pleas:--the allegation that the defendant was in custody of the king's
+marshal, or that the plaintiff was the king's debtor, and could not
+pay his debt by reason of the defendant's default. But I now employ
+the expression "Legal Fiction" to signify any assumption which
+conceals, or affects to conceal, the fact that a rule of law has
+undergone alteration, its letter remaining unchanged, its operation
+being modified. The words, therefore, include the instances of
+fictions which I have cited from the English and Roman law, but they
+embrace much more, for I should speak both of the English Case-law and
+of the Roman Responsa Prudentum as resting on fictions. Both these
+examples will be examined presently. The _fact_ is in both cases that
+the law has been wholly changed; the _fiction_ is that it remains what
+it always was. It is not difficult to understand why fictions in all
+their forms are particularly congenial to the infancy of society. They
+satisfy the desire for improvement, which is not quite wanting, at the
+same time that they do not offend the superstitious disrelish for
+change which is always present. At a particular stage of social
+progress they are invaluable expedients for overcoming the rigidity of
+law, and, indeed, without one of them, the Fiction of Adoption which
+permits the family tie to be artificially created, it is difficult to
+understand how society would ever have escaped from its swaddling
+clothes, and taken its first steps towards civilisation. We must,
+therefore, not suffer ourselves to be affected by the ridicule which
+Bentham pours on legal fictions wherever he meets them. To revile them
+as merely fraudulent is to betray ignorance of their peculiar office
+in the historical development of law. But at the same time it would be
+equally foolish to agree with those theorists, who, discerning that
+fictions have had their uses, argue that they ought to be stereotyped
+in our system. They have had their day, but it has long since gone by.
+It is unworthy of us to effect an admittedly beneficial object by so
+rude a device as a legal fiction. I cannot admit any anomaly to be
+innocent, which makes the law either more difficult to understand or
+harder to arrange in harmonious order. Now legal fictions are the
+greatest of obstacles to symmetrical classification. The rule of law
+remains sticking in the system, but it is a mere shell. It has been
+long ago undermined, and a new rule hides itself under its cover.
+Hence there is at once a difficulty in knowing whether the rule which
+is actually operative should be classed in its true or in its apparent
+place, and minds of different casts will differ as to the branch of
+the alternative which ought to be selected. If the English law is ever
+to assume an orderly distribution, it will be necessary to prune away
+the legal fictions which, in spite of some recent legislative
+improvements, are still abundant in it.
+
+The next instrumentality by which the adaptation of law to social
+wants is carried on I call Equity, meaning by that word any body of
+rules existing by the side of the original civil law, founded on
+distinct principles and claiming incidentally to supersede the civil
+law in virtue of a superior sanctity inherent in those principles. The
+Equity whether of the Roman Praetors or of the English Chancellors,
+differs from the Fictions which in each case preceded it, in that the
+interference with law is open and avowed. On the other hand, it
+differs from Legislation, the agent of legal improvement which comes
+after it, in that its claim to authority is grounded, not on the
+prerogative of any external person or body, not even on that of the
+magistrate who enunciates it, but on the special nature of its
+principles, to which it is alleged that all law ought to conform. The
+very conception of a set of principles, invested with a higher
+sacredness than those of the original law and demanding application
+independently of the consent of any external body, belongs to a much
+more advanced stage of thought than that to which legal fictions
+originally suggested themselves.
+
+Legislation, the enactments of a legislature which, whether it take
+the form of an autocratic prince or of a parliamentary assembly, is
+the assumed organ of the entire society, is the last of the
+ameliorating instrumentalities. It differs from Legal Fictions just as
+Equity differs from them, and it is also distinguished from Equity, as
+deriving its authority from an external body or person. Its obligatory
+force is independent of its principles. The legislature, whatever be
+the actual restraints imposed on it by public opinion, is in theory
+empowered to impose what obligations it pleases on the members of the
+community. There is nothing to prevent its legislating in the
+wantonness of caprice. Legislation may be dictated by equity, if that
+last word be used to indicate some standard of right and wrong to
+which its enactments happen to be adjusted; but then these enactments
+are indebted for their binding force to the authority of the
+legislature and not to that of the principles on which the legislature
+acted; and thus they differ from rules of Equity, in the technical
+sense of the word, which pretend to a paramount sacredness entitling
+them at once to the recognition of the courts even without the
+concurrence of prince or parliamentary assembly. It is the more
+necessary to note these differences, because a student of Bentham
+would be apt to confound Fictions, Equity, and Statute law under the
+single head of legislation. They all, he would say, involve
+_law-making_; they differ only in respect of the machinery by which
+the new law is produced. That is perfectly true, and we must never
+forget it; but it furnishes no reason why we should deprive ourselves
+of so convenient a term as Legislation in the special sense.
+Legislation and Equity are disjoined in the popular mind and in the
+minds of most lawyers; and it will never do to neglect the distinction
+between them, however conventional, when important practical
+consequences follow from it.
+
+It would be easy to select from almost any regularly developed body of
+rules examples of _legal fictions_, which at once betray their true
+character to the modern observer. In the two instances which I proceed
+to consider, the nature of the expedient employed is not so readily
+detected. The first authors of these fictions did not perhaps intend
+to innovate, certainly did not wish to be suspected of innovating.
+There are, moreover, and always have been, persons who refuse to see
+any fiction in the process, and conventional language bears out their
+refusal. No examples, therefore, can be better calculated to
+illustrate the wide diffusion of legal fictions, and the efficiency
+with which they perform their two-fold office of transforming a system
+of laws and of concealing the transformation.
+
+We in England are well accustomed to the extension, modification, and
+improvement of law by a machinery which, in theory, is incapable of
+altering one jot or one line of existing jurisprudence. The process by
+which this virtual legislation is effected is not so much insensible
+as unacknowledged. With respect to that great portion of our legal
+system which is enshrined in cases and recorded in law reports, we
+habitually employ a double language and entertain, as it would
+appear, a double and inconsistent set of ideas. When a group of facts
+come before an English Court for adjudication, the whole course of the
+discussion between the judge and the advocate assumes that no question
+is, or can be, raised which will call for the application of any
+principles but old ones, or any distinctions but such as have long
+since been allowed. It is taken absolutely for granted that there is
+somewhere a rule of known law which will cover the facts of the
+dispute now litigated, and that, if such a rule be not discovered, it
+is only that the necessary patience, knowledge, or acumen is not
+forthcoming to detect it. Yet the moment the judgment has been
+rendered and reported, we slide unconsciously or unavowedly into a new
+language and a new train of thought. We now admit that the new
+decision _has_ modified the law. The rules applicable have, to use the
+very inaccurate expression sometimes employed, become more elastic. In
+fact they have been changed. A clear addition has been made to the
+precedents, and the canon of law elicited by comparing the precedents
+is not the same with that which would have been obtained if the series
+of cases had been curtailed by a single example. The fact that the old
+rule has been repealed, and that a new one has replaced it, eludes us,
+because we are not in the habit of throwing into precise language the
+legal formulas which we derive from the precedents, so that a change
+in their tenor is not easily detected unless it is violent and
+glaring. I shall not now pause to consider at length the causes which
+have led English lawyers to acquiesce in these curious anomalies.
+Probably it will be found that originally it was the received doctrine
+that somewhere, _in nubibus_ or _in gremio magistratuum_, there
+existed a complete, coherent, symmetrical body of English law, of an
+amplitude sufficient to furnish principles which would apply to any
+conceivable combination of circumstances. The theory was at first much
+more thoroughly believed in than it is now, and indeed it may have had
+a better foundation. The judges of the thirteenth century may have
+really had at their command a mine of law unrevealed to the bar and to
+the lay-public, for there is some reason for suspecting that in secret
+they borrowed freely, though not always wisely, from current compendia
+of the Roman and Canon laws. But that storehouse was closed so soon as
+the points decided at Westminster Hall became numerous enough to
+supply a basis for a substantive system of jurisprudence; and now for
+centuries English practitioners have so expressed themselves as to
+convey the paradoxical proposition that, except by Equity and Statute
+law, nothing has been added to the basis since it was first
+constituted. We do not admit that our tribunals legislate; we imply
+that they have never legislated; and yet we maintain that the rules of
+the English common law, with some assistance from the Court of
+Chancery and from Parliament, are coextensive with the complicated
+interests of modern society.
+
+A body of law bearing a very close and very instructive resemblance to
+our case-law in those particulars which I have noticed, was known to
+the Romans under the name of the Responsa Prudentum, the "answers of
+the learned in the law." The form of these Responses varied a good
+deal at different periods of the Roman jurisprudence, but throughout
+its whole course they consisted of explanatory glosses on
+authoritative written documents, and at first they were exclusively
+collections of opinions interpretative of the Twelve Tables. As with
+us, all legal language adjusted itself to the assumption that the text
+of the old Code remained unchanged. There was the express rule. It
+overrode all glosses and comments, and no one openly admitted that any
+interpretation of it, however eminent the interpreter, was safe from
+revision on appeal to the venerable texts. Yet in point of fact, Books
+of Responses bearing the names of leading jurisconsults obtained an
+authority at least equal to that of our reported cases, and constantly
+modified, extended, limited or practically overruled the provisions of
+the Decemviral law. The authors of the new jurisprudence during the
+whole progress of its formation professed the most sedulous respect
+for the letter of the Code. They were merely explaining it,
+deciphering it, bringing out its full meaning; but then, in the
+result, by piecing texts together, by adjusting the law to states of
+fact which actually presented themselves and by speculating on its
+possible application to others which might occur, by introducing
+principles of interpretation derived from the exegesis of other
+written documents which fell under their observation, they educed a
+vast variety of canons which had never been dreamed of by the
+compilers of the Twelve Tables and which were in truth rarely or never
+to be found there. All these treatises of the jurisconsults claimed
+respect on the ground of their assumed conformity with the Code, but
+their comparative authority depended on the reputation of the
+particular jurisconsults who gave them to the world. Any name of
+universally acknowledged greatness clothed a Book of Responses with a
+binding force hardly less than that which belonged to enactments of
+the legislature; and such a book in its turn constituted a new
+foundation on which a further body of jurisprudence might rest. The
+Responses of the early lawyers were not however published, in the
+modern sense, by their author. They were recorded and edited by his
+pupils, and were not therefore in all probability arranged according
+to any scheme of classification. The part of the students in these
+publications must be carefully noted, because the service they
+rendered to their teacher seems to have been generally repaid by his
+sedulous attention to the pupils' education. The educational treatises
+called Institutes or Commentaries, which are a later fruit of the duty
+then recognised, are among the most remarkable features of the Roman
+system. It was apparently in these Institutional works, and not in the
+books intended for trained lawyers, that the jurisconsults gave to the
+public their classifications and their proposals for modifying and
+improving the technical phraseology.
+
+In comparing the Roman Responsa Prudentum with their nearest English
+counterpart, it must be carefully borne in mind that the authority by
+which this part of the Roman jurisprudence was expounded was not the
+_bench_, but the _bar_. The decision of a Roman tribunal, though
+conclusive in the particular case, had no ulterior authority except
+such as was given by the professional repute of the magistrate who
+happened to be in office for the time. Properly speaking, there was no
+institution at Rome during the republic analogous to the English
+Bench, the Chambers of Imperial Germany, or the Parliaments of
+Monarchical France. There were magistrates indeed, invested with
+momentous judicial functions in their several departments, but the
+tenure of the magistracies was but for a single year, so that they are
+much less aptly compared to a permanent judicature than to a cycle of
+offices briskly circulating among the leaders of the bar. Much might
+be said on the origin of a condition of things which looks to us like
+a startling anomaly, but which was in fact much more congenial than
+our own system to the spirit of ancient societies, tending, as they
+always did, to split into distinct orders which, however exclusive
+themselves, tolerated no professional hierarchy above them.
+
+It is remarkable that this system did not produce certain effects
+which might on the whole have been expected from it. It did not, for
+example, _popularise_ the Roman law--it did not, as in some of the
+Greek republics, lessen the effort of intellect required for the
+mastery of the science, although its diffusion and authoritative
+exposition were opposed by no artificial barriers. On the contrary, if
+it had not been for the operation of a separate set of causes, there
+were strong probabilities that the Roman jurisprudence would have
+become as minute, technical, and difficult as any system which has
+since prevailed. Again, a consequence which might still more naturally
+have been looked for, does not appear at any time to have exhibited
+itself. The jurisconsults, until the liberties of Rome were
+overthrown, formed a class which was quite undefined and must have
+fluctuated greatly in numbers; nevertheless, there does not seem to
+have existed a doubt as to the particular individuals whose opinion,
+in their generation, was conclusive on the cases submitted to them.
+The vivid pictures of a leading jurisconsult's daily practice which
+abound in Latin literature--the clients from the country flocking to
+his antechamber in the early morning, and the students standing round
+with their note-books to record the great lawyer's replies--are seldom
+or never identified at any given period with more than one or two
+conspicuous names. Owing too to the direct contact of the client and
+the advocate, the Roman people itself seems to have been always alive
+to the rise and fall of professional reputation, and there is
+abundance of proof, more particularly in the well-known oration of
+Cicero, _Pro Muraena_, that the reverence of the commons for forensic
+success was apt to be excessive rather than deficient.
+
+We cannot doubt that the peculiarities which have been noted in the
+instrumentality by which the development of the Roman law was first
+effected, were the source of its characteristic excellence, its early
+wealth in principles. The growth and exuberance of principle was
+fostered, in part, by the competition among the expositors of the law,
+an influence wholly unknown where there exists a Bench, the
+depositaries intrusted by king or commonwealth with the prerogative
+of justice. But the chief agency, no doubt, was the uncontrolled
+multiplication of cases for legal decision. The state of facts which
+caused genuine perplexity to a country client was not a whit more
+entitled to form the basis of the jurisconsult's Response, or legal
+decision, than a set of hypothetical circumstances propounded by an
+ingenious pupil. All combinations of fact were on precisely the same
+footing, whether they were real or imaginary. It was nothing to the
+jurisconsult that his opinion was overruled for the moment by the
+magistrate who adjudicated on his client's case, unless that
+magistrate happened to rank above him in legal knowledge or the esteem
+of his profession. I do not, indeed, mean it to be inferred that he
+would wholly omit to consider his client's advantage, for the client
+was in earlier times the great lawyer's constituent and at a later
+period his paymaster, but the main road to the rewards of ambition lay
+through the good opinion of his order, and it is obvious that under
+such a system as I have been describing this was much more likely to
+be secured by viewing each case as an illustration of a great
+principle, or an exemplification of a broad rule, than by merely
+shaping it for an insulated forensic triumph. A still more powerful
+influence must have been exercised by the want of any distinct check
+on the suggestion or invention of possible questions. Where the data
+can be multiplied at pleasure, the facilities for evolving a general
+rule are immensely increased. As the law is administered among
+ourselves, the judge cannot travel out of the sets of facts exhibited
+before him or before his predecessors. Accordingly each group of
+circumstances which is adjudicated upon receives, to employ a
+Gallicism, a sort of consecration. It acquires certain qualities which
+distinguish it from every other case genuine or hypothetical. But at
+Rome, as I have attempted to explain, there was nothing resembling a
+Bench or Chamber of judges; and therefore no combination of facts
+possessed any particular value more than another. When a difficulty
+came for opinion before the jurisconsult, there was nothing to prevent
+a person endowed with a nice perception of analogy from at once
+proceeding to adduce and consider an entire class of supposed
+questions with which a particular feature connected it. Whatever were
+the practical advice given to the client, the _responsum_ treasured up
+in the note-books of listening pupils would doubtless contemplate the
+circumstances as governed by a great principle, or included in a
+sweeping rule. Nothing like this has ever been possible among
+ourselves, and it should be acknowledged that in many criticisms
+passed on the English law the manner in which it has been enunciated
+seems to have been lost sight of. The hesitation of our courts in
+declaring principles may be much more reasonably attributed to the
+comparative scantiness of our precedents, voluminous as they appear to
+him who is acquainted with no other system, than to the temper of our
+judges. It is true that in the wealth of legal principle we are
+considerably poorer than several modern European nations, But they, it
+must be remembered, took the Roman jurisprudence for the foundation of
+their civil institutions. They built the _debris_ of the Roman law
+into their walls; but in the materials, and workmanship of the residue
+there is not much which distinguishes it favourably from the structure
+erected by the English judicature.
+
+The period of Roman freedom was the period during which the stamp of a
+distinctive character was impressed on the Roman jurisprudence; and
+through all the earlier part of it, it was by the Responses of the
+jurisconsults that the development of the law was mainly carried on.
+But as we approach the fall of the republic there are signs that the
+Responses are assuming a form which must have been fatal to their
+farther expansion. They are becoming systematised and reduced into
+compendia. Q. Mucius Scaevola, the Pontifex, is said to have published
+a manual of the entire Civil Law, and there are traces in the writings
+of Cicero of growing disrelish for the old methods, as compared with
+the more active instruments of legal innovation. Other agencies had in
+fact by this time been brought to bear on the law. The Edict, or
+annual proclamation of the Praetor, had risen into credit as the
+principal engine of law reform, and L. Cornelius Sylla, by causing to
+be enacted the great group of statutes called the _Leges Corneliae_,
+had shown what rapid and speedy improvements can be effected by direct
+legislation. The final blow to the Responses was dealt by Augustus,
+who limited to a few leading jurisconsults the right of giving binding
+opinions on cases submitted to them, a change which, though it brings
+us nearer the ideas of the modern world, must obviously have altered
+fundamentally the characteristics of the legal profession and the
+nature of its influence on Roman law. At a later period another
+school of jurisconsults arose, the great lights of jurisprudence for
+all time. But Ulpian and Paulus, Gaius and Papinian, were not authors
+of Responses. Their works were regular treatises on particular
+departments of the law, more especially on the Praetor's Edict.
+
+The _Equity_ of the Romans and the Praetorian Edict by which it was
+worked into their system, will be considered in the next chapter. Of
+the Statute Law it is only necessary to say that it was scanty during
+the republic, but became very voluminous under the empire. In the
+youth and infancy of a nation it is a rare thing for the legislature
+to be called into action for the general reform of private law. The
+cry of the people is not for change in the laws, which are usually
+valued above their real worth, but solely for their pure, complete,
+and easy administration; and recourse to the legislative body is
+generally directed to the removal of some great abuse, or the decision
+of some incurable quarrel between classes and dynasties. There seems
+in the minds of the Romans to have been some association between the
+enactment of a large body of statutes and the settlement of society
+after a great civil commotion. Sylla signalised his reconstitution of
+the republic by the Leges Corneliae; Julius Caesar contemplated vast
+additions to the Statute Law; Augustus caused to be passed the
+all-important group of Leges Juliae; and among later emperors the most
+active promulgators of constitutions are princes who, like
+Constantine, have the concerns of the world to readjust. The true
+period of Roman Statute Law does not begin till the establishment of
+the empire. The enactments of the emperors, clothed at first in the
+pretence of popular sanction, but afterwards emanating undisguisedly
+from the imperial prerogative, extend in increasing massiveness from
+the consolidation of Augustus's power to the publication of the Code
+of Justinian. It will be seen that even in the reign of the second
+emperor a considerable approximation is made to that condition of the
+law and that mode of administering it with which we are all familiar.
+A statute law and a limited board of expositors have risen into being;
+a permanent court of appeal and a collection of approved commentaries
+will very shortly be added; and thus we are brought close on the ideas
+of our own day.
+
+
+
+
+CHAPTER III
+
+LAW OF NATURE AND EQUITY
+
+
+The theory of a set of legal principles, entitled by their intrinsic
+superiority to supersede the older law, very early obtained currency
+both in the Roman state and in England. Such a body of principles,
+existing in any system, has in the foregoing chapters been denominated
+Equity, a term which, as will presently be seen, was one (though only
+one) of the designations by which this agent of legal change was known
+to the Roman jurisconsults. The jurisprudence of the Court of
+Chancery, which bears the name of Equity in England, could only be
+adequately discussed in a separate treatise. It is extremely complex
+in its texture and derives its materials from several heterogeneous
+sources. The early ecclesiastical chancellors contributed to it, from
+the Canon Law, many of the principles which lie deepest in its
+structure. The Roman law, more fertile than the Canon Law in rules
+applicable to secular disputes, was not seldom resorted to by a later
+generation of Chancery judges, amid whose recorded dicta we often find
+entire texts from the _Corpus Juris Civilis_ imbedded, with their
+terms unaltered, though their origin is never acknowledged. Still more
+recently, and particularly at the middle and during the latter half of
+the eighteenth century, the mixed systems of jurisprudence and morals
+constructed by the publicists of the Low Countries appear to have been
+much studied by English lawyers, and from the chancellorship of Lord
+Talbot to the commencement of Lord Eldon's chancellorship these works
+had considerable effect on the rulings of the Court of Chancery. The
+system, which obtained its ingredients from these various quarters,
+was greatly controlled in its growth by the necessity imposed on it of
+conforming itself to the analogies of the common law, but it has
+always answered the description of a body of comparatively novel legal
+principles claiming to override the older jurisprudence of the country
+on the strength of an intrinsic ethical superiority.
+
+The Equity of Rome was a much simpler structure, and its development
+from its first appearance can be much more easily traced. Both its
+character and its history deserve attentive examination. It is the
+root of several conceptions which have exercised profound influence on
+human thought, and through human thought have seriously affected the
+destinies of mankind.
+
+The Romans described their legal system as consisting of two
+ingredients. "All nations," says the Institutional Treatise published
+under the authority of the Emperor Justinian, "who are ruled by laws
+and customs, are governed partly by their own particular laws, and
+partly by those laws which are common to all mankind. The law which a
+people enacts is called the Civil Law of that people, but that which
+natural reason appoints for all mankind is called the Law of Nations,
+because all nations use it." The part of the law "which natural reason
+appoints for all mankind" was the element which the Edict of the
+Praetor was supposed to have worked into Roman jurisprudence. Elsewhere
+it is styled more simply Jus Naturale, or the Law of Nature; and its
+ordinances are said to be dictated by Natural Equity (_naturalis
+aequitas_) as well as by natural reason. I shall attempt to discover
+the origin of these famous phrases, Law of Nations, Law of Nature,
+Equity, and to determine how the conceptions which they indicate are
+related to one another.
+
+The most superficial student of Roman history must be struck by the
+extraordinary degree in which the fortunes of the republic were
+affected by the presence of foreigners, under different names, on her
+soil. The causes of this immigration are discernible enough at a later
+period, for we can readily understand why men of all races should
+flock to the mistress of the world; but the same phenomenon of a large
+population of foreigners and denizens meets us in the very earliest
+records of the Roman State. No doubt, the instability of society in
+ancient Italy, composed as it was in great measure of robber tribes,
+gave men considerable inducement to locate themselves in the territory
+of any community strong enough to protect itself and them from
+external attack, even though protection should be purchased at the
+cost of heavy taxation, political disfranchisement, and much social
+humiliation. It is probable, however, that this explanation is
+imperfect, and that it could only be completed by taking into account
+those active commercial relations which, though they are little
+reflected in the military traditions of the republic, Rome appears
+certainly to have had with Carthage and with the interior of Italy in
+pre-historic times. Whatever were the circumstances to which it was
+attributable, the foreign element in the commonwealth determined the
+whole course of its history, which, at all its stages, is little more
+than a narrative of conflicts between a stubborn nationality and an
+alien population. Nothing like this has been seen in modern times; on
+the one hand, because modern European communities have seldom or never
+received any accession of foreign immigrants which was large enough to
+make itself felt by the bulk of the native citizens, and on the other,
+because modern states, being held together by allegiance to a king or
+political superior, absorb considerable bodies of immigrant settlers
+with a quickness unknown to the ancient world, where the original
+citizens of a commonwealth always believed themselves to be united by
+kinship in blood, and resented a claim to equality of privilege as a
+usurpation of their birthright. In the early Roman republic the
+principle of the absolute exclusion of foreigners pervaded the Civil
+Law no less than the Constitution. The alien or denizen could have no
+share in any institution supposed to be coeval with the State. He
+could not have the benefit of Quiritarian law. He could not be a party
+to the _nexum_ which was at once the conveyance and the contract of
+the primitive Romans. He could not sue by the Sacramental Action, a
+mode of litigation of which the origin mounts up to the very infancy
+of civilisation. Still, neither the interest nor the security of Rome
+permitted him to be quite outlawed. All ancient communities ran the
+risk of being overthrown by a very slight disturbance of equilibrium,
+and the mere instinct of self-preservation would force the Romans to
+devise some method of adjusting the rights and duties of foreigners,
+who might otherwise--and this was a danger of real importance in the
+ancient world--have decided their controversies by armed strife.
+Moreover, at no period of Roman history was foreign trade entirely
+neglected. It was therefore probably half as a measure of police and
+half in furtherance of commerce that jurisdiction was first assumed in
+disputes to which the parties were either foreigners or a native and a
+foreigner. The assumption of such a jurisdiction brought with it the
+immediate necessity of discovering some principles on which the
+questions to be adjudicated upon could be settled, and the principles
+applied to this object by the Roman lawyers were eminently
+characteristic of the time. They refused, as I have said before, to
+decide the new cases by pure Roman Civil Law. They refused, no doubt
+because it seemed to involve some kind of degradation, to apply the
+law of the particular State from which the foreign litigant came. The
+expedient to which they resorted was that of selecting the rules of
+law common to Rome and to the different Italian communities in which
+the immigrants were born. In other words, they set themselves to form
+a system answering to the primitive and literal meaning of Jus
+Gentium, that is, Law common to all Nations. Jus Gentium was, in fact,
+the sum of the common ingredients in the customs of the old Italian
+tribes, for they were _all the nations_ whom the Romans had the means
+of observing, and who sent successive swarms of immigrants to Roman
+soil. Whenever a particular usage was seen to be practised by a large
+number of separate races in common it was set down as part of the Law
+common to all Nations, or Jus Gentium. Thus, although the conveyance
+of property was certainly accompanied by very different forms in the
+different commonwealths surrounding Rome, the actual transfer,
+tradition, or delivery of the article intended to be conveyed was a
+part of the ceremonial in all of them. It was, for instance, a part,
+though a subordinate part, in the Mancipation or conveyance peculiar
+to Rome. Tradition, therefore, being in all probability the only
+common ingredient in the modes of conveyance which the jurisconsults
+had the means of observing, was set down as an institution Juris
+Gentium, or rule of the Law common to all Nations. A vast number of
+other observances were scrutinised with the same result. Some common
+characteristic was discovered in all of them, which had a common
+object, and this characteristic was classed in the Jus Gentium. The
+Jus Gentium was accordingly a collection of rules and principles,
+determined by observation to be common to the institutions which
+prevailed among the various Italian tribes.
+
+The circumstances of the origin of the Jus Gentium are probably a
+sufficient safeguard against the mistake of supposing that the Roman
+lawyers had any special respect for it. It was the fruit in part of
+their disdain for all foreign law, and in part of their disinclination
+to give the foreigner the advantage of their own indigenous Jus
+Civile. It is true that we, at the present day, should probably take a
+very different view of the Jus Gentium, if we were performing the
+operation which was effected by the Roman jurisconsults. We should
+attach some vague superiority or precedence to the element which we
+had thus discerned underlying and pervading so great a variety of
+usage. We should have a sort of respect for rules and principles so
+universal. Perhaps we should speak of the common ingredient as being
+of the essence of the transaction into which it entered, and should
+stigmatise the remaining apparatus of ceremony, which varied in
+different communities, as adventitious and accidental. Or it may be,
+we should infer that the races which we were comparing had once obeyed
+a great system of common institutions of which the Jus Gentium was the
+reproduction, and that the complicated usages of separate
+commonwealths were only corruptions and depravations of the simpler
+ordinances which had once regulated their primitive state. But the
+results to which modern ideas conduct the observer are, as nearly as
+possible, the reverse of those which were instinctively brought home
+to the primitive Roman. What we respect or admire, he disliked or
+regarded with jealous dread. The parts of jurisprudence which he
+looked upon with affection were exactly those which a modern theorist
+leaves out of consideration as accidental and transitory; the solemn
+gestures of the mancipation; the nicely adjusted questions and answers
+of the verbal contract; the endless formalities of pleading and
+procedure. The Jus Gentium was merely a system forced on his attention
+by a political necessity. He loved it as little as he loved the
+foreigners from whose institutions it was derived and for whose
+benefit it was intended. A complete revolution in his ideas was
+required before it could challenge his respect, but so complete was it
+when it did occur, that the true reason why our modern estimate of the
+Jus Gentium differs from that which has just been described, is that
+both modern jurisprudence and modern philosophy have inherited the
+matured views of the later jurisconsults on this subject. There did
+come a time, when from an ignoble appendage of the Jus Civile, the Jus
+Gentium came to be considered a great though as yet imperfectly
+developed model to which all law ought as far as possible to conform.
+This crisis arrived when the Greek theory of a Law of Nature was
+applied to the practical Roman administration of the Law common to
+all Nations.
+
+The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law
+of Nations seen in the light of a peculiar theory. An unfortunate
+attempt to discriminate them was made by the jurisconsult Ulpian, with
+the propensity to distinguish characteristic of a lawyer, but the
+language of Gaius, a much higher authority, and the passage quoted
+before from the Institutes leave no room for doubt, that the
+expressions were practically convertible. The difference between them
+was entirely historical, and no distinction in essence could ever be
+established between them. It is almost unnecessary to add that the
+confusion between Jus Gentium, or Law common to all Nations, and
+_international law_ is entirely modern. The classical expression for
+international law is Jus Feciale or the law of negotiation and
+diplomacy. It is, however, unquestionable that indistinct impressions
+as to the meaning of Jus Gentium had considerable share in producing
+the modern theory that the relations of independent states are
+governed by the Law of Nature.
+
+It becomes necessary to investigate the Greek conceptions of nature
+and her law. The word [Greek: physis], which was rendered in the Latin
+_natura_ and our _nature_, denoted beyond all doubt originally the
+material universe, but it was the material universe contemplated under
+an aspect which--such is our intellectual distance from those
+times--it is not very easy to delineate in modern language. Nature
+signified the physical world regarded as the result of some primordial
+element or law. The oldest Greek philosophers had been accustomed to
+explain the fabric of creation as the manifestation of some single
+principle which they variously asserted to be movement, force, fire,
+moisture, or generation. In its simplest and most ancient sense,
+Nature is precisely the physical universe looked upon in this way as
+the manifestation of a principle. Afterwards, the later Greek sects,
+returning to a path from which the greatest intellects of Greece had
+meanwhile strayed, added the _moral_ to the _physical_ world in the
+conception of Nature. They extended the term till it embraced not
+merely the visible creation, but the thoughts, observances, and
+aspirations of mankind. Still, as before, it was not solely the moral
+phenomena of human society which they understood by _Nature_, but
+these phenomena considered as resolvable into some general and simple
+laws.
+
+Now, just as the oldest Greek theorists supposed that the sports of
+chance had changed the material universe from its simple primitive
+form into its present heterogeneous condition, so their intellectual
+descendants imagined that but for untoward accident the human race
+would have conformed itself to simpler rules of conduct and a less
+tempestuous life. To live according to _nature_ came to be considered
+as the end for which man was created, and which the best men were
+bound to compass. To live according to _nature_ was to rise above the
+disorderly habits and gross indulgences of the vulgar to higher laws
+of action which nothing but self-denial and self-command would enable
+the aspirant to observe. It is notorious that this proposition--live
+according to nature--was the sum of the tenets of the famous Stoic
+philosophy. Now on the subjugation of Greece that philosophy made
+instantaneous progress in Roman society. It possessed natural
+fascinations for the powerful class who, in theory at least, adhered
+to the simple habits of the ancient Italian race, and disdained to
+surrender themselves to the innovations of foreign fashions. Such
+persons began immediately to affect the Stoic precepts of life
+according to nature--an affectation all the more grateful, and, I may
+add, all the more noble, from its contrast with the unbounded
+profligacy which was being diffused through the imperial city by the
+pillage of the world and by the example of its most luxurious races.
+In the front of the disciples of the new Greek school, we might be
+sure, even if we did not know it historically, that the Roman lawyers
+figured. We have abundant proof that, there being substantially but
+two professions in the Roman republic, the military men were generally
+identified with the party of movement, but the lawyers were universally
+at the head of the party of resistance.
+
+The alliance of the lawyers with the Stoic philosophers lasted through
+many centuries. Some of the earliest names in the series of renowned
+jurisconsults are associated with Stoicism, and ultimately we have the
+golden age of Roman jurisprudence fixed by general consent at the era
+of the Antonine Caesars, the most famous disciples to whom that
+philosophy has given a rule of life. The long diffusion of these
+doctrines among the members of a particular profession was sure to
+affect the art which they practised and influenced. Several positions
+which we find in the remains of the Roman jurisconsults are scarcely
+intelligible, unless we use the Stoic tenets as our key; but at the
+same time it is a serious, though a very common, error to measure the
+influence of Stoicism on Roman law by counting up the number of legal
+rules which can be confidently affiliated on Stoical dogmas. It has
+often been observed that the strength of Stoicism resided not in its
+canons of conduct, which were often repulsive or ridiculous, but in
+the great though vague principle which it inculcated of resistance to
+passion. Just in the same way the influence on jurisprudence of the
+Greek theories, which had their most distinct expression in Stoicism,
+consisted not in the number of specific positions which they
+contributed to Roman law, but in the single fundamental assumption
+which they lent to it. After nature had become a household word in the
+mouths of the Romans, the belief gradually prevailed among the Roman
+lawyers that the old Jus Gentium was in fact the lost code of Nature,
+and that the Praetor in framing an Edictal jurisprudence on the
+principles of the Jus Gentium was gradually restoring a type from
+which law had only departed to deteriorate. The inference from this
+belief was immediate, that it was the Praetor's duty to supersede the
+Civil Law as much as possible by the Edict, to revive as far as might
+be the institutions by which Nature had governed man in the primitive
+state. Of course, there were many impediments to the amelioration of
+law by this agency. There may have been prejudices to overcome even in
+the legal profession itself, and Roman habits were far too tenacious
+to give way at once to mere philosophical theory. The indirect methods
+by which the Edict combated certain technical anomalies, show the
+caution which its authors were compelled to observe, and down to the
+very days of Justinian there was some part of the old law which had
+obstinately resisted its influence. But, on the whole, the progress of
+the Romans in legal improvement was astonishingly rapid as soon as
+stimulus was applied to it by the theory of Natural Law. The ideas of
+simplification and generalisation had always been associated with the
+conception of Nature; simplicity, symmetry, and intelligibility came
+therefore to be regarded as the characteristics of a good legal
+system, and the taste for involved language, multiplied ceremonials,
+and useless difficulties disappeared altogether. The strong will, and
+unusual opportunities of Justinian were needed to bring the Roman law
+to its existing shape, but the ground plan of the system had been
+sketched long before the imperial reforms were effected.
+
+What was the exact point of contact between the old Jus Gentium and
+the Law of Nature? I think that they touch and blend through AEquitas,
+or Equity in its original sense; and here we seem to come to the first
+appearance in jurisprudence of this famous term, Equity. In examining
+an expression which has so remote an origin and so long a history as
+this, it is always safest to penetrate, if possible, to the simple
+metaphor or figure which at first shadowed forth the conception. It
+has generally been supposed that AEquitas is the equivalent of the
+Greek [Greek: isotes], _i.e._ the principle of equal or proportionate
+distribution. The equal division of numbers or physical magnitudes is
+doubtless closely entwined with our perceptions of justice; there are
+few associations which keep their ground in the mind so stubbornly or
+are dismissed from it with such difficulty by the deepest thinkers.
+Yet in tracing the history of this association, it certainly does not
+seem to have suggested itself to very early thought, but is rather the
+offspring of a comparatively late philosophy. It is remarkable too
+that the "equality" of laws on which the Greek democracies prided
+themselves--that equality which, in the beautiful drinking song of
+Callistratus, Harmodius and Aristogiton are said to have given to
+Athens--had little in common with the "equity" of the Romans. The
+first was an equal administration of civil laws among the citizens,
+however limited the class of citizens might be; the last implied the
+applicability of a law, which was not civil law, to a class which did
+not necessarily consist of citizens. The first excluded a despot; the
+last included foreigners, and for some purposes slaves. On the whole,
+I should be disposed to look in another direction for the germ of the
+Roman "Equity." The Latin word "aequus" carries with it more distinctly
+than the Greek "[Greek: isos]" the sense of _levelling_. Now its
+levelling tendency was exactly the characteristic of the Jus Gentium,
+which would be most striking to a primitive Roman. The pure
+Quiritarian law recognised a multitude of arbitrary distinctions
+between classes of men and kinds of property; the Jus Gentium,
+generalised from a comparison of various customs, neglected the
+Quiritarian divisions. The old Roman law established, for example, a
+fundamental difference between "Agnatic" and "Cognatic" relationship,
+that is, between the Family considered as based upon common subjection
+to patriarchal authority and the Family considered (in conformity with
+modern ideas) as united through the mere fact of a common descent.
+This distinction disappears in the "law common to all nations," as
+also does the difference between the archaic forms of property, Things
+"Mancipi" and Things "nec Mancipi." The neglect of demarcations and
+boundaries seems to me, therefore, the feature of the Jus Gentium
+which was depicted in AEquitas. I imagine that the word was at first a
+mere description of that constant _levelling_ or removal of
+irregularities which went on wherever the praetorian system was applied
+to the cases of foreign litigants. Probably no colour of ethical
+meaning belonged at first to the expression; nor is there any reason
+to believe that the process which it indicated was otherwise than
+extremely distasteful to the primitive Roman mind.
+
+On the other hand, the feature of the Jus Gentium which was presented
+to the apprehension of a Roman by the word Equity, was exactly the
+first and most vividly realised characteristic of the hypothetical
+state of nature. Nature implied symmetrical order, first in the
+physical world, and next in the moral, and the earliest notion of
+order doubtless involved straight lines, even surfaces, and measured
+distances. The same sort of picture or figure would be unconsciously
+before the mind's eye, whether it strove to form the outlines of the
+supposed natural state, or whether it took in at a glance the actual
+administration of the "law common to all nations"; and all we know of
+primitive thought would lead us to conclude that this ideal similarity
+would do much to encourage the belief in an identity of the two
+conceptions. But then, while the Jus Gentium had little or no
+antecedent credit at Rome, the theory of a Law of Nature came in
+surrounded with all the prestige of philosophical authority, and
+invested with the charms of association with an elder and more
+blissful condition of the race. It is easy to understand how the
+difference in the point of view would affect the dignity of the term
+which at once described the operation of the old principles and the
+results of the new theory. Even to modern ears it is not at all the
+same thing to describe a process as one of "levelling" and to call it
+the "correction of anomalies," though the metaphor is precisely the
+same. Nor do I doubt that, when once AEquitas was understood to convey
+an allusion to the Greek theory, associations which grew out of the
+Greek notion of [Greek: isotes] began to cluster round it. The
+language of Cicero renders it more than likely that this was so, and
+it was the first stage of a transmutation of the conception of Equity,
+which almost every ethical system which has appeared since those days
+has more or less helped to carry on.
+
+Something must be said of the formal instrumentality by which the
+principles and distinctions associated, first with the Law common to
+all Nations, and afterwards with the Law of Nature, were gradually
+incorporated with the Roman law. At the crisis of primitive Roman
+history which is marked by the expulsion of the Tarquins, a change
+occurred which has its parallel in the early annals of many ancient
+states, but which had little in common with those passages of
+political affairs which we now term revolutions. It may best be
+described by saying that the monarchy was put into commission. The
+powers heretofore accumulated in the hands of a single person were
+parcelled out among a number of elective functionaries, the very name
+of the kingly office being retained and imposed on a personage known
+subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the
+change, the settled duties of the supreme judicial office devolved on
+the Praetor, at the time the first functionary in the commonwealth, and
+together with these duties was transferred the undefined supremacy
+over law and legislation which always attached to ancient sovereigns
+and which is not obscurely related to the patriarchal and heroic
+authority they had once enjoyed. The circumstances of Rome gave great
+importance to the more indefinite portion of the functions thus as
+transferred, as with the establishment of the republic began that
+series of recurrent trials which overtook the state, in the difficulty
+of dealing with a multitude of persons who, not coming within the
+technical description of indigenous Romans, were nevertheless
+permanently located within Roman jurisdiction. Controversies between
+such persons, or between such persons and native-born citizens, would
+have remained without the pale of the remedies provided by Roman law,
+if the Praetor had not undertaken to decide them, and he must soon
+have addressed himself to the more critical disputes which in the
+extension of commerce arose between Roman subjects and avowed
+foreigners. The great increase of such cases in the Roman Courts about
+the period of the first Punic War is marked by the appointment of a
+special Praetor, known subsequently as the Praetor Peregrinus, who gave
+them his undivided attention. Meantime, one precaution of the Roman
+people against the revival of oppression, had consisted in obliging
+every magistrate whose duties had any tendency to expand their sphere,
+to publish, on commencing his year of office, an Edict or
+proclamation, in which he declared the manner in which he intended to
+administer his department. The Praetor fell under the rule with other
+magistrates; but as it was necessarily impossible to construct each
+year a separate system of principles, he seems to have regularly
+republished his predecessor's Edict with such additions and changes as
+the exigency of the moment or his own views of the law compelled him
+to introduce. The Praetor's proclamation, thus lengthened by a new
+portion every year, obtained the name of the Edictum Perpetuum, that
+is, the _continuous_ or _unbroken_ edict. The immense length to which
+it extended, together perhaps with some distaste for its necessarily
+disorderly texture, caused the practice of increasing it to be stopped
+in the year of Salvius Julianus, who occupied the magistracy in the
+reign of the Emperor Hadrian. The edict of that Praetor embraced
+therefore the whole body of equity jurisprudence, which it probably
+disposed in new and symmetrical order, and the perpetual edict is
+therefore often cited in Roman law merely as the Edict of Julianus.
+
+Perhaps the first inquiry which occurs to an Englishman who considers
+the peculiar mechanism of the Edict is, what were the limitations by
+which these extensive powers of the Praetor were restrained? How was
+authority so little definite reconciled with a settled condition of
+society and of law? The answer can only be supplied by careful
+observation of the conditions under which our own English law is
+administered. The Praetor, it should be recollected, was a jurisconsult
+himself, or a person entirely in the hands of advisers who were
+jurisconsults, and it is probable that every Roman lawyer waited
+impatiently for the time when he should fill or control the great
+judicial magistracy. In the interval, his tastes, feelings,
+prejudices, and degree of enlightenment were inevitably those of his
+own order, and the qualifications which he ultimately brought to
+office were those which he had acquired in the practice and study of
+his profession. An English Chancellor goes through precisely the same
+training, and carries to the woolsack the same qualifications. It is
+certain when he assumes office that he will have, to some extent,
+modified the law before he leaves it; but until he has quitted his
+seat, and the series of his decisions in the Law Reports has been
+completed, we cannot discover how far he has elucidated or added to
+the principles which his predecessors bequeathed to him. The influence
+of the Praetor on Roman jurisprudence differed only in respect of the
+period at which its amount was ascertained. As was before stated, he
+was in office but for a year, and his decisions rendered during his
+year, though of course irreversible as regarded the litigants, were of
+no ulterior value. The most natural moment for declaring the changes
+he proposed to effect occurred therefore at his entrance on the
+praetorship, and hence, when commencing his duties, he did openly and
+avowedly that which in the end his English representative does
+insensibly and sometimes unconsciously. The checks on this apparent
+liberty are precisely those imposed on an English judge. Theoretically
+there seems to be hardly any limit to the powers of either of them,
+but practically the Roman Praetor, no less than the English Chancellor,
+was kept within the narrowest bounds by the prepossessions imbibed
+from early training and by the strong restraints of professional
+opinion, restraints of which the stringency can only be appreciated by
+those who have personally experienced them. It may be added that the
+lines within which movement is permitted, and beyond which there is to
+be no travelling, were chalked with as much distinctness in the one
+case as in the other. In England the judge follows the analogies of
+reported decisions on insulated groups of facts. At Rome, as the
+intervention of the Praetor was at first dictated by simple concern for
+the safety of the state, it is likely that in the earliest times it
+was proportioned to the difficulty which it attempted to get rid of.
+Afterwards, when the taste for principle had been diffused by the
+Responses, he no doubt used the Edict as the means of giving a wider
+application to those fundamental principles, which he and the other
+practising jurisconsults, his contemporaries, believed themselves
+to have detected underlying the law. Latterly he acted wholly under
+the influence of Greek philosophical theories, which at once tempted
+him to advance and confined him to a particular course of progress.
+
+The nature of the measures attributed to Salvius Julianus has been
+much disputed. Whatever they were, their effects on the Edict are
+sufficiently plain. It ceased to be extended by annual additions, and
+henceforward the equity jurisprudence of Rome was developed by the
+labours of a succession of great jurisconsults who fill with their
+writings the interval between the reign of Hadrian and the reign of
+Alexander Severus. A fragment of the wonderful system which they built
+up survives in the Pandects of Justinian, and supplies evidence that
+their works took the form of treatises on all parts of Roman Law, but
+chiefly that of commentaries on the Edict. Indeed, whatever be the
+immediate subject of a jurisconsult of this epoch, he may always be
+called an expositor of Equity. The principles of the Edict had, before
+the epoch of its cessation, made their way into every part of Roman
+jurisprudence. The Equity of Rome, it should be understood, even when
+most distinct from the Civil Law, was always administered by the same
+tribunals. The Praetor was the chief equity judge as well as the great
+common law magistrate, and as soon as the Edict had evolved an
+equitable rule the Praetor's court began to apply it in place of or by
+the side of the old rule of the Civil Law, which was thus directly or
+indirectly repealed without any express enactment of the legislature.
+The result, of course, fell considerably short of a complete fusion of
+law and equity, which was not carried out till the reforms of
+Justinian. The technical severance of the two elements of
+jurisprudence entailed some confusion and some inconvenience, and
+there were certain of the stubborner doctrines of the Civil Law with
+which neither the authors nor the expositors of the Edict had ventured
+to interfere. But at the same time there was no corner of the field of
+jurisprudence which was not more or less swept over by the influence
+of Equity. It supplied the jurist with all his materials for
+generalisation, with all his methods of interpretation, with his
+elucidations of first principles, and with that great mass of limiting
+rules which are rarely interfered with by the legislator, but which
+seriously control the application of every legislative act.
+
+The period of jurists ends with Alexander Severus. From Hadrian to
+that emperor the improvement of law was carried on, as it is at the
+present moment in most continental countries, partly by approved
+commentaries and partly by direct legislation. But in the reign of
+Alexander Severus the power of growth in Roman Equity seems to be
+exhausted, and the succession of jurisconsults comes to a close. The
+remaining history of the Roman law is the history of the imperial
+constitutions, and, at the last, of attempts to codify what had now
+become the unwieldy body of Roman jurisprudence. We have the latest
+and most celebrated experiment of this kind in the _Corpus Juris_ of
+Justinian.
+
+It would be wearisome to enter on a detailed comparison or contrast of
+English and Roman Equity, but it may be worth while to mention two
+features which they have in common. The first may be stated as
+follows. Each of them tended, and all such systems tend, to exactly
+the same state in which the old common law was when Equity first
+interfered with it. A time always comes at which the moral principles
+originally adopted have been carried out to all their legitimate
+consequences, and then the system founded on them becomes as rigid, as
+unexpansive, and as liable to fall behind moral progress as the
+sternest code of rules avowedly legal. Such an epoch was reached at
+Rome in the reign of Alexander Severus; after which, though the whole
+Roman world was undergoing a moral revolution, the Equity of Rome
+ceased to expand. The same point of legal history was attained in
+England under the chancellorship of Lord Eldon, the first of our
+equity judges who, instead of enlarging the jurisprudence of his court
+by indirect legislation, devoted himself through life to explaining
+and harmonising it. If the philosophy of legal history were better
+understood in England, Lord Eldon's services would be less exaggerated
+on the one hand and better appreciated on the other than they appear
+to be among contemporary lawyers. Other misapprehensions too, which
+bear some practical fruit, would perhaps be avoided. It is easily seen
+by English lawyers that English Equity is a system founded on moral
+rules; but it is forgotten that these rules are the morality of past
+centuries--not of the present--that they have received nearly as much
+application as they are capable of, and that though of course they do
+not differ largely from the ethical creed of our own day, they are not
+necessarily on a level with it. The imperfect theories of the subject
+which are commonly adopted have generated errors of opposite sorts.
+Many writers of treatises on Equity, struck with the completeness of
+the system in its present state, commit themselves expressly or
+implicitly to the paradoxical assertion that the founders of the
+chancery jurisprudence contemplated its present fixity of form when
+they were settling its first bases. Others, again, complain--and this
+is a grievance frequently observed upon in forensic arguments--that
+the moral rules enforced by the Court of Chancery fall short of the
+ethical standard of the present day. They would have each Lord
+Chancellor perform precisely the same office for the jurisprudence
+which he finds ready to his hand, which was performed for the old
+common law by the fathers of English equity. But this is to invert the
+order of the agencies by which the improvement of the law is carried
+on. Equity has its place and its time; but I have pointed out that
+another instrumentality is ready to succeed it when its energies are
+spent.
+
+Another remarkable characteristic of both English and Roman Equity is
+the falsehood of the assumptions upon which the claim of the equitable
+to superiority over the legal rule is originally defended. Nothing is
+more distasteful to men, either as individuals or as masses, than the
+admission of their moral progress as a substantive reality. This
+unwillingness shows itself, as regards individuals, in the exaggerated
+respect which is ordinarily paid to the doubtful virtue of
+consistency. The movement of the collective opinion of a whole society
+is too palpable to be ignored, and is generally too visible for the
+better to be decried; but there is the greatest disinclination to
+accept it as a primary phenomenon, and it is commonly explained as the
+recovery of a lost perfection--the gradual return to a state from
+which the race has lapsed. This tendency to look backward instead of
+forward for the goal of moral progress produced anciently, as we have
+seen, on Roman jurisprudence effects the most serious and permanent.
+The Roman jurisconsults, in order to account for the improvement of
+their jurisprudence by the Praetor, borrowed from Greece the doctrine
+of a Natural state of man--a Natural society--anterior to the
+organisation of commonwealths governed by positive laws. In England,
+on the other hand, a range of ideas especially congenial to Englishmen
+of that day, explained the claim of Equity to override the common law
+by supposing a general right to superintend the administration of
+justice which was assumed to be vested in the king as a natural result
+of his paternal authority. The same view appears in a different and a
+quainter form in the old doctrine that Equity flowed from the king's
+conscience--the improvement which had in fact taken place in the moral
+standard of the community being thus referred to an inherent elevation
+in the moral sense of the sovereign. The growth of the English
+constitution rendered such a theory unpalatable after a time; but, as
+the jurisdiction of the Chancery was then firmly established, it was
+not worth while to devise any formal substitute for it. The theories
+found in modern manuals of Equity are very various, but all are alike
+in their untenability. Most of them are modifications of the Roman
+doctrine of a natural law, which is indeed adopted in tenour by those
+writers who begin a discussion of the jurisdiction of the Court of
+Chancery by laying down a distinction between natural justice and
+civil.
+
+
+
+
+CHAPTER IV
+
+THE MODERN HISTORY OF THE LAW OF NATURE
+
+
+It will be inferred from what has been said that the theory which
+transformed the Roman jurisprudence had no claim to philosophical
+precision. It involved, in fact, one of those "mixed modes of thought"
+which are now acknowledged to have characterised all but the highest
+minds during the infancy of speculation, and which are far from
+undiscoverable even in the mental efforts of our own day. The Law of
+Nature confused the Past and the Present. Logically, it implied a
+state of Nature which had once been regulated by natural law; yet the
+jurisconsults do not speak clearly or confidently of the existence of
+such a state, which indeed is little noticed by the ancients except
+where it finds a poetical expression in the fancy of a golden age.
+Natural law, for all practical purposes, was something belonging to
+the present, something entwined with existing institutions, something
+which could be distinguished from them by a competent observer. The
+test which separated the ordinances of Nature from the gross
+ingredients with which they were mingled was a sense of simplicity and
+harmony; yet it was not on account of their simplicity and harmony
+that these finer elements were primarily respected, but on the score
+of their descent from the aboriginal reign of Nature. This confusion
+has not been successfully explained away by the modern disciples of
+the jurisconsults, and in truth modern speculations on the Law of
+Nature betray much more indistinctness of perception and are vitiated
+by much more hopeless ambiguity of language than the Roman lawyers can
+be justly charged with. There are some writers on the subject who
+attempt to evade the fundamental difficulty by contending that the
+code of Nature exists in the future and is the goal to which all civil
+laws are moving, but this is to reverse the assumptions on which the
+old theory rested, or rather perhaps to mix together two inconsistent
+theories. The tendency to look not to the past but to the future for
+types of perfection was brought into the world by Christianity.
+Ancient literature gives few or no hints of a belief that the progress
+of society is necessarily from worse to better.
+
+But the importance of this theory to mankind has been very much
+greater than its philosophical deficiencies would lead us to expect.
+Indeed, it is not easy to say what turn the history of thought, and
+therefore, of the human race, would have taken, if the belief in a law
+natural had not become universal in the ancient world.
+
+There are two special dangers to which law, and society which is held
+together by law, appear to be liable in their infancy. One of them is
+that law may be too rapidly developed. This occurred with the codes of
+the more progressive Greek communities, which disembarrassed
+themselves with astonishing facility from cumbrous forms of procedure
+and needless terms of art, and soon ceased to attach any superstitious
+value to rigid rules and prescriptions. It was not for the ultimate
+advantage of mankind that they did so, though the immediate benefit
+conferred on their citizens may have been considerable. One of the
+rarest qualities of national character is the capacity for applying
+and working out the law, as such, at the cost of constant miscarriages
+of abstract justice, without at the same time losing the hope or the
+wish that law may be conformed to a higher ideal. The Greek intellect,
+with all its nobility and elasticity, was quite unable to confine
+itself within the strait waistcoat of a legal formula; and, if we may
+judge them by the popular courts of Athens, of whose working we possess
+accurate knowledge, the Greek tribunals exhibited the strongest
+tendency to confound law and fact. The remains of the Orators and the
+forensic commonplaces preserved by Aristotle in his Treatise on
+Rhetoric, show that questions of pure law were constantly argued on
+every consideration which could possibly influence the mind of the
+judges. No durable system of jurisprudence could be produced in this
+way. A community which never hesitated to relax rules of written law
+whenever they stood in the way of an ideally perfect decision on the
+facts of particular cases, would only, if it bequeathed any body of
+judicial principles to posterity, bequeath one consisting of the ideas
+of right and wrong which happened to be prevalent at the time. Such a
+jurisprudence would contain no framework to which the more advanced
+conceptions of subsequent ages could be fitted. It would amount at
+best to a philosophy marked with the imperfections of the civilisation
+under which it grew up.
+
+Few national societies have had their jurisprudence menaced by this
+peculiar danger of precocious maturity and untimely disintegration. It
+is certainly doubtful whether the Romans were ever seriously
+threatened by it, but at any rate they had adequate protection in
+their theory of Natural Law. For the Natural Law of the jurisconsults
+was distinctly conceived by them as a system which ought gradually to
+absorb civil laws, without superseding them so long as they remained
+unrepealed. There was no such impression of its sanctity abroad, that
+an appeal to it would be likely to overpower the mind of a judge who
+was charged with the superintendence of a particular litigation. The
+value and serviceableness of the conception arose from its keeping
+before the mental vision a type of perfect law, and from its inspiring
+the hope of an indefinite approximation to it, at the same time that
+it never tempted the practitioner or the citizen to deny the
+obligation of existing laws which had not yet been adjusted to the
+theory. It is important too to observe that this model system, unlike
+many of those which have mocked men's hopes in later days, was not
+entirely the product of imagination. It was never thought of as
+founded on quite untested principles. The notion was that it underlay
+existing law and must be looked for through it. Its functions were in
+short remedial, not revolutionary or anarchical. And this,
+unfortunately, is the exact point at which the modern view of a Law of
+Nature has often ceased to resemble the ancient.
+
+The other liability to which the infancy of society is exposed has
+prevented or arrested the progress of far the greater part of mankind.
+The rigidity of primitive law, arising chiefly from its early
+association and identification with religion, has chained down the
+mass of the human race to those views of life and conduct which they
+entertained at the time when their usages were first consolidated into
+a systematic form. There were one or two races exempted by a
+marvellous fate from this calamity, and grafts from these stocks have
+fertilised a few modern societies, but it is still true that, over the
+larger part of the world, the perfection of law has always been
+considered as consisting in adherence to the ground plan supposed to
+have been marked out by the original legislator. If intellect has in
+such cases been exercised on jurisprudence, it has uniformly prided
+itself on the subtle perversity of the conclusions it could build on
+ancient texts, without discoverable departure from their literal
+tenour. I know no reason why the law of the Romans should be superior
+to the laws of the Hindoos, unless the theory of Natural Law had given
+it a type of excellence different from the usual one. In this one
+exceptional instance, simplicity and symmetry were kept before the
+eyes of a society whose influence on mankind was destined to be
+prodigious from other causes, as the characteristics of an ideal and
+absolutely perfect law. It is impossible to overrate the importance to
+a nation or profession of having a distinct object to aim at in the
+pursuit of improvement. The secret of Bentham's immense influence in
+England during the past thirty years is his success in placing such an
+object before the country. He gave us a clear rule of reform. English
+lawyers of the last century were probably too acute to be blinded by
+the paradoxical commonplace that English law was the perfection of
+human reason, but they acted as if they believed it for want of any
+other principle to proceed upon. Bentham made the good of the
+community take precedence of every other object, and thus gave escape
+to a current which had long been trying to find its way outwards.
+
+It is not an altogether fanciful comparison if we call the assumptions
+we have been describing the ancient counterpart of Benthamism. The
+Roman theory guided men's efforts in the same direction as the theory
+put into shape by the Englishman; its practical results were not
+widely different from those which would have been attained by a sect
+of law-reformers who maintained a steady pursuit of the general good
+of the community. It would be a mistake, however, to suppose it a
+conscious anticipation of Bentham's principles. The happiness of
+mankind is, no doubt, sometimes assigned, both in the popular and in
+the legal literature of the Romans, as the proper object of remedial
+legislation, but it is very remarkable how few and faint are the
+testimonies to this principle compared with the tributes which are
+constantly offered to the overshadowing claims of the Law of Nature.
+It was not to anything resembling philanthropy, but to their sense of
+simplicity and harmony--of what they significantly termed
+"elegance"--that the Roman jurisconsults freely surrendered
+themselves. The coincidence of their labours with those which a more
+precise philosophy would have counselled has been part of the good
+fortune of mankind.
+
+Turning to the modern history of the law of nature, we find it easier
+to convince ourselves of the vastness of its influence than to
+pronounce confidently whether that influence has been exerted for good
+or for evil. The doctrines and institutions which may be attributed to
+it are the material of some of the most violent controversies debated
+in our time, as will be seen when it is stated that the theory of
+Natural Law is the source of almost all the special ideas as to law,
+politics, and society which France during the last hundred years has
+been the instrument of diffusing over the western world. The part
+played by jurists in French history, and the sphere of jural
+conceptions in French thought, have always been remarkably large. It
+was not indeed in France, but in Italy, that the juridical science of
+modern Europe took its rise, but of the schools founded by emissaries
+of the Italian universities in all parts of the continent, and
+attempted (though vainly) to be set up in our island, that established
+in France produced the greatest effect on the fortunes of the country.
+The lawyers of France immediately formed a strict alliance with the
+kings of the house of Capet, and it was as much through their
+assertions of royal prerogative, and through their interpretations of
+the rules of feudal succession, as by the power of the sword, that the
+French monarchy at last grew together out of the agglomeration of
+provinces and dependencies. The enormous advantage which their
+understanding with the lawyers conferred on the French kings in the
+prosecution of their struggle with the great feudatories, the
+aristocracy, and the church, can only be appreciated if we take into
+account the ideas which prevailed in Europe far down into the middle
+ages. There was, in the first place, a great enthusiasm for
+generalisation and a curious admiration for all general propositions,
+and consequently, in the field of law, an involuntary reverence for
+every general formula which seemed to embrace and sum up a number of
+the insulated rules which were practised as usages in various
+localities. Such general formulas it was, of course, not difficult for
+practitioners familiar with the Corpus Juris or the Glosses to supply
+in almost any quantity. There was, however, another cause which added
+yet more considerably to the lawyers' power. At the period of which we
+are speaking, there was universal vagueness of ideas as to the degree
+and nature of the authority residing in written texts of law. For the
+most part, the peremptory preface, _Ita scriptum est_, seems to have
+been sufficient to silence all objections. Where a mind of our own day
+would jealously scrutinise the formula which had been quoted, would
+inquire its source, and would (if necessary) deny that the body of law
+to which it belonged had any authority to supersede local customs, the
+elder jurist would not probably have ventured to do more than question
+the applicability of the rule, or at best cite some counter
+proposition from the Pandects or the Canon Law. It is extremely
+necessary to bear in mind the uncertainty of men's notions on this
+most important side of juridical controversies, not only because it
+helps to explain the weight which the lawyers threw into the
+monarchical scale, but on account of the light which it sheds on
+several curious historical problems. The motives of the author of the
+Forged Decretals and his extraordinary success are rendered more
+intelligible by it. And, to take a phenomenon of smaller interest, it
+assists us, though only partially, to understand the plagiarisms of
+Bracton. That an English writer of the time of Henry III. should have
+been able to put off on his countrymen as a compendium of pure English
+law a treatise of which the entire form and a third of the contents
+were directly borrowed from the Corpus Juris, and that he should have
+ventured on this experiment in a country where the systematic study of
+the Roman law was formally proscribed, will always be among the most
+hopeless enigmas in the history of jurisprudence; but still it is
+something to lessen our surprise when we comprehend the state of
+opinion at the period as to the obligatory force of written texts,
+apart from all consideration of the source whence they were derived.
+
+When the kings of France had brought their long struggle for supremacy
+to a successful close, an epoch which may be placed roughly at the
+accession of the branch of Valois-Angouleme to the throne, the
+situation of the French jurists was peculiar and continued to be so
+down to the outbreak of the revolution. On the one hand, they formed
+the best instructed and nearly the most powerful class in the nation.
+They had made good their footing as a privileged order by the side of
+the feudal aristocracy, and they had assured their influence by an
+organisation which distributed their profession over France in great
+chartered corporations possessing large defined powers and still
+larger indefinite claims. In all the qualities of the advocate, the
+judge, and the legislator, they far excelled their compeers throughout
+Europe. Their juridical tact, their ease of expression, their fine
+sense of analogy and harmony, and (if they may be judged by the
+highest names among them) their passionate devotion to their
+conceptions of justice, were as remarkable as the singular variety of
+talent which they included, a variety covering the whole ground
+between the opposite poles of Cujas and Montesquieu, of D'Aguesseau
+and Dumoulin. But, on the other hand, the system of laws which they
+had to administer stood in striking contrast with the habits of mind
+which they had cultivated. The France which had been in great part
+constituted by their efforts was smitten with the curse of an
+anomalous and dissonant jurisprudence beyond every other country in
+Europe. One great division ran through the country and separated it
+into _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, the first
+acknowledging the written Roman law as the basis of their
+jurisprudence, the last admitting it only so far as it supplied
+general forms of expression, and courses of juridical reasoning which
+were reconcileable with the local usages. The sections thus formed
+were again variously subdivided. In the _Pays du Droit Coutumier_
+province differed from province, county from county, municipality from
+municipality, in the nature of its customs. In the _Pays du Droit
+Ecrit_ the stratum of feudal rules which overlay the Roman law was of
+the most miscellaneous composition. No such confusion as this ever
+existed in England. In Germany it did exist, but was too much in
+harmony with the deep political and religious divisions of the country
+to be lamented or even felt. It was the special peculiarity of France
+that an extraordinary diversity of laws continued without sensible
+alteration while the central authority of the monarchy was constantly
+strengthening itself, while rapid approaches were being made to
+complete administrative unity, and while a fervid national spirit had
+been developed among the people. The contrast was one which fructified
+in many serious results, and among them we must rank the effect which
+it produced on the minds of the French lawyers. Their speculative
+opinions and their intellectual bias were in the strongest opposition
+to their interests and professional habits. With the keenest sense and
+the fullest recognition of those perfections of jurisprudence which
+consist in simplicity and uniformity, they believed, or seemed to
+believe, that the vices which actually infested French law were
+ineradicable; and in practice they often resisted the reformation of
+abuses with an obstinacy which was not shown by many among their less
+enlightened countrymen. But there was a way to reconcile these
+contradictions. They became passionate enthusiasts for Natural Law.
+The Law of Nature overleapt all provincial and municipal boundaries;
+it disregarded all distinctions between noble and burgess, between
+burgess and peasant; it gave the most exalted place to lucidity,
+simplicity and system; but it committed its devotees to no specific
+improvement, and did not directly threaten any venerable or lucrative
+technicality. Natural law may be said to have become the common law of
+France, or, at all events, the admission of its dignity and claims was
+the one tenet which all French practitioners alike subscribed to. The
+language of the prae-revolutionary jurists in its eulogy is singularly
+unqualified, and it is remarkable that the writers on the Customs, who
+often made it their duty to speak disparagingly of the pure Roman law,
+speak even more fervidly of Nature and her rules than the civilians
+who professed an exclusive respect for the Digest and the Code.
+Dumoulin, the highest of all authorities on old French Customary Law,
+has some extravagant passages on the Law of Nature; and his panegyrics
+have a peculiar rhetorical turn which indicated a considerable
+departure from the caution of the Roman jurisconsults. The hypothesis
+of a Natural Law had become not so much a theory guiding practice as
+an article of speculative faith, and accordingly we shall find that,
+in the transformation which it more recently underwent, its weakest
+parts rose to the level of its strongest in the esteem of its
+supporters.
+
+The eighteenth century was half over when the most critical period in
+the history of Natural Law was reached. Had the discussion of the
+theory and of its consequences continued to be exclusively the
+employment of the legal profession, there would possibly have been an
+abatement of the respect which it commanded; for by this time the
+_Esprit des Lois_ had appeared. Bearing in some exaggerations the
+marks of the excessive violence with which its author's mind had
+recoiled from assumptions usually suffered to pass without scrutiny,
+yet showing in some ambiguities the traces of a desire to compromise
+with existing prejudice, the book of Montesquieu, with all its
+defects, still proceeded on that Historical Method before which the
+Law of Nature has never maintained its footing for an instant. Its
+influence on thought ought to have been as great as its general
+popularity; but, in fact, it was never allowed time to put it forth,
+for the counter-hypothesis which it seemed destined to destroy passed
+suddenly from the forum to the street, and became the key-note of
+controversies far more exciting than are ever agitated in the courts
+or the schools. The person who launched it on its new career was that
+remarkable man who, without learning, with few virtues, and with no
+strength of character, has nevertheless stamped himself ineffaceably
+on history by the force of a vivid imagination, and by the help of a
+genuine and burning love for his fellow-men, for which much will
+always have to be forgiven him. We have never seen in our own
+generation--indeed the world has not seen more than once or twice in
+all the course of history--a literature which has exercised such
+prodigious influence over the minds of men, over every cast and shade
+of intellect, as that which emanated from Rousseau between 1749 and
+1762. It was the first attempt to re-erect the edifice of human belief
+after the purely iconoclastic efforts commenced by Bayle, and in part
+by our own Locke, and consummated by Voltaire; and besides the
+superiority which every constructive effort will always enjoy over one
+that is merely destructive, it possessed the immense advantage of
+appearing amid an all but universal scepticism as to the soundness of
+all foregone knowledge in matters speculative. Now, in all the
+speculations of Rousseau, the central figure, whether arrayed in an
+English dress as the signatory of a social compact, or simply stripped
+naked of all historical qualities, is uniformly Man, in a supposed
+state of nature. Every law or institution which would misbeseem this
+imaginary being under these ideal circumstances is to be condemned as
+having lapsed from an original perfection; every transformation of
+society which would give it a closer resemblance to the world over
+which the creature of Nature reigned, is admirable and worthy to be
+effected at any apparent cost. The theory is still that of the Roman
+lawyers, for in the phantasmagoria with which the Natural Condition is
+peopled, every feature and characteristic eludes the mind except the
+simplicity and harmony which possessed such charms for the
+jurisconsult; but the theory is, as it were, turned upside down. It is
+not the Law of Nature, but the State of Nature, which is now the
+primary subject of contemplation. The Roman had conceived that by
+careful observation of existing institutions parts of them could be
+singled out which either exhibited already, or could by judicious
+purification be made to exhibit, the vestiges of that reign of nature
+whose reality he faintly affirmed. Rousseau's belief was that a
+perfect social order could be evolved from the unassisted
+consideration of the natural state, a social order wholly irrespective
+of the actual condition of the world and wholly unlike it. The great
+difference between the views is that one bitterly and broadly condemns
+the present for its unlikeness to the ideal past; while the other,
+assuming the present to be as necessary as the past, does not affect
+to disregard or censure it. It is not worth our while to analyse with
+any particularity that philosophy of politics, art, education, ethics,
+and social relation which was constructed on the basis of a state of
+nature. It still possesses singular fascination for the looser
+thinkers of every country, and is no doubt the parent, more or less
+remote, of almost all the prepossessions which impede the employment
+of the Historical Method of inquiry, but its discredit with the higher
+minds of our day is deep enough to astonish those who are familiar
+with the extraordinary vitality of speculative error. Perhaps the
+question most frequently asked nowadays is not what is the value of
+these opinions, but what were the causes which gave them such
+overshadowing prominence a hundred years ago. The answer is, I
+conceive, a simple one. The study which in the last century would best
+have corrected the misapprehensions into which an exclusive attention
+to legal antiquities is apt to betray was the study of religion. But
+Greek religion, as then understood, was dissipated in imaginative
+myths. The Oriental religions, if noticed at all, appeared to be lost
+in vain cosmogonies. There was but one body of primitive records which
+was worth studying--the early history of the Jews. But resort to this
+was prevented by the prejudices of the time. One of the few
+characteristics which the school of Rousseau had in common with the
+school of Voltaire was an utter disdain of all religious antiquities;
+and, more than all, of those of the Hebrew race. It is well known that
+it was a point of honour with the reasoners of that day to assume not
+merely that the institutions called after Moses were not divinely
+dictated, nor even that they were codified at a later date than that
+attributed to them, but that they and the entire Pentateuch were a
+gratuitous forgery, executed after the return from the Captivity.
+Debarred, therefore, from one chief security against speculative
+delusion, the philosophers of France, in their eagerness to escape
+from what they deemed a superstition of the priests, flung themselves
+headlong into a superstition of the lawyers.
+
+But though the philosophy founded on the hypothesis of a state of
+nature has fallen low in general esteem, in so far as it is looked
+upon under its coarser and more palpable aspect, it does not follow
+that in its subtler disguises it has lost plausibility, popularity, or
+power. I believe, as I have said, that it is still the great
+antagonist of the Historical Method; and whenever (religious
+objections apart) any mind is seen to resist or contemn that mode of
+investigation, it will generally be found under the influence of a
+prejudice or vicious bias traceable to a conscious or unconscious
+reliance on a non-historic, natural, condition of society or the
+individual. It is chiefly, however, by allying themselves with
+political and social tendencies that the doctrines of Nature and her
+law have preserved their energy. Some of these tendencies they have
+stimulated, others they have actually created, to a great number they
+have given expression and form. They visibly enter largely into the
+ideas which constantly radiate from France over the civilised world,
+and thus become part of the general body of thought by which its
+civilisation is modified. The value of the influence which they thus
+exercise over the fortunes of the race is of course one of the points
+which our age debates most warmly, and it is beside the purpose of
+this treatise to discuss it. Looking back, however, to the period at
+which the theory of the state of nature acquired the maximum of
+political importance, there are few who will deny that it helped most
+powerfully to bring about the grosser disappointments of which the
+first French Revolution was fertile. It gave birth, or intense
+stimulus, to the vices of mental habit all but universal at the time,
+disdain of positive law, impatience of experience, and the preference
+of _a priori_ to all other reasoning. In proportion too as this
+philosophy fixes its grasp on minds which have thought less than
+others and fortified themselves with smaller observation, its tendency
+is to become distinctly anarchical. It is surprising to note how many
+of the _Sophismes Anarchiques_ which Dumont published for Bentham, and
+which embody Bentham's exposure of errors distinctively French, are
+derived from the Roman hypothesis in its French transformation, and
+are unintelligible unless referred to it. On this point too it is a
+curious exercise to consult the _Moniteur_ during the principal eras
+of the Revolution. The appeals to the Law and State of Nature become
+thicker as the times grow darker. They are comparatively rare in the
+Constituent Assembly; they are much more frequent in the Legislative;
+in the Convention, amid the din of debate on conspiracy and war, they
+are perpetual.
+
+There is a single example which very strikingly illustrates the
+effects of the theory of natural law on modern society, and indicates
+how very far are those effects from being exhausted. There cannot, I
+conceive, be any question that to the assumption of a Law Natural we
+owe the doctrine of the fundamental equality of human beings. That
+"all men are equal" is one of a large number of legal propositions
+which, in progress of time, have become political. The Roman
+jurisconsults of the Antonine era lay down that "omnes homines natura
+aequales sunt," but in their eyes this is a strictly juridical axiom.
+They intend to affirm that, under the hypothetical Law of Nature, and
+in so far as positive law approximates to it, the arbitrary
+distinctions which the Roman Civil Law maintained between classes of
+persons cease to have a legal existence. The rule was one of
+considerable importance to the Roman practitioner, who required to be
+reminded that, wherever Roman jurisprudence was assumed to conform
+itself exactly to the code of Nature, there was no difference in the
+contemplation of the Roman tribunals between citizen and foreigner,
+between freeman and slave, between Agnate and Cognate. The
+jurisconsults who thus expressed themselves most certainly never
+intended to censure the social arrangements under which civil law fell
+somewhat short of its speculative type; nor did they apparently
+believe that the world would ever see human society completely
+assimilated to the economy of nature. But when the doctrine of human
+equality makes its appearance in a modern dress it has evidently
+clothed itself with a new shade of meaning. Where the Roman
+jurisconsult had written "aequales sunt," meaning exactly what he said,
+the modern civilian wrote "all men are equal" in the sense of "all men
+ought to be equal." The peculiar Roman idea that natural law coexisted
+with civil law and gradually absorbed it, had evidently been lost
+sight of, or had become unintelligible, and the words which had at
+most conveyed a theory concerning the origin, composition, and
+development of human institutions, were beginning to express the sense
+of a great standing wrong suffered by mankind. As early as the
+beginning of the fourteenth century, the current language concerning
+the birth-state of men, though visibly intended to be identical with
+that of Ulpian and his contemporaries, has assumed an altogether
+different form and meaning. The preamble to the celebrated ordinance
+of King Louis Hutin enfranchising the serfs of the royal domains would
+have sounded strangely to Roman ears. "Whereas, according to natural
+law, everybody ought to be born free; and by some usages and customs
+which, from long antiquity, have been introduced and kept until now in
+our realm, and peradventure by reason of the misdeeds of their
+predecessors, many persons of our common people have fallen into
+servitude, therefore, We, etc." This is the enunciation not of a legal
+rule but of a political dogma; and from this time the equality of men
+is spoken of by the French lawyers just as if it were a political
+truth which happened to have been preserved among the archives of
+their science. Like all other deductions from the hypothesis of a Law
+Natural, and like the belief itself in a Law of Nature, it was
+languidly assented to and suffered to have little influence on opinion
+and practice until it passed out of the possession of the lawyers into
+that of the literary men of the eighteenth century and of the public
+which sat at their feet. With them it became the most distinct tenet
+of their creed, and was even regarded as a summary of all the others.
+It is probable, however, that the power which it ultimately acquired
+over the events of 1789 was not entirely owing to its popularity in
+France, for in the middle of the century it passed over to America.
+The American lawyers of the time, and particularly those of Virginia,
+appear to have possessed a stock of knowledge which differed chiefly
+from that of their English contemporaries in including much which
+could only have been derived from the legal literature of continental
+Europe. A very few glances at the writings of Jefferson will show how
+strongly his mind was affected by the semi-juridical, semi-popular
+opinions which were fashionable in France, and we cannot doubt that it
+was sympathy with the peculiar ideas of the French jurists which led
+him and the other colonial lawyers who guided the course of events in
+America to join the specially French assumption that "all men are born
+equal" with the assumption, more familiar to Englishmen, that "all men
+are born free," in the very first lines of their Declaration of
+Independence. The passage was one of great importance to the history
+of the doctrine before us. The American lawyers, in thus prominently
+and emphatically affirming the fundamental equality of human beings,
+gave an impulse to political movements in their own country, and in a
+less degree in Great Britain, which is far from having yet spent
+itself; but besides this they returned the dogma they had adopted to
+its home in France, endowed with vastly greater energy and enjoying
+much greater claims on general reception and respect. Even the more
+cautious politicians of the first Constituent Assembly repeated
+Ulpian's proposition as if it at once commended itself to the
+instincts and intuitions of mankind; and of all the "principles of
+1789" it is the one which has been least strenuously assailed, which
+has most thoroughly leavened modern opinion, and which promises to
+modify most deeply the constitution of societies and the politics of
+states.
+
+The grandest function of the Law of Nature was discharged in giving
+birth to modern International Law and to the modern Law of War, but
+this part of its effects must here be dismissed with consideration
+very unequal to its importance.
+
+Among the postulates which form the foundation of International Law,
+or of so much of it as retains the figure which it received from its
+original architects, there are two or three of pre-eminent importance.
+The first of all is expressed in the position that there is a
+determinable Law of Nature. Grotius and his successors took the
+assumption directly from the Romans, but they differed widely from the
+Roman jurisconsults and from each other in their ideas as to the mode
+of determination. The ambition of almost every Publicist who has
+flourished since the revival of letters has been to provide new and
+more manageable definitions of Nature and of her law, and it is
+indisputable that the conception in passing through the long series of
+writers on Public Law has gathered round it a large accretion,
+consisting of fragments of ideas derived from nearly every theory of
+ethics which has in its turn taken possession of the schools. Yet it
+is a remarkable proof of the essentially historical character of the
+conception that, after all the efforts which have been made to evolve
+the code of nature from the necessary characteristics of the natural
+state, so much of the result is just what it would have been if men
+had been satisfied to adopt the dicta of the Roman lawyers without
+questioning or reviewing them. Setting aside the Conventional or
+Treaty Law of Nations, it is surprising how large a part of the system
+is made up of pure Roman law. Wherever there is a doctrine of the
+jurisconsults affirmed by them to be in harmony with the Jus Gentium,
+the publicists have found a reason for borrowing it, however plainly
+it may bear the marks of a distinctively Roman origin. We may observe
+too that the derivative theories are afflicted with the weakness of
+the primary notion. In the majority of the Publicists, the mode of
+thought is still "mixed." In studying these writers, the great
+difficulty is always to discover whether they are discussing law or
+morality--whether the state of international relations they describe
+is actual or ideal--whether they lay down that which is, or that
+which, in their opinion, ought to be.
+
+The assumption that Natural Law is binding on states _inter se_ is the
+next in rank of those which underlie International Law. A series of
+assertions or admissions of this principle may be traced up to the
+very infancy of modern juridical science, and at first sight it seems
+a direct inference from the teaching of the Romans. The civil
+condition of society being distinguished from the natural by the fact
+that in the first there is a distinct author of law, while in the last
+there is none, it appears as if the moment a number of _units_ were
+acknowledged to obey no common sovereign or political superior they
+were thrown back on the ulterior behests of the Law Natural. States
+are such units; the hypothesis of their independence excludes the
+notion of a common lawgiver, and draws with it, therefore, according
+to a certain range of ideas, the notion of subjection to the primeval
+order of nature. The alternative is to consider independent
+communities as not related to each other by any law, but this
+condition of lawlessness is exactly the vacuum which the Nature of the
+jurisconsults abhorred. There is certainly apparent reason for
+thinking that if the mind of a Roman lawyer rested on any sphere from
+which civil law was banished, it would instantly fill the void with
+the ordinances of Nature. It is never safe, however, to assume that
+conclusions, however certain and immediate in our own eyes, were
+actually drawn at any period of history. No passage has ever been
+adduced from the remains of Roman law which, in my judgment, proves
+the jurisconsults to have believed natural law to have obligatory
+force between independent commonwealths; and we cannot but see that to
+citizens of the Roman empire who regarded their sovereign's dominions
+as conterminous with civilisation, the equal subjection of states to
+the Law of Nature, if contemplated at all, must have seemed at most an
+extreme result of curious speculation. The truth appears to be that
+modern International Law, undoubted as is its descent from Roman law,
+is only connected with it by an irregular filiation. The early modern
+interpreters of the jurisprudence of Rome, misconceiving the meaning
+of Jus Gentium, assumed without hesitation that the Romans had
+bequeathed to them a system of rules for the adjustment of
+international transactions. This "Law of Nations" was at first an
+authority which had formidable competitors to strive with, and the
+condition of Europe was long such as to preclude its universal
+reception. Gradually, however, the western world arranged itself in a
+form more favourable to the theory of the civilians; circumstances
+destroyed the credit of rival doctrines; and at last, at a peculiarly
+felicitous conjuncture, Ayala and Grotius were able to obtain for it
+the enthusiastic assent of Europe, an assent which has been over and
+over again renewed in every variety of solemn engagement. The great
+men to whom its triumph is chiefly owing attempted, it need scarcely
+be said, to place it on an entirely new basis, and it is
+unquestionable that in the course of this displacement they altered
+much of its structure, though far less of it than is commonly
+supposed. Having adopted from the Antonine jurisconsults the position
+that the Jus Gentium and the Jus Naturae were identical, Grotius, with
+his immediate predecessors and his immediate successors, attributed to
+the Law of Nature an authority which would never perhaps have been
+claimed for it, if "Law of Nations" had not in that age been an
+ambiguous expression. They laid down unreservedly that Natural Law is
+the code of states, and thus put in operation a process which has
+continued almost down to our own day, the process of engrafting on the
+international system rules which are supposed to have been evolved
+from the unassisted contemplation of the conception of Nature. There
+is too one consequence of immense practical importance to mankind
+which, though not unknown during the early modern history of Europe,
+was never clearly or universally acknowledged till the doctrines of
+the Grotian school had prevailed. If the society of nations is
+governed by Natural Law, the atoms which compose it must be absolutely
+equal. Men under the sceptre of Nature are all equal, and accordingly
+commonwealths are equal if the international state be one of nature.
+The proposition that independent communities, however different in
+size and power, are all equal in the view of the law of nations, has
+largely contributed to the happiness of mankind, though it is
+constantly threatened by the political tendencies of each successive
+age. It is a doctrine which probably would never have obtained a
+secure footing at all if International Law had not been entirely
+derived from the majestic claims of Nature by the Publicists who wrote
+after the revival of letters.
+
+On the whole, however, it is astonishing, as I have observed before,
+how small a proportion the additions made to International Law since
+Grotius's day bear to the ingredients which have been simply taken
+from the most ancient stratum of the Roman Jus Gentium. Acquisition of
+territory has always been the great spur of national ambition, and the
+rules which govern this acquisition, together with the rules which
+moderate the wars in which it too frequently results, are merely
+transcribed from the part of the Roman law which treats of the modes
+of acquiring property _jure gentium_. These modes of acquisition were
+obtained by the elder jurisconsults, as I have attempted to explain,
+by abstracting a common ingredient from the usages observed to prevail
+among the various tribes surrounding Rome; and, having been classed on
+account of their origin in the "law common to all nations," they were
+thought by the later lawyers to fit in, on the score of their
+simplicity, with the more recent conception of a Law Natural. They
+thus made their way into the modern Law of Nations, and the result is
+that those parts of the international system which refer to
+_dominion_, its nature, its limitations, the modes of acquiring and
+securing it, are pure Roman Property Law--so much, that is to say, of
+the Roman Law of Property as the Antonine jurisconsults imagined to
+exhibit a certain congruity with the natural state. In order that
+these chapters of International Law may be capable of application, it
+is necessary that sovereigns should be related to each other like the
+members of a group of Roman proprietors. This is another of the
+postulates which lie at the threshold of the International Code, and
+it is also one which could not possibly have been subscribed to during
+the first centuries of modern European history. It is resolvable into
+the double proposition that "sovereignty is territorial," _i.e._ that
+it is always associated with the proprietorship of a limited portion
+of the earth's surface, and that "sovereigns _inter se_ are to be
+deemed not _paramount_, but _absolute_, owners of the state's
+territory."
+
+Many contemporary writers on International Law tacitly assume that the
+doctrines of their system, founded on principles of equity and common
+sense, were capable of being readily reasoned out in every stage of
+modern civilisation. But this assumption, while it conceals some real
+defects of the international theory, is altogether untenable, so far
+as regards a large part of modern history. It is not true that the
+authority of the Jus Gentium in the concerns of nations was always
+uncontradicted; on the contrary, it had to struggle long against the
+claims of several competing systems. It is again not true that the
+territorial character of sovereignty was always recognised, for long
+after the dissolution of the Roman dominion the minds of men were
+under the empire of ideas irreconcileable with such a conception. An
+old order of things, and of views founded on it, had to decay--a new
+Europe, and an apparatus of new notions congenial to it, had to spring
+up--before two of the chiefest postulates of International Law could
+be universally conceded.
+
+It is a consideration well worthy to be kept in view, that during a
+large part of what we usually term modern history no such conception
+was entertained as that of "_territorial sovereignty_." Sovereignty
+was not associated with dominion over a portion or subdivision of the
+earth. The world had lain for so many centuries under the shadow of
+Imperial Rome as to have forgotten that distribution of the vast
+spaces comprised in the empire which had once parcelled them out into
+a number of independent commonwealths, claiming immunity from
+extrinsic interference, and pretending to equality of national rights.
+After the subsidence of the barbarian irruptions, the notion of
+sovereignty that prevailed seems to have been twofold. On the one hand
+it assumed the form of what may be called "_tribe_-sovereignty." The
+Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were
+masters, of course, of the territories which they occupied, and to
+which some of them have given a geographical appellation; but they
+based no claim of right upon the fact of territorial possession, and
+indeed attached no importance to it whatever. They appear to have
+retained the traditions which they brought with them from the forest
+and the steppe, and to have still been in their own view a patriarchal
+society, a nomad horde, merely encamped for the time upon the soil
+which afforded them sustenance. Part of Transalpine Gaul, with part of
+Germany, had now become the country _de facto_ occupied by the
+Franks--it was France; but the Merovingian line of chieftains, the
+descendants of Clovis, were not Kings of France, they were Kings of
+the Franks. The alternative to this peculiar notion of sovereignty
+appears to have been--and this is the important point--the idea of
+universal dominion. The moment a monarch departed from the special
+relation of chief to clansmen, and became solicitous, for purposes of
+his own, to invest himself with a novel form of sovereignty, the only
+precedent which suggested itself for his adoption was the domination
+of the Emperors of Rome. To parody a common quotation, he became "_aut
+Caesar aut nullus_." Either he pretended to the full prerogative of the
+Byzantine Emperor, or he had no political status whatever. In our own
+age, when a new dynasty is desirous of obliterating the prescriptive
+title of a deposed line of sovereigns, it takes its designation from
+the _people_, instead of the _territory_. Thus we have Emperors and
+Kings of the French, and a King of the Belgians. At the period of
+which we have been speaking, under similar circumstances a different
+alternative presented itself. The Chieftain who would no longer call
+himself King of the tribe must claim to be Emperor of the world. Thus,
+when the hereditary Mayors of the Palace had ceased to compromise
+with the monarchs they had long since virtually dethroned, they soon
+became unwilling to call themselves Kings of the Franks, a title which
+belonged to the displaced Merovings; but they could not style
+themselves Kings of France, for such a designation, though apparently
+not unknown, was not a title of dignity. Accordingly they came forward
+as aspirants to universal empire. Their motive has been greatly
+misapprehended. It has been taken for granted by recent French writers
+that Charlemagne was far before his age, quite as much in the
+character of his designs as in the energy with which he prosecuted
+them. Whether it be true or not that anybody is at any time before his
+age, it is certainly true that Charlemagne, in aiming at an unlimited
+dominion, was emphatically taking the only course which the
+characteristic ideas of his age permitted him to follow. Of his
+intellectual eminence there cannot be a question, but it is proved by
+his acts and not by his theory.
+
+These singularities of view were not altered on the partition of the
+inheritance of Charlemagne among his three grandsons. Charles the
+Bald, Lewis, and Lothair were still theoretically--if it be proper to
+use the word--Emperors of Rome. Just as the Caesars of the Eastern and
+Western Empires had each been _de jure_ emperor of the whole world,
+with _de facto_ control over half of it, so the three Carlovingians
+appear to have considered their power as limited, but their title as
+unqualified. The same speculative universality of sovereignty
+continued to be associated with the Imperial throne after the second
+division on the death of Charles the Fat, and, indeed, was never
+thoroughly dissociated from it so long as the empire of Germany
+lasted. Territorial sovereignty--the view which connects sovereignty
+with the possession of a limited portion of the earth's surface--was
+distinctly an offshoot, though a tardy one, of _feudalism_. This might
+have been expected _a priori_, for it was feudalism which for the
+first time linked personal duties, and by consequence personal rights,
+to the ownership of land. Whatever be the proper view of its origin
+and legal nature, the best mode of vividly picturing to ourselves the
+feudal organisation is to begin with the basis, to consider the
+relation of the tenant to the patch of soil which created and limited
+his services--and then to mount up, through narrowing circles of
+super-feudation, till we approximate to the apex of the system.
+Where that summit exactly was during the later portion of the dark
+ages it is not easy to decide. Probably, wherever the conception of
+tribe sovereignty had really decayed, the topmost point was always
+assigned to the supposed successor of the Caesars of the West. But
+before long, when the actual sphere of Imperial authority had
+immensely contracted, and when the emperors had concentrated the
+scanty remains of their power upon Germany and North Italy, the
+highest feudal superiors in all the outlying portions of the former
+Carlovingian empire found themselves practically without a supreme
+head. Gradually they habituated themselves to the new situation, and
+the fact of immunity put at last out of sight the theory of
+dependence; but there are many symptoms that this change was not quite
+easily accomplished; and, indeed, to the impression that in the nature
+of things there must necessarily be a culminating domination
+somewhere, we may, no doubt, refer the increasing tendency to
+attribute secular superiority to the See of Rome. The completion of
+the first stage in the revolution of opinion is marked, of course, by
+the accession of the Capetian dynasty in France. When the feudal
+prince of a limited territory surrounding Paris began, from the
+accident of his uniting an unusual number of suzerainties in his own
+person, to call himself _King of France_, he became king in quite a
+new sense, a sovereign standing in the same relation to the soil of
+France as the baron to his estate, the tenant to his freehold. The
+precedent, however, was as influential as it was novel, and the form
+of the monarchy in France had visible effects in hastening changes
+which were elsewhere proceeding in the same direction. The kingship of
+our Anglo-Saxon regal houses was midway between the chieftainship of a
+tribe and a territorial supremacy; but the superiority of the Norman
+monarchs, imitated from that of the King of France, was distinctly a
+territorial sovereignty. Every subsequent dominion which was
+established or consolidated was formed on the later model. Spain,
+Naples, and the principalities founded on the ruins of municipal
+freedom in Italy, were all under rulers whose sovereignty was
+territorial. Few things, I may add, are more curious than the gradual
+lapse of the _Venetians_ from one view to the other. At the
+commencement of its foreign conquests, the republic regarded itself
+as an antitype of the Roman commonwealth, governing a number of
+subject provinces. Move a century onwards, and you find that it wishes
+to be looked upon as a corporate sovereign, claiming the rights of a
+feudal suzerain over its possessions in Italy and the AEgean.
+
+During the period through which the popular ideas on the subject of
+sovereignty were undergoing this remarkable change, the system which
+stood in the place of what we now call International Law, was
+heterogeneous in form and inconsistent in the principles to which it
+appealed. Over so much of Europe as was comprised in the Romano-German
+empire, the connection of the confederate states was regulated by the
+complex and as yet incomplete mechanism of the Imperial constitution;
+and, surprising as it may seem to us, it was a favourite notion of
+German lawyers that the relations of commonwealths, whether inside or
+outside the empire, ought to be regulated not by the _Jus Gentium_,
+but by the pure Roman jurisprudence, of which Caesar was still the
+centre. This doctrine was less confidently repudiated in the outlying
+countries than we might have supposed antecedently; but,
+substantially, through the rest of Europe feudal subordinations
+furnished a substitute for a public law; and when those were
+undetermined or ambiguous, there lay behind, in theory at least, a
+supreme regulating force in the authority of the head of the Church.
+It is certain, however, that both feudal and ecclesiastical influences
+were rapidly decaying during the fifteenth, and even the fourteenth
+century; and if we closely examine the current pretexts of wars, and
+the avowed motives of alliances, it will be seen that, step by step
+with the displacement of the old principles, the views afterwards
+harmonised and consolidated by Ayala and Grotius were making
+considerable progress, though it was silent and but slow. Whether the
+fusion of all the sources of authority would ultimately have evolved a
+system of international relations, and whether that system would have
+exhibited material differences from the fabric of Grotius, is not now
+possible to decide, for as a matter of fact the Reformation
+annihilated all its potential elements except one. Beginning in
+Germany, it divided the princes of the empire by a gulf too broad to
+be bridged over by the Imperial supremacy, even if the Imperial
+superior had stood neutral. He, however, was forced to take colour
+with the church against the reformers; the Pope was, as a matter of
+course, in the same predicament; and thus the two authorities to whom
+belonged the office of mediation between combatants became themselves
+the chiefs of one great faction in the schism of the nations.
+Feudalism, already enfeebled and discredited as a principle of public
+relations, furnished no bond whatever which was stable enough to
+countervail the alliances of religion. In a condition, therefore, of
+public law which was little less than chaotic, those views of a state
+system to which the Roman jurisconsults were supposed to have given
+their sanction alone remained standing. The shape, the symmetry, and
+the prominence which they assumed in the hands of Grotius are known to
+every educated man; but the great marvel of the Treatise "De Jure
+Belli et Pacis," was its rapid, complete, and universal success. The
+horrors of the Thirty Years' War, the boundless terror and pity which
+the unbridled license of the soldiery was exciting, must, no doubt, be
+taken to explain that success in some measure, but they do not wholly
+account for it. Very little penetration into the ideas of that age is
+required to convince one that if the ground plan of the international
+edifice which was sketched in the great book of Grotius had not
+appeared to be theoretically perfect, it would have been discarded by
+jurists and neglected by statesmen and soldiers.
+
+It is obvious that the speculative perfection of the Grotian system is
+intimately connected with that conception of territorial sovereignty
+which we have been discussing. The theory of International Law assumes
+that commonwealths are, relatively to each other, in a state of
+nature; but the component atoms of a natural society must, by the
+fundamental assumption, be insulated and independent of each other. If
+there be a higher power connecting them, however slightly and
+occasionally by the claim of common supremacy, the very conception of
+a common superior introduces the notion of positive law, and excludes
+the idea of a law natural. It follows, therefore, that if the
+universal suzerainty of an Imperial head had been admitted even in
+bare theory, the labours of Grotius would have been idle. Nor is this
+the only point of junction between modern public law and those views
+of sovereignty of which I have endeavoured to describe the
+development. I have said that there are entire departments of
+international jurisprudence which consist of the Roman Law of
+Property. What then is the inference? It is, that if there had been no
+such change as I have described in the estimate of sovereignty--if
+sovereignty had not been associated with the proprietorship of a
+limited portion of the earth, had not, in other words, become
+territorial--three parts of the Grotian theory would have been
+incapable of application.
+
+
+
+
+CHAPTER V
+
+PRIMITIVE SOCIETY AND ANCIENT LAW
+
+
+The necessity of submitting the subject of jurisprudence to scientific
+treatment has never been entirely lost sight of in modern times, and
+the essays which the consciousness of this necessity has produced have
+proceeded from minds of very various calibre, but there is not much
+presumption, I think, in asserting that what has hitherto stood in the
+place of a science has for the most part been a set of guesses, those
+very guesses of the Roman lawyers which were examined in the two
+preceding chapters. A series of explicit statements, recognising and
+adopting these conjectural theories of a natural state, and of a
+system of principles congenial to it, has been continued with but
+brief interruption from the days of their inventors to our own. They
+appear in the annotations of the Glossators who founded modern
+jurisprudence, and in the writings of the scholastic jurists who
+succeeded them. They are visible in the dogmas of the canonists. They
+are thrust into prominence by those civilians of marvellous erudition,
+who flourished at the revival of ancient letters. Grotius and his
+successors invested them not less with brilliancy and plausibility
+than with practical importance. They may be read in the introductory
+chapters of our own Blackstone, who has transcribed them textually
+from Burlamaqui, and wherever the manuals published in the present day
+for the guidance of the student or the practitioner begin with any
+discussion of the first principles of law, it always resolves itself
+into a restatement of the Roman hypothesis. It is however from the
+disguises with which these conjectures sometimes clothe themselves,
+quite as much as from their native form, that we gain an adequate idea
+of the subtlety with which they mix themselves in human thought. The
+Lockeian theory of the origin of Law in a Social Compact scarcely
+conceals its Roman derivation, and indeed is only the dress by which
+the ancient views were rendered more attractive to a particular
+generation of the moderns; but on the other hand the theory of Hobbes
+on the same subject was purposely devised to repudiate the reality of
+a law of nature as conceived by the Romans and their disciples. Yet
+these two theories, which long divided the reflecting politicians of
+England into hostile camps, resemble each other strictly in their
+fundamental assumption of a non-historic, unverifiable, condition of
+the race. Their authors differed as to the characteristics of the
+prae-social state, and as to the nature of the abnormal action by which
+men lifted themselves out of it into that social organisation with
+which alone we are acquainted, but they agreed in thinking that a
+great chasm separated man in his primitive condition from man in
+society, and this notion we cannot doubt that they borrowed,
+consciously or unconsciously, from the Romans. If indeed the phenomena
+of law be regarded in the way in which these theorists regarded
+them--that is, as one vast complex whole--it is not surprising that
+the mind should often evade the task it has set to itself by falling
+back on some ingenious conjecture which (plausibly interpreted) will
+seem to reconcile everything, or else that it should sometimes abjure
+in despair the labour of systematization.
+
+From the theories of jurisprudence which have the same speculative
+basis as the Roman doctrine two of much celebrity must be excepted.
+The first of them is that associated with the great name of
+Montesquieu. Though there are some ambiguous expressions in the early
+part of the _Esprit des Lois_, which seem to show its writer's
+unwillingness to break quite openly with the views hitherto popular,
+the general drift of the book is certainly to indicate a very
+different conception of its subject from any which had been
+entertained before. It has often been noticed that, amidst the vast
+variety of examples which, in its immense width of survey, it sweeps
+together from supposed systems of jurisprudence, there is an evident
+anxiety to thrust into especial prominence those manners and
+institutions which astonish the civilised reader by their uncouthness,
+strangeness, or indecency. The inference constantly suggested is, that
+laws are the creatures of climate, local situation, accident, or
+imposture--the fruit of any causes except those which appear to
+operate with tolerable constancy. Montesquieu seems, in fact, to have
+looked on the nature of man as entirely plastic, as passively
+reproducing the impressions, and submitting implicitly to the
+impulses, which it receives from without. And here no doubt lies the
+error which vitiates his system as a system. He greatly underrates the
+stability of human nature. He pays little or no regard to the
+inherited qualities of the race, those qualities which each generation
+receives from its predecessors, and transmits but slightly altered to
+the generation which follows it. It is quite true, indeed, that no
+complete account can be given of social phenomena, and consequently of
+laws, till due allowance has been made for those modifying causes
+which are noticed in the _Esprit des Lois_; but their number and their
+force appear to have been overestimated by Montesquieu. Many of the
+anomalies which he parades have since been shown to rest on false
+report or erroneous construction, and of those which remain not a few
+prove the permanence rather than the variableness of man's nature,
+since they are relics of older stages of the race which have
+obstinately defied the influences that have elsewhere had effect. The
+truth is that the stable part of our mental, moral, and physical
+constitution is the largest part of it, and the resistance it opposes
+to change is such that, though the variations of human society in a
+portion of the world are plain enough, they are neither so rapid nor
+so extensive that their amount, character, and general direction
+cannot be ascertained. An approximation to truth may be all that is
+attainable with our present knowledge, but there is no reason for
+thinking that is so remote, or (what is the same thing) that it
+requires so much future correction, as to be entirely useless and
+uninstructive.
+
+The other theory which has been adverted to is the historical theory
+of Bentham. This theory which is obscurely (and, it might even be
+said, timidly) propounded in several parts of Bentham's works is quite
+distinct from that analysis of the conception of law which he
+commenced in the "Fragment on Government," and which was more recently
+completed by Mr. John Austin. The resolution of a law into a command
+of a particular nature, imposed under special conditions, does not
+affect to do more than protect us against a difficulty--a most
+formidable one certainly--of language. The whole question remains open
+as to the motives of societies in imposing these commands on
+themselves, as to the connection of these commands with each other, and
+the nature of their dependence on those which preceded them, and
+which they have superseded. Bentham suggests the answer that
+societies modify, and have always modified, their laws according to
+modifications of their views of general expediency. It is difficult to
+say that this proposition is false, but it certainly appears to be
+unfruitful. For that which seems expedient to a society, or rather to
+the governing part of it, when it alters a rule of law is surely the
+same thing as the object, whatever it may be, which it has in view
+when it makes the change. Expediency and the greatest good are nothing
+more than different names for the impulse which prompts the
+modification; and when we lay down expediency as the rule of change in
+law or opinion, all we get by the proposition is the substitution of
+an express term for a term which is necessarily implied when we say
+that a change takes place.
+
+There is such wide-spread dissatisfaction with existing theories of
+jurisprudence, and so general a conviction that they do not really
+solve the questions they pretend to dispose of, as to justify the
+suspicion that some line of inquiry necessary to a perfect result has
+been incompletely followed or altogether omitted by their authors. And
+indeed there is one remarkable omission with which all these
+speculations are chargeable, except perhaps those of Montesquieu. They
+take no account of what law has actually been at epochs remote from
+the particular period at which they made their appearance. Their
+originators carefully observed the institutions of their own age and
+civilisation, and those of other ages and civilisations with which
+they had some degree of intellectual sympathy, but, when they turned
+their attention to archaic states of society which exhibited much
+superficial difference from their own, they uniformly ceased to
+observe and began guessing. The mistake which they committed is
+therefore analogous to the error of one who, in investigating the laws
+of the material universe, should commence by contemplating the
+existing physical world as a whole, instead of beginning with the
+particles which are its simplest ingredients. One does not certainly
+see why such a scientific solecism should be more defensible in
+jurisprudence than in any other region of thought. It would seem
+antecedently that we ought to commence with the simplest social forms
+in a state as near as possible to their rudimentary condition. In
+other words, if we followed the course usual in such inquiries, we
+should penetrate as far up as we could in the history of primitive
+societies. The phenomena which early societies present us with are not
+easy at first to understand, but the difficulty of grappling with them
+bears no proportion to the perplexities which beset us in considering
+the baffling entanglement of modern social organisation. It is a
+difficulty arising from their strangeness and uncouthness, not from
+their number and complexity. One does not readily get over the
+surprise which they occasion when looked at from a modern point of
+view; but when that is surmounted they are few enough and simple
+enough. But even if they gave more trouble than they do, no pains
+would be wasted in ascertaining the germs out of which has assuredly
+been unfolded every form of moral restraint which controls our actions
+and shapes our conduct at the present moment.
+
+The rudiments of the social state, so far as they are known to us at
+all, are known through testimony of three sorts--accounts by
+contemporary observers of civilisations less advanced than their own,
+the records which particular races have preserved concerning their
+primitive history, and ancient law. The first kind of evidence is the
+best we could have expected. As societies do not advance concurrently,
+but at different rates of progress, there have been epochs at which
+men trained to habits of methodical observation have really been in a
+position to watch and describe the infancy of mankind. Tacitus made
+the most of such an opportunity; but the _Germany_, unlike most
+celebrated classical books, has not induced others to follow the
+excellent example set by its author, and the amount of this sort of
+testimony which we possess is exceedingly small. The lofty contempt
+which a civilised people entertains for barbarous neighbours has
+caused a remarkable negligence in observing them, and this
+carelessness has been aggravated at times by fear, by religious
+prejudice, and even by the use of these very terms--civilisation and
+barbarism--which convey to most persons the impression of a difference
+not merely in degree but in kind. Even the _Germany_ has been
+suspected by some critics of sacrificing fidelity to poignancy of
+contrast and picturesqueness of narrative. Other histories too, which
+have been handed down to us among the archives of the people to whose
+infancy they relate, have been thought distorted by the pride of race
+or by the religious sentiment of a newer age. It is important then to
+observe that these suspicions, whether groundless or rational, do not
+attach to a great deal of archaic law. Much of the old law which has
+descended to us was preserved merely because it was old. Those who
+practised and obeyed it did not pretend to understand it; and in some
+cases they even ridiculed and despised it. They offered no account of
+it except that it had come down to them from their ancestors. If we
+confine our attention, then, to those fragments of ancient
+institutions which cannot reasonably be supposed to have been tampered
+with, we are able to gain a clear conception of certain great
+characteristics of the society to which they originally belonged.
+Advancing a step further, we can apply our knowledge to systems of law
+which, like the Code of Menu, are as a whole of suspicious
+authenticity; and, using the key we have obtained, we are in a
+position to discriminate those portions of them which are truly
+archaic from those which have been affected by the prejudices,
+interests, or ignorance of the compiler. It will at least be
+acknowledged that, if the materials for this process are sufficient,
+and if the comparisons be accurately executed, the methods followed
+are as little objectionable as those which have led to such surprising
+results in comparative philology.
+
+The effect of the evidence derived from comparative jurisprudence is
+to establish that view of the primeval condition of the human race
+which is known as the Patriarchal Theory. There is no doubt, of
+course, that this theory was originally based on the Scriptural
+history of the Hebrew patriarchs in Lower Asia; but, as has been
+explained already, its connection with Scripture rather militated than
+otherwise against its reception as a complete theory, since the
+majority of the inquirers who till recently addressed themselves with
+most earnestness to the colligation of social phenomena, were either
+influenced by the strongest prejudice against Hebrew antiquities or by
+the strongest desire to construct their system without the assistance
+of religious records. Even now there is perhaps a disposition to
+undervalue these accounts, or rather to decline generalising from
+them, as forming part of the traditions of a Semitic people. It is to
+be noted, however, that the legal testimony comes nearly exclusively
+from the institutions of societies belonging to the Indo-European
+stock, the Romans, Hindoos, and Sclavonians supplying the greater part
+of it; and indeed the difficulty at the present stage of the inquiry,
+is to know where to stop, to say of what races of men it is _not_
+allowable to lay down that the society in which they are united was
+originally organised on the patriarchal model. The chief lineaments of
+such a society, as collected from the early chapters in Genesis, I
+need not attempt to depict with any minuteness, both because they are
+familiar to most of us from our earliest childhood, and because, from
+the interest once attaching to the controversy which takes its name
+from the debate between Locke and Filmer, they fill a whole chapter,
+though not a very profitable one, in English literature. The points
+which lie on the surface of the history are these:--The eldest male
+parent--the eldest ascendant--is absolutely supreme in his household.
+His dominion extends to life and death, and is as unqualified over his
+children and their houses as over his slaves; indeed the relations of
+sonship and serfdom appear to differ in little beyond the higher
+capacity which the child in blood possesses of becoming one day the
+head of a family himself. The flocks and herds of the children are the
+flocks and herds of the father, and the possessions of the parent,
+which he holds in a representative rather than in a proprietary
+character, are equally divided at his death among his descendants in
+the first degree, the eldest son sometimes receiving a double share
+under the name of birthright, but more generally endowed with no
+hereditary advantage beyond an honorary precedence. A less obvious
+inference from the Scriptural accounts is that they seem to plant us
+on the traces of the breach which is first effected in the empire of
+the parent. The families of Jacob and Esau separate and form two
+nations; but the families of Jacob's children hold together and become
+a people. This looks like the immature germ of a state or
+commonwealth, and of an order of rights superior to the claims of
+family relation.
+
+If I were attempting for the more special purposes of the jurist to
+express compendiously the characteristics of the situation in which
+mankind disclose themselves at the dawn of their history, I should be
+satisfied to quote a few verses from the _Odyssee_ of Homer:
+
+
+    [Greek: toisin d out agorai boulephoroi oute themistes.
+              *       *       *      themisteuei de ekastos
+            paidon ed alochon, oud allelon alegousin.]
+
+
+"They have neither assemblies for consultation nor _themistes_, but
+every one exercises jurisdiction over his wives and his children, and
+they pay no regard to one another." These lines are applied to the
+Cyclops, and it may not perhaps be an altogether fanciful idea when I
+suggest that the Cyclops is Homer's type of an alien and less advanced
+civilisation; for the almost physical loathing which a primitive
+community feels for men of widely different manners from its own
+usually expresses itself by describing them as monsters, such as
+giants, or even (which is almost always the case in Oriental
+mythology) as demons. However that may be, the verses condense in
+themselves the sum of the hints which are given us by legal
+antiquities. Men are first seen distributed in perfectly insulated
+groups, held together by obedience to the parent. Law is the parent's
+word, but it is not yet in the condition of those _themistes_ which
+were analysed in the first chapter of this work. When we go forward to
+the state of society in which these early legal conceptions show
+themselves as formed, we find that they still partake of the mystery
+and spontaneity which must have seemed to characterise a despotic
+father's commands, but that at the same time, inasmuch as they proceed
+from a sovereign, they presuppose a union of family groups in some
+wider organisation. The next question is, what is the nature of this
+union and the degree of intimacy which it involves? It is just here
+that archaic law renders us one of the greatest of its services and
+fills up a gap which otherwise could only have been bridged by
+conjecture. It is full, in all its provinces, of the clearest
+indications that society in primitive times was not what it is assumed
+to be at present, a collection of _individuals_. In fact, and in the
+view of the men who composed it, it was _an aggregation of families_.
+The contrast may be most forcibly expressed by saying that the _unit_
+of an ancient society was the Family, of a modern society the
+Individual. We must be prepared to find in ancient law all the
+consequences of this difference. It is so framed as to be adjusted to
+a system of small independent corporations. It is therefore scanty,
+because it is supplemented by the despotic commands of the heads of
+households. It is ceremonious, because the transactions to which it
+pays regard resemble international concerns much more than the quick
+play of intercourse between individuals. Above all it has a
+peculiarity of which the full importance cannot be shown at present.
+It takes a view of _life_ wholly unlike any which appears in developed
+jurisprudence. Corporations _never die_, and accordingly primitive law
+considers the entities with which it deals, _i.e._ the patriarchal or
+family groups, as perpetual and inextinguishable. This view is closely
+allied to the peculiar aspect under which, in very ancient times,
+moral attributes present themselves. The moral elevation and moral
+debasement of the individual appear to be confounded with, or
+postponed to, the merits and offences of the group to which the
+individual belongs. If the community sins, its guilt is much more than
+the sum of the offences committed by its members; the crime is a
+corporate act, and extends in its consequences to many more persons
+than have shared in its actual perpetration. If, on the other hand,
+the individual is conspicuously guilty, it is his children, his
+kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him,
+and sometimes for him. It thus happens that the ideas of moral
+responsibility and retribution often seem to be more clearly realised
+at very ancient than at more advanced periods, for, as the family
+group is immortal, and its liability to punishment indefinite, the
+primitive mind is not perplexed by the questions which become
+troublesome as soon as the individual is conceived as altogether
+separate from the group. One step in the transition from the ancient
+and simple view of the matter to the theological or metaphysical
+explanations of later days is marked by the early Greek notion of an
+inherited curse. The bequest received by his posterity from the
+original criminal was not a liability to punishment, but a liability
+to the commission of fresh offences which drew with them a condign
+retribution; and thus the responsibility of the family was reconciled
+with the newer phase of thought which limited the consequences of
+crime to the person of the actual delinquent.
+
+It would be a very simple explanation of the origin of society if we
+could base a general conclusion on the hint furnished us by the
+scriptural example already adverted to, and could suppose that
+communities began to exist wherever a family held together instead of
+separating at the death of its patriarchal chieftain. In most of the
+Greek states and in Rome there long remained the vestiges of an
+ascending series of groups out of which the State was at first
+constituted. The Family, House, and Tribe of the Romans may be taken
+as the type of them, and they are so described to us that we can
+scarcely help conceiving them as a system of concentric circles which
+have gradually expanded from the same point. The elementary group is
+the Family, connected by common subjection to the highest male
+ascendant. The aggregation of Families forms the Gens or House. The
+aggregation of Houses makes the Tribe. The aggregation of Tribes
+constitutes the Commonwealth. Are we at liberty to follow these
+indications, and to lay down that the commonwealth is a collection of
+persons united by common descent from the progenitor of an original
+family? Of this we may at least be certain, that all ancient societies
+regarded themselves as having proceeded from one original stock, and
+even laboured under an incapacity for comprehending any reason except
+this for their holding together in political union. The history of
+political ideas begins, in fact, with the assumption that kinship in
+blood is the sole possible ground of community in political functions;
+nor is there any of those subversions of feeling, which we term
+emphatically revolutions, so startling and so complete as the change
+which is accomplished when some other principle--such as that, for
+instance, of _local contiguity_--establishes itself for the first time
+as the basis of common political action. It may be affirmed then of
+early commonwealths that their citizens considered all the groups in
+which they claimed membership to be founded on common lineage. What
+was obviously true of the Family was believed to be true first of the
+House, next of the Tribe, lastly of the State. And yet we find that
+along with this belief, or, if we may use the word, this theory, each
+community preserved records or traditions which distinctly showed that
+the fundamental assumption was false. Whether we look to the Greek
+states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which
+furnished Niebuhr with so many valuable illustrations, or to the
+Celtic clan associations, or to that strange social organisation of
+the Sclavonic Russians and Poles which has only lately attracted
+notice, everywhere we discover traces of passages in their history
+when men of alien descent were admitted to, and amalgamated with, the
+original brotherhood. Adverting to Rome singly, we perceive that the
+primary group, the Family, was being constantly adulterated by the
+practice of adoption, while stories seem to have been always current
+respecting the exotic extraction of one of the original Tribes and
+concerning a large addition to the houses made by one of the early
+kings. The composition of the state, uniformly assumed to be natural,
+was nevertheless known to be in great measure artificial. This
+conflict between belief or theory and notorious fact is at first sight
+extremely perplexing; but what it really illustrates is the efficiency
+with which Legal Fictions do their work in the infancy of society. The
+earliest and most extensively employed of legal fictions was that
+which permitted family relations to be created artificially, and there
+is none to which I conceive mankind to be more deeply indebted. If it
+had never existed, I do not see how any one of the primitive groups,
+whatever were their nature, could have absorbed another, or on what
+terms any two of them could have combined, except those of absolute
+superiority on one side and absolute subjection on the other. No
+doubt, when with our modern ideas we contemplate the union of
+independent communities, we can suggest a hundred modes of carrying it
+out, the simplest of all being that the individuals comprised in the
+coalescing groups shall vote or act together according to local
+propinquity; but the idea that a number of persons should exercise
+political rights in common simply because they happened to live within
+the same topographical limits was utterly strange and monstrous to
+primitive antiquity. The expedient which in those times commanded
+favour was that the incoming population should _feign themselves_ to
+be descended from the same stock as the people on whom they were
+engrafted; and it is precisely the good faith of this fiction, and the
+closeness with which it seemed to imitate reality, that we cannot now
+hope to understand. One circumstance, however, which it is important
+to recollect, is that the men who formed the various political groups
+were certainly in the habit of meeting together periodically, for the
+purpose of acknowledging and consecrating their association by common
+sacrifices. Strangers amalgamated with the brotherhood were doubtless
+admitted to these sacrifices; and when that was once done we can
+believe that it seemed equally easy, or not more difficult, to
+conceive them as sharing in the common lineage. The conclusion then
+which is suggested by the evidence is, not that all early societies
+were formed by descent from the same ancestor, but that all of them
+which had any permanence and solidity either were so descended or
+assumed that they were. An indefinite number of causes may have
+shattered the primitive groups, but wherever their ingredients
+recombined, it was on the model or principle of an association of
+kindred. Whatever were the fact, all thought, language, and law
+adjusted themselves to the assumption. But though all this seems to me
+to be established with reference to the communities with whose records
+we are acquainted, the remainder of their history sustains the
+position before laid down as to the essentially transient and
+terminable influence of the most powerful Legal Fictions. At some
+point of time--probably as soon as they felt themselves strong enough
+to resist extrinsic pressure--all these states ceased to recruit
+themselves by factitious extensions of consanguinity. They
+necessarily, therefore, became Aristocracies, in all cases where a
+fresh population from any cause collected around them which could put
+in no claim to community of origin. Their sternness in maintaining the
+central principle of a system under which political rights were
+attainable on no terms whatever except connection in blood, real or
+artificial, taught their inferiors another principle, which proved to
+be endowed with a far higher measure of vitality. This was the
+principle of _local contiguity_, now recognised everywhere as the
+condition of community in political functions. A new set of political
+ideas came at once into existence, which, being those of ourselves,
+our contemporaries, and in great measure of our ancestors, rather
+obscure our perception of the older theory which they vanquished and
+dethroned.
+
+The Family then is the type of an archaic society in all the
+modifications which it was capable of assuming; but the family here
+spoken of is not exactly the family as understood by a modern. In
+order to reach the ancient conception we must give to our modern ideas
+an important extension and an important limitation. We must look on
+the family as constantly enlarged by the absorption of strangers
+within its circle, and we must try to regard the fiction of adoption
+as so closely simulating the reality of kinship that neither law nor
+opinion makes the slightest difference between a real and an adoptive
+connection. On the other hand, the persons theoretically amalgamated
+into a family by their common descent are practically held together by
+common obedience to their highest living ascendant, the father,
+grandfather, or great-grandfather. The patriarchal authority of a
+chieftain is as necessary an ingredient in the notion of the family
+group as the fact (or assumed fact) of its having sprung from his
+loins; and hence we must understand that if there be any persons who,
+however truly included in the brotherhood by virtue of their
+blood-relationship, have nevertheless _de facto_ withdrawn themselves
+from the empire of its ruler, they are always, in the beginnings of
+law, considered as lost to the family. It is this patriarchal
+aggregate--the modern family thus cut down on one side and extended on
+the other--which meets us on the threshold of primitive jurisprudence.
+Older probably than the State, the Tribe, and the House, it left
+traces of itself on private law long after the House and the Tribe had
+been forgotten, and long after consanguinity had ceased to be
+associated with the composition of States. It will be found to have
+stamped itself on all the great departments of jurisprudence, and may
+be detected, I think, as the true source of many of their most
+important and most durable characteristics. At the outset, the
+peculiarities of law in its most ancient state lead us irresistibly to
+the conclusion that it took precisely the same view of the family
+group which is taken of individual men by the systems of rights and
+duties now prevalent throughout Europe. There are societies open to
+our observation at this very moment whose laws and usages can scarcely
+be explained unless they are supposed never to have emerged from this
+primitive condition; but in communities more fortunately circumstanced
+the fabric of jurisprudence fell gradually to pieces, and if we
+carefully observe the disintegration we shall perceive that it took
+place principally in those portions of each system which were most
+deeply affected by the primitive conception of the family. In one
+all-important instance, that of the Roman law, the change was effected
+so slowly, that from epoch to epoch we can observe the line and
+direction which it followed, and can even give some idea of the
+ultimate result to which it was tending. And, in pursuing this last
+inquiry, we need not suffer ourselves to be stopped by the imaginary
+barrier which separates the modern from the ancient world. For one
+effect of that mixture of refined Roman law with primitive barbaric
+usage, which is known to us by the deceptive name of feudalism, was to
+revive many features of archaic jurisprudence which had died out of
+the Roman world, so that the decomposition which had seemed to be
+over commenced again, and to some extent is still proceeding.
+
+On a few systems of law the family organisation of the earliest
+society has left a plain and broad mark in the life-long authority of
+the Father or other ancestor over the person and property of his
+descendants, an authority which we may conveniently call by its later
+Roman name of Patria Potestas. No feature of the rudimentary
+associations of mankind is deposed to by a greater amount of evidence
+than this, and yet none seems to have disappeared so generally and so
+rapidly from the usages of advancing communities. Gaius, writing under
+the Antonines, describes the institution as distinctively Roman. It is
+true that, had he glanced across the Rhine or the Danube to those
+tribes of barbarians which were exciting the curiosity of some among
+his contemporaries, he would have seen examples of patriarchal power
+in its crudest form; and in the far East a branch of the same ethnical
+stock from which the Romans sprang was repeating their Patria Potestas
+in some of its most technical incidents. But among the races
+understood to be comprised within the Roman empire, Gaius could find
+none which exhibited an institution resembling the Roman "Power of the
+Father," except only the Asiatic Galatae. There are reasons, indeed, as
+it seems to me, why the direct authority of the ancestor should, in
+the greater number of progressive societies, very shortly assume
+humbler proportions than belonged to it in their earliest state. The
+implicit obedience of rude men to their parent is doubtless a primary
+fact, which it would be absurd to explain away altogether by
+attributing to them any calculation of its advantages; but, at the
+same time, if it is natural in the sons to obey the father, it is
+equally natural that they should look to him for superior strength or
+superior wisdom. Hence, when societies are placed under circumstances
+which cause an especial value to be attached to bodily and mental
+vigour, there is an influence at work which tends to confine the
+Patria Potestas to the cases where its possessor is actually skilful
+and strong. When we obtain our first glimpse of organised Hellenic
+society, it seems as if supereminent wisdom would keep alive the
+father's power in persons whose bodily strength had decayed; but the
+relations of Ulysses and Laertes in the _Odyssee_ appear to show that,
+where extraordinary valour and sagacity were united in the son, the
+father in the decrepitude of age was deposed from the headship of the
+family. In the mature Greek jurisprudence, the rule advances a few
+steps on the practice hinted at in the Homeric literature; and though
+very many traces of stringent family obligation remain, the direct
+authority of the parent is limited, as in European codes, to the
+nonage or minority of the children, or, in other words, to the period
+during which their mental and physical inferiority may always be
+presumed. The Roman law, however, with its remarkable tendency to
+innovate on ancient usage only just so far as the exigency of the
+commonwealth may require, preserves both the primeval institution and
+the natural limitation to which I conceive it to have been subject. In
+every relation of life in which the collective community might have
+occasion to avail itself of his wisdom and strength, for all purposes
+of counsel or of war, the filius familias, or Son under Power, was as
+free as his father. It was a maxim of Roman jurisprudence that the
+Patria Potestas did not extend to the Jus Publicum. Father and son
+voted together in the city, and fought side by side in the field;
+indeed, the son, as general, might happen to command the father, or,
+as magistrate, decide on his contracts and punish his delinquencies.
+But in all the relations created by Private Law, the son lived under a
+domestic despotism which, considering the severity it retained to the
+last, and the number of centuries through which it endured,
+constitutes one of the strangest problems in legal history.
+
+The Patria Potestas of the Romans, which is necessarily our type of
+the primeval paternal authority, is equally difficult to understand as
+an institution of civilised life, whether we consider its incidence on
+the person or its effects on property. It is to be regretted that a
+chasm which exists in its history cannot be more completely filled. So
+far as regards the person, the parent, when our information commences,
+has over his children the _jus vitae necisque_, the power of life and
+death, and _a fortiori_ of uncontrolled corporal chastisement; he can
+modify their personal condition at pleasure; he can give a wife to his
+son; he can give his daughter in marriage; he can divorce his children
+of either sex; he can transfer them to another family by adoption; and
+he can sell them. Late in the Imperial period we find vestiges of all
+these powers, but they are reduced within very narrow limits. The
+unqualified right of domestic chastisement has become a right of
+bringing domestic offences under the cognisance of the civil
+magistrate; the privilege of dictating marriage has declined into a
+conditional veto; the liberty of selling has been virtually abolished,
+and adoption itself, destined to lose almost all its ancient
+importance in the reformed system of Justinian, can no longer be
+effected without the assent of the child transferred to the adoptive
+parentage. In short, we are brought very close to the verge of the
+ideas which have at length prevailed in the modern world. But between
+these widely distant epochs there is an interval of obscurity, and we
+can only guess at the causes which permitted the Patria Potestas to
+last as long as it did by rendering it more tolerable than it appears.
+The active discharge of the most important among the duties which the
+son owed to the state must have tempered the authority of his parent
+if they did not annul it. We can readily persuade ourselves that the
+paternal despotism could not be brought into play without great
+scandal against a man of full age occupying a high civil office.
+During the earlier history, however, such cases of practical
+emancipation would be rare compared with those which must have been
+created by the constant wars of the Roman republic. The military
+tribune and the private soldier who were in the field three-quarters
+of a year during the earlier contests, at a later period the proconsul
+in charge of a province, and the legionaries who occupied it, cannot
+have had practical reason to regard themselves as the slaves of a
+despotic master; and all these avenues of escape tended constantly to
+multiply themselves. Victories led to conquests, conquests to
+occupations; the mode of occupation by colonies was exchanged for the
+system of occupying provinces by standing armies. Each step in advance
+was a call for the expatriation of more Roman citizens and a fresh
+draft on the blood of the failing Latin race. We may infer, I think,
+that a strong sentiment in favour of the relaxation of the Patria
+Potestas had become fixed by the time that the pacification of the
+world commenced on the establishment of the Empire. The first serious
+blows at the ancient institution are attributed to the earlier Caesars,
+and some isolated interferences of Trajan and Hadrian seem to have
+prepared the ground for a series of express enactments which, though
+we cannot always determine their dates, we know to have limited the
+father's powers on the one hand, and on the other to have multiplied
+facilities for their voluntary surrender. The older mode of getting
+rid of the Potestas, by effecting a triple sale of the son's person,
+is evidence, I may remark, of a very early feeling against the
+unnecessary prolongation of the powers. The rule which declared that
+the son should be free after having been three times sold by his
+father seems to have been originally meant to entail penal
+consequences on a practice which revolted even the imperfect morality
+of the primitive Roman. But even before the publication of the Twelve
+Tables it had been turned, by the ingenuity of the jurisconsults, into
+an expedient for destroying the parental authority wherever the father
+desired that it should cease.
+
+Many of the causes which helped to mitigate the stringency of the
+father's power over the persons of his children are doubtless among
+those which do not lie upon the face of history. We cannot tell how
+far public opinion may have paralysed an authority which the law
+conferred, or how far natural affection may have rendered it
+endurable. But though the powers over the _person_ may have been
+latterly nominal, the whole tenour of the extant Roman jurisprudence
+suggests that the father's rights over the son's _property_ were
+always exercised without scruple to the full extent to which they were
+sanctioned by law. There is nothing to astonish us in the latitude of
+these rights when they first show themselves. The ancient law of Rome
+forbade the Children under Power to hold property apart from their
+parent, or (we should rather say) never contemplated the possibility
+of their claiming a separate ownership. The father was entitled to
+take the whole of the son's acquisitions, and to enjoy the benefit of
+his contracts without being entangled in any compensating liability.
+So much as this we should expect from the constitution of the earliest
+Roman society, for we can hardly form a notion of the primitive family
+group unless we suppose that its members brought their earnings of all
+kinds into the common stock while they were unable to bind it by
+improvident individual engagements. The true enigma of the Patria
+Potestas does not reside here, but in the slowness with which these
+proprietary privileges of the parent were curtailed, and in the
+circumstance that, before they were seriously diminished, the whole
+civilised world was brought within their sphere. No innovation of any
+kind was attempted till the first years of the Empire, when the
+acquisitions of soldiers on service were withdrawn from the operation
+of the Patria Potestas, doubtless as part of the reward of the armies
+which had overthrown the free commonwealth. Three centuries afterwards
+the same immunity was extended to the earnings of persons who were in
+the civil employment of the state. Both changes were obviously limited
+in their application, and they were so contrived in technical form as
+to interfere as little as possible with the principle of Patria
+Potestas. A certain qualified and dependent ownership had always been
+recognised by the Roman law in the perquisites and savings which
+slaves and sons under power were not compelled to include in the
+household accounts, and the special name of this permissive property,
+Peculium, was applied to the acquisitions newly relieved from Patria
+Potestas, which were called in the case of soldiers Castrense
+Peculium, and Quasi-castrense Peculium in the case of civil servants.
+Other modifications of the parental privileges followed, which showed
+a less studious outward respect for the ancient principle. Shortly
+after the introduction of the Quasi-castrense Peculium, Constantine
+the Great took away the father's absolute control over property which
+his children had inherited from their mother, and reduced it to a
+_usufruct_, or life-interest. A few more changes of slight importance
+followed in the Western Empire, but the furthest point reached was in
+the East, under Justinian, who enacted that unless the acquisitions of
+the child were derived from the parent's own property, the parent's
+rights over them should not extend beyond enjoying their produce for
+the period of his life. Even this, the utmost relaxation of the Roman
+Patria Potestas, left it far ampler and severer than any analogous
+institution of the modern world. The earliest modern writers on
+jurisprudence remark that it was only the fiercer and ruder of the
+conquerors of the empire, and notably the nations of Sclavonic origin,
+which exhibited a Patria Potestas at all resembling that which was
+described in the Pandects and the Code. All the Germanic immigrants
+seem to have recognised a corporate union of the family under the
+_mund_, or authority of a patriarchal chief; but his powers are
+obviously only the relics of a decayed Patria Potestas, and fell far
+short of those enjoyed by the Roman father. The Franks are
+particularly mentioned as not having the Roman Institution, and
+accordingly the old French lawyers, even when most busily engaged in
+filling the interstices of barbarous custom with rules of Roman law,
+were obliged to protect themselves against the intrusion of the
+Potestas by the express maxim, _Puyssance de pere en France n'a lieu_.
+The tenacity of the Romans in maintaining this relic of their most
+ancient condition is in itself remarkable, but it is less remarkable
+than the diffusion of the Potestas over the whole of a civilisation
+from which it had once disappeared. While the Castrense Peculium
+constituted as yet the sole exception to the father's power over
+property, and while his power over his children's persons was still
+extensive, the Roman citizenship, and with it the Patria Potestas,
+were spreading into every corner of the empire. Every African or
+Spaniard, every Gaul, Briton, or Jew, who received this honour by
+gift, purchase, or inheritance, placed himself under the Roman Law of
+Persons, and, though our authorities intimate that children born
+before the acquisition of citizenship could not be brought under Power
+against their will, children born after it and all ulterior
+descendants were on the ordinary footing of a Roman _filius familias_.
+It does not fall within the province of this treatise to examine the
+mechanism of the later Roman society, but I may be permitted to remark
+that there is little foundation for the opinion which represents the
+constitution of Antoninus Caracalla conferring Roman citizenship on
+the whole of his subjects as a measure of small importance. However we
+may interpret it, it must have enormously enlarged the sphere of the
+Patria Potestas, and it seems to me that the tightening of family
+relations which it effected is an agency which ought to be kept in
+view more than it has been, in accounting for the great moral
+revolution which was transforming the world.
+
+Before this branch of our subject is dismissed, it should be observed
+that the Paterfamilias was answerable for the delicts (or _torts_) of
+his Sons under Power. He was similarly liable for the torts of his
+slaves; but in both cases he originally possessed the singular
+privilege of tendering the delinquent's person in full satisfaction of
+the damage. The responsibility thus incurred on behalf of sons,
+coupled with the mutual incapacity of parent and Child under Power to
+sue one another, has seemed to some jurists to be best explained by
+the assumption of a "unity of person" between the Paterfamilias and
+the Filius-familias. In the chapter on Successions I shall attempt
+to show in what sense, and to what extent, this "unity" can be
+accepted as a reality. I can only say at present that these
+responsibilities of the Paterfamilias, and other legal phenomena which
+will be discussed hereafter, appear to me to point at certain _duties_
+of the primitive Patriarchal chieftain which balanced his _rights_. I
+conceive that, if he disposed absolutely of the persons and fortune of
+his clansmen, this representative ownership was coextensive with a
+liability to provide for all members of the brotherhood out of the
+common fund. The difficulty is to throw ourselves out of our habitual
+associations sufficiently for conceiving the nature of his obligation.
+It was not a legal duty, for law had not yet penetrated into the
+precinct of the Family. To call it _moral_ is perhaps to anticipate
+the ideas belonging to a later stage of mental development; but the
+expression "moral obligation" is significant enough for our purpose,
+if we understand by it a duty semi-consciously followed and enforced
+rather by instinct and habit than by definite sanctions.
+
+The Patria Potestas, in its normal shape, has not been, and, as it
+seems to me, could not have been, a generally durable institution. The
+proof of its former universality is therefore incomplete so long as we
+consider it by itself; but the demonstration may be carried much
+further by examining other departments of ancient law which depend on
+it ultimately, but not by a thread of connection visible in all its
+parts or to all eyes. Let us turn for example to Kinship, or in other
+words, to the scale on which the proximity of relatives to each other
+is calculated in archaic jurisprudence. Here again it will be
+convenient to employ the Roman terms, Agnatic and Cognatic
+relationship. _Cognatic_ relationship is simply the conception of
+kinship familiar to modern ideas; it is the relationship arising
+through common descent from the same pair of married persons, whether
+the descent be traced through males or females. _Agnatic_ relationship
+is something very different: it excludes a number of persons whom we
+in our day should certainly consider of kin to ourselves, and it
+includes many more whom we should never reckon among our kindred. It
+is in truth the connection existing between the members of the Family,
+conceived as it was in the most ancient times. The limits of this
+connection are far from conterminous with those of modern
+relationship.
+
+Cognates then are all those persons who can trace their blood to a
+single ancestor and ancestress; or, if we take the strict technical
+meaning of the word in Roman law, they are all who trace their blood
+to the legitimate marriage of a common pair. "Cognation" is therefore
+a relative term, and the degree of connection in blood which it
+indicates depends on the particular marriage which is selected as the
+commencement of the calculation. If we begin with the marriage of
+father and mother, Cognation will only express the relationship of
+brothers and sisters; if we take that of the grandfather and
+grandmother, then uncles, aunts, and their descendants will also be
+included in the notion of Cognation, and following the same process a
+larger number of Cognates may be continually obtained by choosing the
+starting point higher and higher up in the line of ascent. All this is
+easily understood by a modern; but who are the Agnates? In the first
+place, they are all the Cognates who trace their connection exclusively
+through males. A table of Cognates is, of course, formed by taking
+each lineal ancestor in turn and including all his descendants of both
+sexes in the tabular view; if then, in tracing the various branches of
+such a genealogical table or tree, we stop whenever we come to the
+name of a female and pursue that particular branch or ramification no
+further, all who remain after the descendants of women have been
+excluded are Agnates, and their connection together is Agnatic
+Relationship. I dwell a little on the process which is practically
+followed in separating them from the Cognates, because it explains a
+memorable legal maxim, "Mulier est finis familiae"--a woman is the
+terminus of the family. A female name closes the branch or twig of the
+genealogy in which it occurs. None of the descendants of a female are
+included in the primitive notion of family relationship.
+
+If the system of archaic law at which we are looking be one which
+admits Adoption, we must add to the Agnate thus obtained all persons,
+male or female, who have been brought into the Family by the
+artificial extension of its boundaries. But the descendants of such
+persons will only be Agnates, if they satisfy the conditions which
+have just been described.
+
+What then is the reason of this arbitrary inclusion and exclusion? Why
+should a conception of Kinship, so elastic as to include strangers
+brought into the family by adoption, be nevertheless so narrow as to
+shut out the descendants of a female member? To solve these
+questions, we must recur to the Patria Potestas. The foundation of
+Agnation is not the marriage of Father and Mother, but the authority
+of the Father. All persons are Agnatically connected together who are
+under the same Paternal Power, or who have been under it, or who might
+have been under it if their lineal ancestor had lived long enough to
+exercise his empire. In truth, in the primitive view, Relationship is
+exactly limited by Patria Potestas. Where the Potestas begins, Kinship
+begins; and therefore adoptive relatives are among the kindred. Where
+the Potestas ends, Kinship ends; so that a son emancipated by his
+father loses all rights of Agnation. And here we have the reason why
+the descendants of females are outside the limits of archaic kinship.
+If a woman died unmarried, she could have no legitimate descendants.
+If she married, her children fell under the Patria Potestas, not of
+her Father, but of her Husband, and thus were lost to her own family.
+It is obvious that the organisation of primitive societies would have
+been confounded, if men had called themselves relatives of their
+mother's relatives. The inference would have been that a person might
+be subject to two distinct Patriae Potestates; but distinct Patriae
+Potestates implied distinct jurisdictions, so that anybody amenable to
+two of them at the same time would have lived under two different
+dispensations. As long as the Family was an imperium in imperio, a
+community within the commonwealth, governed by its own institutions of
+which the parent was the source, the limitation of relationship to the
+Agnates was a necessary security against a conflict of laws in the
+domestic forum.
+
+The Parental Powers proper are extinguished by the death of the
+Parent, but Agnation is as it were a mould which retains their imprint
+after they have ceased to exist. Hence comes the interest of Agnation
+for the inquirer into the history of jurisprudence. The Powers
+themselves are discernible in comparatively few monuments of ancient
+law, but Agnatic Relationship, which implies their former existence,
+is discoverable almost everywhere. There are few indigenous bodies of
+law belonging to communities of the Indo-European stock, which do not
+exhibit peculiarities in the most ancient part of their structure
+which are clearly referable to Agnation. In Hindoo law, for example,
+which is saturated with the primitive notions of family dependency,
+kinship is entirely Agnatic, and I am informed that in Hindoo
+genealogies the names of women are generally omitted altogether. The
+same view of relationship pervades so much of the laws of the races
+who overran the Roman Empire as appears to have really formed part of
+their primitive usage, and we may suspect that it would have
+perpetuated itself even more than it has in modern European
+jurisprudence, if it had not been for the vast influence of the later
+Roman law on modern thought. The Praetors early laid hold on Cognation
+as the _natural_ form of kinship, and spared no pains in purifying
+their system from the older conception. Their ideas have descended to
+us, but still traces of Agnation are to be seen in many of the modern
+rules of succession after death. The exclusion of females and their
+children from governmental functions, commonly attributed to the usage
+of the Salian Franks, has certainly an agnatic origin, being descended
+from the ancient German rule of succession to allodial property. In
+Agnation too is to be sought the explanation of that extraordinary
+rule of English Law, only recently repealed, which prohibited brothers
+of the half-blood from succeeding to one another's lands. In the
+Customs of Normandy, the rule applies to _uterine_ brothers only, that
+is, to brothers by the same mother but not by the same father; and,
+limited in this way, it is a strict deduction from the system of
+Agnation, under which uterine brothers are no relations at all to one
+another. When it was transplanted to England, the English judges, who
+had no clue to its principle, interpreted it as a general prohibition
+against the succession of the half-blood, and extended it to
+_consanguineous_ brothers, that is to sons of the same father by
+different wives. In all the literature which enshrines the pretended
+philosophy of law, there is nothing more curious than the pages of
+elaborate sophistry in which Blackstone attempts to explain and
+justify the exclusion of the half-blood.
+
+It may be shown, I think, that the Family, as held together by the
+Patria Potestas, is the nidus out of which the entire Law of Persons
+has germinated. Of all the chapters of that Law the most important is
+that which is concerned with the status of Females. It has just been
+stated that Primitive Jurisprudence, though it does not allow a Woman
+to communicate any rights of Agnation to her descendants, includes
+herself nevertheless in the Agnatic bond. Indeed, the relation of a
+female to the family in which she was born is much stricter, closer,
+and more durable than that which unites her male kinsmen. We have
+several times laid down that early law takes notice of Families only;
+this is the same thing as saying that it only takes notice of persons
+exercising Patria Potestas, and accordingly the only principle on
+which it enfranchises a son or grandson at the death of his Parent, is
+a consideration of the capacity inherent in such son or grandson to
+become himself the head of a new family and the root of a new set of
+Parental Powers. But a woman, of course, has no capacity of the kind,
+and no title accordingly to the liberation which it confers. There is
+therefore a peculiar contrivance of archaic jurisprudence for
+retaining her in the bondage of the Family for life. This is the
+institution known to the oldest Roman law as the Perpetual Tutelage of
+Women, under which a Female, though relieved from her Parent's
+authority by his decease, continues subject through life to her
+nearest male relations as her Guardians. Perpetual Guardianship is
+obviously neither more nor less than an artificial prolongation of the
+Patria Potestas, when for other purposes it has been dissolved. In
+India, the system survives in absolute completeness, and its operation
+is so strict that a Hindoo Mother frequently becomes the ward of her
+own sons. Even in Europe, the laws of the Scandinavian nations
+respecting women preserved it until quite recently. The invaders of
+the Western Empire had it universally among their indigenous usages,
+and indeed their ideas on the subject of Guardianship, in all its
+forms, were among the most retrogressive of those which they
+introduced into the Western world. But from the mature Roman
+jurisprudence it had entirely disappeared. We should know almost
+nothing about it, if we had only the compilations of Justinian to
+consult; but the discovery of the manuscript of Gaius discloses it to
+us at a most interesting epoch, just when it had fallen into complete
+discredit and was verging on extinction. The great jurisconsult
+himself scouts the popular apology offered for it in the mental
+inferiority of the female sex, and a considerable part of his volume
+is taken up with descriptions of the numerous expedients, some of them
+displaying extraordinary ingenuity, which the Roman lawyers had
+devised for enabling Women to defeat the ancient rules. Led by their
+theory of Natural Law, the jurisconsults had evidently at this time
+assumed the equality of the sexes as a principle of their code of
+equity. The restrictions which they attacked were, it is to be
+observed, restrictions on the disposition of property, for which the
+assent of the woman's guardians was still formally required. Control
+of her person was apparently quite obsolete.
+
+Ancient Law subordinates the woman to her blood-relations, while a
+prime phenomenon of modern jurisprudence has been her subordination to
+her husband. The history of the change is remarkable. It begins far
+back in the annals of Rome. Anciently, there were three modes in which
+marriage might be contracted according to Roman usage, one involving a
+religious solemnity, the other two the observance of certain secular
+formalities. By the religious marriage or _Confarreation_; by the
+higher form of civil marriage, which was called _Coemption_; and by
+the lower form, which was termed _Usus_, the Husband acquired a number
+of rights over the person and property of his wife, which were on the
+whole in excess of such as are conferred on him in any system of
+modern jurisprudence. But in what capacity did he acquire them? Not as
+_Husband_, but as _Father_. By the Confarreation, Coemption, and Usus,
+the woman passed _in manum viri_, that is, in law she became the
+_Daughter_ of her husband. She was included in his Patria Potestas.
+She incurred all the liabilities springing out of it while it
+subsisted, and surviving it when it had expired. All her property
+became absolutely his, and she was retained in tutelage after his
+death to the guardian whom he had appointed by will. These three
+ancient forms of marriage fell, however, gradually into disuse, so
+that, at the most splendid period of Roman greatness, they had almost
+entirely given place to a fashion of wedlock--old apparently, but not
+hitherto considered reputable--which was founded on a modification of
+the lower form of civil marriage. Without explaining the technical
+mechanism of the institution now generally popular, I may describe it
+as amounting in law to little more than a temporary deposit of the
+woman by her family. The rights of the family remained unimpaired, and
+the lady continued in the tutelage of guardians whom her parents had
+appointed and whose privileges of control overrode, in many material
+respects, the inferior authority of her husband. The consequence was
+that the situation of the Roman female, whether married or unmarried,
+became one of great personal and proprietary independence, for the
+tendency of the later law, as I have already hinted, was to reduce
+the power of the guardian to a nullity, while the form of marriage in
+fashion conferred on the husband no compensating superiority. But
+Christianity tended somewhat from the very first to narrow this
+remarkable liberty. Led at first by justifiable disrelish for the
+loose practices of the decaying heathen world, but afterwards hurried
+on by a passion of asceticism, the professors of the new faith looked
+with disfavour on a marital tie which was in fact the laxest the
+Western world has seen. The latest Roman law, so far as it is touched
+by the constitutions of the Christian Emperors, bears some marks of a
+reaction against the liberal doctrines of the great Antonine
+jurisconsults. And the prevalent state of religious sentiment may
+explain why it is that modern jurisprudence, forged in the furnace of
+barbarian conquest, and formed by the fusion of Roman jurisprudence
+with patriarchal usage, has absorbed, among its rudiments, much more
+than usual of those rules concerning the position of women which
+belong peculiarly to an imperfect civilisation. During the troubled
+era which begins modern history, and while the laws of the Germanic
+and Sclavonic immigrants remained superposed like a separate layer
+above the Roman jurisprudence of their provincial subjects, the women
+of the dominant races are seen everywhere under various forms of
+archaic guardianship, and the husband who takes a wife from any family
+except his own pays a money-price to her relations for the tutelage
+which they surrender to him. When we move onwards, and the code of the
+middle ages has been formed by the amalgamation of the two systems,
+the law relating to women carries the stamp of its double origin. The
+principle of the Roman jurisprudence is so far triumphant that
+unmarried females are generally (though there are local exceptions to
+the rule) relieved from the bondage of the family; but the archaic
+principle of the barbarians has fixed the position of married women,
+and the husband has drawn to himself in his marital character the
+powers which had once belonged to his wife's male kindred, the only
+difference being that he no longer purchases his privileges. At this
+point therefore the modern law of Western and Southern Europe begins
+to be distinguished by one of its chief characteristics, the
+comparative freedom it allows to unmarried women and widows, the heavy
+disabilities it imposes on wives. It was very long before the
+subordination entailed on the other sex by marriage was sensibly
+diminished. The principal and most powerful solvent of the revived
+barbarism of Europe was always the codified jurisprudence of
+Justinian, wherever it was studied with that passionate enthusiasm
+which it seldom failed to awaken. It covertly but most efficaciously
+undermined the customs which it pretended merely to interpret. But the
+Chapter of law relating to married women was for the most part read by
+the light, not of Roman, but of Canon Law, which in no one particular
+departs so widely from the spirit of the secular jurisprudence as in
+the view it takes of the relations created by marriage. This was in
+part inevitable, since no society which preserves any tincture of
+Christian institution is likely to restore to married women the
+personal liberty conferred on them by the middle Roman law, but the
+proprietary disabilities of married females stand on quite a different
+basis from their personal incapacities, and it is by keeping alive and
+consolidating the former that the expositors of the Canon Law have
+deeply injured civilisation. There are many vestiges of a struggle
+between the secular and ecclesiastical principles, but the Canon Law
+nearly everywhere prevailed. In some of the French provinces married
+women, of a rank below nobility, obtained all the powers of dealing
+with property which Roman jurisprudence had allowed, and this local
+law has been largely followed by the Code Napoleon; but the state of
+the Scottish law shows that scrupulous deference to the doctrines of
+the Roman jurisconsults did not always extend to mitigating the
+disabilities of wives. The systems however which are least indulgent
+to married women are invariably those which have followed the Canon
+Law exclusively, or those which, from the lateness of their contact
+with European civilisation, have never had their archaisms weeded out.
+The Scandinavian laws, harsh till lately to all females, are still
+remarkable for their severity to wives. And scarcely less stringent in
+the proprietary incapacities it imposes is the English Common Law,
+which borrows far the greatest number of its fundamental principles
+from the jurisprudence of the Canonists. Indeed, the part of the
+Common Law which prescribes the legal situation of married women may
+serve to give an Englishman clear notions of the great institution
+which has been the principal subject of this chapter. I do not know
+how the operation and nature of the ancient Patria Potestas can be
+brought so vividly before the mind as by reflecting on the
+prerogatives attached to the husband by the pure English Common Law,
+and by recalling the rigorous consistency with which the view of a
+complete legal subjection on the part of the wife is carried by it,
+where it is untouched by equity or statutes, through every department
+of rights, duties, and remedies. The distance between the eldest and
+latest Roman law on the subject of Children under Power may be
+considered as equivalent to the difference between the Common Law and
+the jurisprudence of the Court of Chancery in the rules which they
+respectively apply to wives.
+
+If we were to lose sight of the true origin of Guardianship in both
+its forms and were to employ the common language on these topics, we
+should find ourselves remarking that, while the Tutelage of Women is
+an instance in which systems of archaic law push to an extravagant
+length the fiction of suspended rights, the rules which they lay down
+for the Guardianship of Male Orphans are an example of a fault in
+precisely the opposite direction. All such systems terminate the
+Tutelage of males at an extraordinary early period. Under the ancient
+Roman law, which may be taken as their type, the son who was delivered
+from Patria Potestas by the death of his Father or Grandfather
+remained under guardianship till an epoch which for general purposes
+may be described as arriving with his fifteenth year; but the arrival
+of that epoch placed him at once in the full enjoyment of personal and
+proprietary independence. The period of minority appears therefore to
+have been as unreasonably short as the duration of the disabilities of
+women was preposterously long. But, in point of fact, there was no
+element either of excess or of shortcoming in the circumstances which
+gave their original form to the two kinds of guardianship. Neither the
+one nor the other of them was based on the slightest consideration of
+public or private convenience. The guardianship of male orphans was no
+more designed originally to shield them till the arrival of years of
+discretion than the tutelage of women was intended to protect the
+other sex against its own feebleness. The reason why the death of the
+father delivered the son from the bondage of the family was the son's
+capacity for becoming himself the head of a new family and the founder
+of a new Patria Potestas; no such capacity was possessed by the woman
+and therefore she was _never_ enfranchised. Accordingly the
+Guardianship of Male Orphans was a contrivance for keeping alive the
+semblance of subordination to the family of the Parent, up to the time
+when the child was supposed capable of becoming a parent himself. It
+was a prolongation of the Patria Potestas up to the period of bare
+physical manhood. It ended with puberty, for the rigour of the theory
+demanded that it should do so. Inasmuch, however, as it did not
+profess to conduct the orphan ward to the age of intellectual maturity
+or fitness for affairs, it was quite unequal to the purposes of
+general convenience; and this the Romans seem to have discovered at a
+very early stage of their social progress. One of the very oldest
+monuments of Roman legislation is the _Lex Laetoria_ or _Plaetoria_
+which placed all free males who were of full years and rights under
+the temporary control of a new class of guardians, called _Curatores_,
+whose sanction was required to validate their acts or contracts. The
+twenty-sixth year of the young man's age was the limit of this
+statutory supervision; and it is exclusively with reference to the age
+of twenty-five that the terms "majority" and "minority" are employed
+in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had
+adjusted itself with tolerable regularity to the simple principle of
+protection to the immaturity of youth both bodily and mental. It has
+its natural termination with years of discretion. But for protection
+against physical weakness and for protection against intellectual
+incapacity, the Romans looked to two different institutions, distinct
+both in theory and design. The ideas attendant on both are combined in
+the modern idea of guardianship.
+
+The Law of Persons contains but one other chapter which can be
+usefully cited for our present purpose. The legal rules by which
+systems of nature jurisprudence regulate the connection of _Master and
+Slave_, present no very distinct traces of the original condition
+common to ancient societies. But there are reasons for this exception.
+There seems to be something in the institution of Slavery which has at
+all times either shocked or perplexed mankind, however little
+habituated to reflection, and however slightly advanced in the
+cultivation of its moral instincts. The compunction which ancient
+communities almost unconsciously experienced appears to have always
+resulted in the adoption of some imaginary principle upon which a
+defence, or at least a rationale, of slavery could be plausibly
+founded. Very early in their history the Greeks explained the
+institution as grounded on the intellectual inferiority of certain
+races and their consequent natural aptitude for the servile condition.
+The Romans, in a spirit equally characteristic, derived it from a
+supposed agreement between the victor and the vanquished in which the
+first stipulated for the perpetual services of his foe; and the other
+gained in consideration the life which he had legitimately forfeited.
+Such theories were not only unsound but plainly unequal to the case
+for which they affected to account. Still they exercised powerful
+influence in many ways. They satisfied the conscience of the Master.
+They perpetuated and probably increased the debasement of the Slave.
+And they naturally tended to put out of sight the relation in which
+servitude had originally stood to the rest of the domestic system. The
+relation, though not clearly exhibited, is casually indicated in many
+parts of primitive law, and more particularly in the typical
+system--that of ancient Rome.
+
+Much industry and some learning have been bestowed in the United
+States of America on the question whether the Slave was in the early
+stages of society a recognised member of the Family. There is a sense
+in which an affirmative answer must certainly be given. It is clear,
+from the testimony both of ancient law and of many primeval histories,
+that the Slave might under certain conditions be made the Heir, or
+Universal Successor, of the Master, and this significant faculty, as I
+shall explain in the Chapter on Succession, implies that the
+government and representation of the Family might, in a particular
+state of circumstances, devolve on the bondman. It seems, however, to
+be assumed in the American arguments on the subject that, if we allow
+Slavery to have been a primitive Family institution, the
+acknowledgment is pregnant with an admission of the moral
+defensibility of Negro-servitude at the present moment. What then is
+meant by saying that the Slave was originally included in the Family?
+Not that his situation may not have been the fruit of the coarsest
+motives which can actuate man. The simple wish to use the bodily
+powers of another person as a means of ministering to one's own ease
+or pleasure is doubtless the foundation of Slavery, and as old as
+human nature. When we speak of the Slave as anciently included in the
+Family, we intend to assert nothing as to the motives of those who
+brought him into it or kept him there; we merely imply that the tie
+which bound him to his master was regarded as one of the same general
+character with that which united every other member of the group to
+its chieftain. This consequence is, in fact, carried in the general
+assertion already made that the primitive ideas of mankind were
+unequal to comprehending any basis of the connection _inter se_ of
+individuals, apart from the relations of family. The Family consisted
+primarily of those who belonged to it by consanguinity and next of
+those who had been engrafted on it by adoption; but there was still a
+third class of persons who were only joined to it by common subjection
+to its head, and these were the Slaves. The born and the adopted
+subjects of the chief were raised above the Slave by the certainty
+that in the ordinary course of events they would be relieved from
+bondage and entitled to exercise powers of their own; but that the
+inferiority of the Slave was not such as to place him outside the pale
+of the Family, or such as to degrade him to the footing of inanimate
+property, is clearly proved, I think, by the many traces which remain
+of his ancient capacity for inheritance in the last resort. It would,
+of course, be unsafe in the highest degree to hazard conjectures how
+far the lot of the Slave was mitigated, in the beginnings of society,
+by having a definite place reserved to him in the empire of the
+Father. It is, perhaps, more probable that the son was practically
+assimilated to the Slave, than that the Slave shared any of the
+tenderness which in later times was shown to the son. But it may be
+asserted with some confidence of advanced and matured codes that,
+wherever servitude is sanctioned, the Slave has uniformly greater
+advantages under systems which preserve some memento of his earlier
+condition than under those which have adopted some other theory of his
+civil degradation. The point of view from which jurisprudence regards
+the Slave is always of great importance to him. The Roman law was
+arrested in its growing tendency to look upon him more and more as an
+article of property by the theory of the Law of Nature; and hence it
+is that, wherever servitude is sanctioned by institutions which have
+been deeply affected by Roman jurisprudence, the servile condition is
+never intolerably wretched. There is a great deal of evidence that in
+those American States which have taken the highly Romanised code of
+Louisiana as the basis of their jurisprudence, the lot and prospects
+of the negro-population are better in many material respects than
+under institutions founded on the English Common Law, which, as
+recently interpreted, has no true place for the Slave, and can only
+therefore regard him as a chattel.
+
+We have now examined all parts of the ancient Law of Persons which
+fall within the scope of this treatise, and the result of the inquiry
+is, I trust, to give additional definiteness and precision to our view
+of the infancy of jurisprudence. The Civil laws of States first make
+their appearance as the Themistes of a patriarchal sovereign, and we
+can now see that these Themistes are probably only a developed form of
+the irresponsible commands which, in a still earlier condition of the
+race, the head of each isolated household may have addressed to his
+wives, his children, and his slaves. But, even after the State has
+been organised, the laws have still an extremely limited application.
+Whether they retain their primitive character as Themistes, or whether
+they advance to the condition of Customs or Codified Texts, they are
+binding not on individuals, but on Families. Ancient jurisprudence, if
+a perhaps deceptive comparison may be employed, may be likened to
+International Law, filling nothing, as it were, excepting the
+interstices between the great groups which are the atoms of society.
+In a community so situated, the legislation of assemblies and the
+jurisdiction of Courts reaches only to the heads of families, and to
+every other individual the rule of conduct is the law of his home, of
+which his Parent is the legislator. But the sphere of civil law, small
+at first, tends steadily to enlarge itself. The agents of legal
+change, Fictions, Equity, and Legislation, are brought in turn to bear
+on the primeval institutions, and at every point of the progress, a
+greater number of personal rights and a larger amount of property are
+removed from the domestic forum to the cognisance of the public
+tribunals. The ordinances of the government obtain gradually the same
+efficacy in private concerns as in matters of state, and are no longer
+liable to be overridden by the behests of a despot enthroned by each
+hearthstone. We have in the annals of Roman law a nearly complete
+history of the crumbling away of an archaic system, and of the
+formation of new institutions from the recombined materials,
+institutions some of which descended unimpaired to the modern world,
+while others, destroyed or corrupted by contact with barbarism in the
+dark ages, had again to be recovered by mankind. When we leave this
+jurisprudence at the epoch of its final reconstruction by Justinian,
+few traces of archaism can be discovered in any part of it except in
+the single article of the extensive powers still reserved to the
+living Parent. Everywhere else principles of convenience, or of
+symmetry, or of simplification--new principles at any rate--have
+usurped the authority of the jejune considerations which satisfied the
+conscience of ancient times. Everywhere a new morality has displaced
+the canons of conduct and the reasons of acquiescence which were in
+unison with the ancient usages, because in fact they were born of
+them.
+
+The movement of the progressive societies has been uniform in one
+respect. Through all its course it has been distinguished by the
+gradual dissolution of family dependency and the growth of individual
+obligation in its place. The Individual is steadily substituted for
+the Family, as the unit of which civil laws take account. The advance
+has been accomplished at varying rates of celerity, and there are
+societies not absolutely stationary in which the collapse of the
+ancient organisation can only be perceived by careful study of the
+phenomena they present. But, whatever its pace, the change has not
+been subject to reaction or recoil, and apparent retardations will be
+found to have been occasioned through the absorption of archaic ideas
+and customs from some entirely foreign source. Nor is it difficult to
+see what is the tie between man and man which replaces by degrees
+those forms of reciprocity in rights and duties which have their
+origin in the Family. It is Contract. Starting, as from one terminus
+of history, from a condition of society in which all the relations of
+Persons are summed up in the relations of Family, we seem to have
+steadily moved towards a phase of social order in which all these
+relations arise from the free agreement of Individuals. In Western
+Europe the progress achieved in this direction has been considerable.
+Thus the status of the Slave has disappeared--it has been superseded
+by the contractual relation of the servant to his master. The status
+of the Female under Tutelage, if the tutelage be understood of persons
+other than her husband, has also ceased to exist; from her coming of
+age to her marriage all the relations she may form are relations of
+contract. So too the status of the Son under Power has no true place
+in law of modern European societies. If any civil obligation binds
+together the Parent and the child of full age, it is one to which only
+contract gives its legal validity. The apparent exceptions are
+exceptions of that stamp which illustrate the rule. The child before
+years of discretion, the orphan under guardianship, the adjudged
+lunatic, have all their capacities and incapacities regulated by the
+Law of Persons. But why? The reason is differently expressed in the
+conventional language of different systems, but in substance it is
+stated to the same effect by all. The great majority of Jurists are
+constant to the principle that the classes of persons just mentioned
+are subject to extrinsic control on the single ground that they do not
+possess the faculty of forming a judgment on their own interests; in
+other words, that they are wanting in the first essential of an
+engagement by Contract.
+
+The word Status may be usefully employed to construct a formula
+expressing the law of progress thus indicated, which, whatever be its
+value, seems to me to be sufficiently ascertained. All the forms of
+Status taken notice of in the Law of Persons were derived from, and to
+some extent are still coloured by, the powers and privileges anciently
+residing in the Family. If then we employ Status, agreeably with the
+usage of the best writers, to signify these personal conditions only,
+and avoid applying the term to such conditions as are the immediate or
+remote result of agreement, we may say that the movement of the
+progressive societies has hitherto been a movement _from Status to
+Contract_.
+
+
+
+
+CHAPTER VI
+
+THE EARLY HISTORY OF TESTAMENTARY SUCCESSION
+
+
+If an attempt were made to demonstrate in England the superiority of
+the historical method of investigation to the modes of inquiry
+concerning Jurisprudence which are in fashion among us, no department
+of Law would better serve as an example than Testaments or Wills. Its
+capabilities it owes to its great length and great continuity. At the
+beginning of its history we find ourselves in the very infancy of the
+social state, surrounded by conceptions which it requires some effort
+of mind to realise in their ancient form; while here, at the other
+extremity of its line of progress, we are in the midst of legal
+notions which are nothing more than those same conceptions disguised
+by the phraseology and by the habits of thought which belong to modern
+times, and exhibiting therefore a difficulty of another kind, the
+difficulty of believing that ideas which form part of our everyday
+mental stock can really stand in need of analysis and examination. The
+growth of the Law of Wills between these extreme points can be traced
+with remarkable distinctness. It was much less interrupted at the
+epoch of the birth of feudalism, than the history of most other
+branches of law. It is, indeed, true that, as regards all provinces of
+jurisprudence, the break caused by the division between ancient and
+modern history, or in other words by the dissolution of the Roman
+empire, has been very greatly exaggerated. Indolence has disinclined
+many writers to be at the pains of looking for threads of connection
+entangled and obscured by the confusions of six troubled centuries,
+while other inquirers, not naturally deficient in patience and
+industry, have been misled by idle pride in the legal system of their
+country, and by consequent unwillingness to confess its obligations to
+the jurisprudence of Rome. But these unfavourable influences have had
+comparatively little effect on the province of Testamentary Law. The
+barbarians were confessedly strangers to any such conception as that
+of a Will. The best authorities agree that there is no trace of it in
+those parts of their written codes which comprise the customs
+practised by them in their original seats, and in their subsequent
+settlements on the edge of the Roman empire. But soon after they
+became mixed with the population of the Roman provinces they
+appropriated from the Imperial jurisprudence the conception of a Will,
+at first in part, and afterwards in all its integrity. The influence
+of the Church had much to do with this rapid assimilation. The
+ecclesiastical power had very early succeeded to those privileges of
+custody and registration of Testaments which several of the heathen
+temples had enjoyed; and even thus early it was almost exclusively to
+private bequests that the religious foundations owed their temporal
+possessions. Hence it is that the decrees of the earliest Provincial
+Councils perpetually contain anathemas against those who deny the
+sanctity of Wills. Here, in England, Church influence was certainly
+chief among the causes which by universal acknowledgment have
+prevented that discontinuity in the history of Testamentary Law, which
+is sometimes believed to exist in the history of other provinces of
+Jurisprudence. The jurisdiction over one class of Wills was delegated
+to the Ecclesiastical Courts, which applied to them, though not always
+intelligently, the principles of Roman jurisprudence; and, though
+neither the courts of Common Law nor the Court of Chancery owned any
+positive obligation to follow the Ecclesiastical tribunals, they could
+not escape the potent influence of a system of settled rules in course
+of application by their side. The English law of testamentary
+succession to personalty has become a modified form of the
+dispensation under which the inheritances of Roman citizens were
+administered.
+
+It is not difficult to point out the extreme difference of the
+conclusions forced on us by the historical treatment of the subject
+from those to which we are conducted when, without the help of
+history, we merely strive to analyse our _prima facie_ impressions. I
+suppose there is nobody who, starting from the popular or even the
+legal conception of a Will, would not imagine that certain qualities
+are necessarily attached to it. He would say, for example, that a Will
+necessarily takes effect _at death only_--that it is _secret_, not
+known as a matter of course to persons taking interests under its
+provisions--that it is _revocable_, _i.e._ always capable of being
+superseded by a new act of testation. Yet I shall be able to show
+that there was a time when none of these characteristics belonged to a
+Will. The Testaments from which our Wills are directly descended at
+first took effect immediately on their execution; they were not
+secret; they were not revocable. Few legal agencies are, in fact, the
+fruit of more complex historical agencies than that by which a man's
+written intentions control the posthumous disposition of his goods.
+Testaments very slowly and gradually gathered round them the qualities
+I have mentioned; and they did this from causes and under pressure of
+events which may be called casual, or which at any rate have no
+interest for us at present, except so far as they have affected the
+history of law.
+
+At a time when legal theories were more abundant than at
+present--theories which, it is true, were for the most part gratuitous
+and premature enough, but which nevertheless rescued jurisprudence
+from that worse and more ignoble condition, not unknown to ourselves,
+in which nothing like a generalisation is aspired to, and law is
+regarded as a mere empirical pursuit--it was the fashion to explain
+the ready and apparently intuitive perception which we have of certain
+qualities in a Will, by saying that they were natural to it, or, as
+the phrase would run in full, attached to it by the Law of Nature.
+Nobody, I imagine, would affect to maintain such a doctrine, when once
+it was ascertained that all these characteristics had their origin
+within historical memory; at the same time, vestiges of the theory of
+which the doctrine is an offshoot, linger in forms of expression which
+we all of us use and perhaps scarcely know how to dispense with. I may
+illustrate this by mentioning a position common in the legal
+literature of the seventeenth century. The jurists of that period very
+commonly assert that the power of Testation itself is of Natural Law,
+that it is a right conferred by the Law of Nature. Their teaching,
+though all persons may not at once see the connection, is in substance
+followed by those who affirm that the right of dictating or
+controlling the posthumous disposal of property is a necessary or
+natural consequence of the proprietary rights themselves. And every
+student of technical jurisprudence must have come across the same
+view, clothed in the language of a rather different school, which, in
+its rationale of this department of law, treats succession _ex
+testamento_ as the mode of devolution which the property of deceased
+persons ought primarily to follow, and then proceeds to account for
+succession _ab intestato_ as the incidental provision of the lawgiver
+for the discharge of a function which was only left unperformed
+through the neglect or misfortune of the deceased proprietor. These
+opinions are only expanded forms of the more compendious doctrine that
+Testamentary disposition is an institution of the Law of Nature. It is
+certainly never quite safe to pronounce dogmatically as to the range
+of association embraced by modern minds, when they reflect on Nature
+and her Law; but I believe that most persons, who affirm that the
+Testamentary Power is of Natural Law, may be taken to imply either
+that, as a matter of fact, it is universal, or that nations are
+prompted to sanction it by an original instinct and impulse. With
+respect to the first of these positions, I think that, when explicitly
+set forth, it can never be seriously contended for in an age which has
+seen the severe restraints imposed on the Testamentary Power by the
+_Code Napoleon_, and has witnessed the steady multiplication of
+systems for which the French codes have served as a model. To the
+second assertion we must object that it is contrary to the
+best-ascertained facts in the early history of law, and I venture to
+affirm generally that, in all indigenous societies, a condition of
+jurisprudence in which Testamentary privileges are _not_ allowed, or
+rather not contemplated, has preceded that later stage of legal
+development in which the mere will of the proprietor is permitted
+under more or less of restriction to override the claims of his
+kindred in blood.
+
+The conception of a Will or Testament cannot be considered by itself.
+It is a member, and not the first, of a series of conceptions. In
+itself a Will is simply the instrument by which the intention of the
+testator is declared. It must be clear, I think, that before such an
+instrument takes its turn for discussion, there are several
+preliminary points to be examined--as, for example, what is it, what
+sort of right or interest, which passes from a dead man on his
+decease? to whom and in what form does it pass? and how came it that
+the dead were allowed to control the posthumous disposition of their
+property? Thrown into technical language, the dependence of the
+various conceptions which contribute to the notion of a Will is thus
+expressed. A Will or Testament is an instrument by which the
+devolution of an inheritance is prescribed. Inheritance is a form of
+universal succession. A universal succession is a succession to a
+_universitas juris_, or university of rights and duties. Inverting
+this order we have therefore to inquire what is a _universitas juris_;
+what is a universal succession; what is the form of universal
+succession which is called an inheritance? And there are also two
+further questions, independent to some extent of the points I have
+mooted, but demanding solution before the subject of Wills can be
+exhausted. These are, how came an inheritance to be controlled in any
+case by the testator's volition, and what is the nature of the
+instrument by which it came to be controlled?
+
+The first question relates to the _universitas juris_; that is, a
+university (or bundle) of rights and duties. A _universitas juris_ is
+a collection of rights and duties united by the single circumstance of
+their having belonged at one time to some one person. It is, as it
+were, the legal clothing of some given individual. It is not formed by
+grouping together _any_ rights and _any_ duties. It can only be
+constituted by taking all the rights and all the duties of a
+particular person. The tie which so connects a number of rights of
+property, rights of way, rights to legacies, duties of specific
+performance, debts, obligations to compensate wrongs--which so
+connects all these legal privileges and duties together as to
+constitute them a _universitas juris_, is the _fact_ of their having
+attached to some individual capable of exercising them. Without this
+_fact_ there is no university of rights and duties. The expression
+_universitas juris_ is not classical, but for the notion jurisprudence
+is exclusively indebted to Roman law; nor is it at all difficult to
+seize. We must endeavour to collect under one conception the whole set
+of legal relations in which each one of us stands to the rest of the
+world. These, whatever be their character and composition, make up
+together a _universitas juris_; and there is but little danger of
+mistake in forming the notion, if we are only careful to remember that
+duties enter into it quite as much as rights. Our duties may
+overbalance our rights. A man may owe more than he is worth, and
+therefore if a money value is set on his collective legal relations he
+may be what is called insolvent. But for all that the entire group of
+rights and duties which centres in him is not the less a "juris
+universitas."
+
+We come next to a "universal succession." A universal succession is a
+succession to a _universitas juris_. It occurs when one man is
+invested with the legal clothing of another, becoming at the same
+moment subject to all his liabilities and entitled to all his rights.
+In order that the universal succession may be true and perfect, the
+devolution must take place _uno ictu_, as the jurists phrase it. It is
+of course possible to conceive one man acquiring the whole of the
+rights and duties of another at different periods, as for example by
+successive purchases; or he might acquire them in different
+capacities, part as heir, part as purchaser, part as legatee. But
+though the group of rights and duties thus made up should in fact
+amount to the whole legal personality of a particular individual, the
+acquisition would not be a universal succession. In order that there
+may be a true universal succession, the transmission must be such as
+to pass the whole aggregate of rights and duties at the _same_ moment
+and in virtue of the _same_ legal capacity in the recipient. The
+notion of a universal succession, like that of a juris universitas, is
+permanent in jurisprudence, though in the English legal system it is
+obscured by the great variety of capacities in which rights are
+acquired, and, above all, by the distinction between the two great
+provinces of English property, "realty" and "personalty." The
+succession of an assignee in bankruptcy to the entire property of the
+bankrupt is, however, a universal succession, though as the assignee
+only pays debts to the extent of the assets, this is only a modified
+form of the primary notion. Were it common among us for persons to
+take assignments of _all_ a man's property on condition of paying
+_all_ his debts, such transfers would exactly resemble the universal
+successions known to the oldest Roman Law. When a Roman citizen
+_adrogated_ a son, _i.e._ took a man, not already under Patria
+Potestas, as his adoptive child, he succeeded _universally_ to the
+adoptive child's estate, _i.e._ he took all the property and became
+liable for all the obligations. Several other forms of universal
+succession appear in the primitive Roman Law, but infinitely the most
+important and the most durable of all was that one with which we are
+more immediately concerned, Haereditas or Inheritance. Inheritance was
+a universal succession occurring at a death. The universal successor
+was Haeres or Heir. He stepped at once into all the rights and all the
+duties of the dead man. He was instantly clothed with his entire legal
+person, and I need scarcely add that the special character of the
+Haeres remained the same, whether he was named by a Will or whether he
+took on an Intestacy. The term Haeres is no more emphatically used of
+the Intestate than of the Testamentary Heir, for the manner in which a
+man became Haeres had nothing to do with the legal character he
+sustained. The dead man's universal successor, however he became so,
+whether by Will or by Intestacy, was his Heir. But the Heir was not
+necessarily a single person. A group of persons considered in law as a
+single unit, might succeed as _co-heirs_ to the Inheritance.
+
+Let me now quote the usual Roman definition of an Inheritance. The
+reader will be in a position to appreciate the full force of the
+separate terms. _Haereditas est successio in universum jus quod
+defunctus habuit_ ("an inheritance is a succession to the entire legal
+position of a deceased man"). The notion was that, though the physical
+person of the deceased had perished, his legal personality survived
+and descended unimpaired on his Heir or Co-heirs, in whom his identity
+(so far as the law was concerned) was continued. Our own law, in
+constituting the Executor or Administrator the representative of the
+deceased to the extent of his personal assets, may serve as an
+illustration of the theory from which it emanated, but, although it
+illustrates, it does not explain it. The view of even the later Roman
+Law required a closeness of correspondence between the position of the
+deceased and of his Heir which is no feature of an English
+representation; and in the primitive jurisprudence everything turned
+on the continuity of succession. Unless provision was made in the will
+for the instant devolution of the testator's rights and duties on the
+Heir or Co-heirs, the testament lost all its effect.
+
+In modern Testamentary jurisprudence, as in the later Roman law, the
+object of first importance is the execution of the testator's
+intentions. In the ancient law of Rome the subject of corresponding
+carefulness was the bestowal of the Universal Succession. One of these
+rules seems to our eyes a principle dictated by common sense, while
+the other looks very much like an idle crotchet. Yet that without the
+second of them the first would never have come into being is as
+certain as any proposition of the kind can be.
+
+In order to solve this apparent paradox, and to bring into greater
+clearness the train of ideas which I have been endeavouring to
+indicate, I must borrow the results of the inquiry which was attempted
+in the earlier portion of the preceding chapter. We saw one
+peculiarity invariably distinguishing the infancy of society. Men are
+regarded and treated, not as individuals, but always as members of a
+particular group. Everybody is first a citizen, and then, as a
+citizen, he is a member of his order--of an aristocracy or a
+democracy, of an order of patricians or plebeians; or, in those
+societies which an unhappy fate has afflicted with a special
+perversion in their course of development, of a caste. Next, he is a
+member of a gens, house, or clan; and lastly, he is a member of his
+_family_. This last was the narrowest and most personal relation in
+which he stood; nor, paradoxical as it may seem, was he ever regarded
+as _himself_, as a distinct individual. His individuality was
+swallowed up in his family. I repeat the definition of a primitive
+society given before. It has for its units, not individuals, but
+groups of men united by the reality or the fiction of blood-relationship.
+
+It is in the peculiarities of an undeveloped society that we seize the
+first trace of a universal succession. Contrasted with the
+organisation of a modern state, the commonwealths of primitive times
+may be fairly described as consisting of a number of little despotic
+governments, each perfectly distinct from the rest, each absolutely
+controlled by the prerogative of a single monarch. But though the
+Patriarch, for we must not yet call him the Pater-familias, had rights
+thus extensive, it is impossible to doubt that he lay under an equal
+amplitude of obligations. If he governed the family, it was for its
+behoof. If he was lord of its possessions, he held them as trustee for
+his children and kindred. He had no privilege or position distinct
+from that conferred on him by his relation to the petty commonwealth
+which he governed. The Family, in fact, was a Corporation; and he was
+its representative or, we might almost say, its Public officer. He
+enjoyed rights and stood under duties, but the rights and the duties
+were, in the contemplation of his fellow-citizens and in the eye of
+the law, quite as much those of the collective body as his own. Let us
+consider for a moment the effect which would be produced by the death
+of such a representative. In the eye of the law, in the view of the
+civil magistrate, the demise of the domestic authority would be a
+perfectly immaterial event. The person representing the collective
+body of the family and primarily responsible to municipal jurisdiction
+would bear a different name; and that would be all. The rights and
+obligations which attached to the deceased head of the house would
+attach, without breach of continuity, to his successor; for, in point
+of fact, they would be the rights and obligations of the family, and
+the family had the distinctive characteristic of a corporation--that
+it never died. Creditors would have the same remedies against the new
+chieftain as against the old, for the liability being that of the
+still existing family would be absolutely unchanged. All rights
+available to the family would be as available after the demise of the
+headship as before it--except that the Corporation would be
+obliged--if indeed language so precise and technical can be properly
+used of these early times--would be obliged to _sue_ under a slightly
+modified name.
+
+The history of jurisprudence must be followed in its whole course, if
+we are to understand how gradually and tardily society dissolved
+itself into the component atoms of which it is now constituted--by
+what insensible gradations the relation of man to man substituted
+itself for the relation of the individual to his family and of
+families to each other. The point now to be attended to is that even
+when the revolution had apparently quite accomplished itself, even
+when the magistrate had in great measure assumed the place of the
+Pater-familias, and the civil tribunal substituted itself for the
+domestic forum, nevertheless the whole scheme of rights and duties
+administered by the judicial authorities remained shaped by the
+influence of the obsolete privileges and coloured in every part by
+their reflection. There seems little question that the devolution of
+the Universitas Juris, so strenuously insisted upon by the Roman Law
+as the first condition of a testamentary or intestate succession, was
+a feature of the older form of society which men's minds had been
+unable to dissociate from the new, though with that newer phase it had
+no true or proper connection. It seems, in truth, that the
+prolongation of a man's legal existence in his heir, or in a group of
+co-heirs, is neither more nor less than a characteristic of _the
+family_ transferred by a fiction to _the individual_. Succession in
+corporations is necessarily universal, and the family was a
+corporation. Corporations never die. The decease of individual members
+makes no difference to the collective existence of the aggregate body,
+and does not in any way affect its legal incidents, its faculties or
+liabilities. Now in the idea of a Roman universal succession all
+these qualities of a corporation seem to have been transferred to the
+individual citizen. His physical death is allowed to exercise no
+effect on the legal position which he filled, apparently on the
+principle that that position is to be adjusted as closely as possible
+to the analogies of a family, which, in its corporate character, was
+not of course liable to physical extinction.
+
+I observe that not a few continental jurists have much difficulty in
+comprehending the nature of the connection between the conceptions
+blended in a universal succession, and there is perhaps no topic in
+the philosophy of jurisprudence on which their speculations, as a
+general rule, possess so little value. But the student of English law
+ought to be in no danger of stumbling at the analysis of the idea
+which we are examining. Much light is cast upon it by a fiction in our
+own system with which all lawyers are familiar. English lawyers
+classify corporations as Corporations aggregate and Corporations sole.
+A Corporation aggregate is a true Corporation, but a Corporation sole
+is an individual, being a member of a series of individuals, who is
+invested by a fiction with the qualities of a Corporation. I need
+hardly cite the King or the Parson of a Parish as instances of
+Corporations sole. The capacity or office is here considered apart
+from the particular person who from time to time may occupy it, and,
+this capacity being perpetual, the series of individuals who fill it
+are clothed with the leading attribute of Corporations--Perpetuity.
+Now in the older theory of Roman Law the individual bore to the family
+precisely the same relation which in the rationale of English
+jurisprudence a Corporation sole bears to a Corporation aggregate. The
+derivation and association of ideas are exactly the same. In fact, if
+we say to ourselves that for purposes of Roman Testamentary
+Jurisprudence each individual citizen was a Corporation sole, we shall
+not only realise the full conception of an inheritance, but have
+constantly at command the clue to the assumption in which it
+originated. It is an axiom with us that the King never dies, being a
+Corporation sole. His capacities are instantly filled by his
+successor, and the continuity of dominion is not deemed to have been
+interrupted. With the Romans it seemed an equally simple and natural
+process, to eliminate the fact of death from the devolution of rights
+and obligations. The testator lived on in his heir or in the group of
+his co-heirs. He was in law the same person with them, and if any one
+in his testamentary dispositions had even constructively violated the
+principle which united his actual and his posthumous existence, the
+law rejected the defective instrument, and gave the inheritance to the
+kindred in blood, whose capacity to fulfil the conditions of heirship
+was conferred on them by the law itself, and not by any document which
+by possibility might be erroneously framed.
+
+When a Roman citizen died intestate or leaving no valid Will, his
+descendants or kindred became his heirs according to a scale which
+will be presently described. The person or class of persons who
+succeeded did not simply _represent_ the deceased, but, in conformity
+with the theory just delineated, they _continued_ his civil life, his
+legal existence. The same results followed when the order of
+succession was determined by a Will, but the theory of the identity
+between the dead man and his heirs was certainly much older than any
+form of Testament or phase of Testamentary jurisprudence. This indeed
+is the proper moment for suggesting a doubt which will press on us
+with greater force the further we plumb the depths of this
+subject,--whether _wills_ would ever have come into being at all if it
+had not been for these remarkable ideas connected with universal
+succession. Testamentary law is the application of a principle which
+may be explained on a variety of philosophical hypotheses as plausible
+as they are gratuitous; it is interwoven with every part of modern
+society, and it is defensible on the broadest grounds of general
+expediency. But the warning can never be too often repeated, that the
+grand source of mistake in questions of jurisprudence is the
+impression that those reasons which actuate us at the present moment,
+in the maintenance of an existing institution, have necessarily
+anything in common with the sentiment in which the institution
+originated. It is certain that, in the old Roman Law of Inheritance,
+the notion of a will or testament is inextricably mixed up, I might
+almost say confounded, with the theory of a man's posthumous existence
+in the person of his heir.
+
+The conception of a universal succession, firmly as it has taken root
+in jurisprudence, has not occurred spontaneously to the framers of
+every body of laws. Wherever it is now found, it may be shown to have
+descended from Roman law; and with it have come down a host of legal
+rules on the subject of Testaments and Testamentary gifts, which
+modern practitioners apply without discerning their relation to the
+parent theory. But, in the pure Roman jurisprudence, the principle
+that a man lives on in his Heir--the elimination, if we may so speak,
+of the fact of death--is too obviously for mistake the centre round
+which the whole Law of Testamentary and Intestate succession is
+circling. The unflinching sternness of the Roman law in enforcing
+compliance with the governing theory would in itself suggest that the
+theory grew out of something in the primitive constitution of Roman
+society; but we may push the proof a good way beyond the presumption.
+It happens that several technical expressions, dating from the
+earliest institution of Wills at Rome, have been accidentally
+preserved to us. We have in Gaius the formula of investiture by which
+the universal successor was created. We have the ancient name by which
+the person afterwards called Heir was at first designated. We have
+further the text of the celebrated clause in the Twelve Tables by
+which the Testamentary power was expressly recognised, and the clauses
+regulating Intestate Succession have also been preserved. All these
+archaic phrases have one salient peculiarity. They indicate that what
+passed from the Testator to the Heir was the _Family_, that is, the
+aggregate of rights and duties contained in the Patria Potestas and
+growing out of it. The material property is in three instances not
+mentioned at all; in two others, it is visibly named as an adjunct or
+appendage of the Family. The original Will or Testament was therefore
+an instrument, or (for it was probably not at first in writing) a
+proceeding, by which the devolution of the _Family_ was regulated. It
+was a mode of declaring who was to have the chieftainship, in
+succession to the Testator. When Wills are understood to have this for
+their original object, we see at once how it is that they came to be
+connected with one of the most curious relics of ancient religion and
+law, the _sacra_, or Family Rites. These _sacra_ were the Roman form
+of an institution which shows itself wherever society has not wholly
+shaken itself free from its primitive clothing. They are the
+sacrifices and ceremonies by which the brotherhood of the family is
+commemorated, the pledge and the witness of its perpetuity. Whatever
+be their nature,--whether it be true or not that in all cases they are
+the worship of some mythical ancestor,--they are everywhere employed
+to attest the sacredness of the family-relation; and therefore they
+acquire prominent significance and importance, whenever the continuous
+existence of the Family is endangered by a change in the person of its
+chief. Accordingly we hear most about them in connection with demises
+of domestic sovereignty. Among the Hindoos, the right to inherit a
+dead man's property is exactly co-extensive with the duty of
+performing his obsequies. If the rites are not properly performed or
+not performed by the proper person, no relation is considered as
+established between the deceased and anybody surviving him; the Law of
+Succession does not apply, and nobody can inherit the property. Every
+great event in the life of a Hindoo seems to be regarded as leading up
+to and bearing upon those solemnities. If he marries, it is to have
+children who may celebrate them after his death; if he has no
+children, he lies under the strongest obligation to adopt them from
+another family, "with a view," writes the Hindoo doctor, "to the
+funeral cake, the water, and the solemn sacrifice." The sphere
+preserved to the Roman _sacra_ in the time of Cicero, was not less in
+extent. It embraced Inheritances and Adoptions. No Adoption was
+allowed to take place without due provision for the _sacra_ of the
+family from which the adoptive son was transferred, and no Testament
+was allowed to distribute an Inheritance without a strict
+apportionment of the expenses of these ceremonies among the different
+co-heirs. The differences between the Roman law at this epoch, when we
+obtain our last glimpse of the _sacra_, and the existing Hindoo
+system, are most instructive. Among the Hindoos, the religious element
+in law has acquired a complete predominance. Family sacrifices have
+become the keystone of all the Law of Persons and much of the Law of
+Things. They have even received a monstrous extension, for it is a
+plausible opinion that the self-immolation of the widow at her
+husband's funeral, a practice continued to historical times by the
+Hindoos, and commemorated in the traditions of several Indo-European
+races, was an addition grafted on the primitive _sacra_, under the
+influence of the impression, which always accompanies the idea of
+sacrifice, that human blood is the most precious of all oblations.
+With the Romans, on the contrary, the legal obligation and the
+religious duty have ceased to be blended. The necessity of solemnising
+the _sacra_ forms no part of the theory of civil law, but they are
+under the separate jurisdiction of the College of Pontiffs. The
+letters of Cicero to Atticus, which are full of allusions to them,
+leave no doubt that they constituted an intolerable burden on
+Inheritances; but the point of development at which law breaks away
+from religion has been passed, and we are prepared for their entire
+disappearance from the later jurisprudence.
+
+In Hindoo law there is no such thing as a true Will. The place filled
+by Wills is occupied by Adoptions. We can now see the relation of the
+Testamentary Power to the Faculty of Adoption, and the reason why the
+exercise of either of them could call up a peculiar solicitude for the
+performance of the _sacra_. Both a Will and an Adoption threaten a
+distortion of the ordinary course of Family descent, but they are
+obviously contrivances for preventing the descent being wholly
+interrupted, when there is no succession of kindred to carry it on. Of
+the two expedients Adoption, the factitious creation of
+blood-relationship, is the only one which has suggested itself to the
+greater part of archaic societies. The Hindoos have indeed advanced
+one point on what was doubtless the antique practice, by allowing the
+widow to adopt when the father has neglected to do so, and there are
+in the local customs of Bengal some faint traces of the Testamentary
+powers. But to the Romans belongs pre-eminently the credit of
+inventing the Will, the institution which, next to the Contract, has
+exercised the greatest influence in transforming human society. We
+must be careful not to attribute to it in its earliest shape the
+functions which have attended it in more recent times. It was at
+first, not a mode of distributing a dead man's goods, but one among
+several ways of transferring the representation of the household to a
+new chief. The goods descend no doubt to the Heir, but that is only
+because the government of the family carries with it in its devolution
+the power of disposing of the common stock. We are very far as yet
+from that stage in the history of Wills in which they become powerful
+instruments in modifying society through the stimulus they give to the
+circulation of property and the plasticity they produce in proprietary
+rights. No such consequences as these appear in fact to have been
+associated with the Testamentary power even by the latest Roman
+lawyers. It will be found that Wills were never looked upon in the
+Roman community as a contrivance for parting Property and the Family,
+or for creating a variety of miscellaneous interests, but rather as a
+means of making a better provision for the members of a household than
+could be secured through the rules of Intestate succession. We may
+suspect indeed that the associations of a Roman with the practice of
+will-making were extremely different from those familiar to us
+nowadays. The habit of regarding Adoption and Testation as modes of
+continuing the Family cannot but have had something to do with the
+singular laxity of Roman notions as to the inheritance of sovereignty.
+It is impossible not to see that the succession of the early Roman
+Emperors to each other was considered reasonably regular, and that, in
+spite of all that had occurred, no absurdity attached to the
+pretension of such Princes as Theodosius or Justinian to style
+themselves Caesar and Augustus.
+
+When the phenomena of primitive societies emerge into light, it seems
+impossible to dispute a proposition which the jurists of the
+seventeenth century considered doubtful, that Intestate Inheritance is
+a more ancient institution than Testamentary Succession. As soon as
+this is settled, a question of much interest suggests itself, how and
+under what conditions were the directions of a will first allowed to
+regulate the devolution of authority over the household, and
+consequently the posthumous distribution of property. The difficulty
+of deciding the point arises from the rarity of Testamentary power in
+archaic communities. It is doubtful whether a true power of testation
+was known to any original society except the Roman. Rudimentary forms
+of it occur here and there, but most of them are not exempt from the
+suspicion of a Roman origin. The Athenian will was, no doubt,
+indigenous, but then, as will appear presently, it was only an
+inchoate Testament. As to the Wills which are sanctioned by the bodies
+of law which have descended to us as the codes of the barbarian
+conquerors of Imperial Rome, they are almost certainly Roman. The most
+penetrating German criticism has recently been directed to these
+_leges Barbarorum_, the great object of investigation being to detach
+those portions of each system which formed the customs of the tribe in
+its original home from the adventitious ingredients which were
+borrowed from the laws of the Romans. In the course of this process,
+one result has invariably disclosed itself, that the ancient nucleus
+of the code contains no trace of a Will. Whatever testamentary law
+exists, has been taken from Roman jurisprudence. Similarly, the
+rudimentary Testament which (as I am informed) the Rabbinical Jewish
+law provides for, has been attributed to contact with the Romans. The
+only form of testament, not belonging to a Roman or Hellenic society,
+which can reasonably be supposed indigenous, is that recognised by the
+usages of the province of Bengal; and the testament of Bengal is only
+a rudimentary Will.
+
+The evidence, however, such as it is, seems to point to the conclusion
+that Testaments are at first only allowed to take effect on failure of
+the persons entitled to have the inheritance by right of blood genuine
+or fictitious. Thus, when Athenian citizens were empowered for the
+first time by the Laws of Solon to execute Testaments, they were
+forbidden to disinherit their direct male descendants. So, too, the
+Will of Bengal is only permitted to govern the succession so far as it
+is consistent with certain overriding claims of the family. Again, the
+original institutions of the Jews having provided nowhere for the
+privileges of Testatorship, the later Rabbinical jurisprudence, which
+pretends to supply the _casus omissi_ of the Mosaic law, allows the
+Power of Testation to attach when all the kindred entitled under the
+Mosaic system to succeed have failed or are undiscoverable. The
+limitations by which the ancient German codes hedge in the
+testamentary jurisprudence which has been incorporated with them are
+also significant, and point in the same direction. It is the
+peculiarity of most of these German laws, in the only shape in which
+we know them, that, besides the _allod_ or domain of each household,
+they recognise several subordinate kinds or orders of property, each
+of which probably represents a separate transfusion of Roman
+principles into the primitive body of Teutonic usage. The primitive
+German or allodial property is strictly reserved to the kindred. Not
+only is it incapable of being disposed of by testament but it is
+scarcely capable of being alienated by conveyance _inter vivos_. The
+ancient German law, like the Hindoo jurisprudence, makes the male
+children co-proprietors with their father, and the endowment of the
+family cannot be parted with except by the consent of all its members.
+But the other sorts of property, of more modern origin and lower
+dignity than the allodial possessions, are much more easily alienated
+than they, and follow much more lenient rules of devolution. Women
+and the descendants of women succeed to them, obviously on the
+principle that they lie outside the sacred precinct of the Agnatic
+brotherhood. Now, it is on these last descriptions of property, and on
+these only, that the Testaments borrowed from Rome were at first
+allowed to operate.
+
+These few indications may serve to lend additional plausibility to
+that which in itself appears to be the most probable explanation of an
+ascertained fact in the early history of Roman Wills. We have it
+stated on abundant authority that Testaments, during the primitive
+period of the Roman State, were executed in the Comitia Calata, that
+is, in the Comitia Curiata, or Parliament of the Patrician Burghers of
+Rome, when assembled for Private Business. This mode of execution has
+been the source of the assertion, handed down by one generation of
+civilians to another, that every Will at one era of Roman history was
+a solemn legislative enactment. But there is no necessity whatever for
+resorting to an explanation which has the defect of attributing far
+too much precision to the proceedings of the ancient assembly. The
+proper key to the story concerning the execution of Wills in the
+Comitia Calata must no doubt be sought in the oldest Roman Law of
+_intestate_ succession. The canons of primitive Roman jurisprudence
+regulating the inheritance of relations from each other were, so long
+as they remained unmodified by the Edictal Law of the Praetor, to the
+following effect:--First, the _sui_ or direct descendants who had
+never been emancipated succeeded. On the failure of the _sui_, the
+Nearest Agnate came into their place, that is, the nearest person or
+class of the kindred who was or might have been under the same Patria
+Potestas with the deceased. The third and last degree came next, in
+which the inheritance devolved on the _gentiles_, that is on the
+collective members of the dead man's _gens_ or _House_. The House, I
+have explained already, was a fictitious extension of the family,
+consisting of all Roman Patrician citizens who bore the same name, and
+who, on the ground of bearing the same name, were supposed to be
+descended from a common ancestor. Now the Patrician Assembly called
+the Comitia Curiata was a Legislature in which Gentes or Houses were
+exclusively represented. It was a representative assembly of the Roman
+people, constituted on the assumption that the constituent unit of the
+state was the Gens. This being so, the inference seems inevitable,
+that the cognizance of Wills by the Comitia was connected with the
+rights of the Gentiles, and was intended to secure them in their
+privilege of ultimate inheritance. The whole apparent anomaly is
+removed, if we suppose that a Testament could only be made when the
+testator had no _gentiles_ discoverable, or when they waived their
+claims, and that every Testament was submitted to the General Assembly
+of the Roman Gentes, in order that those aggrieved by its dispositions
+might put their veto upon it if they pleased, or by allowing it to
+pass might be presumed to have renounced their reversion. It is
+possible that on the eve of the publication of the Twelve Tables this
+vetoing power may have been greatly curtailed or only occasionally and
+capriciously exercised. It is much easier, however, to indicate the
+meaning and origin of the jurisdiction confided to the Comitia Calata,
+than to trace its gradual development or progressive decay.
+
+The Testament to which the pedigree of all modern Wills may be traced
+is not, however, the Testament executed in the Calata Comitia, but
+another Testament designed to compete with it and destined to
+supersede it. The historical importance of this early Roman Will, and
+the light it casts on much of ancient thought, will excuse me for
+describing it at some length.
+
+When the Testamentary power first discloses itself to us in legal
+history, there are signs that, like almost all the great Roman
+institutions, it was the subject of contention between the Patricians
+and the Plebeians. The effect of the political maxim, _Plebs Gentem
+non habet_, "a Plebeian cannot be a member of a House," was entirely
+to exclude the Plebeians from the Comitia Curiata. Some critics have
+accordingly supposed that a Plebeian could not have his Will read or
+recited to the Patrician Assembly, and was thus deprived of
+Testamentary privileges altogether. Others have been satisfied to
+point out the hardships of having to submit a proposed Will to the
+unfriendly jurisdiction of an assembly in which the Testator was not
+represented. Whatever be the true view, a form of Testament came into
+use, which has all the characteristics of a contrivance intended to
+evade some distasteful obligation. The Will in question was a
+conveyance _inter vivos_, a complete and irrevocable alienation of the
+Testator's family and substance to the person whom he meant to be his
+heir. The strict rules of Roman law must always have permitted such an
+alienation, but, when the transaction was intended to have a
+posthumous effect, there may have been disputes whether it was valid
+for Testamentary purposes without the formal assent of the Patrician
+Parliament. If a difference of opinion existed on the point between
+the two classes of the Roman population, it was extinguished, with
+many other sources of heartburning, by the great Decemviral
+compromise. The text of the Twelve Tables is still extant which says,
+"_Pater familias uti de pecunia tutelave rei suae legassit, ita jus
+esto_"--a law which can hardly have had any other object than the
+legalisation of the Plebeian Will.
+
+It is well known to scholars that, centuries after the Patrician
+Assembly had ceased to be the legislature of the Roman State, it still
+continued to hold formal sittings for the convenience of private
+business. Consequently, at a period long subsequent to the publication
+of the Decemviral Law, there is reason to believe that the Comitia
+Calata still assembled for the validation of Testaments. Its probable
+functions may be best indicated by saying that it was a Court of
+Registration, with the understanding however that the Wills exhibited
+were not _enrolled_, but simply recited to the members, who were
+supposed to take note of their tenor and to commit them to memory. It
+is very likely that this form of Testament was never reduced to
+writing at all, but at all events if the Will had been originally
+written, the office of the Comitia was certainly confined to hearing
+it read aloud, the document being retained afterwards in the custody
+of the Testator, or deposited under the safeguard of some religious
+corporation. This publicity may have been one of the incidents of the
+Testament executed in the Comitia Calata which brought it into popular
+disfavour. In the early years of the Empire the Comitia still held its
+meetings, but they seem to have lapsed into the merest form, and few
+Wills, or none, were probably presented at the periodical sitting.
+
+It is the ancient Plebeian Will--the alternative of the Testament just
+described--which in its remote effects has deeply modified the
+civilisation of the modern world. It acquired at Rome all the
+popularity which the Testament submitted to the Calata Comitia appears
+to have lost. The key to all its characteristics lies in its descent
+from the _mancipium_, or ancient Roman conveyance, a proceeding to
+which we may unhesitatingly assign the parentage of two great
+institutions without which modern society can scarcely be supposed
+capable of holding together, the Contract and the Will. The
+_mancipium_, or as the word would exhibit itself in later Latinity,
+the Mancipation, carries us back by its incidents to the infancy of
+civil society. As it sprang from times long anterior, if not to the
+invention, at all events to the popularisation, of the art of writing,
+gestures, symbolical acts, and solemn phrases take the place of
+documentary forms, and a lengthy and intricate ceremonial is intended
+to call the attention of the parties to the importance of the
+transaction, and to impress it on the memory of the witnesses. The
+imperfection too of oral, as compared with written, testimony
+necessitates the multiplication of the witnesses and assistants beyond
+what in later times would be reasonable or intelligible limits.
+
+The Roman Mancipation required the presence first of all of the
+parties, the vendor and vendee, or we should perhaps rather say, if we
+are to use modern legal language, the grantor and grantee. There were
+also no less than _five_ witnesses; and an anomalous personage, the
+Libripens, who brought with him a pair of scales to weigh the uncoined
+copper money of ancient Rome. The Testament we are considering--the
+Testament _per aes et libram_, "with the copper and the scales," as it
+long continued to be technically called--was an ordinary Mancipation
+with no change in the form and hardly any in words. The Testator was
+the grantor; the five witnesses and the libripens were present; and
+the place of grantee was taken by a person known technically as the
+_familiae emptor_, the Purchaser of the Family. The ordinary ceremony
+of a Mancipation was then proceeded with. Certain formal gestures were
+made and sentences pronounced. The _Emptor familiae_ simulated the
+payment of a price by striking the scales with a piece of money, and
+finally the Testator ratified what had been done in a set form of
+words called the "Nuncupatio" or publication of the transaction, a
+phrase which, I need scarcely remind the lawyer, has had a long
+history in Testamentary jurisprudence. It is necessary to attend
+particularly to the character of the person called _familiae emptor_.
+There is no doubt that at first he was the Heir himself. The Testator
+conveyed to him outright his whole "familia," that is, all the rights
+he enjoyed over and through the family; his property, his slaves, and
+all his ancestral privileges, together, on the other hand, with all
+his duties and obligations.
+
+With these data before us, we are able to note several remarkable
+points in which the Mancipatory Testament, as it may be called,
+differed in its primitive form from a modern will. As it amounted to a
+conveyance _out-and-out_ of the Testator's estate, it was not
+_revocable_. There could be no new exercise of a power which had been
+exhausted.
+
+Again, it was not secret. The Familiae Emptor, being himself the Heir,
+knew exactly what his rights were, and was aware that he was
+irreversibly entitled to the inheritance; a knowledge which the
+violences inseparable from the best-ordered ancient society rendered
+extremely dangerous. But perhaps the most surprising consequence of
+this relation of Testaments to Conveyances was the immediate vesting
+of the inheritance in the Heir. This has seemed so incredible to not a
+few civilians, that they have spoken of the Testator's estate as
+vesting conditionally on the Testator's death or as granted to him
+from a time uncertain, _i.e._ the death of the grantor. But down to
+the latest period of Roman jurisprudence there was a certain class of
+transactions which never admitted of being directly modified by a
+condition, or of being limited to or from a point of time. In
+technical language they did not admit _conditio_ or _dies_.
+Mancipation was one of them, and therefore, strange as it may seem, we
+are forced to conclude that the primitive Roman Will took effect at
+once, even though the Testator survived his act of Testation. It is
+indeed likely that Roman citizens originally made their Wills only in
+the article of death, and that a provision for the continuance of the
+Family effected by a man in the flower of life would take the form
+rather of an Adoption than of a Will. Still we must believe that, if
+the Testator did recover, he could only continue to govern his
+household by the sufferance of his Heir.
+
+Two or three remarks should be made before I explain how these
+inconveniences were remedied, and how Testaments came to be invested
+with the characteristics now universally associated with them. The
+Testament was not necessarily written: at first, it seems to have been
+invariably oral, and, even in later times, the instrument declaratory
+of the bequests was only incidentally connected with the Will and
+formed no essential part of it. It bore in fact exactly the same
+relation to the Testament, which the deed leading the uses bore to the
+Fines and Recoveries of old English law, or which the charter of
+feoffment bore to the feoffment itself. Previously, indeed, to the
+Twelve Tables, no writing would have been of the slightest use, for
+the Testator had no power of giving legacies, and the only persons who
+could be advantaged by a will were the Heir or Co-heirs. But the
+extreme generality of the clause in the Twelve Tables soon produced
+the doctrine that the Heir must take the inheritance burdened by any
+directions which the Testator might give him, or in other words, take
+it subject to legacies. Written testamentary instruments assumed
+thereupon a new value, as a security against the fraudulent refusal of
+the heir to satisfy the legatees; but to the last it was at the
+Testator's pleasure to rely exclusively on the testimony of the
+witnesses, and to declare by word of mouth the legacies which the
+_familiae emptor_ was commissioned to pay.
+
+The terms of the expression _Emptor familiae_ demand notice. "Emptor"
+indicates that the Will was literally a sale, and the word "familiae,"
+when compared with the phraseology in the Testamentary clause in the
+Twelve Tables, leads us to some instructive conclusions. "Familia," in
+classical Latinity, means always a man's slaves. Here, however, and
+generally in the language of ancient Roman law, it includes all
+persons under his Potestas, and the Testator's material property or
+substance is understood to pass as an adjunct or appendage of his
+household. Turning to the law of the Twelve Tables, it will be seen
+that it speaks of _tutela rei suae_, "the guardianship of his
+substance," a form of expression which is the exact reverse of the
+phrase just examined. There does not therefore appear to be any mode
+of escaping from the conclusion, that, even at an era so comparatively
+recent as that of the Decemviral compromise, terms denoting
+"household" and "property" were blended in the current phraseology. If
+a man's household had been spoken of as his property we might have
+explained the expression as pointing to the extent of the Patria
+Potestas, but, as the interchange is reciprocal, we must allow that
+the form of speech carries us back to that primeval period in which
+property is owned by the family, and the family is governed by the
+citizen, so that the members of the community do not own their
+property _and_ their family, but rather own their property _through_
+their family.
+
+At an epoch not easy to settle with precision, the Roman Praetors fell
+into the habit of acting upon Testaments solemnised in closer
+conformity with the spirit than the letter of the law. Casual
+dispensations became insensibly the established practice, till at
+length a wholly new form of Will was matured and regularly engrafted
+on the Edictal Jurisprudence. The new or _Praetorian_ Testament derived
+the whole of its impregnability from the _Jus Honorarium_ or Equity of
+Rome. The Praetor of some particular year must have inserted a clause
+in his inaugural Proclamation declaratory of his intention to sustain
+all Testaments which should have been executed with such and such
+solemnities; and, the reform having been found advantageous, the
+article relating to it must have been again introduced by the Praetor's
+successor, and repeated by the next in office, till at length it
+formed a recognised portion of that body of jurisprudence which from
+these successive incorporations was styled the Perpetual or Continuous
+Edict. On examining the conditions of a valid Praetorian Will they will
+be plainly seen to have been determined by the requirements of the
+Mancipatory Testament, the innovating Praetor having obviously
+prescribed to himself the retention of the old formalities just so far
+as they were warrants of genuineness or securities against fraud. At
+the execution of the Mancipatory Testament seven persons had been
+present besides the Testator. Seven witnesses were accordingly
+essential to the Praetorian Will: two of them corresponding to the
+_libripens_ and _familiae emptor_, who were now stripped of their
+symbolical character, and were merely present for the purpose of
+supplying their testimony. No emblematic ceremony was gone through;
+the Will was merely recited; but then it is probable (though not
+absolutely certain) that a written instrument was necessary to
+perpetuate the evidence of the Testator's dispositions. At all events,
+whenever a writing was read or exhibited as a person's last Will, we
+know certainly that the Praetorian Court would not sustain it by
+special intervention, unless each of the seven witnesses had severally
+affixed his seal to the outside. This is the first appearance of
+_sealing_ in the history of jurisprudence, considered as a mode of
+authentication. It is to be observed that the seals of Roman Wills,
+and other documents of importance, did not simply serve as the index
+of the presence or assent of the signatory, but were literally
+fastenings which had to be broken before the writing could be
+inspected.
+
+The Edictal Law would therefore enforce the dispositions of a
+Testator, when, instead of being symbolised through the forms of
+mancipation, they were simply evidenced by the seals of seven
+witnesses. But it may be laid down as a general proposition, that the
+principal qualities of Roman property were incommunicable except
+through processes which were supposed to be coeval with the origin of
+the Civil Law. The Praetor therefore could not confer an _Inheritance_
+on anybody. He could not place the Heir or Co-heirs in that very
+relation in which the Testator had himself stood to his own rights and
+obligations. All he could do was to confer on the person designated as
+Heir the practical enjoyment of the property bequeathed, and to give
+the force of legal acquittances to his payments of the Testator's
+debts. When he exerted his powers to these ends, the Praetor was
+technically said to communicate the _Bonorum Possessio_. The Heir
+specially inducted under these circumstances, or _Bonorum Possessor_,
+had every proprietary privilege of the Heir by the Civil Law. He took
+the profits and he could alienate, but then, for all his remedies for
+redress against wrong, he must go, as we should phrase it, not to the
+Common Law, but to the Equity side of the Praetorian Court. No great
+chance of error would be incurred by describing him as having an
+_equitable_ estate in the inheritance; but then, to secure ourselves
+against being deluded by the analogy, we must always recollect that in
+one year the _Bonorum Possessio_ was operated upon a principle of
+Roman Law known as Usucapion, and the Possessor became Quiritarian
+owner of all the property comprised in the inheritance.
+
+We know too little of the older law of Civil Process to be able to
+strike the balance of advantage and disadvantage between the different
+classes of remedies supplied by the Praetorian Tribunal. It is certain,
+however, that, in spite of its many defects, the Mancipatory Testament
+by which the _universitas juris_ devolved at once and unimpaired was
+never entirely superseded by the new Will; and at a period less
+bigoted to antiquarian forms, and perhaps not quite alive to their
+significance, all the ingenuity of the Jurisconsults seems to have
+been expended on the improvement of the more venerable instrument. At
+the era of Gaius, which is that of the Antonine Caesars, the great
+blemishes of the Mancipatory Will had been removed. Originally, as we
+have seen, the essential character of the formalities had required
+that the Heir himself should be the Purchaser of the Family, and the
+consequence was that he not only instantly acquired a vested interest
+in the Testator's Property, but was formally made aware of his rights.
+But the age of Gaius permitted some unconcerned person to officiate as
+Purchaser of the Family. The heir, therefore, was not necessarily
+informed of the succession to which he was destined; and Wills
+thenceforward acquired the property of _secrecy_. The substitution of
+a stranger for the actual Heir in the functions of "Familiae Emptor"
+had other ulterior consequences. As soon as it was legalised, a Roman
+Testament came to consist of two parts or stages--a conveyance, which
+was a pure form, and a Nuncupatio, or Publication. In this latter
+passage of the proceeding, the Testator either orally declared to the
+assistants the wishes which were to be executed after his death, or
+produced a written document in which his wishes were embodied. It was
+not probably till attention had been quite drawn off from the
+imaginary Conveyance, and concentrated on the Nuncupation as the
+essential part of the transaction, that Wills were allowed to become
+_revocable_.
+
+I have thus carried the pedigree of Wills some way down in legal
+history. The root of it is the old Testament "with the copper and the
+scales," founded on a Mancipation or Conveyance. This ancient Will
+has, however, manifold defects, which are remedied, though only
+indirectly, by the Praetorian law. Meantime the ingenuity of the
+Jurisconsults effects, in the Common-Law Will or Mancipatory
+Testament, the very improvements which the Praetor may have
+concurrently carried out in Equity. These last ameliorations depend,
+however, on mere legal dexterity, and we see accordingly that the
+Testamentary Law of the day of Gaius or Ulpian is only transitional.
+What changes next ensued we know not; but at length, just before the
+reconstruction of the jurisprudence by Justinian, we find the subjects
+of the Eastern Roman Empire employing a form of Will of which the
+pedigree is traceable to the Praetorian Testament on one side, and to
+the Testament "with the copper and the scales" on the other. Like the
+Testament of the Praetor, it required no Mancipation, and was invalid
+unless sealed by seven witnesses. Like the Mancipatory Will, it passed
+the Inheritance and not merely a _Bonorum Possessio_. Several,
+however, of its most important features were annexed by positive
+enactments, and it is out of regard to this threefold derivation from
+the Praetorian Edict, from the Civil Law, and from the Imperial
+Constitutions, that Justinian speaks of the Law of Wills in his own
+day as _Jus Tripertitum_. The new Testament thus described is the one
+generally known as the Roman Will. But it was the Will of the Eastern
+Empire only; and the researches of Savigny have shown that in Western
+Europe the old Mancipatory Testament, with all its apparatus of
+conveyance, copper, and scales, continued to be the form in use far
+down in the Middle Ages.
+
+
+
+
+CHAPTER VII
+
+ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS
+
+
+Although there is much in the modern European Law of Wills which is
+intimately connected with the oldest rules of Testamentary disposition
+practised among men, there are nevertheless some important differences
+between ancient and modern ideas on the subject of Wills and
+Successions. Some of the points of difference I shall endeavour to
+illustrate in this chapter.
+
+At a period, removed several centuries from the era of the Twelve
+Tables, we find a variety of rules engrafted on the Roman Civil Law
+with the view of limiting the disinherison of children; we have the
+jurisdiction of the Praetor very actively exerted in the same interest;
+and we are also presented with a new remedy, very anomalous in
+character and of uncertain origin, called the Querela Inofficiosi
+Testamenti, "the Plaint of an Unduteous Will," directed to the
+reinstatement of the issue in inheritances from which they had been
+unjustifiably excluded by a father's Testament. Comparing this
+condition of the law with the text of the Twelve Tables which concedes
+in terms the utmost liberty of Testation, several writers have been
+tempted to interweave a good deal of dramatic incident into their
+history of the Law Testamentary. They tell us of the boundless license
+of disinherison in which the heads of families instantly began to
+indulge, of the scandal and injury to public morals which the new
+practices engendered, and of the applause of all good men which hailed
+the courage of the Praetor in arresting the progress of paternal
+depravity. This story, which is not without some foundation for the
+principal fact it relates, is often so told as to disclose very
+serious misconceptions of the principles of legal history. The Law of
+the Twelve Tables is to be explained by the character of the age in
+which it was enacted. It does not license a tendency which a later era
+thought itself bound to counteract, but it proceeds on the assumption
+that no such tendency exists, or, perhaps we should say, in ignorance
+of the possibility of its existence. There is no likelihood that Roman
+citizens began immediately to avail themselves freely of the power to
+disinherit. It is against all reason and sound appreciation of history
+to suppose that the yoke of family bondage, still patiently submitted
+to, as we know, where its pressure galled most cruelly, would be cast
+off in the very particular in which its incidence in our own day is
+not otherwise than welcome. The Law of the Twelve Tables permitted the
+execution of Testaments in the only case in which it was thought
+possible that they could be executed, viz. on failure of children and
+proximate kindred. It did not forbid the disinherison of direct
+descendants, inasmuch as it did not legislate against a contingency
+which no Roman lawgiver of that era could have contemplated. No doubt,
+as the offices of family affection progressively lost the aspect of
+primary personal duties, the disinherison of children was occasionally
+attempted. But the interference of the Praetor, so far from being
+called for by the universality of the abuse, was doubtless first
+prompted by the fact that such instances of unnatural caprice were few
+and exceptional, and at conflict with the current morality.
+
+The indications furnished by this part of Roman Testamentary Law are
+of a very different kind. It is remarkable that a Will never seems to
+have been regarded by the Romans as a means of _disinheriting_ a
+Family, or of effecting the unequal distribution of a patrimony. The
+rules of law preventing its being turned to such a purpose, increase
+in number and stringency as the jurisprudence unfolds itself; and
+these rules correspond doubtless with the abiding sentiment of Roman
+society, as distinguished from occasional variations of feeling in
+individuals. It would rather seem as if the Testamentary Power were
+chiefly valued for the assistance it gave in _making provision_ for a
+Family, and in dividing the inheritance more evenly and fairly than
+the Law of Intestate Succession would have divided it. If this be the
+true reading of the general sentiment on the point, it explains to
+some extent the singular horror of Intestacy which always
+characterised the Roman. No evil seems to have been considered a
+heavier visitation than the forfeiture of Testamentary privileges; no
+curse appears to have been bitterer than that which imprecated on an
+enemy that he might die without a Will. The feeling has no
+counterpart, or none that is easily recognisable, in the forms of
+opinion which exist at the present day. All men at all times will
+doubtless prefer chalking out the destination of their substance to
+having that office performed for them by the law; but the Roman
+passion for Testacy is distinguished from the mere desire to indulge
+caprice by its intensity; and it has of course nothing whatever in
+common with that pride of family, exclusively the creation of
+feudalism, which accumulates one description of property in the hands
+of a single representative. It is probable, _a priori_, that it was
+something in the rules of Intestate Succession which caused this
+vehement preference for the distribution of property under a Testament
+over its distribution by law. The difficulty, however, is, that on
+glancing at the Roman Law of Intestate Succession, in the form which
+it wore for many centuries before Justinian shaped it into that scheme
+of inheritance which has been almost universally adopted by modern
+lawgivers, it by no means strikes one as remarkably unreasonable or
+inequitable. On the contrary, the distribution it prescribes is so
+fair and rational, and differs so little from that with which modern
+society has been generally contented, that no reason suggests itself
+why it should have been regarded with extraordinary distaste,
+especially under a jurisprudence which pared down to a narrow compass
+the testamentary privileges of persons who had children to provide
+for. We should rather have expected that, as in France at this moment,
+the heads of families would generally save themselves the trouble of
+executing a Will, and allow the Law to do as it pleased with their
+assets. I think, however, if we look a little closely at the
+pre-Justinianean scale of Intestate Succession, we shall discover the
+key to the mystery. The texture of the law consists of two distinct
+parts. One department of rules comes from the Jus Civile, the
+Common-Law of Rome; the other from the Edict of the Praetor. The Civil
+Law, as I have already stated for another purpose, calls to the
+inheritance only three orders of successors in their turn; the
+Unemancipated children, the nearest class of Agnatic kindred, and the
+Gentiles. Between these three orders, the Praetor interpolates various
+classes of relatives, of whom the Civil Law took no notice whatever.
+Ultimately, the combination of the Edict and of the Civil Law forms a
+table of succession not materially different from that which has
+descended to the generality of modern codes.
+
+The point for recollection is that there must anciently have been a
+time at which the rules of the Civil Law determined the scheme of
+Intestate Succession exclusively, and at which the arrangements of the
+Edict were non-existent, or not consistently carried out. We cannot
+doubt that, in its infancy, the Praetorian jurisprudence had to contend
+with formidable obstructions, and it is more than probable that, long
+after popular sentiment and legal opinion had acquiesced in it, the
+modifications which it periodically introduced were governed by no
+certain principles, and fluctuated with the varying bias of successive
+magistrates. The rules of Intestate Succession, which the Romans must
+at this period have practised, account, I think--and more than
+account--for that vehement distaste for an Intestacy to which Roman
+society during so many ages remained constant. The order of succession
+was this: on the death of a citizen, having no will or no valid will,
+his Unemancipated children became his Heirs. His _emancipated_ sons
+had no share in the inheritance. If he left no direct descendants
+living at his death, the nearest grade of the Agnatic kindred
+succeeded, but no part of the inheritance was given to any relative
+united (however closely) with the dead man through female descents.
+All the other branches of the family were excluded, and the
+inheritance escheated to the _Gentiles_, or entire body of Roman
+citizens bearing the same name with the deceased. So that on failing
+to execute an operative Testament, a Roman of the era under
+examination left his emancipated children absolutely without
+provision, while, on the assumption that he died childless, there was
+imminent risk that his possessions would escape from the family
+altogether, and devolve on a number of persons with whom he was merely
+connected by the sacerdotal fiction that assumed all members of the
+same _gens_ to be descended from a common ancestor. The prospect of
+such an issue is in itself a nearly sufficient explanation of the
+popular sentiment; but, in point of fact, we shall only half
+understand it, if we forget that the state of things I have been
+describing is likely to have existed at the very moment when Roman
+society was in the first stage of its transition from its primitive
+organisation in detached families. The empire of the father had indeed
+received one of the earliest blows directed at it through the
+recognition of Emancipation as a legitimate usage, but the law, still
+considering the Patria Potestas to be the root of family connection,
+persevered in looking on the emancipated children as strangers to the
+rights of Kinship and aliens from the blood. We cannot, however, for a
+moment suppose that the limitations of the family imposed by legal
+pedantry had their counterpart in the natural affection of parents.
+Family attachments must still have retained that nearly inconceivable
+sanctity and intensity which belonged to them under the Patriarchal
+system; and, so little are they likely to have been extinguished by
+the act of emancipation, that the probabilities are altogether the
+other way. It may be unhesitatingly taken for granted that
+enfranchisement from the father's power was a demonstration, rather
+than a severance, of affection--a mark of grace and favour accorded to
+the best-beloved and most esteemed of the children. If sons thus
+honoured above the rest were absolutely deprived of their heritage by
+an Intestacy, the reluctance to incur it requires no farther
+explanation. We might have assumed _a priori_ that the passion for
+Testacy was generated by some moral injustice entailed by the rules of
+Intestate succession; and here we find them at variance with the very
+instinct by which early society was cemented together. It is possible
+to put all that has been urged in a very succinct form. Every dominant
+sentiment of the primitive Romans was entwined with the relations of
+the family. But what was the Family? The Law defined it one
+way--natural affection another. In the conflict between the two, the
+feeling we would analyse grew up, taking the form of an enthusiasm for
+the institution by which the dictates of affection were permitted to
+determine the fortunes of its objects.
+
+I regard, therefore, the Roman horror of Intestacy as a monument of a
+very early conflict between ancient law and slowly changing ancient
+sentiment on the subject of the Family. Some passages in the Roman
+Statute-Law, and one statute in particular which limited the capacity
+for inheritance possessed by women, must have contributed to keep
+alive the feeling; and it is the general belief that the system of
+creating Fidei-Commissa, or bequests in trust, was devised to evade
+the disabilities imposed by those statutes. But the feeling itself, in
+its remarkable intensity, seems to point back to some deeper
+antagonism between law and opinion; nor is it at all wonderful that
+the improvements of jurisprudence by the Praetor should not have
+extinguished it. Everybody conversant with the philosophy of opinion
+is aware that a sentiment by no means dies out, of necessity, with the
+passing away of the circumstances which produced it. It may long
+survive them; nay, it may afterwards attain to a pitch and climax of
+intensity which it never attained during their actual continuance.
+
+The view of a Will which regards it as conferring the power of
+diverting property from the Family, or of distributing it in such
+uneven proportions as the fancy or good sense of the Testator may
+dictate, is not older than that later portion of the Middle Ages in
+which Feudalism had completely consolidated itself. When modern
+jurisprudence first shows itself in the rough, Wills are rarely
+allowed to dispose with absolute freedom of a dead man's assets.
+Wherever at this period the descent of property was regulated by
+Will--and over the greater part of Europe moveable or personal
+property was the subject of Testamentary disposition--the exercise of
+the Testamentary power was seldom allowed to interfere with the right
+of the widow to a definite share, and of the children to certain fixed
+proportions, of the devolving inheritance. The shares of the children,
+as their amount shows, were determined by the authority of Roman law.
+The provision for the widow was attributable to the exertions of the
+Church, which never relaxed its solicitude for the interest of wives
+surviving their husbands--winning, perhaps, one of the most arduous of
+its triumphs when, after exacting for two or three centuries an
+express promise from the husband at marriage to endow his wife, it at
+length succeeded in engrafting the principle of Dower on the Customary
+Law of all Western Europe. Curiously enough, the dower of lands proved
+a more stable institution than the analogous and more ancient
+reservation of certain shares of the personal property to the widow
+and children. A few local customs in France maintained the right down
+to the Revolution, and there are traces of similar usages in England;
+but on the whole the doctrine prevailed that moveables might be freely
+disposed of by Will, and, even when the claims of the widow continued
+to be respected, the privileges of the children were obliterated from
+jurisprudence. We need not hesitate to attribute the change to the
+influence of Primogeniture. As the Feudal law of land practically
+disinherited all the children in favour of one, the equal
+distribution even of those sorts of property which might have been
+equally divided ceased to be viewed as a duty. Testaments were the
+principal instruments employed in producing inequality, and in this
+condition of things originated the shade of difference which shows
+itself between the ancient and the modern conception of a Will. But,
+though the liberty of bequest, enjoyed through Testaments, was thus an
+accidental fruit of Feudalism, there is no broader distinction than
+that which exists between a system of free Testamentary disposition
+and a system, like that of the Feudal land-law, under which property
+descends compulsorily in prescribed lines of devolution. This truth
+appears to have been lost sight of by the authors of the French Codes.
+In the social fabric which they determined to destroy, they saw
+Primogeniture resting chiefly on Family settlements, but they also
+perceived that Testaments were frequently employed to give the eldest
+son precisely the same preference which was reserved to him under the
+strictest of entails. In order, therefore, to make sure of their work,
+they not only rendered it impossible to prefer the eldest son to the
+rest in marriage-arrangements, but they almost expelled Testamentary
+succession from the law, lest it should be used to defeat their
+fundamental principle of an equal distribution of property among
+children at the parent's death. The result is that they have
+established a system of small perpetual entails, which is infinitely
+nearer akin to the system of feudal Europe than would be a perfect
+liberty of bequest. The land-law of England, "the Herculaneum of
+Feudalism," is certainly much more closely allied to the land-law of
+the Middle Ages than that of any Continental country, and Wills with
+us are frequently used to aid or imitate that preference of the eldest
+son and his line which is a nearly universal feature in marriage
+settlements of real property. But nevertheless feeling and opinion in
+this country have been profoundly affected by the practice of free
+Testamentary disposition; and it appears to me that the state of
+sentiment in a great part of French society, on the subject of the
+conservation of property in families, is much liker that which
+prevailed through Europe two or three centuries ago than are the
+current opinions of Englishmen.
+
+The mention of Primogeniture introduces one of the most difficult
+problems of historical jurisprudence. Though I have not paused to
+explain my expressions, it may have been noticed that I have
+frequently spoken of a number of "co-heirs" as placed by the Roman Law
+of Succession on the same footing with a single Heir. In point of
+fact, we know of no period of Roman jurisprudence at which the place
+of the Heir, or Universal Successor, might not have been taken by a
+group of co-heirs. This group succeeded as a single unit, and the
+assets were afterwards divided among them in a separate legal
+proceeding. When the Succession was _ab intestato_, and the group
+consisted of the children of the deceased, they each took an equal
+share of the property; nor, though males had at one time some
+advantages over females, is there the faintest trace of Primogeniture.
+The mode of distribution is the same throughout archaic jurisprudence.
+It certainly seems that, when civil society begins and families cease
+to hold together through a series of generations, the idea which
+spontaneously suggests itself is to divide the domain equally among
+the members of each successive generation, and to reserve no privilege
+to the eldest son or stock. Some peculiarly significant hints as to
+the close relation of this phenomenon to primitive thought are
+furnished by systems yet more archaic than the Roman. Among the
+Hindoos, the instant a son is born, he acquires a vested right in his
+father's property, which cannot be sold without recognition of his
+joint ownership. On the son's attaining full age, he can sometimes
+compel a partition of the estate even against the consent of the
+parent; and, should the parent acquiesce, one son can always have a
+partition even against the will of the others. On such partition
+taking place, the father has no advantage over his children, except
+that he has two of the shares instead of one. The ancient law of the
+German tribes was exceedingly similar. The _allod_ or domain of the
+family was the joint-property of the father and his sons. It does not,
+however, appear to have been habitually divided even at the death of
+the parent, and in the same way the possessions of a Hindoo, however
+divisible theoretically, are so rarely distributed in fact, that many
+generations constantly succeed each other without a partition taking
+place, and thus the Family in India has a perpetual tendency to expand
+into the Village Community, under conditions which I shall hereafter
+attempt to elucidate. All this points very clearly to the absolutely
+equal division of assets among the male children at death as the
+practice most usual with society at the period when family-dependency
+is in the first stages of disintegration. Here then emerges the
+historical difficulty of Primogeniture. The more clearly we perceive
+that, when the Feudal institutions were in process of formation, there
+was no source in the world whence they could derive their elements but
+the Roman law of the provincials on the one hand and the archaic
+customs of the barbarians on the other, the more are we perplexed at
+first sight by our knowledge that neither Roman nor barbarian was
+accustomed to give any preference to the eldest son or his line in the
+succession to property.
+
+Primogeniture did not belong to the Customs which the barbarians
+practised on their first establishment within the Roman Empire. It is
+known to have had its origin in the _benefices_ or beneficiary gifts
+of the invading chieftains. These benefices, which were occasionally
+conferred by the earlier immigrant kings, but were distributed on a
+great scale by Charlemagne, were grants of Roman provincial land to be
+holden by the beneficiary on condition of military service. The
+_allodial_ proprietors do not seem to have followed their sovereign on
+distant or difficult enterprises, and all the grander expeditions of
+the Frankish chiefs and of Charlemagne were accomplished with forces
+composed of soldiers either personally dependent on the royal house or
+compelled to serve it by the tenure of their land. The benefices,
+however, were not at first in any sense hereditary. They were held at
+the pleasure of the grantor, or at most for the life of the grantee;
+but still, from the very outset, no effort seems to have been spared
+by the beneficiaries to enlarge the tenure, and to continue their
+lands in their family after death. Through the feebleness of
+Charlemagne's successors these attempts were universally successful,
+and the Benefice gradually transformed itself into the hereditary
+Fief. But, though the fiefs were hereditary, they did not necessarily
+descend to the eldest son. The rules of succession which they followed
+were entirely determined by the terms agreed upon between the grantor
+and the beneficiary, or imposed by one of them on the weakness of the
+other. The original tenures were therefore extremely various; not
+indeed so capriciously various as is sometimes asserted, for all which
+have hitherto been described present some combination of the modes of
+succession familiar to Romans and to barbarians, but still exceedingly
+miscellaneous. In some of them, the eldest son and his stock
+undoubtedly succeeded to the fief before the others, but such
+successions, so far from being universal, do not even appear to have
+been general. Precisely the same phenomena recur during that more
+recent transmutation of European society which entirely substituted
+the feudal form of property for the domainial (or Roman) and the
+allodial (or German). The allods were wholly absorbed by the fiefs.
+The greater allodial proprietors transformed themselves into feudal
+lords by conditional alienations of portions of their land to
+dependants; the smaller sought an escape from the oppressions of that
+terrible time by surrendering their property to some powerful
+chieftain, and receiving it back at his hands on condition of service
+in his wars. Meantime, that vast mass of the population of Western
+Europe whose condition was servile or semi-servile--the Roman and
+German personal slaves, the Roman _coloni_ and the German _lidi_--were
+concurrently absorbed by the feudal organisation, a few of them
+assuming a menial relation to the lords, but the greater part
+receiving land on terms which in those centuries were considered
+degrading. The tenures created during this era of universal
+infeudation were as various as the conditions which the tenants made
+with their new chiefs or were forced to accept from them. As in the
+case of the benefices, the succession to some, but by no means to all,
+of the estates followed the rule of Primogeniture. No sooner, however,
+has the feudal system prevailed throughout the West, than it becomes
+evident that Primogeniture has some great advantage over every other
+mode of succession. It spread over Europe with remarkable rapidity,
+the principal instrument of diffusion being Family Settlements, the
+Pactes de Famille of France and Haus-Gesetze of Germany, which
+universally stipulated that lands held by knightly service should
+descend to the eldest son. Ultimately the law resigned itself to
+follow inveterate practice, and we find that in all the bodies of
+Customary Law, which were gradually built up, the eldest son and stock
+are preferred in the succession to estates of which the tenure is free
+and military. As to lands held by servile tenures (and originally all
+tenures were servile which bound the tenant to pay money or bestow
+manual labour), the system of succession prescribed by custom differed
+greatly in different countries and different provinces. The more
+general rule was that such lands were divided equally at death among
+all the children, but still in some instances the eldest son was
+preferred, in some the youngest. But Primogeniture usually governed
+the inheritance of that class of estates, in some respects the most
+important of all, which were held by tenures that, like the English
+Socage, were of later origin than the rest, and were neither
+altogether free nor altogether servile.
+
+The diffusion of Primogeniture is usually accounted for by assigning
+what are called Feudal reasons for it. It is asserted that the feudal
+superior had a better security for the military service he required
+when the fief descended to a single person, instead of being
+distributed among a number on the decease of the last holder. Without
+denying that this consideration may partially explain the favour
+gradually acquired by Primogeniture, I must point out that
+Primogeniture became a custom of Europe much more through its
+popularity with the tenants than through any advantage it conferred on
+the lords. For its origin, moreover, the reason given does not account
+at all. Nothing in law springs entirely from a sense of convenience.
+There are always certain ideas existing antecedently on which the
+sense of convenience works, and of which it can do no more than form
+some new combination; and to find these ideas in the present case is
+exactly the problem.
+
+A valuable hint is furnished to us from a quarter fruitful of such
+indications. Although in India the possessions of a parent are
+divisible at his death, and may be divisible during his life, among
+all his male children in equal shares, and though this principle of
+the equal distribution of _property_ extends to every part of the
+Hindoo institutions, yet wherever _public office_ or _political power_
+devolves at the decease of the last Incumbent, the succession is
+nearly universally according to the rules of Primogeniture.
+Sovereignties descend therefore to the eldest son, and where the
+affairs of the Village Community, the corporate unit of Hindoo
+society, are confided to a single manager, it is generally the eldest
+son who takes up the administration at his parent's death. All
+offices, indeed, in India, tend to become hereditary, and, when their
+nature permits it, to vest in the eldest member of the oldest stock.
+Comparing these Indian successions with some of the ruder social
+organisations which have survived in Europe almost to our own day, the
+conclusion suggests itself that, when Patriarchal power is not only
+_domestic_ but _political_, it is not distributed among all the
+issue at the parent's death, but is the birthright of the eldest
+son. The chieftainship of a Highland clan, for example, followed
+the order of Primogeniture. There seems, in truth, to be a form of
+family-dependency still more archaic than any of those which we know
+from the primitive records of organised civil societies. The Agnatic
+Union of the kindred in ancient Roman law, and a multitude of similar
+indications, point to a period at which all the ramifying branches of
+the family tree held together in one organic whole; and it is no
+presumptuous conjecture, that, when the corporation thus formed by the
+kindred was in itself an independent society, it was governed by the
+eldest male of the oldest line. It is true that we have no actual
+knowledge of any such society. Even in the most elementary
+communities, family-organisations, as we know them, are at most
+_imperia in imperio_. But the position of some of them, of the Celtic
+clans in particular, was sufficiently near independence within
+historical times to force on us the conviction that they were once
+separate _imperia_, and that Primogeniture regulated the succession to
+the chieftainship. It is, however, necessary to be on our guard
+against modern associations with the term of law. We are speaking of a
+family-connection still closer and more stringent than any with which
+we are made acquainted by Hindoo society or ancient Roman law. If the
+Roman Paterfamilias was visibly steward of the family possessions, if
+the Hindoo father is only joint-sharer with his sons, still more
+emphatically must the true patriarchal chieftain be merely the
+administrator of a common fund.
+
+The examples of succession by Primogeniture which were found among the
+Benefices may, therefore, have been imitated from a system of
+family-government known to the invading races, though not in general
+use. Some ruder tribes may have still practised it, or, what is still
+more probable, society may have been so slightly removed from its more
+archaic condition that the minds of some men spontaneously recurred to
+it, when they were called upon to settle the rules of inheritance for
+a new form of property. But there is still the question, Why did
+Primogeniture gradually supersede every other principle of succession?
+The answer, I think, is, that European society decidedly retrograded
+during the dissolution of the Carlovingian empire. It sank a point or
+two back even from the miserably low degree which it had marked during
+the early barbarian monarchies. The great characteristic of the
+period was the feebleness, or rather the abeyance, of kingly and
+therefore of civil authority; and hence it seems as if, civil society
+no longer cohering, men universally flung themselves back on a social
+organisation older than the beginnings of civil communities. The lord
+with his vassals, during the ninth and tenth centuries, may be
+considered as a patriarchal household, recruited, not as in the
+primitive times by Adoption, but by Infeudation; and to such a
+confederacy, succession by Primogeniture was a source of strength and
+durability. So long as the land was kept together on which the entire
+organisation rested, it was powerful for defence and attack; to divide
+the land was to divide the little society, and voluntarily to invite
+aggression in an era of universal violence. We may be perfectly
+certain that into this preference for Primogeniture there entered no
+idea of disinheriting the bulk of the children in favour of one.
+Everybody would have suffered by the division of the fief. Everybody
+was a gainer by its consolidation. The Family grew stronger by the
+concentration of power in the same hands; nor is it likely that the
+lord who was invested with the inheritance had any advantage over his
+brethren and kinsfolk in occupations, interests, or indulgences. It
+would be a singular anachronism to estimate the privileges succeeded
+to by the heir of a fief, by the situation in which the eldest son is
+placed under an English strict settlement.
+
+I have said that I regard the early feudal confederacies as descended
+from an archaic form of the Family, and as wearing a strong
+resemblance to it. But then in the ancient world, and in the societies
+which have not passed through the crucible of feudalism, the
+Primogeniture which seems to have prevailed never transformed itself
+into the Primogeniture of the later feudal Europe. When the group of
+kinsmen ceased to be governed through a series of generations by a
+hereditary chief, the domain which had been managed for all appears to
+have been equally divided among all. Why did this not occur in the
+feudal world? If during the confusions of the first feudal period the
+eldest son held the land for the behoof of the whole family, why was
+it that when feudal Europe had consolidated itself, and regular
+communities were again established, the whole family did not resume
+that capacity for equal inheritance which had belonged to Roman and
+German alike? The key which unlocks this difficulty has rarely been
+seized by the writers who occupy themselves in tracing the genealogy
+of Feudalism. They perceive the materials of the feudal institutions,
+but they miss the cement. The ideas and social forms which contributed
+to the formation of the system were unquestionably barbarian and
+archaic, but, as soon as Courts and lawyers were called in to
+interpret and define it, the principles of interpretation which they
+applied to it were those of the latest Roman jurisprudence, and were
+therefore excessively refined and matured. In a patriarchally governed
+society, the eldest son may succeed to the government of the Agnatic
+group, and to the absolute disposal of its property. But he is not
+therefore a true proprietor. He has correlative duties not involved in
+the conception of proprietorship, but quite undefined and quite
+incapable of definition. The later Roman jurisprudence, however, like
+our own law, looked upon uncontrolled power over property as
+equivalent to ownership, and did not, and, in fact, could not, take
+notice of liabilities of such a kind, that the very conception of them
+belonged to a period anterior to regular law. The contact of the
+refined and the barbarous notion had inevitably for its effect the
+conversion of the eldest son into legal proprietor of the inheritance.
+The clerical and secular lawyers so defined his position from the
+first; but it was only by insensible degrees that the younger brother,
+from participating on equal terms in all the dangers and enjoyments of
+his kinsman, sank into the priest, the soldier of fortune, or the
+hanger-on of the mansion. The legal revolution was identical with that
+which occurred on a smaller scale, and in quite recent times, through
+the greater part of the Highlands of Scotland. When called in to
+determine the legal powers of the chieftain over the domains which
+gave sustenance to the clan, Scottish jurisprudence had long since
+passed the point at which it could take notice of the vague
+limitations on completeness of dominion imposed by the claims of the
+clansmen, and it was inevitable therefore that it should convert the
+patrimony of many into the estate of one.
+
+For the sake of simplicity I have called the mode of succession
+Primogeniture whenever a single son or descendant succeeds to the
+authority over a household or society. It is remarkable, however, that
+in the few very ancient examples which remain to us of this sort of
+succession, it is not always the eldest son, in the sense familiar to
+us, who takes up the representation. The form of Primogeniture which
+has spread over Western Europe has also been perpetuated among the
+Hindoos, and there is every reason to believe that it is the normal
+form. Under it, not only the eldest son, but the eldest line is always
+preferred. If the eldest son fails, his eldest son has precedence not
+only over brothers but over uncles; and, if he too fails, the same
+rule is followed in the next generation. But when the succession is
+not merely to _civil_ but to _political_ power, a difficulty may
+present itself which will appear of greater magnitude according as the
+cohesion of society is less perfect. The chieftain who last exercised
+authority may have outlived his eldest son, and the grandson who is
+primarily entitled to succeed may be too young and immature to
+undertake the actual guidance of the community, and the administration
+of its affairs. In such an event, the expedient which suggests itself
+to the more settled societies is to place the infant heir under
+guardianship till he reaches the age of fitness for government. The
+guardianship is generally that of the male Agnates; but it is
+remarkable that the contingency supposed is one of the rare cases in
+which ancient societies have consented to the exercise of power by
+women, doubtless out of respect to the overshadowing claims of the
+mother. In India, the widow of a Hindoo sovereign governs in the name
+of her infant son, and we cannot but remember that the custom
+regulating succession to the throne of France--which, whatever be its
+origin, is doubtless of the highest antiquity--preferred the
+queen-mother to all other claimants for the Regency, at the same time
+that it rigorously excluded all females from the throne. There is,
+however, another mode of obviating the inconvenience attending the
+devolution of sovereignty on an infant heir, and it is one which would
+doubtless occur spontaneously to rudely organised communities. This is
+to set aside the infant heir altogether, and confer the chieftainship
+on the eldest surviving male of the first generation. The Celtic
+clan-associations, among the many phenomena which they have preserved
+of an age in which civil and political society were not yet even
+rudimentarily separated, have brought down this rule of succession to
+historical times. With them, it seems to have existed in the form of a
+positive canon, that, failing the eldest son, his next brother
+succeeds in priority to all grandsons, whatever be their age at the
+moment when the sovereignty devolves. Some writers have explained the
+principle by assuming that the Celtic customs took the last chieftain
+as a sort of root or stock, and then gave the succession to the
+descendant who should be least remote from him; the uncle thus being
+preferred to the grandson as being nearer to the common root. No
+objection can be taken to this statement if it be merely intended as a
+description of the system of succession; but it would be a serious
+error to conceive the men who first adopted the rule as applying a
+course of reasoning which evidently dates from the time when feudal
+schemes of succession begun to be debated among lawyers. The true
+origin of the preference of the uncle to the grandson is doubtless a
+simple calculation on the part of rude men in a rude society that it
+is better to be governed by a grown chieftain than by a child, and
+that the younger son is more likely to have come to maturity than any
+of the eldest son's descendants. At the same time, we have some
+evidence that the form of Primogeniture with which we are best
+acquainted is the primary form, in the tradition that the assent of
+the clan was asked when an infant heir was passed over in favour of
+his uncle. There is a tolerably well authenticated instance of this
+ceremony in the annals of the Macdonalds.
+
+Under Mahometan law, which has probably preserved an ancient Arabian
+custom, inheritances of property are divided equally among sons, the
+daughters taking a half share; but if any of the children die before
+the division of the inheritance, leaving issue behind, these
+grandchildren are entirely excluded by their uncles and aunts.
+Consistently with this principle, the succession, when political
+authority devolves, is according to the form of Primogeniture which
+appears to have obtained among the Celtic societies. In the two great
+Mahometan families of the West, the rule is believed to be, that the
+uncle succeeds to the throne in preference to the nephew, though the
+latter be the son of an elder brother; but though this rule has been
+followed quite recently in Egypt, I am informed that there is some
+doubt as to its governing the devolution of the Turkish sovereignty.
+The policy of the Sultans has in fact hitherto prevented cases for its
+application from occurring, and it is possible that their wholesale
+massacres of their younger brothers may have been perpetuated quite as
+much in the interest of their children as for the sake of making away
+with dangerous competitors for the throne. It is evident, however,
+that in polygamous societies the form of Primogeniture will always
+tend to vary. Many considerations may constitute a claim on the
+succession, the rank of the mother, for example, or her degree in the
+affections of the father. Accordingly, some of the Indian Mahometan
+sovereigns, without pretending to any distinct testamentary power,
+claim the right of nominating the son who is to succeed. The
+_blessing_ mentioned in the Scriptural history of Isaac and his sons
+has sometimes been spoken of as a will, but it seems rather to have
+been a mode of naming an eldest son.
+
+
+
+
+CHAPTER VIII
+
+THE EARLY HISTORY OF PROPERTY
+
+
+The Roman Institutional Treatises, after giving their definition of
+the various forms and modifications of ownership, proceed to discuss
+the Natural Modes of Acquiring Property. Those who are unfamiliar with
+the history of jurisprudence are not likely to look upon these
+"natural modes" of acquisition as possessing, at first sight, either
+much speculative or much practical interest. The wild animal which is
+snared or killed by the hunter, the soil which is added to our field
+by the imperceptible deposits of a river, the tree which strikes its
+roots into our ground, are each said by the Roman lawyers to be
+acquired by us _naturally_. The older jurisconsults had doubtless
+observed that such acquisitions were universally sanctioned by the
+usages of the little societies around them, and thus the lawyers of a
+later age, finding them classed in the ancient Jus Gentium, and
+perceiving them to be of the simplest description, allotted them a
+place among the ordinances of Nature. The dignity with which they were
+invested has gone on increasing in modern times till it is quite out
+of proportion to their original importance. Theory has made them its
+favourite food, and has enabled them to exercise the most serious
+influence on practice.
+
+It will be necessary for us to attend to one only among these "natural
+modes of acquisition," Occupatio or Occupancy. Occupancy is the
+advisedly taking possession of that which at the moment is the
+property of no man, with the view (adds the technical definition) of
+acquiring property in it for yourself. The objects which the Roman
+lawyers called _res nullius_--things which have not or have never had
+an owner--can only be ascertained by enumerating them. Among things
+which _never had_ an owner are wild animals, fishes, wild fowl, jewels
+disinterred for the first time, and lands newly discovered or never
+before cultivated. Among things which _have not_ an owner are
+moveables which have been abandoned, lands which have been deserted,
+and (an anomalous but most formidable item) the property of an enemy.
+In all these objects the full rights of dominion were acquired by the
+_Occupant_ who first took possession of them with the intention of
+keeping them as his own--an intention which, in certain cases, had to
+be manifested by specific acts. It is not difficult, I think, to
+understand the universality which caused the practice of Occupancy to
+be placed by one generation of Roman lawyers in the Law common to all
+Nations, and the simplicity which occasioned its being attributed by
+another to the Law of Nature. But for its fortunes in modern legal
+history we are less prepared by _a priori_ considerations. The Roman
+principle of Occupancy, and the rules into which the jurisconsults
+expanded it, are the source of all modern International Law on the
+subject of Capture in War and of the acquisition of sovereign rights
+in newly discovered countries. They have also supplied a theory of the
+Origin of Property, which is at once the popular theory, and the
+theory which, in one form or another, is acquiesced in by the great
+majority of speculative jurists.
+
+I have said that the Roman principle of Occupancy has determined the
+tenor of that chapter of International Law which is concerned with
+Capture in War. The Law of Warlike Capture derives its rules from the
+assumption that communities are remitted to a state of nature by the
+outbreak of hostilities, and that, in the artificial natural condition
+thus produced, the institution of private property falls into abeyance
+so far as concerns the belligerents. As the later writers on the Law
+of Nature have always been anxious to maintain that private property
+was in some sense sanctioned by the system which they were expounding,
+the hypothesis that an enemy's property is _res nullius_ has seemed to
+them perverse and shocking, and they are careful to stigmatise it as a
+mere fiction of jurisprudence. But, as soon as the Law of Nature is
+traced to its source in the Jus Gentium, we see at once how the goods
+of an enemy came to be looked upon as nobody's property, and therefore
+as capable of being acquired by the first occupant. The idea would
+occur spontaneously to persons practising the ancient forms of
+Warfare, when victory dissolved the organisation of the conquering
+army and dismissed the soldiers to indiscriminate plunder. It is
+probable, however, that originally it was only moveable property which
+was thus permitted to be acquired by the Captor. We know on
+independent authority that a very different rule prevailed in ancient
+Italy as to the acquisition of ownership in the soil of a conquered
+country, and we may therefore suspect that the application of the
+principle of occupancy to land (always a matter of difficulty) dates
+from the period when the Jus Gentium was becoming the Code of Nature,
+and that it is the result of a generalisation effected by the
+jurisconsults of the golden age. Their dogmas on the point are
+preserved in the Pandects of Justinian, and amount to an unqualified
+assertion that enemy's property of every sort is _res nullius_ to the
+other belligerent, and that Occupancy, by which the Captor makes them
+his own, is an institution of Natural Law. The rules which
+International jurisprudence derives from these positions have
+sometimes been stigmatised as needlessly indulgent to the ferocity and
+cupidity of combatants, but the charge has been made, I think, by
+persons who are unacquainted with the history of wars, and who are
+consequently ignorant how great an exploit it is to command obedience
+for a rule of any kind. The Roman principle of Occupancy, when it was
+admitted into the modern law of Capture in War, drew with it a number
+of subordinate canons, limiting and giving precision to its operation,
+and if the contests which have been waged since the treatise of
+Grotius became an authority, are compared with those of an earlier
+date, it will be seen that, as soon as the Roman maxims were received,
+Warfare instantly assumed a more tolerable complexion. If the Roman
+law of Occupancy is to be taxed with having had pernicious influence
+on any part of the modern Law of Nations, there is another chapter in
+it which may be said, with some reason, to have been injuriously
+affected. In applying to the discovery of new countries the same
+principles which the Romans had applied to the finding of a jewel, the
+Publicists forced into their service a doctrine altogether unequal to
+the task expected from it. Elevated into extreme importance by the
+discoveries of the great navigators of the fifteenth and sixteenth
+centuries, it raised more disputes than it solved. The greatest
+uncertainty was very shortly found to exist on the very two points on
+which certainty was most required, the extent of the territory which
+was acquired for his sovereign by the discoverer, and the nature of
+the acts which were necessary to complete the _adprehensio_ or
+assumption of sovereign possession. Moreover, the principle
+itself, conferring as it did such enormous advantages as the
+consequence of a piece of good luck, was instinctively mutinied
+against by some of the most adventurous nations in Europe, the Dutch,
+the English, and the Portuguese. Our own countrymen, without expressly
+denying the rule of International Law, never did, in practice, admit
+the claim of the Spaniards to engross the whole of America south of
+the Gulf of Mexico, or that of the King of France to monopolise the
+valleys of the Ohio and the Mississippi. From the accession of
+Elizabeth to the accession of Charles the Second, it cannot be said
+that there was at any time thorough peace in the American waters, and
+the encroachments of the New England Colonists on the territory of the
+French King continued for almost a century longer. Bentham was so
+struck with the confusion attending the application of the legal
+principle, that he went out of his way to eulogise the famous Bull of
+Pope Alexander the Sixth, dividing the undiscovered countries of the
+world between the Spaniards and Portuguese by a line drawn one hundred
+leagues West of the Azores; and, grotesque as his praises may appear
+at first sight, it may be doubted whether the arrangement of Pope
+Alexander is absurder in principle than the rule of Public law, which
+gave half a continent to the monarch whose servants had fulfilled the
+conditions required by Roman jurisprudence for the acquisition of
+property in a valuable object which could be covered by the hand.
+
+To all who pursue the inquiries which are the subject of this volume,
+Occupancy is pre-eminently interesting on the score of the service it
+has been made to perform for speculative jurisprudence, in furnishing
+a supposed explanation of the origin of private property. It was once
+universally believed that the proceeding implied in Occupancy was
+identical with the process by which the earth and its fruits, which
+were at first in common, became the allowed property of individuals.
+The course of thought which led to this assumption is not difficult to
+understand, if we seize the shade of difference which separates the
+ancient from the modern conception of Natural Law. The Roman lawyers
+had laid down that Occupancy was one of the Natural modes of acquiring
+property, and they undoubtedly believed that, were mankind living
+under the institutions of Nature, Occupancy would be one of their
+practices. How far they persuaded themselves that such a condition of
+the race had ever existed, is a point, as I have already stated, which
+their language leaves in much uncertainty; but they certainly do seem
+to have made the conjecture, which has at all times possessed much
+plausibility, that the institution of property was not so old as the
+existence of mankind. Modern jurisprudence, accepting all their dogmas
+without reservation, went far beyond them in the eager curiosity with
+which it dwelt on the supposed state of Nature. Since then it had
+received the position that the earth and its fruits were once _res
+nullius_, and since its peculiar view of Nature led it to assume
+without hesitation that the human race had actually practised the
+Occupancy of _res nullius_ long before the organisation of civil
+societies, the inference immediately suggested itself that Occupancy
+was the process by which the "no man's goods" of the primitive world
+became the private property of individuals in the world of history. It
+would be wearisome to enumerate the jurists who have subscribed to
+this theory in one shape or another, and it is the less necessary to
+attempt it because Blackstone, who is always a faithful index of the
+average opinions of his day, has summed them up in his 2nd book and
+1st chapter.
+
+"The earth," he writes, "and all things therein were the general
+property of mankind from the immediate gift of the Creator. Not that
+the communion of goods seems ever to have been applicable, even in the
+earliest ages, to aught but the substance of the thing; nor could be
+extended to the use of it. For, by the law of nature and reason he who
+first began to use it acquired therein a kind of transient property
+that lasted so long as he was using it, and no longer; or to speak
+with greater precision, the right of possession continued for the same
+time only that the act of possession lasted. Thus the ground was in
+common, and no part was the permanent property of any man in
+particular; yet whoever was in the occupation of any determined spot
+of it, for rest, for shade, or the like, acquired for the time a sort
+of ownership, from which it would have been unjust and contrary to the
+law of nature to have driven him by force, but the instant that he
+quitted the use of occupation of it, another might seize it without
+injustice." He then proceeds to argue that "when mankind increased in
+number, it became necessary to entertain conceptions of more permanent
+dominion, and to appropriate to individuals not the immediate use
+only, but the very substance of the thing to be used."
+
+Some ambiguities of expression in this passage lead to the suspicion
+that Blackstone did not quite understand the meaning of the
+proposition which he found in his authorities, that property in the
+earth's surface was first acquired, under the law of Nature, by the
+_occupant_; but the limitation which designedly or through
+misapprehension he has imposed on the theory brings it into a form
+which it has not infrequently assumed. Many writers more famous than
+Blackstone for precision of language have laid down that, in the
+beginning of things, Occupancy first gave a right against the world to
+an exclusive but temporary enjoyment, and that afterwards this right,
+while it remained exclusive, became perpetual. Their object in so
+stating their theory was to reconcile the doctrine that in the state
+of Nature _res nullius_ became property through Occupancy, with the
+inference which they drew from the Scriptural history that the
+Patriarchs did not at first permanently appropriate the soil which had
+been grazed over by their flocks and herds.
+
+The only criticism which could be directly applied to the theory of
+Blackstone would consist in inquiring whether the circumstances which
+make up his picture of a primitive society are more or less probable
+than other incidents which could be imagined with equal readiness.
+Pursuing this method of examination, we might fairly ask whether the
+man who had _occupied_ (Blackstone evidently uses this word with its
+ordinary English meaning) a particular spot of ground for rest or
+shade would be permitted to retain it without disturbance. The chances
+surely are that his right to possession would be exactly coextensive
+with his power to keep it, and that he would be constantly liable to
+disturbance by the first comer who coveted the spot and thought
+himself strong enough to drive away the possessor. But the truth is
+that all such cavil at these positions is perfectly idle from the very
+baselessness of the positions themselves. What mankind did in the
+primitive state may not be a hopeless subject of inquiry, but of their
+motives for doing it it is impossible to know anything. These sketches
+of the plight of human beings in the first ages of the world are
+effected by first supposing mankind to be divested of a great part
+of the circumstances by which they are now surrounded, and by
+then assuming that, in the condition thus imagined, they would
+preserve the same sentiments and prejudices by which they are now
+actuated,--although, in fact, these sentiments may have been created
+and engendered by those very circumstances of which, by the
+hypothesis, they are to be stripped.
+
+There is an aphorism of Savigny which has been sometimes thought to
+countenance a view of the origin of property somewhat similar to the
+theories epitomised by Blackstone. The great German jurist has laid
+down that all Property is founded on Adverse Possession ripened by
+Prescription. It is only with respect to Roman law that Savigny makes
+this statement, and before it can fully be appreciated much labour
+must be expended in explaining and defining the expressions employed.
+His meaning will, however, be indicated with sufficient accuracy if we
+consider him to assert that, how far soever we carry our inquiry into
+the ideas of property received among the Romans, however closely we
+approach in tracing them to the infancy of law, we can get no farther
+than a conception of ownership involving the three elements in the
+canon--Possession, Adverseness of Possession, that is a holding not
+permissive or subordinate, but exclusive against the world, and
+Prescription, or a period of time during which the Adverse Possession
+has uninterruptedly continued. It is exceedingly probable that this
+maxim might be enunciated with more generality than was allowed to it
+by its author, and that no sound or safe conclusion can be looked for
+from investigations into any system of laws which are pushed farther
+back than the point at which these combined ideas constitute the
+notion of proprietary right. Meantime, so far from bearing out the
+popular theory of the origin of property, Savigny's canon is
+particularly valuable as directing our attention to its weakest point.
+In the view of Blackstone and those whom he follows, it was the mode
+of assuming the exclusive enjoyment which mysteriously affected the
+minds of the fathers of our race. But the mystery does not reside
+here. It is not wonderful that property began in adverse possession.
+It is not surprising that the first proprietor should have been the
+strong man armed who kept his goods in peace. But why it was that
+lapse of time created a sentiment of respect for his possession--which
+is the exact source of the universal reverence of mankind for that
+which has for a long period _de facto_ existed--are questions really
+deserving the profoundest examination, but lying far beyond the
+boundary of our present inquiries.
+
+Before pointing out the quarter in which we may hope to glean some
+information, scanty and uncertain at best, concerning the early
+history of proprietary right, I venture to state my opinion that the
+popular impression in reference to the part played by Occupancy in the
+first stages of civilisation directly reverses the truth. Occupancy is
+the advised assumption of physical possession; and the notion that an
+act of this description confers a title to "res nullius," so far from
+being characteristic of very early societies, is in all probability
+the growth of a refined jurisprudence and of a settled condition of
+the laws. It is only when the rights of property have gained a
+sanction from long practical inviolability and when the vast majority
+of the objects of enjoyment have been subjected to private ownership,
+that mere possession is allowed to invest the first possessor with
+dominion over commodities in which no prior proprietorship has been
+asserted. The sentiment in which this doctrine originated is
+absolutely irreconcilable with that infrequency and uncertainty of
+proprietary rights which distinguish the beginnings of civilisation.
+Its true basis seems to be, not an instinctive bias towards the
+institution of Property, but a presumption arising out of the long
+continuance of that institution, that _everything ought to have an
+owner_. When possession is taken of a "res nullius," that is, of an
+object which _is_ not, or has _never_ been, reduced to dominion, the
+possessor is permitted to become proprietor from a feeling that all
+valuable things are naturally the subjects of an exclusive enjoyment,
+and that in the given case there is no one to invest with the right of
+property except the Occupant. The Occupant in short, becomes the
+owner, because all things are presumed to be somebody's property and
+because no one can be pointed out as having a better right than he to
+the proprietorship of this particular thing.
+
+Even were there no other objection to the descriptions of mankind in
+their natural state which we have been discussing, there is one
+particular in which they are fatally at variance with the authentic
+evidence possessed by us. It will be observed that the acts and
+motives which these theories suppose are the acts and motives of
+Individuals. It is each Individual who for himself subscribes the
+Social Compact. It is some shifting sandbank in which the grains are
+Individual men, that according to the theory of Hobbes is hardened
+into the social rock by the wholesome discipline of force. It is an
+Individual who, in the picture drawn by Blackstone, "is in the
+occupation of a determined spot of ground for rest, for shade, or the
+like." The vice is one which necessarily afflicts all the theories
+descended from the Natural Law of the Romans, which differed
+principally from their Civil Law in the account which it took of
+Individuals, and which has rendered precisely its greatest service to
+civilisation in enfranchising the individual from the authority of
+archaic society. But Ancient Law, it must again be repeated, knows
+next to nothing of Individuals. It is concerned not with Individuals,
+but with Families, not with single human beings, but groups. Even when
+the law of the State has succeeded in permeating the small circles of
+kindred into which it had originally no means of penetrating, the view
+it takes of Individuals is curiously different from that taken by
+jurisprudence in its maturest stage. The life of each citizen is not
+regarded as limited by birth and death; it is but a continuation of
+the existence of his forefathers, and it will be prolonged in the
+existence of his descendants.
+
+The Roman distinction between the Law of Persons and the Law of
+Things, which though extremely convenient is entirely artificial, has
+evidently done much to divert inquiry on the subject before us from
+the true direction. The lessons learned in discussing the Jus
+Personarum have been forgotten where the Jus Rerum is reached, and
+Property, Contract, and Delict, have been considered as if no hints
+concerning their original nature were to be gained from the facts
+ascertained respecting the original condition of Persons. The futility
+of this method would be manifest if a system of pure archaic law could
+be brought before us, and if the experiment could be tried of applying
+to it the Roman classifications. It would soon be seen that the
+separation of the Law of Persons from that of Things has no meaning in
+the infancy of law, that the rules belonging to the two departments
+are inextricably mingled together, and that the distinctions of the
+later jurists are appropriate only to the later jurisprudence. From
+what has been said in the earlier portions of this treatise, it will
+be gathered that there is a strong _a priori_ improbability of our
+obtaining any clue to the early history of property, if we confine our
+notice to the proprietary rights of individuals. It is more than
+likely that joint-ownership, and not separate ownership, is the really
+archaic institution, and that the forms of property which will afford
+us instruction will be those which are associated with the rights of
+families and of groups of kindred. The Roman jurisprudence will not
+here assist in enlightening us, for it is exactly the Roman
+jurisprudence which, transformed by the theory of Natural Law, has
+bequeathed to the moderns the impression that individual ownership is
+the normal state of proprietary right, and that ownership in common by
+groups of men is only the exception to a general rule. There is,
+however, one community which will always be carefully examined by the
+inquirer who is in quest of any lost institution of primeval society.
+How far soever any such institution may have undergone change among
+the branch of the Indo-European family which has been settled for ages
+in India, it will seldom be found to have entirely cast aside the
+shell in which it was originally reared. It happens that, among the
+Hindoos, we do find a form of ownership which ought at once to rivet
+our attention from its exactly fitting in with the ideas which our
+studies in the Law of Persons would lead us to entertain respecting
+the original condition of property. The Village Community of India is
+at once an organised patriarchal society and an assemblage of
+co-proprietors. The personal relations to each other of the men who
+compose it are indistinguishably confounded with their proprietary
+rights, and to the attempts of English functionaries to separate the
+two may be assigned some of the most formidable miscarriages of
+Anglo-Indian administration. The Village Community is known to be of
+immense antiquity. In whatever direction research has been pushed into
+Indian history, general or local, it has always found the Community in
+existence at the farthest point of its progress. A great number of
+intelligent and observant writers, most of whom had no theory of any
+sort to support concerning its nature and origin, agree in considering
+it the least destructible institution of a society which never
+willingly surrenders any one of its usages to innovation. Conquests
+and revolutions seem to have swept over it without disturbing or
+displacing it, and the most beneficent systems of government in India
+have always been those which have recognised it as the basis of
+administration.
+
+The mature Roman law, and modern jurisprudence following in its wake,
+look upon co-ownership as an exceptional and momentary condition of
+the rights of property. This view is clearly indicated in the maxim
+which obtains universally in Western Europe, _Nemo in communione
+potest invitus detineri_ ("No one can be kept in co-proprietorship
+against his will"). But in India this order of ideas is reversed, and
+it may be said that separate proprietorship is always on its way to
+become proprietorship in common. The process has been adverted to
+already. As soon as a son is born, he acquires a vested interest in
+his father's substance, and on attaining years of discretion he is
+even, in certain contingencies, permitted by the letter of the law to
+call for a partition of the family estate. As a fact, however, a
+division rarely takes place even at the death of the father, and the
+property constantly remains undivided for several generations, though
+every member of every generation has a legal right to an undivided
+share in it. The domain thus held in common is sometimes administered
+by an elected manager, but more generally, and in some provinces
+always, it is managed by the eldest agnate, by the eldest
+representative of the eldest line of the stock. Such an assemblage of
+joint proprietors, a body of kindred holding a domain in common, is
+the simplest form of an Indian Village Community, but the Community is
+more than a brotherhood of relatives and more than an association of
+partners. It is an organised society, and besides providing for the
+management of the common fund, it seldom fails to provide, by a
+complete staff of functionaries, for internal government, for police,
+for the administration of justice, and for the apportionment of taxes
+and public duties.
+
+The process which I have described as that under which a Village
+Community is formed, may be regarded as typical. Yet it is not to be
+supposed that every Village Community in India drew together in so
+simple a manner. Although, in the North of India, the archives, as I
+am informed, almost invariably show that the Community was founded by
+a single assemblage of blood-relations, they also supply information
+that men of alien extraction have always, from time to time, been
+engrafted on it, and a mere purchaser of a share may generally, under
+certain conditions, be admitted to the brotherhood. In the South of
+the Peninsula there are often Communities which appear to have sprung
+not from one but from two or more families; and there are some whose
+composition is known to be entirely artificial; indeed, the occasional
+aggregation of men of different castes in the same society is fatal to
+the hypothesis of a common descent. Yet in all these brotherhoods
+either the tradition is preserved, or the assumption made, of an
+original common parentage. Mountstuart Elphinstone, who writes more
+particularly of the Southern Village Communities, observes of them
+(_History of India_, i. 126): "The popular notion is that the Village
+landholders are all descended from one or more individuals who settled
+the village; and that the only exceptions are formed by persons who
+have derived their rights by purchase or otherwise from members of the
+original stock. The supposition is confirmed by the fact that, to this
+day, there are only single families of landholders in small villages
+and not many in large ones; but each has branched out into so many
+members that it is not uncommon for the whole agricultural labour to
+be done by the landholders, without the aid either of tenants or of
+labourers. The rights of the landholders are theirs collectively and,
+though they almost always have a more or less perfect partition of
+them, they never have an entire separation. A landholder, for
+instance, can sell or mortgage his rights; but he must first have the
+consent of the Village, and the purchaser steps exactly into his place
+and takes up all his obligations. If a family becomes extinct, its
+share returns to the common stock."
+
+Some considerations which have been offered in the fifth chapter of
+this volume will assist the reader, I trust, in appreciating the
+significance of Elphinstone's language. No institution of the
+primitive world is likely to have been preserved to our day, unless it
+has acquired an elasticity foreign to its original nature through some
+vivifying legal fiction. The Village Community then is not necessarily
+an assemblage of blood-relations, but it is _either_ such an
+assemblage _or_ a body of co-proprietors formed on the model of an
+association of kinsmen. The type with which it should be compared is
+evidently not the Roman Family, but the Roman Gens or House. The Gens
+was also a group on the model of the family; it was the family
+extended by a variety of fictions of which the exact nature was lost
+in antiquity. In historical times, its leading characteristics were
+the very two which Elphinstone remarks in the Village Community. There
+was always the assumption of a common origin, an assumption sometimes
+notoriously at variance with fact; and, to repeat the historian's
+words, "if a family became extinct, its share returned to the common
+stock." In old Roman law, unclaimed inheritances escheated to the
+Gentiles. It is further suspected by all who have examined their
+history that the Communities, like the Gentes, have been very
+generally adulterated by the admission of strangers, but the exact
+mode of absorption cannot now be ascertained. At present, they are
+recruited, as Elphinstone tells us, by the admission of purchasers,
+with the consent of the brotherhood. The acquisition of the adopted
+member is, however, of the nature of a universal succession; together
+with the share he has bought, he succeeds to the liabilities which the
+vendor had incurred towards the aggregate group. He is an Emptor
+Familiae, and inherits the legal clothing of the person whose place he
+begins to fill. The consent of the whole brotherhood required for his
+admission may remind us of the consent which the Comitia Curiata, the
+Parliament of that larger brotherhood of self-styled kinsmen, the
+ancient Roman commonwealth, so strenuously insisted on as essential to
+the legalisation of an Adoption or the confirmation of a Will.
+
+The tokens of an extreme antiquity are discoverable in almost every
+single feature of the Indian Village Communities. We have so many
+independent reasons for suspecting that the infancy of law is
+distinguished by the prevalence of co-ownership by the intermixture of
+personal with proprietary rights, and by the confusion of public with
+private duties, that we should be justified in deducing many important
+conclusions from our observation of these proprietary brotherhoods,
+even if no similarly compounded societies could be detected in any
+other part of the world. It happens, however, that much earnest
+curiosity has been very recently attracted to a similar set of
+phenomena in those parts of Europe which have been most slightly
+affected by the feudal transformation of property, and which in many
+important particulars have as close an affinity with the Eastern as
+with the Western world. The researches of M. de Haxthausen, M.
+Tengoborski, and others, have shown us that the Russian villages are
+not fortuitous assemblages of men, nor are they unions founded on
+contract; they are naturally organised communities like those of
+India. It is true that these villages are always in theory the
+patrimony of some noble proprietor and the peasants have within
+historical times been converted into the predial, and to a great
+extent into the personal, serfs of the seignior. But the pressure of
+this superior ownership has never crushed the ancient organisation of
+the village, and it is probable that the enactment of the Czar of
+Russia, who is supposed to have introduced serfdom, was really
+intended to prevent the peasants from abandoning that co-operation
+without which the old social order could not long be maintained. In
+the assumption of an agnatic connection between the villagers, in the
+blending of personal rights with privileges of ownership, and in a
+variety of spontaneous provisions for internal administration, the
+Russian Village appears to be a nearly exact repetition of the Indian
+Community; but there is one important difference which we note with
+the greatest interest. The co-owners of an Indian village, though
+their property is blended, have their rights distinct, and this
+separation of rights is complete and continues indefinitely. The
+severance of rights is also theoretically complete in a Russian
+village, but there it is only temporary. After the expiration of a
+given, but not in all cases of the same, period separate ownerships
+are extinguished, the land of the village is thrown into a mass, and
+then it is re-distributed among the families composing the community,
+according to their number. This repartition having been effected, the
+rights of families and of individuals are again allowed to branch out
+into various lines, which they continue to follow till another period
+of division comes round. An even more curious variation from this type
+of ownership occurs in some of those countries which long formed a
+debateable land between the Turkish empire and the possessions of the
+House of Austria. In Servia, in Croatia, and the Austrian Sclavonia,
+the villages are also brotherhoods of persons who are at once
+co-owners and kinsmen; but there the internal arrangements of the
+community differ from those adverted to in the last two examples. The
+substance of the common property is in this case neither divided in
+practice nor considered in theory as divisible, but the entire land is
+cultivated by the combined labour of all the villagers, and the
+produce is annually distributed among the households, sometimes
+according to their supposed wants, sometimes according to rules which
+give to particular persons a fixed share of the usufruct. All these
+practices are traced by the jurists of the East of Europe to a
+principle which is asserted to be found in the earliest Sclavonian
+laws, the principle that the property of families cannot be divided
+for a perpetuity.
+
+The great interest of these phenomena in an inquiry like the present
+arises from the light they throw on the development of distinct
+proprietary rights _inside_ the groups by which property seems to have
+been originally held. We have the strongest reason for thinking that
+property once belonged not to individuals nor even to isolated
+families, but to larger societies composed on the patriarchal model;
+but the mode of transition from ancient to modern ownerships, obscure
+at best, would have been infinitely obscurer if several
+distinguishable forms of Village Communities had not been discovered
+and examined. It is worth while to attend to the varieties of internal
+arrangement within the patriarchal groups which are, or were till
+recently, observable among races of Indo-European blood. The chiefs of
+the ruder Highland clans used, it is said, to dole out food to the
+heads of the households under their jurisdiction at the very shortest
+intervals, and sometimes day by day. A periodical distribution is also
+made to the Sclavonian villagers of the Austrian and Turkish provinces
+by the elders of their body, but then it is a distribution once for
+all of the total produce of the year. In the Russian villages,
+however, the substance of the property ceases to be looked upon as
+indivisible, and separate proprietary claims are allowed freely to
+grow up, but then the progress of separation is peremptorily arrested
+after it has continued a certain time. In India, not only is there no
+indivisibility of the common fund, but separate proprietorship in
+parts of it may be indefinitely prolonged and may branch out into any
+number of derivative ownerships, the _de facto_ partition of the stock
+being, however, checked by inveterate usage, and by the rule against
+the admission of strangers without the consent of the brotherhood. It
+is not of course intended to insist that these different forms of the
+Village Community represent distinct stages in a process of
+transmutation which has been everywhere accomplished in the same
+manner. But, though the evidence does not warrant our going so far as
+this, it renders less presumptuous the conjecture that private
+property, in the shape in which we know it, was chiefly formed by the
+gradual disentanglement of the separate rights of individuals
+from the blended rights of a community. Our studies in the Law of
+Persons seemed to show us the Family expanding into the Agnatic group
+of kinsmen, then the Agnatic group dissolving into separate
+households; lastly the household supplanted by the individual; and it
+is now suggested that each step in the change corresponds to an
+analogous alteration in the nature of Ownership. If there be any truth
+in the suggestion, it is to be observed that it materially affects the
+problem which theorists on the origin of Property have generally
+proposed to themselves. The question--perhaps an insoluble one--which
+they have mostly agitated is, what were the motives which first
+induced men to respect each other's possessions? It may still be put,
+without much hope of finding an answer to it, in the form of any
+inquiry into the reasons which led one composite group to keep aloof
+from the domain of another. But, if it be true that far the most
+important passage in the history of Private Property is its gradual
+elimination from the co-ownership of kinsmen, then the great point of
+inquiry is identical with that which lies on the threshold of all
+historical law--what were the motives which originally prompted men to
+hold together in the family union? To such a question, Jurisprudence,
+unassisted by other sciences, is not competent to give a reply. The
+fact can only be noted.
+
+The undivided state of property in ancient societies is consistent
+with a peculiar sharpness of division, which shows itself as soon as
+any single share is completely separated from the patrimony of the
+group. This phenomenon springs, doubtless, from the circumstance that
+the property is supposed to become the domain of a new group, so that
+any dealing with it, in its divided state, is a transaction between
+two highly complex bodies. I have already compared Ancient Law to
+Modern International Law, in respect of the size and complexity of the
+corporate associations, whose rights and duties it settles. As the
+contracts and conveyances known to ancient law are contracts and
+conveyances to which not single individuals, but organised companies
+of men, are parties, they are in the highest degree ceremonious; they
+require a variety of symbolical acts and words intended to impress the
+business on the memory of all who take part in it; and they demand the
+presence of an inordinate number of witnesses. From these
+peculiarities, and others allied to them, springs the universally
+unmalleable character of the ancient forms of property. Sometimes the
+patrimony of the family is absolutely inalienable, as was the case
+with the Sclavonians, and still oftener, though alienations may not be
+entirely illegitimate, they are virtually impracticable, as among most
+of the Germanic tribes, from the necessity of having the consent of a
+large number of persons to the transfer. Where these impediments do
+not exist, or can be surmounted, the act of conveyance itself is
+generally burdened with a perfect load of ceremony, in which not one
+iota can be safely neglected. Ancient law uniformly refuses to
+dispense with a single gesture, however grotesque; with a single
+syllable, however its meaning may have been forgotten; with a single
+witness, however superfluous may be his testimony. The entire
+solemnities must be scrupulously completed by persons legally entitled
+to take part in them, or else the conveyance is null, and the seller
+is re-established in the rights of which he had vainly attempted to
+divest himself.
+
+These various obstacles to the free circulation of the objects of use
+and enjoyment, begin of course to make themselves felt as soon as
+society has acquired even a slight degree of activity, and the
+expedients by which advancing communities endeavour to overcome them
+form the staple of the history of Property. Of such expedients there
+is one which takes precedence of the rest from its antiquity and
+universality. The idea seems to have spontaneously suggested itself to
+a great number of early societies, to classify property into kinds.
+One kind or sort of property is placed on a lower footing of dignity
+than the others, but at the same time is relieved from the fetters
+which antiquity has imposed on them. Subsequently, the superior
+convenience of the rules governing the transfer and descent of the
+lower order of property becomes generally recognised, and by a gradual
+course of innovation the plasticity of the less dignified class of
+valuable objects is communicated to the classes which stand
+conventionally higher. The history of Roman Property Law is the
+history of the assimilation of Res Mancipi to Res Nec Mancipi. The
+history of Property on the European Continent is the history of the
+subversion of the feudalised law of land by the Romanised law of
+moveables; and, though the history of ownership in England is not
+nearly completed, it is visibly the law of personalty which threatens
+to absorb and annihilate the law of realty.
+
+The only _natural_ classification of the objects of enjoyment, the
+only classification which corresponds with an essential difference in
+the subject-matter, is that which divides them into Moveables and
+Immoveables. Familiar as is this classification to jurisprudence, it
+was very slowly developed by Roman law, from which we inherit it, and
+was only finally adopted by it in its latest stage. The
+classifications of Ancient Law have sometimes a superficial
+resemblance to this. They occasionally divide property into
+categories, and place immoveables in one of them; but then it is found
+that they either class along with immoveables a number of objects
+which have no sort of relation with them, or else divorce them from
+various rights to which they have a close affinity. Thus, the Res
+Mancipi of Roman Law included not only land, but slaves, horses, and
+oxen. Scottish law ranks with land a certain class of securities, and
+Hindoo law associates it with slaves. English law, on the other hand,
+parts leases of land for years from other interests in the soil, and
+joins them to personalty under the name of chattels real. Moreover,
+the classifications of Ancient Law are classifications implying
+superiority and inferiority; while the distinction between moveables
+and immoveables, so long at least as it was confined to Roman
+jurisprudence, carried with it no suggestion whatever of a difference
+in dignity. The Res Mancipi, however, did certainly at first enjoy a
+precedence over the Res Nec Mancipi, as did heritable property in
+Scotland and realty in England, over the personalty to which they were
+opposed. The lawyers of all systems have spared no pains in striving
+to refer these classifications to some intelligible principle; but the
+reasons of the severance must ever be vainly sought for in the
+philosophy of law: they belong not to its philosophy, but to its
+history. The explanation which appears to cover the greatest number of
+instances is, that the objects of enjoyment honoured above the rest
+were the forms of property known first and earliest to each particular
+community, and dignified therefore emphatically with the designation
+of _Property_. On the other hand, the articles not enumerated among
+the favoured objects seem to have been placed on a lower standing,
+because the knowledge of their value was posterior to the epoch at
+which the catalogue of superior property was settled. They were at
+first unknown, rare, limited in their uses, or else regarded as mere
+appendages to the privileged objects. Thus, though the Roman Res
+Mancipi included a number of moveable articles of great value, still
+the most costly jewels were never allowed to take rank as Res Mancipi,
+because they were unknown to the early Romans. In the same way
+chattels real in England are said to have been degraded to the footing
+of personalty, from the infrequency and valuelessness of such estates
+under the feudal land-law. But the grand point of interest is, the
+continued degradation of these commodities when their importance had
+increased and their number had multiplied. Why were they not
+successively included among the favoured objects of enjoyment? One
+reason is found in the stubbornness with which Ancient Law adheres to
+its classifications. It is a characteristic both of uneducated minds
+and of early societies, that they are little able to conceive a
+general rule apart from the particular applications of it with which
+they are practically familiar. They cannot dissociate a general term
+or maxim from the special examples which meet them in daily
+experience; and in this way the designation covering the best-known
+forms of property is denied to articles which exactly resemble them in
+being objects of enjoyment and subjects of right. But to these
+influences, which exert peculiar force in a subject-matter so stable
+as that of law, are afterwards added others more consistent with
+progress in enlightenment and in the conceptions of general
+expediency. Courts and lawyers become at last alive to the
+inconvenience of the embarrassing formalities required for the
+transfer, recovery, or devolution of the favoured commodities, and
+grow unwilling to fetter the newer descriptions of property with the
+technical trammels which characterised the infancy of law. Hence
+arises a disposition to keep these last on a lower grade in the
+arrangements of Jurisprudence, and to permit their transfer by simpler
+processes than those which, in archaic conveyances, serve as
+stumbling-blocks to good faith and stepping-stones to fraud. We are
+perhaps in some danger of underrating the inconveniences of the
+ancient modes of transfer. Our instruments of conveyance are written,
+so that their language, well pondered by the professional draftsman,
+is rarely defective in accuracy. But an ancient conveyance was not
+written, but _acted_. Gestures and words took the place of written
+technical phraseology, and any formula mispronounced, or symbolical
+act omitted, would have vitiated the proceeding as fatally as a
+material mistake in stating the uses or setting out the remainders
+would, two hundred years ago, have vitiated an English deed. Indeed,
+the mischiefs of the archaic ceremonial are even thus only half
+stated. So long as elaborate conveyances, written or acted, are
+required for the alienation of _land_ alone, the chances of mistake
+are not considerable in the transfer of a description of property
+which is seldom got rid of with much precipitation. But the higher
+class of property in the ancient world comprised not only land but
+several of the commonest and several of the most valuable moveables.
+When once the wheels of society had begun to move quickly, there must
+have been immense inconvenience in demanding a highly intricate form
+of transfer for a horse or an ox, or for the most costly chattel of
+the old world--the Slave. Such commodities must have been constantly
+and even ordinarily conveyed with incomplete forms, and held,
+therefore, under imperfect titles.
+
+The Res Mancipi of old Roman law were land--in historical times, land
+on Italian soil,--slaves and beasts of burden, such as horses and
+oxen. It is impossible to doubt that the objects which make up the
+class are the instruments of agricultural labour, the commodities of
+first consequence to a primitive people. Such commodities were at
+first, I imagine, called emphatically Things or Property, and the mode
+of conveyance by which they were transferred was called a Mancipium or
+Mancipation; but it was not probably till much later that they
+received the distinctive appellation of Res Mancipi, "Things which
+require a Mancipation." By their side there may have existed or grown
+up a class of objects, for which it was not worth while to insist upon
+the full ceremony of Mancipation. It would be enough if, in
+transferring these last from owner to owner, a part only of the
+ordinary formalities were proceeded with, namely, that actual
+delivery, physical transfer, or _tradition_, which is the most obvious
+index of a change of proprietorship. Such commodities were the Res Nec
+Mancipi of the ancient jurisprudence, "things which did not require a
+Mancipation," little prized probably at first, and not often passed
+from one group of proprietors to another, While, however, the list of
+the Res Mancipi was irrevocably closed; that of the Res Nec Mancipi
+admitted of indefinite expansion; and hence every fresh conquest of
+man over material nature added an item to the Res Nec Mancipi, or
+effected an improvement in those already recognised. Insensibly,
+therefore, they mounted to an equality with the Res Mancipi, and the
+impression of an intrinsic inferiority being thus dissipated, men
+began to observe the manifold advantages of the simple formality which
+accompanied their transfer over the more intricate and more venerable
+ceremonial. Two of the agents of legal amelioration, Fictions and
+Equity, were assiduously employed by the Roman lawyers to give the
+practical effects of a Mancipation to a Tradition: and, though Roman
+legislators long shrank from enacting that the right of property in a
+Res Mancipi should be immediately transferred by bare delivery of the
+article, yet even this step was at last ventured upon by Justinian, in
+whose jurisprudence the difference between Res Mancipi and Res Nec
+Mancipi disappears, and Tradition or Delivery becomes the one great
+conveyance known to the law. The marked preference which the Roman
+lawyers very early gave to Tradition caused them to assign it a place
+in their theory which has helped to blind their modern disciples to
+its true history. It was classed among the "natural" modes of
+acquisition, both because it was generally practised among the Italian
+tribes, and because it was a process which attained its object by the
+simplest mechanism. If the expressions of the jurisconsults be
+pressed, they undoubtedly imply that Tradition, which belongs to the
+Law Natural, is more ancient than Mancipation, which is an institution
+of Civil Society; and this, I need not say, is the exact reverse of
+the truth.
+
+The distinction between Res Mancipi and Res Nec Mancipi is the type of
+a class of distinctions to which civilisation is much indebted,
+distinctions which run through the whole mass of commodities, placing
+a few of them in a class by themselves, and relegating the others to a
+lower category. The inferior kinds of property are first, from disdain
+and disregard, released from the perplexed ceremonies in which
+primitive law delights, and thus afterwards, in another state of
+intellectual progress, the simple methods of transfer and recovery
+which have been allowed to come into use serve as a model which
+condemns by its convenience and simplicity the cumbrous solemnities
+inherited from ancient days. But, in some societies, the trammels in
+which Property is tied up are much too complicated and stringent to be
+relaxed in so easy a manner. Whenever male children have been born to
+a Hindoo, the law of India, as I have stated, gives them all an
+interest in his property, and makes their consent a necessary
+condition of its alienation. In the same spirit, the general usage of
+the old Germanic peoples--it is remarkable that the Anglo-Saxon
+customs seem to have been an exception--forbade alienations without
+the consent of the male children; and the primitive law of the
+Sclavonians even prohibited them altogether. It is evident that such
+impediments as these cannot be overcome by a distinction between kinds
+of property, inasmuch as the difficulty extends to commodities of all
+sorts; and accordingly, Ancient Law, when once launched on a course of
+improvement, encounters them with a distinction of another character,
+a distinction classifying property, not according to its nature but
+according to its origin. In India, where there are traces of both
+systems of classification, the one which we are considering is
+exemplified in the difference which Hindoo law establishes between
+Inheritances and Acquisitions. The inherited property of the father is
+shared by the children as soon as they are born; but according to the
+custom of most provinces, the acquisitions made by him during his
+lifetime are wholly his own, and can be transferred by him at
+pleasure. A similar distinction was not unknown to Roman law, in which
+the earliest innovation on the Parental Powers took the form of a
+permission given to the son to keep for himself whatever he might have
+acquired in military service. But the most extensive use ever made of
+this mode of classification appears to have been among the Germans. I
+have repeatedly stated that the _allod_, though not inalienable, was
+commonly transferable with the greatest difficulty; and moreover, it
+descended exclusively to the agnatic kindred. Hence an extraordinary
+variety of distinctions came to be recognised, all intended to
+diminish the inconveniences inseparable from allodial property. The
+_wehrgeld_, for example, or composition for the homicide of a
+relative, which occupies so large a space in German jurisprudence,
+formed no part of the family domain, and descended according to rules
+of succession altogether different. Similarly, the _reipus_, or fine
+leviable on the re-marriage of a widow, did not enter into the
+_allod_ of the person to whom it was paid, and followed a line of
+devolution in which the privileges of the agnates were neglected. The
+law, too, as among the Hindoos, distinguished the Acquisitions of the
+chief of the household from his Inherited property, and permitted him
+to deal with them under much more liberal conditions. Classifications
+of the other sort were also admitted, and the familiar distinction
+drawn between land and moveables; but moveable property was divided
+into several subordinate categories, to each of which different rules
+applied. This exuberance of classification, which may strike us as
+strange in so rude a people as the German conquerors of the Empire, is
+doubtless to be explained by the presence in their systems of a
+considerable element of Roman law, absorbed by them during their long
+sojourn on the confines of the Roman dominion. It is not difficult to
+trace a great number of the rules governing the transfer and
+devolution of the commodities which lay outside the _allod_, to their
+source in Roman jurisprudence, from which they were probably borrowed
+at widely distant epochs, and in fragmentary importations. How far the
+obstacles to the free circulation of property were surmounted by such
+contrivances, we have not the means even of conjecturing, for the
+distinctions adverted to have no modern history. As I before
+explained, the allodial form of property was entirely lost in the
+feudal, and when the consolidation of feudalism was once completed,
+there was practically but one distinction left standing of all those
+which had been known to the western world--the distinction between
+land and goods, immoveables and moveables. Externally this distinction
+was the same with that which Roman law had finally accepted, but the
+law of the middle ages differed from that of Rome in distinctly
+considering immoveable property to be more dignified than moveable.
+Yet this one sample is enough to show the importance of the class of
+expedients to which it belongs. In all the countries governed by
+systems based on the French codes, that is, through much the greatest
+part of the Continent of Europe, the law of moveables, which was
+always Roman law, has superseded and annulled the feudal law of land.
+England is the only country of importance in which this transmutation,
+though it has gone some way, is not nearly accomplished. Our own, too,
+it may be added, is the only considerable European country in which
+the separation of moveables from immoveables has been somewhat
+disturbed by the same influences which caused the ancient
+classifications to depart from the only one which is countenanced by
+nature. In the main, the English distinction has been between land and
+goods; but a certain class of goods have gone as heir-looms with the
+land, and a certain description of interests in land have from
+historical causes been ranked with personalty. This is not the only
+instance in which English jurisprudence, standing apart from the main
+current of legal modification, has reproduced phenomena of archaic
+law.
+
+I proceed to notice one or two more contrivances by which the ancient
+trammels of proprietary right were more or less successfully relaxed,
+premising that the scheme of this treatise only permits me to mention
+those which are of great antiquity. On one of them in particular it is
+necessary to dwell for a moment or two, because persons unacquainted
+with the early history of law will not be easily persuaded that a
+principle, of which modern jurisprudence has very slowly and with the
+greatest difficulty obtained the recognition, was really familiar to
+the very infancy of legal science. There is no principle in all law
+which the moderns, in spite of its beneficial character, have been so
+loath to adopt and to carry to its legitimate consequences as that
+which was known to the Romans as Usucapion, and which has descended to
+modern jurisprudence under the name of Prescription. It was a positive
+rule of the oldest Roman law, a rule older than the Twelve Tables,
+that commodities which had been uninterruptedly possessed for a
+certain period became the property of the possessor. The period of
+possession was exceedingly short--one or two years according to the
+nature of the commodities--and in historical times Usucapion was only
+allowed to operate when possession had commenced in a particular way;
+but I think it likely that at a less advanced epoch possession was
+converted into ownership under conditions even less severe than we
+read of in our authorities. As I have said before, I am far from
+asserting that the respect of men for _de facto_ possession is a
+phenomenon which jurisprudence can account for by itself, but it is
+very necessary to remark that primitive societies, in adopting the
+principle of Usucapion, were not beset with any of the speculative
+doubts and hesitations which have impeded its reception among the
+moderns. Prescriptions were viewed by the modern lawyers, first with
+repugnance, afterwards with reluctant approval. In several countries,
+including our own, legislation long declined to advance beyond the
+rude device of barring all actions based on a wrong which had been
+suffered earlier than a fixed point of time in the past, generally the
+first year of some preceding reign; nor was it till the middle ages
+had finally closed, and James the First had ascended the throne of
+England, that we obtained a true statute of limitation of a very
+imperfect kind. This tardiness in copying one of the most famous
+chapters of Roman law, which was no doubt constantly read by the
+majority of European lawyers, the modern world owes to the influence
+of the Canon Law. The ecclesiastical customs out of which the Canon
+Law grew, concerned as they were with sacred or quasi-sacred
+interests, very naturally regarded the privileges which they conferred
+as incapable of being lost through disuse however prolonged; and in
+accordance with this view, the spiritual jurisprudence, when
+afterwards consolidated, was distinguished by a marked leaning against
+Prescriptions. It was the fate of the Canon Law, when held up by the
+clerical lawyers as a pattern to secular legislation, to have a
+peculiar influence on first principles. It gave to the bodies of
+custom which were formed throughout Europe far fewer express rules
+than did the Roman law, but then it seems to have communicated a bias
+to professional opinion on a surprising number of fundamental points,
+and the tendencies thus produced progressively gained strength as each
+system was developed. One of the dispositions it produced was a
+disrelish for Prescriptions; but I do not know that this prejudice
+would have operated as powerfully as it has done, if it had not fallen
+in with the doctrine of the scholastic jurists of the realist sect,
+who taught that, whatever turn actual legislation might take, a
+_right_, how long soever neglected, was in point of fact
+indestructible. The remains of this state of feeling still exist.
+Wherever the philosophy of law is earnestly discussed, questions
+respecting the speculative basis of Prescription are always hotly
+disputed; and it is still a point of the greatest interest in France
+and Germany, whether a person who has been out of possession for a
+series of years is deprived of his ownership as a penalty for his
+neglect, or loses it through the summary interposition of the law in
+its desire to have a _finis litium_. But no such scruples troubled the
+mind of early Roman society. Their ancient usages directly took away
+the ownership of everybody who had been out of possession, under
+certain circumstances, during one or two years. What was the exact
+tenor of the rule of Usucapion in its earliest shape, it is not easy
+to say; but, taken with the limitations which we find attending it in
+the books, it was a most useful security against the mischiefs of a
+too cumbrous system of conveyance. In order to have the benefit of
+Usucapion, it was necessary that the adverse possession should have
+begun in good faith, that is, with belief on the part of the possessor
+that he was lawfully acquiring the property, and it was farther
+required that the commodity should have been transferred to him by
+some mode of alienation which, however unequal to conferring a
+complete title in the particular case, was at least recognised by the
+law. In the case therefore of a Mancipation, however slovenly the
+performance might have been, yet if it had been carried so far as to
+involve a Tradition or Delivery, the vice of the title would be cured
+by Usucapion in two years at most. I know nothing in the practice of
+the Romans which testifies so strongly to their legal genius as the
+use which they made of Usucapion. The difficulties which beset them
+were nearly the same with those which embarrassed and still embarrass
+the lawyers of England. Owing to the complexity of their system, which
+as yet they had neither the courage nor the power to reconstruct,
+actual right was constantly getting divorced from technical right, the
+equitable ownership from the legal. But Usucapion, as manipulated by
+the jurisconsults, supplied a self-acting machinery, by which the
+defects of titles to property were always in course of being cured,
+and by which the ownerships that were temporarily separated were again
+rapidly cemented together with the briefest possible delay. Usucapion
+did not lose its advantages till the reforms of Justinian. But as soon
+as law and equity had been completely fused, and when Mancipation
+ceased to be the Roman conveyance, there was no further necessity for
+the ancient contrivance, and Usucapion, with its periods of time
+considerably lengthened, became the Prescription which has at length
+been adopted by nearly all systems of modern law.
+
+I pass by with brief mention another expedient having the same object
+with the last, which, though it did not immediately make its
+appearance in English legal history, was of immemorial antiquity in
+Roman law; such indeed is its apparent age that some German civilians,
+not sufficiently aware of the light thrown on the subject by the
+analogies of English law, have thought it even older than the
+Mancipation. I speak of the Cessio in Jure, a collusive recovery, in a
+Court of law, of property sought to be conveyed. The plaintiff claimed
+the subject of this proceeding with the ordinary forms of a
+litigation; the defendant made default; and the commodity was of
+course adjudged to the plaintiff. I need scarcely remind the English
+lawyer that this expedient suggested itself to our forefathers, and
+produced those famous Fines and Recoveries which did so much to undo
+the harshest trammels of the feudal land-law. The Roman and English
+contrivances have very much in common and illustrate each other most
+instructively, but there is this difference between them, that the
+object of the English lawyers was to remove complications already
+introduced into the title, while the Roman jurisconsults sought to
+prevent them by substituting a mode of transfer necessarily
+unimpeachable for one which too often miscarried. The device is, in
+fact, one which suggests itself as soon as Courts of Law are in steady
+operation, but are nevertheless still under the empire of primitive
+notions. In an advanced state of legal opinion, tribunals regard
+collusive litigation as an abuse of their procedure; but there has
+always been a time when, if their forms were scrupulously complied
+with, they never dreamed of looking further.
+
+The influence of Courts of Law and of their procedure upon Property
+has been most extensive, but the subject is too large for the
+dimensions of this treatise, and would carry us further down the
+course of legal history than is consistent with its scheme. It is
+desirable, however, to mention, that to this influence we must
+attribute the importance of the distinction between Property and
+Possession--not, indeed, the distinction itself, which (in the
+language of an eminent English civilian) is the same thing as the
+distinction between the legal right to act upon a thing and the
+physical power to do so--but the extraordinary importance which the
+distinction has obtained in the philosophy of law. Few educated
+persons are so little versed in legal literature as not to have heard
+that the language of the Roman jurisconsults on the subject of
+Possession long occasioned the greatest possible perplexity, and that
+the genius of Savigny is supposed to have chiefly proved itself by the
+solution which he discovered for the enigma. Possession, in fact, when
+employed by the Roman lawyers, appears to have contracted a shade of
+meaning not easily accounted for. The word, as appears from its
+etymology, must have originally denoted physical contact or physical
+contact resumeable at pleasure; but, as actually used without any
+qualifying epithet, it signifies not simply physical detention, but
+physical detention coupled with the intention to hold the thing
+detained as one's own. Savigny, following Niebuhr, perceived that for
+this anomaly there could only be a historical origin. He pointed out
+that the Patrician burghers of Rome, who had become tenants of the
+greatest part of the public domain at nominal rents, were, in the view
+of the old Roman law, mere possessors, but then they were possessors
+intending to keep their land against all comers. They, in truth, put
+forward a claim almost identical with that which has recently been
+advanced in England by the lessees of Church lands. Admitting that in
+theory they were the tenants-at-will of the state, they contended that
+time and undisturbed enjoyment had ripened their holding into a
+species of ownership, and that it would be unjust to eject them for
+the purpose of redistributing the domain. The association of this
+claim with the Patrician tenancies, permanently influenced the sense
+of "possession." Meanwhile the only legal remedies of which the
+tenants could avail themselves, if ejected or threatened with
+disturbance, were the Possessory Interdicts, summary processes of
+Roman law which were either expressly devised by the Praetor for their
+protection, or else, according to another theory, had in older times
+been employed for the provisional maintenance of possessions pending
+the settlement of questions of legal right. It came, therefore, to be
+understood that everybody who possessed property _as his own_ had the
+power of demanding the Interdicts, and, by a system of highly
+artificial pleading, the Interdictal process was moulded into a shape
+fitted for the trial of conflicting claims to a disputed possession.
+Then commenced a movement which, as Mr. John Austin pointed out,
+exactly reproduced itself in English law. Proprietors, _domini_, began
+to prefer the simpler forms or speedier course of the Interdict to the
+lagging and intricate formalities of the Real Action, and for the
+purpose of availing themselves of the possessory remedy fell back
+upon the possession which was supposed to be involved in their
+proprietorship. The liberty conceded to persons who were not true
+Possessors, but Owners, to vindicate their rights by possessory
+remedies, though it may have been at first a boon, had ultimately the
+effect of seriously deteriorating both English and Roman
+jurisprudence. The Roman law owes to it those subtleties on the
+subject of Possession which have done so much to discredit it, while
+English law, after the actions which it appropriated to the recovery
+of real property had fallen into the most hopeless confusion, got rid
+at last of the whole tangled mass by a heroic remedy. No one can doubt
+that the virtual abolition of the English real actions which took
+place nearly thirty years since was a public benefit, but still
+persons sensitive to the harmonies of jurisprudence will lament that,
+instead of cleansing, improving, and simplifying the true proprietary
+actions, we sacrificed them all to the possessory action of ejectment,
+thus basing our whole system of land recovery upon a legal fiction.
+
+Legal tribunals have also powerfully assisted to shape and modify
+conceptions of proprietary right by means of the distinction between
+Law and Equity, which always makes its first appearance as a
+distinction between jurisdictions. Equitable property in England is
+simply property held under the jurisdiction of the Court of Chancery.
+At Rome, the Praetor's Edict introduced its novel principles in the
+guise of a promise that under certain circumstances a particular
+action or a particular plea would be granted; and, accordingly, the
+property _in bonis_, or Equitable Property, of Roman law was property
+exclusively protected by remedies which had their source in the Edict.
+The mechanism by which equitable rights were saved from being
+overridden by the claims of the legal owner was somewhat different in
+the two systems. With us their independence is secured by the
+Injunction of the Court of Chancery. Since however Law and Equity,
+while not as yet consolidated, were administered under the Roman
+system by the same Court, nothing like the Injunction was required,
+and the Magistrate took the simpler course of refusing to grant to the
+Civil Law Owner those actions and pleas by which alone he could obtain
+the property that belonged in equity to another. But the practical
+operation of both systems was nearly the same. Both, by means of a
+distinction in procedure, were able to preserve new forms of property
+in a sort of provisional existence, until the time should come when
+they were recognised by the whole law. In this way, the Roman Praetor
+gave an immediate right of property to the person who had acquired a
+Res Mancipi by mere delivery, without waiting for the ripening of
+Usucapion. Similarly he in time recognised an ownership in the
+Mortgagee who had at first been a mere "bailee" or depositary, and in
+the Emphyteuta, or tenant of land which was subject to a fixed
+perpetual rent. Following a parallel line of progress, the English
+Court of Chancery created a special proprietorship for the Mortgagor,
+for the Cestui que Trust, for the Married Woman who had the advantage
+of a particular kind of settlement, and for the Purchaser who had not
+yet acquired a complete legal ownership. All these are examples in
+which forms of proprietory right, distinctly new, were recognised and
+preserved. But indirectly Property has been affected in a thousand
+ways by equity both in England and at Rome. Into whatever corner of
+jurisprudence its authors pushed the powerful instrument in their
+command, they were sure to meet, and touch, and more or less
+materially modify the law of property. When in the preceding pages I
+have spoken of certain ancient legal distinctions and expedients as
+having powerfully affected the history of ownership, I must be
+understood to mean that the greatest part of their influence has
+arisen from the hints and suggestions of improvement infused by them
+into the mental atmosphere which was breathed by the fabricators of
+equitable systems.
+
+But to describe the influence of Equity on Ownership would be to write
+its history down to our own days. I have alluded to it principally
+because several esteemed contemporary writers have thought that in the
+Roman severance of Equitable from Legal property we have the clue to
+that difference in the conception of Ownership, which apparently
+distinguishes the law of the middle ages from the law of the Roman
+Empire. The leading characteristic of the feudal conception is its
+recognition of a double proprietorship, the superior ownership of the
+lord of the fief co-existing with the inferior property or estate of
+the tenant. Now, this duplication of proprietary right looks, it is
+urged, extremely like a generalised form of the Roman distribution of
+rights over property into _Quiritarian_ or legal, and (to use a word
+of late origin) _Bonitarian_ or equitable. Gaius himself
+observes upon the splitting of _dominion_ into two parts as a
+singularity of Roman law, and expressly contrasts it with the entire
+or allodial ownership to which other nations were accustomed.
+Justinian, it is true, re-consolidated dominion into one, but then it
+was the partially reformed system of the Western Empire, and not
+Justinian's jurisprudence, with which the barbarians were in contact
+during so many centuries. While they remained poised on the edge of
+the Empire, it may well be that they learned this distinction, which
+afterwards bore remarkable fruit. In favour of this theory, it must at
+all events be admitted that the element of Roman law in the various
+bodies of barbarian custom has been very imperfectly examined. The
+erroneous or insufficient theories which have served to explain
+Feudalism resemble each other in their tendency to draw off attention
+from this particular ingredient in its texture. The older
+investigators, who have been mostly followed in this country, attached
+an exclusive importance to the circumstances of the turbulent period
+during which the Feudal system grew to maturity; and in later times a
+new source of error has been added to those already existing, in that
+pride of nationality which has led German writers to exaggerate the
+completeness of the social fabric which their forefathers had built up
+before their appearance in the Roman world. One or two English
+inquirers who looked in the right quarter for the foundations of the
+feudal system, failed nevertheless to conduct their investigations to
+any satisfactory result, either from searching too exclusively for
+analogies in the compilations of Justinian, or from confining their
+attention to the compendia of Roman law which are found appended to
+some of the extant barbarian codes. But, if Roman jurisprudence had
+any influence on the barbarous societies, it had probably produced the
+greatest part of its effects before the legislation of Justinian, and
+before the preparation of these compendia. It was not the reformed and
+purified jurisprudence of Justinian, but the undigested system which
+prevailed in the Western Empire, and which the Eastern _Corpus Juris_
+never succeeded in displacing, that I conceive to have clothed with
+flesh and muscle the scanty skeleton of barbarous usage. The change
+must be supposed to have taken place before the Germanic tribes had
+distinctly appropriated, as conquerors, any portion of the Roman
+dominions, and therefore long before Germanic monarchs had ordered
+breviaries of Roman law to be drawn up for the use of their Roman
+subjects. The necessity for some such hypothesis will be felt by
+everybody who can appreciate the difference between archaic and
+developed law. Rude as are the _Leges Barbarorum_ which remain to us,
+they are not rude enough to satisfy the theory of their purely
+barbarous origin; nor have we any reason for believing that we have
+received, in written records, more than a fraction of the fixed rules
+which were practised among themselves by the members of the conquering
+tribes. If we can once persuade ourselves that a considerable element
+of debased Roman law already existed in the barbarian systems, we
+shall have done something to remove a grave difficulty. The German law
+of the conquerors and the Roman law of their subjects would not have
+combined if they had not possessed more affinity for each other than
+refined jurisprudence has usually for the customs of savages. It is
+extremely likely that the codes of the barbarians, archaic as they
+seem, are only a compound of true primitive usage with half-understood
+Roman rules, and that it was the foreign ingredient which enabled them
+to coalesce with a Roman jurisprudence that had already receded
+somewhat from the comparative finish which it had acquired under the
+Western Emperors.
+
+But, though all this must be allowed, there are several considerations
+which render it unlikely that the feudal form of ownership was
+directly suggested by the Roman duplication of domainial rights. The
+distinction between legal and equitable property strikes one as a
+subtlety little likely to be appreciated by barbarians; and, moreover,
+it can scarcely be understood unless Courts of Law are contemplated in
+regular operation. But the strongest reason against this theory is the
+existence in Roman Law of a form of property--a creation of Equity, it
+is true--which supplies a much simpler explanation of the transition
+from one set of ideas to the other. This is the Emphyteusis, upon
+which the Fief of the middle ages has often been fathered, though
+without much knowledge of the exact share which it had in bringing
+feudal ownership into the world. The truth is that the Emphyteusis,
+not probably as yet known by its Greek designation, marks one stage in
+a current of ideas which led ultimately to feudalism. The first
+mention in Roman history of estates larger than could be farmed by a
+Paterfamilias, with his household of sons and slaves, occurs when we
+come to the holdings of the Roman patricians. These great proprietors
+appear to have had no idea of any system of farming by free tenants.
+Their _latifundia_ seem to have been universally cultivated by
+slave-gangs, under bailiffs who were themselves slaves or freedmen;
+and the only organisation attempted appears to have consisted in
+dividing the inferior slaves into small bodies, and making them the
+_peculium_ of the better and trustier sort, who thus acquired a kind
+of interest in the efficiency of their labour. This system was,
+however, especially disadvantageous to one class of estated
+proprietors, the Municipalities. Functionaries in Italy were changed
+with the rapidity which often surprises us in the administration of
+Rome herself; so that the superintendence of a large landed domain by
+an Italian corporation must have been excessively imperfect.
+Accordingly, we are told that with the municipalities began the
+practice of letting out _agri vectigules_, that is, of leasing land
+for a perpetuity to a free tenant, at a fixed rent, and under certain
+conditions. The plan was afterwards extensively imitated by individual
+proprietors, and the tenant, whose relation to the owner had
+originally been determined by his contract, was subsequently
+recognised by the Praetor as having himself a qualified proprietorship,
+which in time became known as an Emphyteusis. From this point the
+history of tenure parts into two branches. In the course of that long
+period during which our records of the Roman Empire are most
+incomplete, the slave-gangs of the great Roman families became
+transformed into the _coloni_, whose origin and situation constitute
+one of the obscurest questions in all history. We may suspect that
+they were formed partly by the elevation of the slaves, and partly by
+the degradation of the free farmers; and that they prove the richer
+classes of the Roman Empire to have become aware of the increased
+value which landed property obtains when the cultivator had an
+interest in the produce of the land. We know that their servitude was
+predial; that it wanted many of the characteristics of absolute
+slavery, and that they acquitted their service to the landlord in
+rendering to him a fixed portion of the annual crop. We know further
+that they survived all the mutations of society in the ancient and
+modern worlds. Though included in the lower courses of the feudal
+structure, they continued in many countries to render to the landlord
+precisely the same dues which they had paid to the Roman _dominus_,
+and from a particular class among them, the _coloni medietarii_ who
+reserved half the produce for the owner, are descended the _metayer_
+tenantry, who still conduct the cultivation of the soil in almost all
+the South of Europe. On the other hand, the Emphyteusis, if we may so
+interpret the allusions to it in the _Corpus Juris_, became a
+favourite and beneficial modification of property; and it may be
+conjectured that wherever free farmers existed, it was this tenure
+which regulated their interest in the land. The Praetor, as has been
+said, treated the Emphyteuta as a true proprietor. When ejected, he
+was allowed to reinstate himself by a Real Action, the distinctive
+badge of proprietory right, and he was protected from disturbance by
+the author of his lease so long as the _canon_, or quit-rent, was
+punctually paid. But at the same time it must not be supposed that the
+ownership of the author of the lease was either extinct or dormant. It
+was kept alive by a power of re-entry on nonpayment of the rent, a
+right of pre-emption in case of sale, and a certain control over the
+mode of cultivation. We have, therefore, in the Emphyteusis a striking
+example of the double ownership which characterised feudal property,
+and one, moreover, which is much simpler and much more easily imitated
+than the juxtaposition of legal and equitable rights. The history of
+the Roman tenure does not end, however, at this point. We have clear
+evidence that between the great fortresses which, disposed along the
+line of the Rhine and Danube, long secured the frontier of the Empire
+against its barbarian neighbours, there extended a succession of
+strips of land, the _agri limitrophi_, which were occupied by veteran
+soldiers of the Roman army on the terms of an Emphyteusis. There was a
+double ownership. The Roman State was landlord of the soil, but the
+soldiers cultivated it without disturbance so long as they held
+themselves ready to be called out for military service whenever the
+state of the border should require it. In fact, a sort of
+garrison-duty, under a system closely resembling that of the military
+colonies on the Austro-Turkish border, had taken the place of the
+quit-rent which was the service of the ordinary Emphyteuta. It seems
+impossible to doubt that this was the precedent copied by the
+barbarian monarchs who founded feudalism. It had been within their
+view for some hundred years, and many of the veterans who guarded the
+border were, it is to be remembered, themselves of barbarian
+extraction, who probably spoke the Germanic tongues. Not only does the
+proximity of so easily followed a model explain whence the Frankish
+and Lombard Sovereigns got the idea of securing the military service
+of their followers by granting away portions of their public domain;
+but it perhaps explains the tendency which immediately showed itself
+in the Benefices to become hereditary, for an Emphyteusis, though
+capable of being moulded to the terms of the original contract,
+nevertheless descended as a general rule to the heirs of the grantee.
+It is true that the holder of a benefice, and more recently the lord
+of one of those fiefs into which the benefices were transformed,
+appears to have owed certain services which were not likely to have
+been rendered by the military colonist, and were certainly not
+rendered by the Emphyteuta. The duty of respect and gratitude to the
+feudal superior, the obligation to assist in endowing his daughter and
+equipping his son, the liability to his guardianship in minority, and
+many other similar incidents of tenure, must have been literally
+borrowed from the relations of Patron and Freedman under Roman law,
+that is, of quondam-master and quondam-slave. But then it is known
+that the earliest beneficiaries were the personal companions of the
+sovereign, and it is indisputable that this position, brilliant as it
+seems, was at first attended by some shade of servile debasement. The
+person who ministered to the Sovereign in his Court had given up
+something of that absolute personal freedom which was the proudest
+privilege of the allodial proprietor.
+
+
+
+
+CHAPTER IX
+
+THE EARLY HISTORY OF CONTRACT
+
+
+There are few general propositions concerning the age to which we
+belong which seem at first sight likely to be received with readier
+concurrence than the assertion that the society of our day is mainly
+distinguished from that of preceding generations by the largeness of
+the sphere which is occupied in it by Contract. Some of the phenomena
+on which this proposition rests are among those most frequently
+singled out for notice, for comment, and for eulogy. Not many of us
+are so unobservant as not to perceive that in innumerable cases where
+old law fixed a man's social position irreversibly at his birth,
+modern law allows him to create it for himself by convention; and
+indeed several of the few exceptions which remain to this rule are
+constantly denounced with passionate indignation. The point, for
+instance, which is really debated in the vigorous controversy still
+carried on upon the subject of negro servitude, is whether the status
+of the slave does not belong to bygone institutions, and whether the
+only relation between employer and labourer which commends itself to
+modern morality be not a relation determined exclusively by contract.
+The recognition of this difference between past ages and the present
+enters into the very essence of the most famous contemporary
+speculations. It is certain that the science of Political Economy, the
+only department of moral inquiry which has made any considerable
+progress in our day, would fail to correspond with the facts of life
+if it were not true that Imperative Law had abandoned the largest part
+of the field which it once occupied, and had left men to settle rules
+of conduct for themselves with a liberty never allowed to them till
+recently. The bias indeed of most persons trained in political economy
+is to consider the general truth on which their science reposes as
+entitled to become universal, and, when they apply it as an art, their
+efforts are ordinarily directed to enlarging the province of Contract
+and to curtailing that of Imperative Law, except so far as law is
+necessary to enforce the performance of Contracts. The impulse given
+by thinkers who are under the influence of these ideas is beginning to
+be very strongly felt in the Western world. Legislation has nearly
+confessed its inability to keep pace with the activity of man in
+discovery, in invention, and in the manipulation of accumulated
+wealth; and the law even of the least advanced communities tends more
+and more to become a mere surface-stratum having under it an
+ever-changing assemblage of contractual rules with which it rarely
+interferes except to compel compliance with a few fundamental
+principles or unless it be called in to punish the violation of good
+faith.
+
+Social inquiries, so far as they depend on the consideration of legal
+phenomena, are in so backward a condition that we need not be
+surprised at not finding these truths recognised in the commonplaces
+which pass current concerning the progress of society. These
+commonplaces answer much more to our prejudices than to our
+convictions. The strong disinclination of most men to regard morality
+as advancing seems to be especially powerful when the virtues on which
+Contract depends are in question, and many of us have almost
+instinctive reluctance to admitting that good faith and trust in our
+fellows are more widely diffused than of old, or that there is
+anything in contemporary manners which parallels the loyalty of the
+antique world. From time to time, these prepossessions are greatly
+strengthened by the spectacle of frauds, unheard of before the period
+at which they were observed, and astonishing from their complication
+as well as shocking from criminality. But the very character of these
+frauds shows clearly that, before they became possible, the moral
+obligations of which they are the breach must have been more than
+proportionately developed. It is the confidence reposed and deserved
+by the many which affords facilities for the bad faith of the few, so
+that, if colossal examples of dishonesty occur, there is no surer
+conclusion than that scrupulous honesty is displayed in the average of
+the transactions which, in the particular case, have supplied the
+delinquent with his opportunity. If we insist on reading the history
+of morality as reflected in jurisprudence, by turning our eyes not on
+the law of Contract but on the law of Crime, we must be careful that
+we read it aright. The only form of dishonesty treated of in the most
+ancient Roman law is Theft. At the moment at which I write, the
+newest chapter in the English criminal law is one which attempts to
+prescribe punishment for the frauds of Trustees. The proper inference
+from this contrast is not that the primitive Romans practised a higher
+morality than ourselves. We should rather say that, in the interval
+between their days and ours, morality has advanced from a very rude to
+a highly refined conception--from viewing the rights of property as
+exclusively sacred, to looking upon the rights growing out of the mere
+unilateral reposal of confidence as entitled to the protection of the
+penal law.
+
+The definite theories of jurists are scarcely nearer the truth in this
+point than the opinions of the multitude. To begin with the views of
+the Roman lawyers, we find them inconsistent with the true history of
+moral and legal progress. One class of contracts, in which the
+plighted faith of the contracting parties was the only material
+ingredient, they specifically denominated Contracts _juris gentium_,
+and though these contracts were undoubtedly the latest born into the
+Roman system, the expression employed implies, if a definite meaning
+be extracted from it, that they were more ancient than certain other
+forms of engagement treated of in Roman law, in which the neglect of a
+mere technical formality was as fatal to the obligation as
+misunderstanding or deceit. But then the antiquity to which they were
+referred was vague, shadowy, and only capable of being understood
+through the Present; nor was it until the language of the Roman
+lawyers became the language of an age which had lost the key to their
+mode of thought that a "Contract of the Law of Nations" came to be
+distinctly looked upon as a Contract known to man in a State of
+Nature. Rousseau adopted both the juridical and the popular error. In
+the Dissertation on the effects of Art and Science upon Morals, the
+first of his works which attracted attention and the one in which he
+states most unreservedly the opinions which made him the founder of a
+sect, the veracity and good faith attributed to the ancient Persians
+are repeatedly pointed out as traits of primitive innocence which have
+been gradually obliterated by civilisation; and at a later period he
+found a basis for all his speculations in the doctrine of an original
+Social Contract. The Social Contract or Compact is the most systematic
+form which has ever been assumed by the error we are discussing. It
+is a theory which, though nursed into importance by political
+passions, derived all its sap from the speculations of lawyers. True
+it certainly is that the famous Englishmen, for whom it had first had
+attraction, valued it chiefly for its political serviceableness, but,
+as I shall presently attempt to explain, they would never have arrived
+at it, if politicians had not long conducted their controversies in
+legal phraseology. Nor were the English authors of the theory blind to
+that speculative amplitude which recommended it so strongly to the
+Frenchmen who inherited it from them. Their writings show they
+perceived that it could be made to account for all social, quite as
+well as for all political phenomena. They had observed the fact,
+already striking in their day, that of the positive rules obeyed by
+men, the greater part were created by Contract, the lesser by
+Imperative Law. But they were ignorant or careless of the historical
+relation of these two constituents of jurisprudence. It was for the
+purpose, therefore, of gratifying their speculative tastes by
+attributing all jurisprudence to a uniform source, as much as with the
+view of eluding the doctrines which claimed a divine parentage for
+Imperative Law, that they devised the theory that all Law had its
+origin in Contract. In another stage of thought, they would have been
+satisfied to leave their theory in the condition of an ingenious
+hypothesis or a convenient verbal formula. But that age was under the
+dominion of legal superstitions. The State of Nature had been talked
+about till it had ceased to be regarded as paradoxical, and hence it
+seemed easy to give a fallacious reality and definiteness to the
+contractual origin of Law by insisting on the Social Compact as a
+historical fact.
+
+Our own generation has got rid of these erroneous juridical theories,
+partly by outgrowing the intellectual state to which they belong, and
+partly by almost ceasing to theorise on such subjects altogether. The
+favourite occupation of active minds at the present moment, and the
+one which answers to the speculations of our forefathers on the origin
+of the social state, is the analysis of society as it exists and moves
+before our eyes; but, through omitting to call in the assistance of
+history, this analysis too often degenerates into an idle exercise of
+curiosity, and is especially apt to incapacitate the inquirer for
+comprehending states of society which differ considerably from that to
+which he is accustomed. The mistake of judging the men of other
+periods by the morality of our own day has its parallel in the mistake
+of supposing that every wheel and bolt in the modern social machine
+had its counterpart in more rudimentary societies. Such impressions
+ramify very widely, and masque themselves very subtly, in historical
+works written in the modern fashion; but I find the trace of their
+presence in the domain of jurisprudence in the praise which is
+frequently bestowed on the little apologue of Montesquieu concerning
+the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes
+were a people who systematically violated their Contracts, and so
+perished utterly. If the story bears the moral which its author
+intended, and is employed to expose an anti-social heresy by which
+this century and the last have been threatened, it is most
+unexceptionable; but if the inference be obtained from it that society
+could not possibly hold together without attaching a sacredness to
+promises and agreements which should be on something like a par with
+the respect that is paid to them by a mature civilisation, it involves
+an error so grave as to be fatal to all sound understanding of legal
+history. The fact is that the Troglodytes have flourished and founded
+powerful states with very small attention to the obligations of
+Contract. The point which before all others has to be apprehended in
+the constitution of primitive societies is that the individual creates
+for himself few or no rights, and few or no duties. The rules which he
+obeys are derived first from the station into which he is born, and
+next from the imperative commands addressed to him by the chief of the
+household of which he forms part. Such a system leaves the very
+smallest room for Contract. The members of the same family (for so we
+may interpret the evidence) are wholly incapable of contracting with
+each other, and the family is entitled to disregard the engagements by
+which any one of its subordinate members has attempted to bind it.
+Family, it is true, may contract with family, chieftain with
+chieftain, but the transaction is one of the same nature, and
+encumbered by as many formalities, as the alienation of property, and
+the disregard of one iota of the performance is fatal to the
+obligation. The positive duty resulting from one man's reliance on the
+word of another is among the slowest conquests of advancing
+civilisation.
+
+Neither Ancient Law nor any other source of evidence discloses to us
+society entirely destitute of the conception of Contract. But the
+conception, when it first shows itself, is obviously rudimentary. No
+trustworthy primitive record can be read without perceiving that the
+habit of mind which induces us to make good a promise is as yet
+imperfectly developed, and that acts of flagrant perfidy are often
+mentioned without blame and sometimes described with approbation. In
+the Homeric literature, for instance, the deceitful cunning of Ulysses
+appears as a virtue of the same rank with the prudence of Nestor, the
+constancy of Hector, and the gallantry of Achilles. Ancient law is
+still more suggestive of the distance which separates the crude form
+of Contract from its maturity. At first, nothing is seen like the
+interposition of law to compel the performance of a promise. That
+which the law arms with its sanctions is not a promise, but a promise
+accompanied with a solemn ceremonial. Not only are formalities of
+equal importance with the promise itself, but they are, if anything,
+of greater importance; for that delicate analysis which mature
+jurisprudence applies to the conditions of mind under which a
+particular verbal assent is given appears, in ancient law, to be
+transferred to the words and gestures of the accompanying performance.
+No pledge is enforced if a single form be omitted or misplaced, but,
+on the other hand, if the forms can be shown to have been accurately
+proceeded with, it is of no avail to plead that the promise was made
+under duress or deception. The transmutation of this ancient view into
+the familiar notion of a Contract is plainly seen in the history of
+jurisprudence. First one or two steps in the ceremonial are dispensed
+with; then the others are simplified or permitted to be neglected on
+certain conditions; lastly, a few specific contracts are separated
+from the rest and allowed to be entered into without form, the
+selected contracts being those on which the activity and energy of
+social intercourse depends. Slowly, but most distinctly, the mental
+engagement isolates itself amid the technicalities, and gradually
+becomes the sole ingredient on which the interest of the jurisconsult
+is concentrated. Such a mental engagement, signified through external
+acts, the Romans called a Pact or Convention; and when the Convention
+has once been conceived as the nucleus of a Contract, it soon becomes
+the tendency of advancing jurisprudence to break away the external
+shell of form and ceremony. Forms are thenceforward only retained so
+far as they are guarantees of authenticity, and securities for
+caution and deliberation. The idea of a Contract is fully developed,
+or, to employ the Roman phrase, Contracts are absorbed in Pacts.
+
+The history of this course of change in Roman law is exceedingly
+instructive. At the earliest dawn of the jurisprudence, the term in
+use for a Contract was one which is very familiar to the students of
+historical Latinity. It was _nexum_, and the parties to the contract
+were said to be _nexi_, expressions which must be carefully attended
+to on account of the singular durableness of the metaphor on which
+they are founded. The notion that persons under a contractual
+engagement are connected together by a strong _bond_ or _chain_,
+continued till the last to influence the Roman jurisprudence of
+Contract; and flowing thence it has mixed itself with modern ideas.
+What then was involved in this nexum or bond? A definition which has
+descended to us from one of the Latin antiquarians describes _nexum_
+as _omne quod geritur per aes et libram_, "every transaction with the
+copper and the balance," and these words have occasioned a good deal
+of perplexity. The copper and the balance are the well-known
+accompaniments of the Mancipation, the ancient solemnity described in
+a former chapter, by which the right of ownership in the highest form
+of Roman Property was transferred from one person to another.
+Mancipation was a _conveyance_, and hence has arisen the difficulty,
+for the definition thus cited appears to confound Contracts and
+Conveyances, which in the philosophy of jurisprudence are not simply
+kept apart, but are actually opposed to each other. The _jus in re_,
+right _in rem_, right "availing against all the world," or Proprietary
+Right, is sharply distinguished by the analyst of mature jurisprudence
+from the _jus ad rem_, right _in personam_, right "availing a single
+individual or group," or obligation. Now Conveyances transfer
+Proprietary Rights, Contracts create Obligations--how then can the two
+be included under the same name or same general conception? This, like
+many similar embarrassments, has been occasioned by the error of
+ascribing to the mental condition of an unformed society a faculty
+which pre-eminently belongs to an advanced stage of intellectual
+development, the faculty of distinguishing in speculation ideas which
+are blended in practice. We have indications not to be mistaken of a
+state of social affairs in which Conveyances and Contracts were
+practically confounded; nor did the discrepance of the conceptions
+become perceptible till men had begun to adopt a distinct practice in
+contracting and conveying.
+
+It may here be observed that we know enough of ancient Roman law to
+give some idea of the mode of transformation followed by legal
+conceptions and by legal phraseology in the infancy of Jurisprudence.
+The change which they undergo appears to be a change from general to
+special; or, as we might otherwise express it, the ancient conceptions
+and the ancient terms are subjected to a process of gradual
+specialisation. An ancient legal conception corresponds not to one but
+to several modern conceptions. An ancient technical expression serves
+to indicate a variety of things which in modern law have separate
+names allotted to them. If however we take up the history of
+Jurisprudence at the next stage, we find that the subordinate
+conceptions have gradually disengaged themselves and that the old
+general names are giving way to special appellations. The old general
+conception is not obliterated, but it has ceased to cover more than
+one or a few of the notions which it first included. So too the old
+technical name remains, but it discharges only one of the functions
+which it once performed. We may exemplify this phenomenon in various
+ways. Patriarchal Power of all sorts appears, for instance, to have
+been once conceived as identical in character, and it was doubtless
+distinguished by one name. The Power exercised by the ancestor was the
+same whether it was exercised over the family or the material
+property--over flocks, herds, slaves, children, or wife. We cannot be
+absolutely certain of its old Roman name, but there is very strong
+reason for believing, from the number of expressions indicating shades
+of the notion of _power_ into which the word _manus_ enters, that the
+ancient general term was _manus_. But, when Roman law has advanced a
+little, both the name and the idea have become specialised. Power is
+discriminated, both in word and in conception, according to the
+object over which it is exerted. Exercised over material commodities
+or slaves, it has become _dominium_--over children, it is
+_Potestas_--over free persons whose services have been made away to
+another by their own ancestor, it is _mancipium_--over a wife, it is
+still _manus_. The old word, it will be perceived, has not altogether
+fallen into desuetude, but is confined to one very special exercise
+of the authority it had formerly denoted. This example will enable us
+to comprehend the nature of the historical alliance between Contracts
+and Conveyances. There seems to have been one solemn ceremonial at
+first for all solemn transactions, and its name at Rome appears to
+have been _nexum_. Precisely the same forms which were in use when a
+conveyance of property was effected seem to have been employed in the
+making of a contract. But we have not very far to move onwards before
+we come to a period at which the notion of a Contract has disengaged
+itself from the notion of a Conveyance. A double change has thus taken
+place. The transaction "with the copper and the balance," when
+intended to have for its office the transfer of property, is known by
+the new and special name of Mancipation. The ancient Nexum still
+designates the same ceremony, but only when it is employed for the
+special purpose of solemnising a contract.
+
+When two or three legal conceptions are spoken of as anciently blended
+in one, it is not intended to imply that some one of the included
+notions may not be older than the others, or, when those others have
+been formed, may not greatly predominate over and take precedence over
+them. The reason why one legal conception continues so long to cover
+several conceptions, and one technical phrase to do instead of
+several, is doubtless that practical changes are accomplished in the
+law of primitive societies long before men see occasion to notice or
+name them. Though I have said that Patriarchal Power was not at first
+distinguished according to the objects over which it was exercised, I
+feel sure that Power over Children was the root of the old conception
+of Power; and I cannot doubt that the earliest use of the Nexum, and
+the one primarily regarded by those who resorted to it, was to give
+proper solemnity to the alienation of property. It is likely that a
+very slight perversion of the Nexum from its original functions first
+gave rise to its employment in Contracts, and that the very slightness
+of the change long prevented its being appreciated or noticed. The old
+name remained because men had not become conscious that they wanted a
+new one; the old notion clung to the mind because nobody had seen
+reason to be at the pains of examining it. We have had the process
+clearly exemplified in the history of Testaments. A Will was at first
+a simple conveyance of property. It was only the enormous practical
+difference that gradually showed itself between this particular
+conveyance and all others which caused it to be regarded separately,
+and even as it was, centuries elapsed before the ameliorators of law
+cleared away the useless encumbrance of the nominal mancipation, and
+consented to care for nothing in the Will but the expressed intentions
+of the Testator. It is unfortunate that we cannot track the early
+history of Contracts with the same absolute confidence as the early
+history of Wills, but we are not quite without hints that contracts
+first showed themselves through the _nexum_ being put to a new use and
+afterwards obtained recognition as distinct transactions through the
+important practical consequences of the experiment. There is some, but
+not very violent, conjecture in the following delineation of the
+process. Let us conceive a sale for ready money as the normal type of
+the Nexum. The seller brought the property of which he intended to
+dispose--a slave, for example--the purchaser attended with the rough
+ingots of copper which served for money--and an indispensable
+assistant, the _libripens_, presented himself with a pair of scales.
+The slave with certain fixed formalities was handed over to the
+vendee--the copper was weighed by the _libripens_ and passed to the
+vendor. So long as the business lasted it was a _nexum_, and the
+parties were _nexi_; but the moment it was completed, the _nexum_
+ended, and the vendor and purchaser ceased to bear the name derived
+from their momentary relation. But now, let us move a step onward in
+commercial history. Suppose the slave transferred, but the money not
+paid. In _that_ case, the _nexum_ is finished, so far as the seller is
+concerned, and when he has once handed over his property, he is no
+longer _nexus_; but, in regard to the purchaser, the _nexum_
+continues. The transaction, as to his part of it, is incomplete, and
+he is still considered to be _nexus_. It follows, therefore, that the
+same term described the Conveyance by which the right of property was
+transmitted, and the personal obligation of the debtor for the unpaid
+purchase-money. We may still go forward, and picture to ourselves a
+proceeding wholly formal, in which _nothing_ is handed over and
+_nothing_ paid; we are brought at once to a transaction indicative of
+much higher commercial activity, an _executory Contract of Sale_.
+
+If it be true that, both in the popular and in the professional view,
+a _Contract_ was long regarded as an _incomplete Conveyance_, the
+truth has importance for many reasons. The speculations of the last
+century concerning mankind in a state of nature, are not unfairly
+summed up in the doctrine that "in the primitive society property was
+nothing, and obligation everything;" and it will now be seen that, if
+the proposition were reversed, it would be nearer the reality. On the
+other hand, considered historically, the primitive association of
+Conveyances and Contracts explains something which often strikes the
+scholar and jurist as singularly enigmatical, I mean the extraordinary
+and uniform severity of very ancient systems of law to _debtors_, and
+the extravagant powers which they lodge with _creditors_. When once we
+understand that the _nexum_ was artificially prolonged to give time to
+the debtor, we can better comprehend his position in the eye of the
+public and of the law. His indebtedness was doubtless regarded as an
+anomaly, and suspense of payment in general as an artifice and a
+distortion of strict rule. The person who had duly consummated his
+part in the transaction must, on the contrary, have stood in peculiar
+favour; and nothing would seem more natural than to arm him with
+stringent facilities for enforcing the completion of a proceeding
+which, of strict right, ought never to have been extended or deferred.
+
+Nexum, therefore, which originally signified a Conveyance of property,
+came insensibly to denote a Contract also, and ultimately so constant
+became the association between this word and the notion of a Contract,
+that a special term, Mancipium or Mancipatio, had to be used for the
+purpose of designating the true nexum or transaction in which the
+property was really transferred. Contracts are therefore now severed
+from Conveyances, and the first stage in their history is
+accomplished, but still they are far enough from that epoch of their
+development when the promise of the contractor has a higher sacredness
+than the formalities with which it is coupled. In attempting to
+indicate the character of the changes passed through in this interval,
+it is necessary to trespass a little on a subject which lies properly
+beyond the range of these pages, the analysis of Agreement effected by
+the Roman jurisconsults. Of this analysis, the most beautiful monument
+of their sagacity, I need not say more than that it is based on the
+theoretical separation of the Obligation from the Convention or Pact.
+Bentham and Mr. Austin have laid down that the "two main essentials of
+a contract are these: first, a signification by the promising party of
+his _intention_ to do the acts or to observe the forbearances which he
+promises to do or to observe. Secondly, a signification by the
+promisee that he _expects_ the promising party will fulfil the
+proffered promise." This is virtually identical with the doctrine of
+the Roman lawyers, but then, in their view, the result of these
+"significations" was not a Contract, but a Convention or Pact. A Pact
+was the utmost product of the engagements of individuals agreeing
+among themselves, and it distinctly fell short of a Contract. Whether
+it ultimately became a Contract depended on the question whether the
+law annexed an Obligation to it. A Contract was a Pact (or Convention)
+_plus_ an Obligation. So long as the Pact remained unclothed with the
+Obligation, it was called _nude_ or _naked_.
+
+What was an Obligation? It is defined by the Roman lawyers as "Juris
+vinculum, quo necessitate adstringimur alicujus solvendae rei." This
+definition connects the Obligation with the Nexum through the common
+metaphor on which they are founded, and shows us with much clearness
+the pedigree of a peculiar conception. The Obligation is the "bond" or
+"chain" with which the law joins together persons or groups of
+persons, in consequence of certain voluntary acts. The acts which have
+the effect of attracting an Obligation are chiefly those classed under
+the heads of Contract and Delict, of Agreement and Wrong; but a
+variety of other acts have a similar consequence which are not capable
+of being comprised in an exact classification. It is to be remarked,
+however, that the act does not draw to itself the Obligation in
+consequence of any moral necessity; it is the law which annexes it in
+the plenitude of its power, a point the more necessary to be noted,
+because a different doctrine has sometimes been propounded by modern
+interpreters of the Civil Law who had moral or metaphysical theories
+of their own to support. The image of a _vinculum juris_ colours and
+pervades every part of the Roman law of Contract and Delict. The law
+bound the parties together, and the _chain_ could only be undone by
+the process called _solutio_, an expression still figurative, to which
+our word "payment" is only occasionally and incidentally equivalent.
+The consistency with which the figurative image was allowed to present
+itself, explains an otherwise puzzling peculiarity of Roman legal
+phraseology, the fact that "Obligation" signified rights as well as
+duties, the right, for example, to have a debt paid as well as the
+duty of paying it. The Romans kept in fact the entire picture of the
+"legal chain" before their eyes, and regarded one end of it no more
+and no less than the other.
+
+In the developed Roman law, the Convention, as soon as it was
+completed, was, in almost all cases, at once crowned with the
+Obligation, and so became a Contract; and this was the result to which
+contract-law was surely tending. But for the purpose of this inquiry,
+we must attend particularly to the intermediate stage--that in which
+something more than a perfect agreement was required to attract the
+Obligation. This epoch is synchronous with the period at which the
+famous Roman classification of Contracts into four sorts--the Verbal,
+the Literal, the Real, and the Consensual--had come into use, and
+during which these four orders of Contracts constituted the only
+descriptions of engagement which the law would enforce. The meaning of
+the fourfold distribution is readily understood as soon as we
+apprehend the theory which severed the Obligation from the Convention.
+Each class of contracts was in fact named from certain formalities
+which were required over and above the mere agreement of the
+contracting parties. In the Verbal Contract, as soon as the Convention
+was effected, a form of words had to be gone through before the
+vinculum juris was attached to it. In the Literal Contract, an entry
+in a ledger or table-book had the effect of clothing the Convention
+with the Obligation, and the same result followed, in the case of the
+Real Contract, from the delivery of the Res or Thing which was the
+subject of the preliminary engagement. The contracting parties came,
+in short, to an understanding in each case; but, if they went no
+further, they were not _obliged_ to one another, and could not compel
+performance or ask redress for a breach of faith. But let them comply
+with certain prescribed formalities, and the Contract was immediately
+complete, taking its name from the particular form which it had suited
+them to adopt. The exceptions to this practice will be noticed
+presently.
+
+I have enumerated the four Contracts in their historical order, which
+order, however, the Roman Institutional writers did not invariably
+follow. There can be no doubt that the Verbal Contract was the most
+ancient of the four, and that it is the eldest known descendant of the
+primitive Nexum. Several species of Verbal Contract were anciently in
+use, but the most important of all, and the only one treated of by our
+authorities, was effected by means of a _stipulation_, that is, a
+Question and Answer; a question addressed by the person who exacted
+the promise, and an answer given by the person who made it. This
+question and answer constituted the additional ingredient which, as I
+have just explained, was demanded by the primitive notion over and
+above the mere agreement of the persons interested. They formed the
+agency by which the Obligation was annexed. The old Nexum has now
+bequeathed to maturer jurisprudence first of all the conception of a
+chain uniting the contracting parties, and this has become the
+Obligation. It has further transmitted the notion of a ceremonial
+accompanying and consecrating the engagement, and this ceremonial has
+been transmuted into the Stipulation. The conversion of the solemn
+conveyance, which was the prominent feature of the original Nexum,
+into a mere question and answer, would be more of a mystery than it is
+if we had not the analogous history of Roman Testaments to enlighten
+us. Looking to that history, we can understand how the formal
+Conveyance was first separated from the part of the proceeding which
+had immediate reference to the business in hand, and how afterwards it
+was omitted altogether. As then the question and answer of the
+Stipulation were unquestionably the Nexum in a simplified shape, we
+are prepared to find that they long partook of the nature of a
+technical form. It would be a mistake to consider them as exclusively
+recommending themselves to the older Roman lawyers through their
+usefulness in furnishing persons meditating an agreement with an
+opportunity for consideration and reflection. It is not to be disputed
+that they had a value of this kind, which was gradually recognised;
+but there is proof that their function in respect to Contracts was at
+first formal and ceremonial in the statement of our authorities, that
+not every question and answer was of old sufficient to constitute a
+Stipulation, but only a question and answer couched in technical
+phraseology specially appropriated to the particular occasion.
+
+But although it is essential for the proper appreciation of the
+history of contract-law that the Stipulation should be understood to
+have been looked upon as a solemn form before it was recognised as a
+useful security, it would be wrong on the other hand to shut our eyes
+to its real usefulness. The Verbal Contract, though it had lost much
+of its ancient importance, survived to the latest period of Roman
+jurisprudence; and we may take it for granted that no institution of
+Roman law had so extended a longevity unless it served some practical
+advantage. I observe in an English writer some expressions of surprise
+that the Romans even of the earliest times were content with so meagre
+a protection against haste and irreflection. But on examining the
+Stipulation closely, and remembering that we have to do with a state
+of society in which written evidence was not easily procurable, I
+think we must admit that this Question and Answer, had it been
+expressly devised to answer the purpose which it served, would have
+been justly designated a highly ingenious expedient. It was the
+_promisee_ who, in the character of stipulator, put all the terms of
+the contract into the form of a question, and the answer was given by
+the _promisor_. "Do you promise that you will deliver me such and such
+a slave, at such and such a place, on such and such a day?" "I do
+promise." Now, if we reflect for a moment, we shall see that this
+obligation to put the promise interrogatively inverts the natural
+position of the parties, and, by effectually breaking the tenor of the
+conversation, prevents the attention from gliding over a dangerous
+pledge. With us, a verbal promise is, generally speaking, to be
+gathered exclusively from the words of the promisor. In old Roman law,
+another step was absolutely required; it was necessary for the
+promisee, after the agreement had been made, to sum up all its terms
+in a solemn interrogation; and it was of this interrogation, of
+course, and of the assent to it, that proof had to be given at the
+trial--_not_ of the promise, which was not in itself binding. How
+great a difference this seemingly insignificant peculiarity may make
+in the phraseology of contract-law is speedily realised by the
+beginner in Roman jurisprudence, one of whose first stumbling-blocks
+is almost universally created by it. When we in English have occasion,
+in mentioning a contract, to connect it for convenience' sake with one
+of the parties--for example, if we wished to speak generally of a
+contractor--it is always the _promisor_ at whom our words are
+pointing. But the general language of Roman law takes a different
+turn; it always regards the contract, if we may so speak, from the
+point of view of the _promisee_; in speaking of a party to a contract,
+it is always the Stipulator, the person who asks the question, who is
+primarily alluded to. But the serviceableness of the stipulation is
+most vividly illustrated by referring to the actual examples in the
+pages of the Latin comic dramatists. If the entire scenes are read
+down in which these passages occur (ex. gra. Plautus, _Pseudolus_, Act
+I. sc. i; Act IV. sc. 6; _Trinummus_, Act V. sc. 2), it will be
+perceived how effectually the attention of the person meditating the
+promise must have been arrested by the question, and how ample was the
+opportunity for withdrawal from an improvident undertaking.
+
+In the Literal or Written Contract, the formal act, by which an
+Obligation was superinduced on the Convention, was an entry of the sum
+due, where it could be specifically ascertained, on the debit side of
+a ledger. The explanation of this Contract turns on a point of Roman
+domestic manners, the systematic character and exceeding regularity of
+bookkeeping in ancient times. There are several minor difficulties of
+old Roman law, as, for example, the nature of the Slave's Peculium,
+which are only cleared up when we recollect that a Roman household
+consisted of a number of persons strictly accountable to its head, and
+that every single item of domestic receipt and expenditure, after
+being entered in waste books, was transferred at stated periods to a
+general household ledger. There are some obscurities, however, in the
+descriptions we have received of the Literal Contract, the fact being
+that the habit of keeping books ceased to be universal in later times,
+and the expression "Literal Contract" came to signify a form of
+engagement entirely different from that originally understood. We are
+not, therefore, in a position to say, with respect to the primitive
+Literal Contract, whether the obligation was created by a simple entry
+on the part of the creditor, or whether the consent of the debtor or a
+corresponding entry in his own books was necessary to give it legal
+effect. The essential point is however established that, in the case
+of this Contract, all formalities were dispensed with on a condition
+being complied with. This is another step downwards in the history of
+contract-law.
+
+The Contract which stands next in historical succession, the Real
+Contract, shows a great advance in ethical conceptions. Whenever any
+agreement had for its object the delivery of a specific thing--and
+this is the case with the large majority of simple engagements--the
+Obligation was drawn down as soon as the delivery had actually taken
+place. Such a result must have involved a serious innovation on the
+oldest ideas of Contract; for doubtless, in the primitive times, when
+a contracting party had neglected to clothe his agreement in a
+stipulation, nothing done in pursuance of the agreement would be
+recognised by the law. A person who had paid over money on loan would
+be unable to sue for its repayment unless he had formally _stipulated_
+for it. But, in the Real Contract, performance on one side is allowed
+to impose a legal duty on the other--evidently on ethical grounds. For
+the first time then moral considerations appear as an ingredient in
+Contract-law, and the Real Contract differs from its two predecessors
+in being founded on these, rather than on respect for technical forms
+or on deference to Roman domestic habits.
+
+We now reach the fourth class, or Consensual Contracts, the most
+interesting and important of all. Four specified Contracts were
+distinguished by this name: Mandatum, _i.e._ Commission or Agency;
+Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductio
+or Letting and Hiring. A few pages ago, after stating that a Contract
+consisted of a Pact or Convention to which an Obligation had been
+superadded, I spoke of certain acts or formalities by which the law
+permitted the Obligation to be attracted to the Pact. I used this
+language on account of the advantage of a general expression, but it
+is not strictly correct unless it be understood to include the
+negative as well as the positive. For, in truth, the peculiarity of
+these Consensual Contracts is that _no_ formalities, are required to
+create them out of the Pact. Much that is indefensible, and much more
+that is obscure, has been written about the Consensual Contracts, and
+it has even been asserted that in them the _consent_ of the Parties is
+more emphatically given than in any other species of agreement. But
+the term Consensual merely indicates that the Obligation is here
+annexed at once to the _Consensus_. The Consensus, or mutual assent of
+the parties, is the final and crowning ingredient in the Convention,
+and it is the special characteristic of agreements falling under one
+of the four heads of Sale, Partnership, Agency, and Hiring, that, as
+soon as the assent of the parties has supplied this ingredient, there
+is _at once_ a Contract. The Consensus draws with it the Obligation,
+performing, in transactions of the sort specified, the exact functions
+which are discharged, in the other contracts, by the _Res_ or Thing,
+by the _Verba_ stipulationis, and by the _Literae_ or written entry in
+a ledger. Consensual is therefore a term which does not involve the
+slightest anomaly, but is exactly analogous to Real, Verbal, and
+Literal.
+
+In the intercourse of life the commonest and most important of all the
+contracts are unquestionably the four styled Consensual. The larger
+part of the collective existence of every community is consumed in
+transactions of buying and selling, of letting and hiring, of
+alliances between men for purposes of business, of delegation of
+business from one man to another; and this is no doubt the
+consideration which led the Romans, as it has led most societies, to
+relieve these transactions from technical incumbrance, to abstain as
+much as possible from clogging the most efficient springs of social
+movement. Such motives were not of course confined to Rome, and the
+commerce of the Romans with their neighbours must have given them
+abundant opportunities for observing that the contracts before us
+tended everywhere to become _Consensual_, obligatory on the mere
+signification of mutual assent. Hence, following their usual practice,
+they distinguished these contracts as contracts _Juris Gentium_. Yet I
+do not think that they were so named at a very early period. The first
+notions of a Jus Gentium may have been deposited in the minds of the
+Roman lawyers long before the appointment of a Praetor Peregrinus, but
+it would only be through extensive and regular trade that they would
+be familiarised with the contractual system of other Italian
+communities, and such a trade would scarcely attain considerable
+proportions before Italy had been thoroughly pacified, and the
+supremacy of Rome conclusively assured. Although, however, there is
+strong probability that the Consensual Contracts were the latest-born
+into the Roman system, and though it is likely that the qualification,
+_Juris Gentium_, stamps the recency of their origin, yet this very
+expression, which attributes them to the "Law of Nations," has in
+modern times produced the notion of their extreme antiquity. For,
+when the "Law of Nations" had been converted into the "Law of Nature,"
+it seemed to be implied that the Consensual Contracts were the type of
+the agreements most congenial to the natural state; and hence arose
+the singular belief that the younger the civilisation, the simpler
+must be its forms of contract.
+
+The Consensual Contracts, it will be observed, were extremely limited
+in number. But it cannot be doubted that they constituted the stage in
+the history of Contract-law from which all modern conceptions of
+contract took their start. The motion of the will which constitutes
+agreement was now completely insulated, and became the subject of
+separate contemplation; forms were entirely eliminated from the notion
+of contract, and external acts were only regarded as symbols of the
+internal act of volition. The Consensual Contracts had, moreover, been
+classed in the Jus Gentium, and it was not long before this
+classification drew with it the inference that they were the species
+of agreement which represented the engagements approved of by Nature
+and included in her code. This point once reached, we are prepared for
+several celebrated doctrines and distinctions of the Roman lawyers.
+One of them is the distinction between Natural and Civil Obligations.
+When a person of full intellectual maturity had deliberately bound
+himself by an engagement, he was said to be under a _natural
+obligation_, even though he had omitted some necessary formality, and
+even though through some technical impediment he was devoid of the
+formal capacity for making a valid contract. The law (and this is what
+the distinction implies) would not enforce the obligation, but it did
+not absolutely refuse to recognise it; and _natural obligations_
+differed in many respects from obligations which were merely null and
+void, more particularly in the circumstance that they could be civilly
+confirmed, if the capacity for contract were subsequently acquired.
+Another very peculiar doctrine of the jurisconsults could not have had
+its origin earlier than the period at which the Convention was severed
+from the technical ingredients of Contract. They taught that though
+nothing but a Contract could be the foundation of an _action_, a mere
+Pact or Convention could be the basis of a _plea_. It followed from
+this, that though nobody could sue upon an agreement which he had not
+taken the precaution to mature into a Contract by complying with the
+proper forms, nevertheless a claim arising out of a valid contract
+could be rebutted by proving a counter-agreement which had never got
+beyond the state of a simple convention. An action for the recovery of
+a debt could be met by showing a mere informal agreement to waive or
+postpone the payment.
+
+The doctrine just stated indicates the hesitation of the Praetors in
+making their advances towards the greatest of their innovations. Their
+theory of Natural law must have led them to look with especial favour
+on the Consensual Contracts and on those Pacts or Conventions of which
+the Consensual Contracts were only particular instances; but they did
+not at once venture on extending to all Conventions the liberty of the
+Consensual Contracts. They took advantage of that special
+superintendence over procedure which had been confided to them since
+the first beginnings of Roman law, and, while they still declined to
+permit a suit to be launched which was not based on a formal contract,
+they gave full play to their new theory of agreement in directing the
+ulterior stages of the proceeding. But, when they had proceeded thus
+far, it was inevitable that they should proceed farther. The
+revolution of the ancient law of Contract was consummated when the
+Praetor of some one year announced in his Edict that he would grant
+equitable actions upon Pacts which had never been matured at all into
+Contracts, provided only that the Pacts in question had been founded
+on a consideration (_causa_). Pacts of this sort are always enforced
+under the advanced Roman jurisprudence. The principle is merely the
+principle of the Consensual Contract carried to its proper
+consequence; and, in fact, if the technical language of the Romans had
+been as plastic as their legal theories, these Pacts enforced by the
+Praetor would have been styled new Contracts, new Consensual Contracts.
+Legal phraseology is, however, the part of the law which is the last
+to alter, and the Pacts equitably enforced continued to be designated
+simply Praetorian Pacts. It will be remarked that unless there were
+consideration for the Pact, it would continue _nude_ so far as the new
+jurisprudence was concerned; in order to give it effect, it would be
+necessary to convert it by a stipulation into a Verbal Contract.
+
+The extreme importance of this history of Contract, as a safeguard
+against almost innumerable delusions, must be my justification for
+discussing it at so considerable a length. It gives a complete account
+of the march of ideas from one great landmark of jurisprudence to
+another. We begin with Nexum, in which a Contract and a Conveyance are
+blended, and in which the formalities which accompany the agreement
+are even more important than the agreement itself. From the Nexum we
+pass to the Stipulation, which is a simplified form of the older
+ceremonial. The Literal Contract comes next, and here all formalities
+are waived, if proof of the agreement can be supplied from the rigid
+observances of a Roman household. In the Real Contract a moral duty is
+for the first time recognised, and persons who have joined or
+acquiesced in the partial performance of an engagement are forbidden
+to repudiate it on account of defects in form. Lastly, the Consensual
+Contracts emerge, in which the mental attitude of the contractors is
+solely regarded, and external circumstances have no title to notice
+except as evidence of the inward undertaking. It is of course
+uncertain how far this progress of Roman ideas from a gross to a
+refined conception exemplifies the necessary progress of human thought
+on the subject of Contract. The Contract-law of all other ancient
+societies but the Roman is either too scanty to furnish information,
+or else is entirely lost; and modern jurisprudence is so thoroughly
+leavened with the Roman notions that it furnishes us with no contrasts
+or parallels from which instruction can be gleaned. From the absence,
+however, of everything violent, marvellous, or unintelligible in the
+changes I have described, it may be reasonably believed that the
+history of ancient Roman Contracts is, up to a certain point, typical
+of the history of this class of legal conceptions in other ancient
+societies. But it is only up to a certain point that the progress of
+Roman law can be taken to represent the progress of other systems of
+jurisprudence. The theory of Natural law is exclusively Roman. The
+notion of the _vinculum juris_, so far as my knowledge extends, is
+exclusively Roman. The many peculiarities of the mature Roman law of
+Contract and Delict which are traceable to these two ideas, whether
+singly or in combination, are therefore among the exclusive products
+of one particular society. These later legal conceptions are
+important, not because they typify the necessary results of advancing
+thought under all conditions, but because they have exercised
+perfectly enormous influence on the intellectual diathesis of the
+modern world.
+
+I know nothing more wonderful than the variety of sciences to which
+Roman law, Roman Contract-law more particularly, has contributed modes
+of thought, courses of reasoning, and a technical language. Of the
+subjects which have whetted the intellectual appetite of the moderns,
+there is scarcely one, except Physics, which has not been filtered
+through Roman jurisprudence. The science of pure Metaphysics had,
+indeed, rather a Greek than a Roman parentage, but Politics, Moral
+Philosophy, and even Theology, found in Roman law not only a vehicle
+of expression, but a nidus in which some of their profoundest
+inquiries were nourished into maturity. For the purpose of accounting
+for this phenomenon, it is not absolutely necessary to discuss the
+mysterious relation between words and ideas, or to explain how it is
+that the human mind has never grappled with any subject of thought,
+unless it has been provided beforehand with a proper store of language
+and with an apparatus of appropriate logical methods. It is enough to
+remark, that, when the philosophical interests of the Eastern and
+Western worlds were separated, the founders of Western thought
+belonged to a society which spoke Latin and reflected in Latin. But in
+the Western provinces the only language which retained sufficient
+precision for philosophical purposes was the language of Roman law,
+which by a singular fortune had preserved nearly all the purity of the
+Augustan age, while vernacular Latin was degenerating into a dialect
+of portentous barbarism. And if Roman jurisprudence supplied the only
+means of exactness in speech, still more emphatically did it furnish
+the only means of exactness, subtlety, or depth in thought. For at
+least three centuries, philosophy and science were without a home in
+the West; and though metaphysics and metaphysical theology were
+engrossing the mental energies of multitudes of Roman subjects, the
+phraseology employed in these ardent inquiries was exclusively Greek,
+and their theatre was the Eastern half of the Empire. Sometimes,
+indeed, the conclusions of the Eastern disputants became so important
+that every man's assent to them, or dissent from them, had to be
+recorded, and then the West was introduced to the results of Eastern
+controversy, which it generally acquiesced in without interest and
+without resistance. Meanwhile, one department of inquiry, difficult
+enough for the most laborious, deep enough for the most subtle,
+delicate enough for the most refined, had never lost its attractions
+for the educated classes of the Western provinces. To the cultivated
+citizen of Africa, of Spain, of Gaul and of Northern Italy, it was
+jurisprudence, and jurisprudence only, which stood in the place of
+poetry and history, of philosophy and science. So far then from there
+being anything mysterious in the palpably legal complexion of the
+earliest efforts of Western thought it would rather be astonishing if
+it had assumed any other hue. I can only express my surprise at the
+scantiness of the attention which has been given to the difference
+between Western ideas and Eastern, between Western theology and
+Eastern, caused by the presence of a new ingredient. It is precisely
+because the influence of jurisprudence begins to be powerful that the
+foundation of Constantinople and the subsequent separation of the
+Western Empire from the Eastern, are epochs in philosophical history.
+But continental thinkers are doubtless less capable of appreciating
+the importance of this crisis by the very intimacy with which notions
+derived from Roman Law are mingled up with every-day ideas.
+Englishmen, on the other hand, are blind to it through the monstrous
+ignorance to which they condemn themselves of the most plentiful
+source of the stream of modern knowledge, of the one intellectual
+result of the Roman civilisation. At the same time, an Englishman, who
+will be at the pains to familiarise himself with the classical Roman
+law, is perhaps, from the very slightness of the interest which his
+countrymen have hitherto taken in the subject, a better judge than a
+Frenchman or a German of the value of the assertions I have ventured
+to make. Anybody who knows what Roman jurisprudence is, as actually
+practised by the Romans, and who will observe in what characteristics
+the earliest Western theology and philosophy differ from the phases of
+thought which preceded them, may be safely left to pronounce what was
+the new element which had begun to pervade and govern speculation.
+
+The part of Roman law which has had most extensive influence on
+foreign subjects of inquiry has been the law of Obligation, or what
+comes nearly to the same thing, of Contract and Delict. The Romans
+themselves were not unaware of the offices which the copious and
+malleable terminology belonging to this part of their system might be
+made to discharge, and this is proved by their employment of the
+peculiar adjunct _quasi_ in such expressions as Quasi-Contract and
+Quasi-Delict. "Quasi," so used, is exclusively a term of
+classification. It has been usual with English critics to identify the
+Quasi-contracts with _implied_ contracts, but this is an error, for
+implied contracts are true contracts, which quasi-contracts are not.
+In implied contracts, acts and circumstances are the symbols of the
+same ingredients which are symbolised, in express contracts, by words;
+and whether a man employs one set of symbols or the other must be a
+matter of indifference so far as concerns the theory of agreement. But
+a Quasi-Contract is not a contract at all. The commonest sample of the
+class is the relation subsisting between two persons one of whom has
+paid money to the other through mistake. The law, consulting the
+interests of morality, imposes an obligation on the receiver to
+refund, but the very nature of the transaction indicates that it is
+not a contract, inasmuch as the Convention, the most essential
+ingredient of Contract, is wanting. This word "quasi," prefixed to a
+term of Roman law, implies that the conception to which it serves as
+an index is connected with the conception with which the comparison is
+instituted by a strong superficial analogy or resemblance. It does not
+denote that the two conceptions are the same or that they belong to
+the same genus. On the contrary, it negatives the notion of an
+identity between them; but it points out that they are sufficiently
+similar for one to be classed as the sequel to the other, and that the
+phraseology taken from one department of law may be transferred to the
+other and employed without violent straining in the statement of rules
+which would otherwise be imperfectly expressed.
+
+It has been shrewdly remarked, that the confusion between Implied
+Contracts, which are true contracts, and Quasi Contracts, which are
+not contracts at all, has much in common with the famous error which
+attributed political rights and duties to an Original Compact between
+the governed and the governor. Long before this theory had clothed
+itself in definite shape, the phraseology of Roman contract-law had
+been largely drawn upon to describe that reciprocity of rights and
+duties which men had always conceived as existing between sovereigns
+and subjects. While the world was full of maxims setting forth with
+the utmost positiveness the claims of kings to implicit
+obedience--maxims which pretended to have had their origin in the New
+Testament, but which were really derived from indelible recollections
+of the Caesarian despotism--the consciousness of correlative rights
+possessed by the governed would have been entirely without the means
+of expression if the Roman law of Obligation had not supplied a
+language capable of shadowing forth an idea which was as yet
+imperfectly developed. The antagonism between the privileges of kings
+and their duties to their subjects was never, I believe, lost sight of
+since Western history began, but it had interest for few except
+speculative writers so long as feudalism continued in vigour, for
+feudalism effectually controlled by express customs the exorbitant
+theoretical pretensions of most European sovereigns. It is notorious,
+however, that as soon as the decay of the Feudal System had thrown the
+mediaeval constitutions out of working order, and when the Reformation
+had discredited the authority of the Pope, the doctrine of the divine
+right of Kings rose immediately into an importance which had never
+before attended it. The vogue which it obtained entailed still more
+constant resort to the phraseology of Roman law, and a controversy
+which had originally worn a theological aspect assumed more and more
+the air of a legal disputation. A phenomenon then appeared which has
+repeatedly shown itself in the history of opinion. Just when the
+argument for monarchical authority rounded itself into the definite
+doctrine of Filmer, the phraseology, borrowed from the Law of
+Contract, which had been used in defence of the rights of subjects,
+crystallised into the theory of an actual original compact between
+king and people, a theory which, first in English and afterwards, and
+more particularly, in French hands, expanded into a comprehensive
+explanation of all the phenomena of society and law. But the only real
+connection between political and legal science had consisted in the
+last giving to the first the benefit of its peculiarly plastic
+terminology. The Roman jurisprudence of Contract had performed for the
+relation of sovereign and subject precisely the same service which, in
+a humbler sphere, it rendered to the relation of persons bound
+together by an obligation of "quasi-contract." It had furnished a body
+of words and phrases which approximated with sufficient accuracy to
+the ideas which then were from time to time forming on the subject of
+political obligation. The doctrine of an Original Compact can never be
+put higher than it is placed by Dr. Whewell, when he suggests that,
+though unsound, "it may be a _convenient_ form for the expression of
+moral truths."
+
+The extensive employment of legal language on political subjects
+previously to the invention of the Original Compact, and the powerful
+influence which that assumption has exercised subsequently, amply
+account for the plentifulness in political science of words and
+conceptions, which were the exclusive creation of Roman jurisprudence.
+Of their plentifulness in Moral Philosophy a rather different
+explanation must be given, inasmuch as ethical writings have laid
+Roman law under contribution much more directly than political
+speculations, and their authors have been much more conscious of the
+extent of their obligation. In speaking of moral philosophy as
+extraordinarily indebted to Roman jurisprudence, I must be understood
+to intend moral philosophy as understood previously to the break in
+its history effected by Kant, that is, as the science of the rules
+governing human conduct, of their proper interpretation and of the
+limitations to which they are subject. Since the rise of the Critical
+Philosophy, moral science has almost wholly lost its older meaning,
+and, except where it is preserved under a debased form in the
+casuistry still cultivated by Roman Catholic theologians, it seems to
+be regarded nearly universally as a branch of ontological inquiry. I
+do not know that there is a single contemporary English writer, with
+the exception of Dr. Whewell, who understands moral philosophy as it
+was understood before it was absorbed by metaphysics and before the
+groundwork of its rules came to be a more important consideration than
+the rules themselves. So long, however, as ethical science had to do
+with the practical regimen of conduct, it was more or less saturated
+with Roman law. Like all the great subjects of modern thought, it was
+originally incorporated with theology. The science of Moral Theology,
+as it was at first called, and as it is still designated by the Roman
+Catholic divines, was undoubtedly constructed, to the full knowledge
+of its authors, by taking principles of conduct from the system of the
+Church, and by using the language and methods of jurisprudence for
+their expression and expansion. While this process went on, it was
+inevitable that jurisprudence, though merely intended to be the
+vehicle of thought, should communicate its colour to the thought
+itself. The tinge received through contact with legal conceptions is
+perfectly perceptible in the earliest ethical literature of the modern
+world, and it is evident, I think, that the Law of Contract, based as
+it is on the complete reciprocity and indissoluble connection of
+rights and duties, has acted as a wholesome corrective to the
+predispositions of writers who, if left to themselves, might have
+exclusively viewed a moral obligation as the public duty of a citizen
+in the Civitas Dei. But the amount of Roman Law in moral theology
+becomes sensibly smaller at the time of its cultivation by the great
+Spanish moralists. Moral theology, developed by the juridical method
+of doctor commenting on doctor, provided itself with a phraseology of
+its own, and Aristotelian peculiarities of reasoning and expression,
+imbibed doubtless in great part from the Disputations on Morals in the
+academical schools, take the place of that special turn of thought and
+speech which can never be mistaken by any person conversant with the
+Roman law. If the credit of the Spanish school of moral theologians
+had continued, the juridical ingredient in ethical science would have
+been insignificant, but the use made of their conclusions by the next
+generation of Roman Catholic writers on these subjects almost entirely
+destroyed their influence. Moral Theology, degraded into Casuistry,
+lost all interest for the leaders of European speculation; and the new
+science of Moral Philosophy, which was entirely in the hands of the
+Protestants, swerved greatly aside from the path which the moral
+theologians had followed. The effect was vastly to increase the
+influence of Roman law on ethical inquiry.
+
+Shortly[5] after the Reformation, we find two great schools of
+thought dividing this class of subjects between them. The most
+influential of the two was at first the sect of school known to us as
+the Casuists, all of them in spiritual communion with the Roman
+Catholic Church, and nearly all of them affiliated to one or other of
+her religious orders. On the other side were a body of writers
+connected with each other by a common intellectual descent from the
+great author of the treatise _De Jure Belli et Pacis_, Hugo Grotius.
+Almost all of the latter were adherents of the Reformation, and
+though it cannot be said that they were formally and avowedly at
+conflict with the Casuists, the origin and object of their system were
+nevertheless essentially different from those of Casuistry. It is
+necessary to call attention to this difference, because it involves
+the question of the influence of Roman law on that department of
+thought with which both systems are concerned. The book of Grotius,
+though it touches questions of pure Ethics in every page, and though
+it is the parent immediate or remote of innumerable volumes of formal
+morality, is not, as is well known, a professed treatise on Moral
+Philosophy; it is an attempt to determine the Law of Nature, or
+Natural Law. Now, without entering upon the question, whether the
+conception of a Law Natural be not exclusively a creation of the Roman
+jurisconsults, we may lay down that, even on the admission of Grotius
+himself, the dicta of the Roman jurisprudence as to what parts of
+known positive law must be taken to be parts of the Law of Nature,
+are, if not infallible, to be received at all events with the
+profoundest respect. Hence the system of Grotius is implicated with
+Roman law at its very foundation, and this connection rendered
+inevitable--what the legal training of the writer would perhaps have
+entailed without it--the free employment in every paragraph of
+technical phraseology, and of modes of reasoning, defining, and
+illustrating, which must sometimes conceal the sense, and almost
+always the force and cogency, of the argument from the reader who is
+unfamiliar with the sources whence they have been derived. On the
+other hand, Casuistry borrows little from Roman law, and the views of
+morality contended for have nothing whatever in common with the
+undertaking of Grotius. All that philosophy of right and wrong which
+has become famous, or infamous, under the name of Casuistry, had its
+origin in the distinction between Mortal and Venial Sin. A natural
+anxiety to escape the awful consequences of determining a particular
+act to be mortally sinful, and a desire, equally intelligible, to
+assist the Roman Catholic Church in its conflict with Protestantism by
+disburthening it of an inconvenient theory, were the motives which
+impelled the authors of the Casuistical philosophy to the invention of
+an elaborate system of criteria, intended to remove immoral actions,
+in as many cases as possible, out of the category of mortal offences,
+and to stamp them as venial sins. The fate of this experiment is
+matter of ordinary history. We know that the distinctions of
+Casuistry, by enabling the priesthood to adjust spiritual control to
+all the varieties of human character, did really confer on it an
+influence with princes, statesmen, and generals, unheard of in the
+ages before the Reformation, and did really contribute largely to that
+great reaction which checked and narrowed the first successes of
+Protestantism. But beginning in the attempt, not to establish, but to
+evade--not to discover a principle, but to escape a postulate--not to
+settle the nature of right and wrong, but to determine what was not
+wrong of a particular nature,--Casuistry went on with its dexterous
+refinements till it ended in so attenuating the moral features of
+actions, and so belying the moral instincts of our being, that at
+length the conscience of mankind rose suddenly in revolt against it,
+and consigned to one common ruin the system and its doctors. The blow,
+long pending, was finally struck in the _Provincial Letters_ of
+Pascal, and since the appearance of those memorable Papers, no
+moralist of the smallest influence or credit has ever avowedly
+conducted his speculations in the footsteps of the Casuists. The whole
+field of ethical science was thus left at the exclusive command of the
+writers who followed Grotius; and it still exhibits in an
+extraordinary degree the traces of that entanglement with Roman law
+which is sometimes imputed as a fault, and sometimes the highest of
+its recommendations, to the Grotian theory. Many inquirers since
+Grotius's day have modified his principles, and many, of course, since
+the rise of the Critical Philosophy, have quite deserted them; but
+even those who have departed most widely from his fundamental
+assumptions have inherited much of his method of statement, of his
+train of thought, and of his mode of illustration; and these have
+little meaning and no point to the person ignorant of Roman jurisprudence.
+
+I have already said that, with the exception of the physical sciences,
+there is no walk of knowledge which has been so slightly affected by
+Roman law as Metaphysics. The reason is that discussion on
+metaphysical subjects has always been conducted in Greek, first in
+pure Greek, and afterwards in a dialect of Latin expressly constructed
+to give expression to Greek conceptions. The modern languages have
+only been fitted to metaphysical inquiries by adopting this Latin
+dialect, or by imitating the process which was originally followed in
+its formation. The source of the phraseology which has been always
+employed for metaphysical discussion in modern times was the Latin
+translations of Aristotle, in which, whether derived or not from
+Arabic versions, the plan of the translator was not to seek for
+analogous expressions in any part of Latin literature, but to
+construct anew from Latin roots a set of phrases equal to the
+expression of Greek philosophical ideas. Over such a process the
+terminology of Roman law can have exercised little influence; at most,
+a few Latin law terms in a transmuted shape have made their way into
+metaphysical language. At the same time it is worthy of remark that
+whenever the problems of metaphysics are those which have been most
+strongly agitated in Western Europe, the thought, if not the language,
+betrays a legal parentage. Few things in the history of speculation
+are more impressive than the fact that no Greek-speaking people has
+ever felt itself seriously perplexed by the great question of
+Free-will and Necessity. I do not pretend to offer any summary
+explanation of this, but it does not seem an irrelevant suggestion
+that neither the Greeks, nor any society speaking and thinking in
+their language, ever showed the smallest capacity for producing a
+philosophy of law. Legal science is a Roman creation, and the problem
+of Free-will arises when we contemplate a metaphysical conception
+under a legal aspect. How came it to be a question whether invariable
+sequence was identical with necessary connection? I can only say that
+the tendency of Roman law, which became stronger as it advanced, was
+to look upon legal consequences as united to legal causes by an
+inexorable necessity, a tendency most markedly exemplified in the
+definition of Obligation which I have repeatedly cited, "Juris
+vinculum quo necessitate adstringimur alicujus solvendae rei."
+
+But the problem of Free-will was theological before it became
+philosophical, and, if its terms have been affected by jurisprudence,
+it will be because Jurisprudence had made itself felt in Theology. The
+great point of inquiry which is here suggested has never been
+satisfactorily elucidated. What has to be determined, is whether
+jurisprudence has ever served as the medium through which theological
+principles have been viewed; whether, by supplying a peculiar
+language, a peculiar mode of reasoning, and a peculiar solution of
+many of the problems of life, it has ever opened new channels in
+which theological speculation could flow out and expand itself. For
+the purpose of giving an answer it is necessary to recollect what is
+already agreed upon by the best writers as to the intellectual food
+which theology first assimilated. It is conceded on all sides that the
+earliest language of the Christian Church was Greek, and that the
+problems to which it first addressed itself were those for which Greek
+philosophy in its later forms had prepared the way. Greek metaphysical
+literature contained the sole stock of words and ideas out of which
+the human mind could provide itself with the means of engaging in the
+profound controversies as to the Divine Persons, the Divine Substance,
+and the Divine Natures. The Latin language and the meagre Latin
+philosophy were quite unequal to the undertaking, and accordingly the
+Western or Latin-speaking provinces of the Empire adopted the
+conclusions of the East without disputing or reviewing them. "Latin
+Christianity," says Dean Milman, "accepted the creed which its narrow
+and barren vocabulary could hardly express in adequate terms. Yet,
+throughout, the adhesion of Rome and the West was a passive
+acquiescence in the dogmatic system which had been wrought out by the
+profounder theology of the Eastern divines, rather than a vigorous and
+original examination on her part of those mysteries. The Latin Church
+was the scholar as well as the loyal partizan of Athanasius." But when
+the separation of East and West became wider, and the Latin-speaking
+Western Empire began to live with an intellectual life of its own, its
+deference to the East was all at once exchanged for the agitation of a
+number of questions entirely foreign to Eastern speculation. "While
+Greek theology (Milman, _Latin Christianity_, Preface, 5) went on
+defining with still more exquisite subtlety the Godhead and the nature
+of Christ"--"while the interminable controversy still lengthened out
+and cast forth sect after sect from the enfeebled community"--the
+Western Church threw itself with passionate ardour into a new order of
+disputes, the same which from those days to this have never lost their
+interest for any family of mankind at any time included in the Latin
+communion. The nature of Sin and its transmission by inheritance--the
+debt owed by man and its vicarious satisfaction--the necessity and
+sufficiency of the Atonement--above all the apparent antagonism
+between Free-will and the Divine Providence--these were the points
+which the West began to debate as ardently as ever the East had
+discussed the articles of its more special creed. Why is it then that
+on the two sides of the line which divides the Greek-speaking from the
+Latin-speaking provinces there lie two classes of theological problems
+so strikingly different from one another? The historians of the Church
+have come close upon the solution when they remark that the new
+problems were more "practical," less absolutely speculative, than
+those which had torn Eastern Christianity asunder, but none of them,
+so far as I am aware, has quite reached it. I affirm without
+hesitation that the difference between the two theological systems is
+accounted for by the fact that, in passing from the East to the West,
+theological speculation had passed from a climate of Greek metaphysics
+to a climate of Roman law. For some centuries before these
+controversies rose into overwhelming importance, all the intellectual
+activity of the Western Romans had been expended on jurisprudence
+exclusively. They had been occupied in applying a peculiar set of
+principles to all the combinations in which the circumstances of life
+are capable of being arranged. No foreign pursuit or taste called off
+their attention from this engrossing occupation, and for carrying it
+on they possessed a vocabulary as accurate as it was copious, a strict
+method of reasoning, a stock of general propositions on conduct more
+or less verified by experience, and a rigid moral philosophy. It was
+impossible that they should not select from the questions indicated by
+the Christian records those which had some affinity with the order of
+speculations to which they were accustomed, and that their manner of
+dealing with them should borrow something from their forensic habits.
+Almost everybody who has knowledge enough of Roman law to appreciate
+the Roman penal system, the Roman theory of the obligations
+established by Contract or Delict, the Roman view of Debts and of the
+modes of incurring, extinguishing, and transmitting them, the Roman
+notion of the continuance of individual existence by Universal
+Succession, may be trusted to say whence arose the frame of mind to
+which the problems of Western theology proved so congenial, whence
+came the phraseology in which these problems were stated, and whence
+the description of reasoning employed in their solution. It must only
+be recollected that Roman law which had worked itself into Western
+thought was neither the archaic system of the ancient city, nor the
+pruned and curtailed jurisprudence of the Byzantine Emperors; still
+less, of course, was it the mass of rules, nearly buried in a
+parasitical overgrowth of modern speculative doctrine, which passes by
+the name of Modern Civil Law. I speak only of that philosophy of
+jurisprudence, wrought out by the great juridical thinkers of the
+Antonine age, which may still be partially reproduced from the
+Pandects of Justinian, a system to which few faults can be attributed
+except it perhaps aimed at a higher degree of elegance, certainty, and
+precision, than human affairs will permit to the limits within which
+human laws seek to confine them.
+
+It is a singular result of that ignorance of Roman law which
+Englishmen readily confess, and of which they are sometimes not
+ashamed to boast, that many English writers of note and credit have
+been led by it to put forward the most untenable of paradoxes
+concerning the condition of human intellect during the Roman Empire.
+It has been constantly asserted, as unhesitatingly as if there were no
+temerity in advancing the proposition, that from the close of the
+Augustan era to the general awakening of interest on the points of the
+Christian faith, the mental energies of the civilised world were
+smitten with a paralysis. Now there are two subjects of thought--the
+only two perhaps with the exception of physical science--which are
+able to give employment to all the powers and capacities which the
+mind possesses. One of them is Metaphysical inquiry, which knows no
+limits so long as the mind is satisfied to work on itself; the other
+is Law, which is as extensive as the concerns of mankind. It happens
+that, during the very period indicated, the Greek-speaking provinces
+were devoted to one, the Latin-speaking provinces to the other, of
+these studies. I say nothing of the fruits of speculation in
+Alexandria and the East, but I confidently affirm that Rome and the
+West had an occupation in hand fully capable of compensating them for
+the absence of every other mental exercise, and I add that the results
+achieved, so far as we know them, were not unworthy of the continuous
+and exclusive labour bestowed on producing them. Nobody except a
+professional lawyer is perhaps in a position completely to understand
+how much of the intellectual strength of individuals Law is capable of
+absorbing, but a layman has no difficulty in comprehending why it was
+that an unusual share of the collective intellect of Rome was
+engrossed by jurisprudence. "The proficiency[6] of a given community
+in jurisprudence depends in the long run on the same conditions as its
+progress in any other line of inquiry; and the chief of these are the
+proportion of the national intellect devoted to it, and the length of
+time during which it is so devoted. Now, a combination of all the
+causes, direct and indirect, which contribute to the advancing and
+perfecting of a science continued to operate on the jurisprudence of
+Rome through the entire space between the Twelve Tables and the
+severance of the two Empires,--and that not irregularly or at
+intervals, but in steadily increasing force and constantly augmenting
+number. We should reflect that the earliest intellectual exercise to
+which a young nation devotes itself is the study of its laws. As soon
+as the mind makes its first conscious efforts towards generalisation,
+the concerns of every-day life are the first to press for inclusion
+within general rules and comprehensive formulas. The popularity of the
+pursuit on which all the energies of the young commonwealth are bent
+is at the outset unbounded; but it ceases in time. The monopoly of
+mind by law is broken down. The crowd at the morning audience of the
+great Roman jurisconsult lessens. The students are counted by hundreds
+instead of thousands in the English Inns of Court. Art, Literature,
+Science, and Politics, claim their share of the national intellect;
+and the practice of jurisprudence is confined within the circle of a
+profession, never indeed limited or insignificant, but attracted as
+much by the rewards as by the intrinsic recommendations of their
+science. This succession of changes exhibited itself even more
+strikingly at Rome than in England. To the close of the Republic the
+law was the sole field for all ability except the special talent of a
+capacity for generalship. But a new stage of intellectual progress
+began with the Augustan age, as it did with our own Elizabethan era.
+We all know what were its achievements in poetry and prose; but there
+are some indications, it should be remarked, that, besides its
+efflorescence in ornamental literature, it was on the eve of throwing
+out new aptitudes for conquest in physical science. Here, however, is
+the point at which the history of mind in the Roman State ceases to
+be parallel to the routes which mental progress had since then
+pursued. The brief span of Roman literature, strictly so called, was
+suddenly closed under a variety of influences, which though they may
+partially be traced it would be improper in this place to analyse.
+Ancient intellect was forcibly thrust back into its old courses, and
+law again became no less exclusively the proper sphere for talent than
+it had been in the days when the Romans despised philosophy and poetry
+as the toys of a childish race. Of what nature were the external
+inducements which, during the Imperial period, tended to draw a man of
+inherent capacity to the pursuits of the jurisconsult may best be
+understood by considering the option which was practically before him
+in his choice of a profession. He might become a teacher of rhetoric,
+a commander of frontier-posts, or a professional writer of panegyrics.
+The only other walk of active life which was open to him was the
+practice of the law. Through _that_ lay the approach to wealth, to
+fame, to office, to the council-chamber of the monarch--it may be to
+the very throne itself."
+
+The premium on the study of jurisprudence was so enormous that there
+were schools of law in every part of the Empire, even in the very
+domain of Metaphysics. But, though the transfer of the seat of empire
+to Byzantium gave a perceptible impetus to its cultivation in the
+East, jurisprudence never dethroned the pursuits which there competed
+with it. Its language was Latin, an exotic dialect in the Eastern half
+of the Empire. It is only of the West that we can lay down that law
+was not only the mental food of the ambitious and aspiring, but the
+sole aliment of all intellectual activity. Greek philosophy had never
+been more than a transient fashionable taste with the educated class
+of Rome itself, and when the new Eastern capital had been created, and
+the Empire subsequently divided into two, the divorce of the Western
+provinces from Greek speculation, and their exclusive devotion to
+jurisprudence, became more decided than ever. As soon then as they
+ceased to sit at the feet of the Greeks and began to ponder out a
+theology of their own, the theology proved to be permeated with
+forensic ideas and couched in a forensic phraseology. It is certain
+that this substratum of law in Western theology lies exceedingly deep.
+A new set of Greek theories, the Aristotelian philosophy, made
+their way afterwards into the West and almost entirely buried its
+indigenous doctrines. But when at the Reformation it partially shook
+itself free from their influence, it instantly supplied their place
+with Law. It is difficult to say whether the religious system of
+Calvin or the religious system of the Arminians has the more markedly
+legal character.
+
+The vast influence of the specific jurisprudence of Contract produced
+by the Romans upon the corresponding department of modern Law belongs
+rather to the history of mature jurisprudence than to a treatise like
+the present. It did not make itself felt till the school of Bologna
+founded the legal science of modern Europe. But the fact that the
+Romans, before their Empire fell, had so fully developed the
+conception of Contract becomes of importance at a much earlier period
+than this. Feudalism, I have repeatedly asserted, was a compound of
+archaic barbarian usage with Roman law; no other explanation of it is
+tenable, or even intelligible. The earliest social forms of the feudal
+period differ in little from the ordinary associations in which the
+men of primitive civilisations are everywhere seen united. A Fief was
+an organically complete brotherhood of associates whose proprietary
+and personal rights were inextricably blended together. It had much in
+common with an Indian Village Community and much in common with a
+Highland clan. But still it presents some phenomena which we never
+find in the associations which are spontaneously formed by beginners
+in civilisation. True archaic communities are held together not by
+express rules, but by sentiment, or, we should perhaps say, by
+instinct; and new comers into the brotherhood are brought within the
+range of this instinct by falsely pretending to share in the
+blood-relationship from which it naturally springs. But the earliest
+feudal communities were neither bound together by mere sentiment nor
+recruited by a fiction. The tie which united them was Contract, and
+they obtained new associates by contracting with them. The relation of
+the lord to the vassals had originally been settled by express
+engagement, and a person wishing to engraft himself on the brotherhood
+by _commendation_ or _infeudation_ came to a distinct understanding as
+to the conditions on which he was to be admitted. It is therefore the
+sphere occupied in them by Contract which principally distinguishes
+the feudal institutions from the unadulterated usages of primitive
+races. The lord had many of the characteristics of a patriarchal
+chieftain, but his prerogative was limited by a variety of settled
+customs traceable to the express conditions which had been agreed upon
+when the infeudation took place. Hence flow the chief differences
+which forbid us to class the feudal societies with true archaic
+communities. They were much more durable and much more various; more
+durable, because express rules are less destructible than instinctive
+habits, and more various, because the contracts on which they were
+founded were adjusted to the minutest circumstances and wishes of the
+persons who surrendered or granted away their lands. This last
+consideration may serve to indicate how greatly the vulgar opinions
+current among us as to the origin of modern society stand in need of
+revision. It is often said that the irregular and various contour of
+modern civilisation is due to the exuberant and erratic genius of the
+Germanic races, and it is often contrasted with the dull routine of
+the Roman Empire. The truth is that the Empire bequeathed to modern
+society the legal conception to which all this irregularity is
+attributable; if the customs and institutions of barbarians have one
+characteristic more striking than another, it is their extreme
+uniformity.
+
+    [5] The passage quoted is transcribed with slight
+    alterations from a paper contributed by the author to
+    the _Cambridge Essays_ for 1856.
+
+    [6] _Cambridge Essays_, 1856.
+
+
+
+
+CHAPTER X
+
+THE EARLY HISTORY OF DELICT AND CRIME
+
+
+The Teutonic Codes, including those of our Anglo-Saxon ancestors, are
+the only bodies of archaic secular law which have come down to us in
+such a state that we can form an exact notion of their original
+dimensions. Although the extant fragments of Roman and Hellenic codes
+suffice to prove to us their general character, there does not remain
+enough of them for us to be quite sure of their precise magnitude or
+of the proportion of their parts to each other. But still on the whole
+all the known collections of ancient law are characterised by a
+feature which broadly distinguishes them from systems of mature
+jurisprudence. The proportion of criminal to civil law is exceedingly
+different. In the German codes, the civil part of the law has trifling
+dimensions as compared with the criminal. The traditions which speak
+of the sanguinary penalties inflicted by the code of Draco seem to
+indicate that it had the same characteristic. In the Twelve Tables
+alone, produced by a society of greater legal genius and at first of
+gentler manners, the civil law has something like its modern
+precedence; but the relative amount of space given to the modes of
+redressing wrong, though not enormous, appears to have been large. It
+may be laid down, I think, that the more archaic the code, the fuller
+and the minuter is its penal legislation. The phenomenon has often
+been observed, and has been explained, no doubt to a great extent
+correctly, by the violence habitual to the communities which for the
+first time reduced their laws to writing. The legislator, it is said,
+proportioned the divisions of his work to the frequency of a certain
+class of incidents in barbarian life. I imagine, however, that this
+account is not quite complete. It should be recollected that the
+comparative barrenness of civil law in archaic collections is
+consistent with those other characteristics of ancient jurisprudence
+which have been discussed in this treatise. Nine-tenths of the civil
+part of the law practised by civilised societies are made up of the
+Law of Persons, of the Law of Property and of Inheritance, and of the
+Law of Contract. But it is plain that all these provinces of
+jurisprudence must shrink within narrower boundaries, the nearer we
+make our approaches to the infancy of social brotherhood. The Law of
+Persons, which is nothing else than the Law of Status, will be
+restricted to the scantiest limits as long as all forms of status are
+merged in common subjection to Paternal Power, as long as the Wife has
+no rights against her Husband, the Son none against his Father, and
+the infant Ward none against the Agnates who are his Guardians.
+Similarly, the rules relating to Property and Succession can never be
+plentiful, so long as land and goods devolve within the family, and,
+if distributed at all, are distributed inside its circle. But the
+greatest gap in ancient civil law will always be caused by the absence
+of Contract, which some archaic codes do not mention at all, while
+others significantly attest the immaturity of the moral notions on
+which Contract depends by supplying its place with an elaborate
+jurisprudence of Oaths. There are no corresponding reasons for the
+poverty of penal law, and accordingly, even if it be hazardous to
+pronounce that the childhood of nations is always a period of
+ungoverned violence, we shall still be able to understand why the
+modern relation of criminal law to civil should be inverted in ancient
+codes.
+
+I have spoken of primitive jurisprudence as giving to _criminal_ law a
+priority unknown in a later age. The expression has been
+used for convenience' sake, but in fact the inspection of ancient
+codes shows that the law which they exhibit in unusual quantities is
+not true criminal law. All civilised systems agree in drawing a
+distinction between offences against the State or Community and
+offences against the Individual, and the two classes of injuries, thus
+kept apart, I may here, without pretending that the terms have always
+been employed consistently in jurisprudence, call Crimes and Wrongs,
+_crimina_ and _delicta_. Now the penal law of ancient communities is
+not the law of Crimes; it is the law of Wrongs, or, to use the English
+technical word, of Torts. The person injured proceeds against the
+wrong-doer by an ordinary civil action, and recovers compensation in
+the shape of money-damages if he succeeds. If the Commentaries of
+Gaius be opened at the place where the writer treats of the penal
+jurisprudence founded on the Twelve Tables, it will be seen that at
+the head of the civil wrongs recognised by the Roman law stood
+_Furtum_ or _Theft_. Offences which we are accustomed to regard
+exclusively as _crimes_ are exclusively treated as _torts_, and not
+theft only, but assault and violent robbery, are associated by the
+jurisconsult with trespass, libel and slander. All alike gave rise to
+an Obligation or _vinculum juris_, and were all requited by a payment
+of money. This peculiarity, however, is most strongly brought out in
+the consolidated Laws of the Germanic tribes. Without an exception,
+they describe an immense system of money compensations for homicide,
+and with few exceptions, as large a scheme of compensations for minor
+injuries. "Under Anglo-Saxon law," writes Mr. Kemble (_Anglo-Saxons_,
+i. 177), "a sum was placed on the life of every free man, according to
+his rank, and a corresponding sum on every wound that could be
+inflicted on his person, for nearly every injury that could be done to
+his civil rights, honour or peace; the sum being aggravated according
+to adventitious circumstances." These compositions are evidently
+regarded as a valuable source of income; highly complex rules regulate
+the title to them and the responsibility for them; and, as I have
+already had occasion to state, they often follow a very peculiar line
+of devolution, if they have not been acquitted at the decease of the
+person to whom they belong. If therefore the criterion of a _delict_,
+_wrong_, or _tort_ be that the person who suffers it, and not the
+State, is conceived to be wronged, it may be asserted that in the
+infancy of jurisprudence the citizen depends for protection against
+violence or fraud not on the Law of Crime but on the Law of Tort.
+
+Torts then are copiously enlarged upon in primitive jurisprudence. It
+must be added that Sins are known to it also. Of the Teutonic codes it
+is almost unnecessary to make this assertion, because those codes, in
+the form in which we have received them, were compiled or recast by
+Christian legislators. But it is also true that non-Christian bodies
+of archaic law entail penal consequences on certain classes of acts
+and on certain classes of omissions, as being violations of divine
+prescriptions and commands. The law administered at Athens by the
+Senate of Areopagus was probably a special religious code, and at
+Rome, apparently from a very early period, the Pontifical
+jurisprudence punished adultery, sacrilege and perhaps murder. There
+were therefore in the Athenian and in the Roman States laws punishing
+_sins_. There were also laws punishing _torts_. The conception of
+offence against God produced the first class of ordinances; the
+conception of offence against one's neighbour produced the second; but
+the idea of offence against the State or aggregate community did not
+at first produce a true criminal jurisprudence.
+
+Yet it is not to be supposed that a conception so simple and
+elementary as that of wrong done to the State was wanting in any
+primitive society. It seems rather that the very distinctness with
+which this conception is realised is the true cause which at first
+prevents the growth of a criminal law. At all events, when the Roman
+community conceived itself to be injured, the analogy of a personal
+wrong received was carried out to its consequences with absolute
+literalness, and the State avenged itself by a single act on the
+individual wrong-doer. The result was that, in the infancy of the
+commonwealth, every offence vitally touching its security or its
+interests was punished by a separate enactment of the legislature. And
+this is the earliest conception of a _crimen_ or Crime--an act
+involving such high issues that the State, instead of leaving its
+cognisance to the civil tribunal or the religious court, directed a
+special law or _privilegium_ against the perpetrator. Every indictment
+therefore took the form of a bill of pains and penalties, and the
+trial of a _criminal_ was a proceeding wholly extraordinary, wholly
+irregular, wholly independent of settled rules and fixed conditions.
+Consequently, both for the reason that the tribunal dispensing justice
+was the sovereign state itself and also for the reason that no
+classification of the acts prescribed or forbidden was possible, there
+was not at this epoch any _Law_ of crimes, any criminal jurisprudence.
+The procedure was identical with the forms of passing an ordinary
+statute; it was set in motion by the same persons and conducted with
+precisely the same solemnities. And it is to be observed that, when a
+regular criminal law with an apparatus of Courts and officers for its
+administration had afterwards come into being, the old procedure, as
+might be supposed from its conformity with theory, still in strictness
+remained practicable; and, much as resort to such an expedient was
+discredited, the people of Rome always retained the power of punishing
+by a special law offences against its majesty. The classical scholar
+does not require to be reminded that in exactly the same manner the
+Athenian Bill of Pains and Penalties, or [Greek: eisangelia], survived
+the establishment of regular tribunals. It is known too that when the
+freemen of the Teutonic races assembled for legislation, they also
+claimed authority to punish offences of peculiar blackness or
+perpetrated by criminals of exalted station. Of this nature was the
+criminal jurisdiction of the Anglo-Saxon Witenagemot.
+
+It may be thought that the difference which I have asserted to exist
+between the ancient and modern view of penal law has only a verbal
+existence. The community, it may be said, besides interposing to
+punish crimes legislatively, has from the earliest times interfered by
+its tribunals to compel the wrong-doer to compound for his wrong, and,
+if it does this, it must always have supposed that in some way it was
+injured through his offence. But, however rigorous this inference may
+seem to us now-a-days, it is very doubtful whether it was actually
+drawn by the men of primitive antiquity. How little the notion of
+injury to the community had to do with the earliest interferences of
+the State _through its tribunals_, is shown by the curious
+circumstances that in the original administration of justice, the
+proceedings were a close imitation of the series of acts which were
+likely to be gone through in private life by persons who were
+disputing, but who afterwards suffered their quarrel to be appeased.
+The magistrate carefully simulated the demeanour of a private
+arbitrator casually called in.
+
+In order to show that this statement is not a mere fanciful conceit, I
+will produce the evidence on which it rests. Very far the most ancient
+judicial proceeding known to us is the Legis Actio Sacramenti of the
+Romans, out of which all the later Roman Law of Actions may be proved
+to have grown. Gaius carefully describes its ceremonial. Unmeaning and
+grotesque as it appears at first sight, a little attention enables us
+to decipher and interpret it.
+
+The subject of litigation is supposed to be in Court. If it is
+moveable, it is actually there. If it be immoveable, a fragment or
+sample of it is brought in its place; land, for instance, is
+represented by a clod, a house by a single brick. In the example
+selected by Gaius, the suit is for a slave. The proceeding begins by
+the plaintiff's advancing with a rod, which, as Gaius expressly
+tells, symbolised a spear. He lays hold of the slave and asserts a
+right to him with the words, "_Hunc ego hominem ex Jure Quiritium meum
+esse dico secundum suam causam sicut dixi_;" and then saying, "_Ecce
+tibi Vindictam imposui_," he touches him with the spear. The defendant
+goes through the same series of acts and gestures. On this the Praetor
+intervenes, and bids the litigants relax their hold, "_Mittite ambo
+hominem_." They obey, and the plaintiff demands from the defendant the
+reason of his interference, "_Postulo anne dicas qua ex causa
+vindicaveris_," a question which is replied to by a fresh assertion of
+right, "_Jus peregi sicut vindictam imposui_." On this, the first
+claimant offers to stake a sum of money, called a Sacramentum, on the
+justice of his own case, "_Quando tu injuria provocasti, D aeris
+Sacramento te provoco_," and the defendant, in the phrase "_Similiter
+ego te_," accepts the wager. The subsequent proceedings were no longer
+of a formal kind, but it is to be observed that the Praetor took
+security for the Sacramentum, which always went into the coffers of
+the State.
+
+Such was the necessary preface of every ancient Roman suit. It is
+impossible, I think, to refuse assent to the suggestion of those who
+see in it a dramatisation of the Origin of Justice. Two armed men are
+wrangling about some disputed property. The Praetor, _vir pietate
+gravis_, happens to be going by, and interposes to stop the contest.
+The disputants state their case to him, and agree that he shall
+arbitrate between them, it being arranged that the loser, besides
+resigning the subject of the quarrel, shall pay a sum of money to the
+umpire as remuneration for his trouble and loss of time. This
+interpretation would be less plausible than it is, were it not that,
+by a surprising coincidence, the ceremony described by Gaius as the
+imperative course of proceeding in a Legis Actio is substantially the
+same with one of the two subjects which the God Hephaestus is described
+by Homer as moulding into the First Compartment of the Shield of
+Achilles. In the Homeric trial-scene, the dispute, as if expressly
+intended to bring out the characteristics of primitive society, is not
+about property but about the composition for a homicide. One person
+asserts that he has paid it, the other that he has never received it.
+The point of detail, however, which stamps the picture as the
+counterpart of the archaic Roman practice is the reward designed for
+the judges. Two talents of gold lie in the middle, to be given to him
+who shall explain the grounds of the decision most to the satisfaction
+of the audience. The magnitude of this sum as compared with the
+trifling amount of the Sacramentum seems to me indicative of the
+indifference between fluctuating usage and usage consolidated into
+law. The scene introduced by the poet as a striking and
+characteristic, but still only occasional, feature of city-life in the
+heroic age has stiffened, at the opening of the history of civil
+process, into the regular, ordinary formalities of a lawsuit. It is
+natural therefore that in the Legis Actio the remuneration of the
+Judge should be reduced to a reasonable sum, and that, instead of
+being adjudged to one of a number of arbitrators by popular
+acclamation, it should be paid as a matter of course to the State
+which the Praetor represents. But that the incidents described so
+vividly by Homer, and by Gaius with even more than the usual crudity
+of technical language, have substantially the same meaning, I cannot
+doubt; and, in confirmation of this view, it may be added that many
+observers of the earliest judicial usages of modern Europe have
+remarked that the fines inflicted by Courts on offenders were
+originally _sacramenta_. The State did not take from the defendant a
+composition for any wrong supposed to be done to itself, but claimed a
+share in the compensation awarded to the plaintiff simply as the fair
+price of its time and trouble. Mr. Kemble expressly assigns this
+character to the Anglo-Saxon _bannum_ or _fredum_.
+
+Ancient law furnishes other proofs that the earliest administrators of
+justice simulated the probable acts of persons engaged in a private
+quarrel. In settling the damages to be awarded, they took as their
+guide the measure of vengeance likely to be exacted by an aggrieved
+person under the circumstances of the case. This is the true
+explanation of the very different penalties imposed by ancient law on
+offenders caught in the act or soon after it and on offenders detected
+after considerable delay. Some strange exemplifications of this
+peculiarity are supplied by the old Roman law of Theft. The Laws of
+the Twelve Tables seem to have divided Thefts into Manifest and
+Non-Manifest, and to have allotted extraordinarily different penalties
+to the offence according as it fell under one head or the other. The
+Manifest Thief was he who was caught within the house in which he had
+been pilfering, or who was taken while making off to a place of safety
+with the stolen goods; the Twelve Tables condemned him to be put to
+death if he were already a slave, and, if he was a freeman, they made
+him the bondsman of the owner of the property. The Non-Manifest Thief
+was he who was detected under any other circumstances than those
+described; and the old code simply directed that an offender of this
+sort should refund double the value of what he had stolen. In Gaius's
+day the excessive severity of the Twelve Tables to the Manifest Thief
+had naturally been much mitigated, but the law still maintained the
+old principle by mulcting him in fourfold the value of the stolen
+goods, while the Non-Manifest Thief still continued to pay merely the
+double. The ancient lawgiver doubtless considered that the injured
+proprietor, if left to himself, would inflict a very different
+punishment when his blood was hot from that with which he would be
+satisfied when the Thief was detected after a considerable interval;
+and to this calculation the legal scale of penalties was adjusted. The
+principle is precisely the same as that followed in the Anglo-Saxon
+and other Germanic codes, when they suffer a thief chased down and
+caught with the booty to be hanged or decapitated on the spot, while
+they exact the full penalties of homicide from anybody who kills him
+after the pursuit has been intermitted. These archaic distinctions
+bring home to us very forcibly the distance of a refined from a rude
+jurisprudence. The modern administrator of justice has confessedly one
+of the hardest tasks before him when he undertakes to discriminate
+between the degrees of criminality which belong to offences falling
+within the same technical description. It is always easy to say that a
+man is guilty of manslaughter, larceny, or bigamy, but it is often
+most difficult to pronounce what extent of moral guilt he has
+incurred, and consequently what measure of punishment he has deserved.
+There is hardly any perplexity in casuistry, or in the analysis of
+motive, which we may not be called upon to confront, if we attempt to
+settle such a point with precision; and accordingly the law of our day
+shows an increasing tendency to abstain as much as possible from
+laying down positive rules on the subject. In France, the jury is left
+to decide whether the offence which it finds committed has been
+attended by extenuating circumstances; in England, a nearly unbounded
+latitude in the selection of punishments is now allowed to the judge;
+while all States have in reserve an ultimate remedy for the
+miscarriages of law in the Prerogative of Pardon, universally lodged
+with the Chief Magistrate. It is curious to observe how little the men
+of primitive times were troubled with these scruples, how completely
+they were persuaded that the impulses of the injured person were the
+proper measure of the vengeance he was entitled to exact, and how
+literally they imitated the probable rise and fall of his passions in
+fixing their scale of punishment. I wish it could be said that their
+method of legislation is quite extinct. There are, however, several
+modern systems of law which, in cases of graver wrong, admit the fact
+of the wrong-doer having been taken in the act to be pleaded in
+justification of inordinate punishment inflicted on him by the
+sufferer--an indulgence which, though superficially regarded it may
+seem intelligible, is based, as it seems to me, on a very low
+morality.
+
+Nothing, I have said, can be simpler than the considerations which
+ultimately led ancient societies to the formation of a true criminal
+jurisprudence. The State conceived itself to be wronged, and the
+Popular Assembly struck straight at the offender with the same
+movement which accompanied its legislative action. It is further true
+of the ancient world--though not precisely of the modern, as I shall
+have occasion to point out--that the earliest criminal tribunals were
+merely subdivisions, or committees, of the legislature. This, at all
+events, is the conclusion pointed at by the legal history of the two
+great states of antiquity, with tolerable clearness in one case, and
+with absolute distinctness in the other. The primitive penal law of
+Athens entrusted the castigation of offences partly to the Archons,
+who seem to have punished them as _torts_, and partly to the Senate of
+Areopagus, which punished them as _sins_. Both jurisdictions were
+substantially transferred in the end to the Heliaea, the High Court of
+Popular Justice, and the functions of the Archons and of the Areopagus
+became either merely ministerial or quite insignificant. But "Heliaea"
+is only an old word for Assembly; the Heliaea of classical times was
+simply the Popular Assembly convened for judicial purposes, and the
+famous Dikasteries of Athens were only its subdivisions or panels. The
+corresponding changes which occurred at Rome are still more easily
+interpreted, because the Romans confined their experiments to the
+penal law, and did not, like the Athenians, construct popular courts
+with a civil as well as a criminal jurisdiction. The history of Roman
+criminal jurisprudence begins with the old Judicia Populi, at which
+the Kings are said to have presided. These were simply solemn trials
+of great offenders under legislative forms. It seems, however, that
+from an early period the Comitia had occasionally delegated its
+criminal jurisdiction to a Quaestio or Commission, which bore much the
+same relation to the Assembly as a Committee of the House of Commons
+bears to the House itself, except that the Roman Commissioners or
+Quaestores did not merely _report_ to the Comitia, but exercised all
+powers which that body was itself in the habit of exercising, even to
+the passing sentence on the Accused. A Quaestio of this sort was only
+appointed to try a particular offender, but there was nothing to
+prevent two or three Quaestiones sitting at the same time; and it is
+probable that several of them were appointed simultaneously, when
+several grave cases of wrong to the community had occurred together.
+There are also indications that now and then these Quaestiones
+approached the character of our _Standing_ Committees, in that they
+were appointed periodically, and without waiting for occasion to arise
+in the commission of some serious crime. The old Quaestores Parricidii,
+who are mentioned in connection with transactions of very ancient
+date, as being deputed to try (or, as some take it, to search out and
+try) all cases of parricide and murder, seem to have been appointed
+regularly every year; and the Duumviri Perduellionis, or Commission of
+Two for trial of violent injury to the Commonwealth, are also believed
+by most writers to have been named periodically. The delegations of
+power to these latter functionaries bring us some way forwards.
+Instead of being appointed _when and as_ state-offences were
+committed, they had a general, though a temporary jurisdiction over
+such as _might_ be perpetrated. Our proximity to a regular criminal
+jurisprudence is also indicated by the general terms "Parricidium" and
+"Perduellio" which mark the approach to something like a
+classification of crimes.
+
+The true criminal law did not however come into existence till the
+year B.C. 149, when L. Calpurnius Piso carried the statute known as
+the Lex Calpurnia de Repetundis. The law applied to cases Repetundarum
+Pecuniarum, that is, claims by Provincials to recover monies
+improperly received by a Governor-General, but the great and permanent
+importance of this statute arose from its establishing the first
+Quaestio Perpetua. A Quaestio Perpetua was a _Permanent_ Commission as
+opposed to those which were occasional and to those which were
+temporary. It was a regular criminal tribunal whose existence dated
+from the passing of the statute creating it and continued till another
+statute should pass abolishing it. Its members were not specially
+nominated, as were the members of the older Quaestiones, but provision
+was made in the law constituting it for selecting from particular
+classes the judges who were to officiate, and for renewing them in
+conformity with definite rules. The offences of which it took
+cognisance were also expressly named and defined in this statute, and
+the new Quaestio had authority to try and sentence all persons in
+future whose acts should fall under the definitions of crime supplied
+by the law. It was therefore a regular criminal judicature,
+administering a true criminal jurisprudence.
+
+The primitive history of criminal law divides itself therefore into
+four stages. Understanding that the conception of _Crime_, as
+distinguished from that of _Wrong_ or _Tort_ and from that of _Sin_,
+involves the idea of injury to the State or collective community, we
+first find that the commonwealth, in literal conformity with the
+conception, itself interposed directly, and by isolated acts, to
+avenge itself on the author of the evil which it had suffered. This is
+the point from which we start; each indictment is now a bill of pains
+and penalties, a special law naming the criminal and prescribing his
+punishment. A _second_ step is accomplished, when the multiplicity of
+crimes compels the legislature to delegate its powers to particular
+Quaestiones or Commissions, each of which is deputed to investigate a
+particular accusation, and if it be proved, to punish the particular
+offender. Yet _another_ movement is made when the legislature, instead
+of waiting for the alleged commission of a crime as the occasion of
+appointing a Quaestio, periodically nominates Commissioners like the
+Quaestores Parricidii and the Duumviri Perduellionis, on the chance of
+certain classes of crimes being committed, and in the expectation that
+they _will_ be perpetrated. The _last_ stage is reached when the
+Quaestiones from being periodical or occasional become permanent
+Benches or Chambers--when the judges, instead of being named in the
+particular law nominating the Commission, are directed to be chosen
+through all future time in a particular way and from a particular
+class--and when certain acts are described in general language and
+declared to be crimes, to be visited, in the event of their
+perpetration, with specified penalties appropriated to each
+description.
+
+If the Quaestiones Perpetuae had had a longer history, they would
+doubtless have come to be regarded as a distinct institution, and
+their relation to the Comitia would have seemed no closer than the
+connection of our own Courts of Law with the Sovereign, who is
+theoretically the fountain of justice. But the Imperial despotism
+destroyed them before their origin had been completely forgotten, and,
+so long as they lasted, these Permanent Commissions were looked upon
+by the Romans as the mere depositaries of a delegated power. The
+cognisance of crimes was considered a natural attribute of the
+legislature, and the mind of the citizen never ceased to be carried
+back from the Quaestiones, to the Comitia which had deputed them to put
+into exercise some of its own inalienable functions. The view which
+regarded the Quaestiones, even when they became permanent, as mere
+Committees of the Popular Assembly--as bodies which only ministered to
+a higher authority--had some important legal consequences which left
+their mark on the criminal law to the very latest period. One
+immediate result was that the Comitia continued to exercise criminal
+jurisdiction by way of bill of pains and penalties, long after the
+Quaestiones had been established. Though the legislature had consented
+to delegate its powers for the sake of convenience to bodies external
+to itself, it did not follow that it surrendered them. The Comitia and
+the Quaestiones went on trying and punishing offenders side by side;
+and any unusual outburst of popular indignation was sure, until the
+extinction of the Republic, to call down upon its object an indictment
+before the Assembly of the Tribes.
+
+One of the most remarkable peculiarities of the institutions of the
+Republic is also traceable to this dependance of the Quaestiones on the
+Comitia. The disappearance of the punishment of Death from the penal
+system of Republican Rome used to be a very favourite topic with the
+writers of the last century, who were perpetually using it to point
+some theory of the Roman character or of modern social economy. The
+reason which can be confidently assigned for it stamps it as purely
+fortuitous. Of the three forms which the Roman legislature
+successively assumed, one, it is well known--the Comitia
+Centuriata--was exclusively taken to represent the State as embodied
+for military operations. The Assembly of the Centuries, therefore, had
+all powers which may be supposed to be properly lodged with a General
+commanding an army, and, among them, it had authority to subject all
+offenders to the same correction to which a soldier rendered himself
+liable by breaches of discipline. The Comitia Centuriata could
+therefore inflict capital punishment. Not so, however, the Comitia
+Curiata or Comitia Tributa. They were fettered on this point by the
+sacredness with which the person of a Roman citizen, inside the walls
+of the city, was invested by religion and law; and, with respect to
+the last of them, the Comitia Tributa, we know for certain that it
+became a fixed principle that the Assembly of the Tribes could at most
+impose a fine. So long as criminal jurisdiction was confined to the
+legislature, and so long as the assemblies of the centuries and of the
+Tribes continued to exercise co-ordinate powers, it was easy to prefer
+indictments for graver crimes before the legislative body which
+dispensed the heavier penalties; but then it happened that the more
+democratic assembly, that of the Tribes, almost entirely superseded
+the others, and became the ordinary legislature of the later Republic.
+Now the decline of the Republic was exactly the period during which
+the Quaestiones Perpetuae were established, so that the statutes
+creating them were all passed by a legislative assembly which itself
+could not, at its ordinary sittings, punish a criminal with death. It
+followed that the Permanent Judicial Commissions, holding a delegated
+authority, were circumscribed in their attributes and capacities by
+the limits of the powers residing with the body which deputed them.
+They could do nothing which the Assembly of the Tribes could not have
+done; and, as the Assembly could not sentence to death, the Quaestiones
+were equally incompetent to award capital punishment. The anomaly thus
+resulting was not viewed in ancient times with anything like the
+favour which it has attracted among the moderns, and indeed, while it
+is questionable whether the Roman character was at all the better for
+it, it is certain that the Roman Constitution was a great deal the
+worse. Like every other institution which has accompanied the human
+race down the current of its history, the punishment of death is a
+necessity of society in certain stages of the civilising process.
+There is a time when the attempt to dispense with it baulks both of
+the two great instincts which lie at the root of all penal law.
+Without it, the community neither feels that it is sufficiently
+revenged on the criminal, nor thinks that the example of his
+punishment is adequate to deter others from imitating him. The
+incompetence of the Roman Tribunals to pass sentence of death led
+distinctly and directly to those frightful Revolutionary intervals,
+known as the Proscriptions, during which all law was formally
+suspended simply because party violence could find no other avenue to
+the vengeance for which it was thirsting. No cause contributed so
+powerfully to the decay of political capacity in the Roman people as
+this periodical abeyance of the laws; and, when it had once been
+resorted to, we need not hesitate to assert that the ruin of Roman
+liberty became merely a question of time. If the practice of the
+Tribunals had afforded an adequate vent for popular passion, the forms
+of judicial procedure would no doubt have been as flagrantly perverted
+as with us in the reigns of the later Stuarts, but national character
+would not have suffered as deeply as it did, nor would the stability
+of Roman institutions have been as seriously enfeebled.
+
+I will mention two more singularities of the Roman Criminal System
+which were produced by the same theory of judicial authority. They
+are, the extreme multiplicity of the Roman criminal tribunals, and the
+capricious and anomalous classification of crimes which characterised
+Roman penal jurisprudence throughout its entire history. Every
+_Quaestio_, it has been said, whether Perpetual or otherwise, had its
+origin in a distinct statute. From the law which created it, it
+derived its authority; it rigorously observed the limits which its
+charter prescribed to it, and touched no form of criminality which
+that charter did not expressly define. As then the statutes which
+constituted the various Quaestiones were all called forth by particular
+emergencies, each of them being in fact passed to punish a class of
+acts which the circumstances of the time rendered particularly odious
+or particularly dangerous, these enactments made not the slightest
+reference to each other, and were connected by no common principle.
+Twenty or thirty different criminal laws were in existence together,
+with exactly the same number of Quaestiones to administer them; nor was
+any attempt made during the Republic to fuse these distinct judicial
+bodies into one, or to give symmetry to the provisions of the statutes
+which appointed them and defined their duties. The state of the Roman
+criminal jurisdiction at this period, exhibited some resemblances to
+the administration of civil remedies in England at the time when the
+English Courts of Common Law had not as yet introduced those
+fictitious averments into their writs which enabled them to trespass
+on each other's peculiar province. Like the Quaestiones, the Courts of
+Queen's Bench, Common Pleas, and Exchequer were all theoretical
+emanations from a higher authority, and each entertained a special
+class of cases supposed to be committed to it by the fountain of its
+jurisdiction; but then the Roman Quaestiones were many more than three
+in number, and it was infinitely less easy to discriminate the acts
+which fell under the cognisance of each Quaestio, than to distinguish
+between the provinces of the three Courts in Westminster Hall. The
+difficulty of drawing exact lines between the spheres of the different
+Quaestiones made the multiplicity of Roman tribunals something more
+than a mere inconvenience; for we read with astonishment that when it
+was not immediately clear under what general description a man's
+alleged offences ranged themselves, he might be indicted at once or
+successively before several different Commissions, on the chance of
+some one of them declaring itself competent to convict him; and,
+although conviction by one Quaestio ousted the jurisdiction of the
+rest, acquittal by one of them could not be pleaded to an accusation
+before another. This was directly contrary to the rule of the Roman
+civil law; and we may be sure that a people so sensitive as the Romans
+to anomalies (or, as their significant phrase was, to _inelegancies_)
+in jurisprudence, would not long have tolerated it, had not the
+melancholy history of the Quaestiones caused them to be regarded much
+more as temporary weapons in the hands of factions than as permanent
+institutions for the correction of crime. The Emperors soon abolished
+this multiplicity and conflict of jurisdiction; but it is remarkable
+that they did not remove another singularity of the criminal law which
+stands in close connection with the number of the Courts. The
+classifications of crimes which are contained even in the Corpus
+Juris of Justinian are remarkably capricious. Each Quaestio had, in
+fact, confined itself to the crimes committed to its cognisance by its
+charter. These crimes, however, were only classed together in the
+original statute because they happened to call simultaneously for
+castigation at the moment of passing it. They had not therefore
+anything necessarily in common; but the fact of their constituting the
+particular subject-matter of trials before a particular Quaestio
+impressed itself naturally on the public attention, and so inveterate
+did the association become between the offences mentioned in the same
+statute that, even when formal attempts were made by Sylla and by the
+Emperor Augustus to consolidate the Roman criminal law, the legislator
+preserved the old grouping. The Statutes of Sylla and Augustus were
+the foundation of the penal jurisprudence of the Empire, and nothing
+can be more extraordinary than some of the classifications which they
+bequeathed to it. I need only give a single example in the fact that
+_perjury_ was always classed with _cutting and wounding_ and with
+_poisoning_, no doubt because a law of Sylla, the Lex Cornelia de
+Sicariis et Veneficis, had given jurisdiction over all these three
+forms of crime to the same Permanent Commission. It seems too that
+this capricious grouping of crimes affected the vernacular speech of
+the Romans. People naturally fell into the habit of designating all
+the offences enumerated in one law by the first name on the list,
+which doubtless gave its style to the Law Court deputed to try them
+all. All the offences tried by the Quaestio De Adulteriis would thus be
+called Adultery.
+
+I have dwelt on the history and characteristics of the Roman
+Quaestiones because the formation of a criminal jurisprudence is
+nowhere else so instructively exemplified. The last Quaestiones were
+added by the Emperor Augustus, and from that time the Romans may be
+said to have had a tolerably complete criminal law. Concurrently with
+its growth, the analogous process had gone on, which I have called the
+conversion of Wrongs into Crimes, for, though the Roman legislature
+did not extinguish the civil remedy for the more heinous offences, it
+offered the sufferer a redress which he was sure to prefer. Still,
+even after Augustus had completed his legislation, several offences
+continued to be regarded as Wrongs, which modern societies look upon
+exclusively as Crimes; nor did they become criminally punishable till
+some late but uncertain date, at which the law began to take notice of
+a new description of offences called in the Digest _crimina
+extraordinaria_. These were doubtless a class of acts which the theory
+of Roman jurisprudence treated merely as wrongs; but the growing sense
+of the majesty of society revolted from their entailing nothing worse
+on their perpetrator than the payment of money damages, and
+accordingly the injured person seems to have been permitted, if he
+pleased, to pursue them as crimes _extra ordinem_, that is by a mode
+of redress departing in some respect or other from the ordinary
+procedure. From the period at which these _crimina extraordinaria_
+were first recognised, the list of crimes in the Roman State must have
+been as long as in any community of the modern world.
+
+It is unnecessary to describe with any minuteness the mode of
+administering criminal justice under the Roman Empire, but it is to be
+noted that both its theory and practice have had powerful effect on
+modern society. The Emperors did not immediately abolish the
+Quaestiones, and at first they committed an extensive criminal
+jurisdiction to the Senate, in which, however servile it might show
+itself in fact, the Emperor was no more nominally than a Senator like
+the rest. But some sort of collateral criminal jurisdiction had been
+claimed by the Prince from the first; and this, as recollections of
+the free commonwealth decayed, tended steadily to gain at the expense
+of the old tribunals. Gradually the punishment of crimes was
+transferred to magistrates directly nominated by the Emperor and the
+privileges of the Senate passed to the Imperial Privy Council, which
+also became a Court of ultimate criminal appeal. Under these
+influences the doctrine, familiar to the moderns, insensibly shaped
+itself that the Sovereign is the fountain of all Justice and the
+depositary of all Grace. It was not so much the fruit of increasing
+adulation and servility as of the centralisation of the Empire which
+had by this time perfected itself. The theory of criminal justice had,
+in fact, worked round almost to the point from which it started. It
+had begun in the belief that it was the business of the collective
+community to avenge its own wrongs by its own hand; and it ended in
+the doctrine that the chastisement of crimes belonged in an especial
+manner to the Sovereign as representative and mandatary of his
+people. The new view differed from the old one chiefly in the air of
+awfulness and majesty which the guardianship of justice appeared to
+throw around the person of the Sovereign.
+
+This later Roman view of the Sovereign's relation to justice certainly
+assisted in saving modern societies from the necessity of travelling
+through the series of changes which I have illustrated by the history
+of the Quaestiones. In the primitive law of almost all the races which
+have peopled Western Europe there are vestiges of the archaic notion
+that the punishment of crimes belongs to the general assembly of
+freemen; and there are some States--Scotland is said to be one of
+them--in which the parentage of the existing judicature can be traced
+up to a Committee of the legislative body. But the development of the
+criminal law was universally hastened by two causes, the memory of the
+Roman Empire and the influence of the Church. On the one hand
+traditions of the majesty of the Caesars, perpetuated by the temporary
+ascendency of the House of Charlemagne, were surrounding Sovereigns
+with a prestige which a mere barbarous chieftain could never otherwise
+have acquired and were communicating to the pettiest feudal potentate
+the character of guardian of society and representative of the State.
+On the other hand, the Church, in its anxiety to put a curb on
+sanguinary ferocity, sought about for authority to punish the graver
+misdeeds, and found it in those passages of Scripture which speak with
+approval of the powers of punishment committed to the civil
+magistrate. The New Testament was appealed to as proving that secular
+rulers exist for the terror of evildoers; the Old Testament, as laying
+down that "Whoso sheddeth man's blood, by man shall his blood be
+shed." There can be no doubt, I imagine, that modern ideas on the
+subject of crime are based upon two assumptions contended for by the
+Church in the Dark Ages--first, that each feudal ruler, in his degree,
+might be assimilated to the Roman Magistrates spoken of by Saint Paul;
+and next, that the offences which he was to chastise were those
+selected for prohibition in the Mosaic Commandments, or rather such of
+them as the Church did not reserve to her own cognisance. Heresy
+(supposed to be included in the First and Second Commandments),
+Adultery, and Perjury were ecclesiastical offences, and the Church
+only admitted the co-operation of the secular arm for the purpose of
+inflicting severer punishment in cases of extraordinary
+aggravation. At the same time, she taught that murder and robbery with
+their various modifications were under the jurisdiction of civil
+rulers, not as an accident of their position but by the express
+ordinance of God.
+
+There is a passage in the writings of King Alfred (Kemble, ii. 209)
+which brings out into remarkable clearness the struggle of the various
+ideas that prevailed in his day as to the origin of criminal
+jurisdiction. It will be seen that Alfred attributes it partly to the
+authority of the Church and partly to that of the Witan, while he
+expressly claims for treason against the lord the same immunity from
+ordinary rules which the Roman Law of Majestas had assigned to treason
+against the Caesar. "After this it happened," he writes, "that many
+nations received the faith of Christ, and there were many synods
+assembled throughout the earth, and among the English race also after
+they had received the faith of Christ, both of holy bishops and of
+their exalted Witan. They then ordained that, out of that mercy which
+Christ had taught, secular lords, with their leave, might without sin
+take for every misdeed the _bot_ in money which they ordained; except
+in cases of treason against a lord, to which they dared not assign any
+mercy because Almighty God adjudged none to them that despised Him,
+nor did Christ adjudge any to them which sold Him to death; and He
+commanded that a lord should be loved like Himself."
+
+
+
+
+INDEX
+
+
+Austin, 69, 171;
+  _Province of Jurisprudence Determined_, 4
+
+Ayala, 64
+
+
+Bentham, 18, 46, 54, 70, 147;
+  _Fragment on Government_, 4
+
+Blackstone, 67, 89, 150, 152
+
+
+_Cambridge Essays_, 1856, Maine, 205, 212
+
+Capture in war, 145, 146
+
+Casuistry, 205, 206, 207
+
+Charlemagne, 62, 233
+
+Codes, Attic of Solon, 9;
+  era of, 8;
+  first introduced into the West, 10;
+  Hindoo Law of Menu, 10-12;
+  Justinian, 25, 27;
+  Napoleon, 104;
+  Roman, superiority over Hindoo, 10-12;
+  Twelve Tables of Rome, 1, 8, 9, 12, 20
+
+Contract, Austin on, 190;
+  Bentham on, 190;
+  Imperative Law, 182;
+  judicial and popular error, 181;
+  Law of Nations, 181, 196, 197;
+  literal or written, 194;
+  origin lies in the family, 99;
+  pact or convention, 184, 185;
+  real, 195;
+  Roman, classification, 191, 192;
+  consensual, 195-198;
+  Domestic System, 194;
+  Nexum, definition of, 185-189;
+  Rousseau, 181;
+  sale, 188
+
+Conveyances and contracts, confusion between, 185-187;
+  and mancipation, 185
+
+_Corpus juris civilis_, 26
+
+Creditors, powers of, in ancient system, 189
+
+Crimes and wrongs, confusion between, 231, 232;
+  distinction between primitive and modern, 217, 218;
+  Kemble in _Anglo-Saxons_, 218
+
+Criminal Law, Athens, 224;
+  degree of guilt, 223;
+  four stages of primitive history, 226;
+  influence of Church, 233;
+  primitive religious code, 218, 219;
+  Roman, crime against State, 219;
+  B.C. 149, 225;
+  origin of, 225;
+  sentence of death, 227-229;
+  theft, 222, 223;
+  tribunals, 228-230;
+  under emperors, 230-232
+
+Customary Law, epoch of, 7, 8;
+  Hindoo, 4
+
+
+Dangers of Law, rigidity, too rapid development, 44, 45
+
+Debtors, severity of ancient system, 189
+
+
+Equity, 172;
+  early history of, 15;
+  Lord Eldon on, 40;
+  English, 40, 41;
+  meaning of, 17;
+  origin, 34, 35;
+  Roman compared with English, 40-42
+
+
+Feudalism, explanation of, 214
+
+
+Gaius, 90, 174, 220-223
+
+Grote, decline of kingly rule, 6;
+  _History of Greece_, 3, 5;
+  law administered by aristocracies, 7
+
+Grotius, Hugo, 56, 58, 59, 64;
+  _De Jure Belli et Pacis_, 205
+
+
+Homer, earliest notions of law derived from, 2, 3;
+  Themis, Themistes, 2-5
+
+
+Indian (Hindoo) Law, _see_ separate headings Codes, Customary,
+  Primogeniture, Property, Testamentary Law, Village communities
+
+Institutional Treatise (Justinian), 27
+
+International Law, 64;
+  and occupancy, 145
+
+
+Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37;
+  origin of, 27-31
+
+Legal fictions, benefit of, 77;
+  examples in English Law, 18;
+  in Roman Law, 15, 16;
+  meaning, useful purpose of, 15, 16
+
+Legis Actio Sacramenti, Gaius on, 220, 221
+
+Legislation, the agent of legal
+  improvement, 17;
+  differing from equity, legal fictions, 17, 18
+
+_Lettres Persanes_, 183
+
+
+Maine, _Cambridge Essays_, 1856, 205, 212
+
+Mancipation, 120, 121, 163-169, 185
+
+Menu, Laws of, 10-12
+
+Montesquieu, 49, 51, 183
+
+
+Natural Law (Law of Nature), American Law and, 56;
+  antagonistic to historical method, 53;
+  confusing past with present, 43;
+  equality of man, 54-56;
+  equality of sex, 90;
+  feudalism, 62, 65;
+  French history, 47, 48, 50, 53;
+  French Law, 56;
+  Greek interpretation of, 44;
+  Grotian system, 56, 58, 59, 64-66;
+  incorporated with Roman Law, 36, 37;
+  influence of Stoics, 32, 33;
+  Modern International Law, 56-60;
+  most critical period, 50;
+  modern society, 54;
+  occupancy, 145-147, 153;
+  origin of, 31, 32;
+  private property, 164;
+  Rousseau on, 51;
+  slavery, 95;
+  territorial sovereignty, 60-63;
+  Testamentary Law, 103, 104
+
+
+Occupancy, 144, 145;
+  in Roman Law, 145
+
+
+Pascal, _Provincial Letters_, 207
+
+Prescriptions, 167, 168;
+  and Canon Law, 168
+
+Primogeniture, Celtic customs, 141, 142;
+  feudal system, 135-137;
+  Hindoo Law, 134, 137, 141;
+  Mahometan Law, 142;
+  Roman Law, 133, 134
+
+Property, natural modes of acquiring, 144
+
+Property Law, ancient Germanic, 165,
+  ancient Sclavonic, 165;
+  descent in Middle Ages, 132;
+  Indian Law, 165;
+  origin of, 145;
+  possession, 170, 172;
+  private, ancient forms of transfer, 160, 162-164;
+  Roman, 60, 66, 166;
+  Cessio in Jure, 170;
+  Edictum Perpetuum, 37;
+  Emphyteusis, 175-178;
+  Gaius on, 174;
+  Justinian, 174;
+  law of persons and things, 152;
+  mancipation, 163, 169;
+  possessory interdicts, 171;
+  Praetor's interdict, 172;
+  Res Mancipi, 160-164, 173;
+  Res Nec Mancipi, 164;
+  system of farming, 176;
+  usucapion, 167, 169, 173
+
+
+Roman Law, _see_ separate headings Contracts, Criminal, Property,
+    Occupancy, Testamentary;
+  Decemviral Law, 20;
+  definition of inheritance, 107;
+  end of period of jurists, 40;
+  influence of Praetor, 38;
+  intestacy, 127-130;
+  law of inheritance, 111;
+  Leges Corneliae, 24, 25;
+  Leges Juliae, 25;
+  marriage, 91;
+  obligation in, 190, 191, 195, 197;
+  Pandects of Justinian, 39;
+  powers of Praetor, 37, 39;
+  Praetorian edict, 24, 25;
+  Responsa Prudentum, 20, 21, 24;
+  reverence of Romans for, 22;
+  Statute Law, 25;
+  Twelve Tables, 1, 8, 9, 12, 20
+
+Rousseau, on Social Contract, 181
+
+
+Savigny, 171;
+  on occupancy, 150
+
+Slavery, American opinions of, 96;
+  influence of Law of Nature upon, 97;
+  Roman system, 95-97
+
+Status, definition of, 100
+
+
+Testamentary Law, adoption and testation, 114, 115;
+  Church's influence upon, 102;
+  corporation, aggregate and sole, 110;
+  Hindoo Law, 113, 114;
+  Hindoo compared with Roman, 113;
+  Law of Nature, 103, 104;
+  Roman Law, 111, 112, 117-123;
+  mancipation, 120, 123;
+  Praetorian testament, 123-125;
+  Twelve Tables, 112, 119, 122;
+  Roman family, agnatic and cognatic relationship, 86-89;
+  duties and rights of father, 85;
+  effects of Christianity, 92;
+  family, the basis of State, 75, 76;
+  kinship, 86, 88;
+  modification of parental privileges, 84;
+  origin of contract in, 99;
+  origin of law of persons, 89;
+  parental powers, 80-82, 88
+
+Theology, and Jurisprudence, 208-210;
+  moral, 204, 205
+
+Theories, based on Roman doctrine, Bentham, 69;
+  Blackstone, 67;
+  differing from Roman Glossators, annotations of, 67;
+  Grotius, 67;
+  Jurisprudence, dissatisfaction with, 70;
+  Locke, 67;
+  Montesquieu, 68;
+  patriarchal, 72-75
+
+
+Universal succession, 106;
+  in Roman Law, 106, 107
+
+"Universatis Juris," 105
+
+
+Village communities, Indian, 153, 154, 156, 158;
+  Indian, compared with Roman gens, 155;
+  Indian, Elphinstone, _History of India_, 155, 156;
+  Russian 157
+
+
+Women, ancient rules defeated by Natural Law, 90;
+  Canon Law, 93;
+  English Common Law, 93, 94;
+  Roman family, 90, 91;
+  gradual independence under Roman Law, 91, 92;
+  Roman, perpetual tutelage of, 90;
+  under Roman Law, 89, 90;
+  subordination to husband in Middle Ages, 92;
+  subordination of Roman to relations, 90
+
+
+MADE AT THE
+TEMPLE PRESS
+
+LETCHWORTH
+IN GREAT BRITAIN
+
+
+
+
+
+
+End of Project Gutenberg's Ancient Law, by Sir Henry James Sumner Maine
+
+*** END OF THIS PROJECT GUTENBERG EBOOK ANCIENT LAW ***
+
+***** This file should be named 22910.txt or 22910.zip *****
+This and all associated files of various formats will be found in:
+        https://www.gutenberg.org/2/2/9/1/22910/
+
+Produced by Thierry Alberto, Turgut Dincer and the Online
+Distributed Proofreading Team at https://www.pgdp.net
+
+
+Updated editions will replace the previous one--the old editions
+will be renamed.
+
+Creating the works from public domain print editions means that no
+one owns a United States copyright in these works, so the Foundation
+(and you!) can copy and distribute it in the United States without
+permission and without paying copyright royalties.  Special rules,
+set forth in the General Terms of Use part of this license, apply to
+copying and distributing Project Gutenberg-tm electronic works to
+protect the PROJECT GUTENBERG-tm concept and trademark.  Project
+Gutenberg is a registered trademark, and may not be used if you
+charge for the eBooks, unless you receive specific permission.  If you
+do not charge anything for copies of this eBook, complying with the
+rules is very easy.  You may use this eBook for nearly any purpose
+such as creation of derivative works, reports, performances and
+research.  They may be modified and printed and given away--you may do
+practically ANYTHING with public domain eBooks.  Redistribution is
+subject to the trademark license, especially commercial
+redistribution.
+
+
+
+*** START: FULL LICENSE ***
+
+THE FULL PROJECT GUTENBERG LICENSE
+PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK
+
+To protect the Project Gutenberg-tm mission of promoting the free
+distribution of electronic works, by using or distributing this work
+(or any other work associated in any way with the phrase "Project
+Gutenberg"), you agree to comply with all the terms of the Full Project
+Gutenberg-tm License (available with this file or online at
+https://gutenberg.org/license).
+
+
+Section 1.  General Terms of Use and Redistributing Project Gutenberg-tm
+electronic works
+
+1.A.  By reading or using any part of this Project Gutenberg-tm
+electronic work, you indicate that you have read, understand, agree to
+and accept all the terms of this license and intellectual property
+(trademark/copyright) agreement.  If you do not agree to abide by all
+the terms of this agreement, you must cease using and return or destroy
+all copies of Project Gutenberg-tm electronic works in your possession.
+If you paid a fee for obtaining a copy of or access to a Project
+Gutenberg-tm electronic work and you do not agree to be bound by the
+terms of this agreement, you may obtain a refund from the person or
+entity to whom you paid the fee as set forth in paragraph 1.E.8.
+
+1.B.  "Project Gutenberg" is a registered trademark.  It may only be
+used on or associated in any way with an electronic work by people who
+agree to be bound by the terms of this agreement.  There are a few
+things that you can do with most Project Gutenberg-tm electronic works
+even without complying with the full terms of this agreement.  See
+paragraph 1.C below.  There are a lot of things you can do with Project
+Gutenberg-tm electronic works if you follow the terms of this agreement
+and help preserve free future access to Project Gutenberg-tm electronic
+works.  See paragraph 1.E below.
+
+1.C.  The Project Gutenberg Literary Archive Foundation ("the Foundation"
+or PGLAF), owns a compilation copyright in the collection of Project
+Gutenberg-tm electronic works.  Nearly all the individual works in the
+collection are in the public domain in the United States.  If an
+individual work is in the public domain in the United States and you are
+located in the United States, we do not claim a right to prevent you from
+copying, distributing, performing, displaying or creating derivative
+works based on the work as long as all references to Project Gutenberg
+are removed.  Of course, we hope that you will support the Project
+Gutenberg-tm mission of promoting free access to electronic works by
+freely sharing Project Gutenberg-tm works in compliance with the terms of
+this agreement for keeping the Project Gutenberg-tm name associated with
+the work.  You can easily comply with the terms of this agreement by
+keeping this work in the same format with its attached full Project
+Gutenberg-tm License when you share it without charge with others.
+
+1.D.  The copyright laws of the place where you are located also govern
+what you can do with this work.  Copyright laws in most countries are in
+a constant state of change.  If you are outside the United States, check
+the laws of your country in addition to the terms of this agreement
+before downloading, copying, displaying, performing, distributing or
+creating derivative works based on this work or any other Project
+Gutenberg-tm work.  The Foundation makes no representations concerning
+the copyright status of any work in any country outside the United
+States.
+
+1.E.  Unless you have removed all references to Project Gutenberg:
+
+1.E.1.  The following sentence, with active links to, or other immediate
+access to, the full Project Gutenberg-tm License must appear prominently
+whenever any copy of a Project Gutenberg-tm work (any work on which the
+phrase "Project Gutenberg" appears, or with which the phrase "Project
+Gutenberg" is associated) is accessed, displayed, performed, viewed,
+copied or distributed:
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+1.E.2.  If an individual Project Gutenberg-tm electronic work is derived
+from the public domain (does not contain a notice indicating that it is
+posted with permission of the copyright holder), the work can be copied
+and distributed to anyone in the United States without paying any fees
+or charges.  If you are redistributing or providing access to a work
+with the phrase "Project Gutenberg" associated with or appearing on the
+work, you must comply either with the requirements of paragraphs 1.E.1
+through 1.E.7 or obtain permission for the use of the work and the
+Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or
+1.E.9.
+
+1.E.3.  If an individual Project Gutenberg-tm electronic work is posted
+with the permission of the copyright holder, your use and distribution
+must comply with both paragraphs 1.E.1 through 1.E.7 and any additional
+terms imposed by the copyright holder.  Additional terms will be linked
+to the Project Gutenberg-tm License for all works posted with the
+permission of the copyright holder found at the beginning of this work.
+
+1.E.4.  Do not unlink or detach or remove the full Project Gutenberg-tm
+License terms from this work, or any files containing a part of this
+work or any other work associated with Project Gutenberg-tm.
+
+1.E.5.  Do not copy, display, perform, distribute or redistribute this
+electronic work, or any part of this electronic work, without
+prominently displaying the sentence set forth in paragraph 1.E.1 with
+active links or immediate access to the full terms of the Project
+Gutenberg-tm License.
+
+1.E.6.  You may convert to and distribute this work in any binary,
+compressed, marked up, nonproprietary or proprietary form, including any
+word processing or hypertext form.  However, if you provide access to or
+distribute copies of a Project Gutenberg-tm work in a format other than
+"Plain Vanilla ASCII" or other format used in the official version
+posted on the official Project Gutenberg-tm web site (www.gutenberg.org),
+you must, at no additional cost, fee or expense to the user, provide a
+copy, a means of exporting a copy, or a means of obtaining a copy upon
+request, of the work in its original "Plain Vanilla ASCII" or other
+form.  Any alternate format must include the full Project Gutenberg-tm
+License as specified in paragraph 1.E.1.
+
+1.E.7.  Do not charge a fee for access to, viewing, displaying,
+performing, copying or distributing any Project Gutenberg-tm works
+unless you comply with paragraph 1.E.8 or 1.E.9.
+
+1.E.8.  You may charge a reasonable fee for copies of or providing
+access to or distributing Project Gutenberg-tm electronic works provided
+that
+
+- You pay a royalty fee of 20% of the gross profits you derive from
+     the use of Project Gutenberg-tm works calculated using the method
+     you already use to calculate your applicable taxes.  The fee is
+     owed to the owner of the Project Gutenberg-tm trademark, but he
+     has agreed to donate royalties under this paragraph to the
+     Project Gutenberg Literary Archive Foundation.  Royalty payments
+     must be paid within 60 days following each date on which you
+     prepare (or are legally required to prepare) your periodic tax
+     returns.  Royalty payments should be clearly marked as such and
+     sent to the Project Gutenberg Literary Archive Foundation at the
+     address specified in Section 4, "Information about donations to
+     the Project Gutenberg Literary Archive Foundation."
+
+- You provide a full refund of any money paid by a user who notifies
+     you in writing (or by e-mail) within 30 days of receipt that s/he
+     does not agree to the terms of the full Project Gutenberg-tm
+     License.  You must require such a user to return or
+     destroy all copies of the works possessed in a physical medium
+     and discontinue all use of and all access to other copies of
+     Project Gutenberg-tm works.
+
+- You provide, in accordance with paragraph 1.F.3, a full refund of any
+     money paid for a work or a replacement copy, if a defect in the
+     electronic work is discovered and reported to you within 90 days
+     of receipt of the work.
+
+- You comply with all other terms of this agreement for free
+     distribution of Project Gutenberg-tm works.
+
+1.E.9.  If you wish to charge a fee or distribute a Project Gutenberg-tm
+electronic work or group of works on different terms than are set
+forth in this agreement, you must obtain permission in writing from
+both the Project Gutenberg Literary Archive Foundation and Michael
+Hart, the owner of the Project Gutenberg-tm trademark.  Contact the
+Foundation as set forth in Section 3 below.
+
+1.F.
+
+1.F.1.  Project Gutenberg volunteers and employees expend considerable
+effort to identify, do copyright research on, transcribe and proofread
+public domain works in creating the Project Gutenberg-tm
+collection.  Despite these efforts, Project Gutenberg-tm electronic
+works, and the medium on which they may be stored, may contain
+"Defects," such as, but not limited to, incomplete, inaccurate or
+corrupt data, transcription errors, a copyright or other intellectual
+property infringement, a defective or damaged disk or other medium, a
+computer virus, or computer codes that damage or cannot be read by
+your equipment.
+
+1.F.2.  LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right
+of Replacement or Refund" described in paragraph 1.F.3, the Project
+Gutenberg Literary Archive Foundation, the owner of the Project
+Gutenberg-tm trademark, and any other party distributing a Project
+Gutenberg-tm electronic work under this agreement, disclaim all
+liability to you for damages, costs and expenses, including legal
+fees.  YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
+LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE
+PROVIDED IN PARAGRAPH F3.  YOU AGREE THAT THE FOUNDATION, THE
+TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE
+LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
+INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH
+DAMAGE.
+
+1.F.3.  LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a
+defect in this electronic work within 90 days of receiving it, you can
+receive a refund of the money (if any) you paid for it by sending a
+written explanation to the person you received the work from.  If you
+received the work on a physical medium, you must return the medium with
+your written explanation.  The person or entity that provided you with
+the defective work may elect to provide a replacement copy in lieu of a
+refund.  If you received the work electronically, the person or entity
+providing it to you may choose to give you a second opportunity to
+receive the work electronically in lieu of a refund.  If the second copy
+is also defective, you may demand a refund in writing without further
+opportunities to fix the problem.
+
+1.F.4.  Except for the limited right of replacement or refund set forth
+in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER
+WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
+WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE.
+
+1.F.5.  Some states do not allow disclaimers of certain implied
+warranties or the exclusion or limitation of certain types of damages.
+If any disclaimer or limitation set forth in this agreement violates the
+law of the state applicable to this agreement, the agreement shall be
+interpreted to make the maximum disclaimer or limitation permitted by
+the applicable state law.  The invalidity or unenforceability of any
+provision of this agreement shall not void the remaining provisions.
+
+1.F.6.  INDEMNITY - You agree to indemnify and hold the Foundation, the
+trademark owner, any agent or employee of the Foundation, anyone
+providing copies of Project Gutenberg-tm electronic works in accordance
+with this agreement, and any volunteers associated with the production,
+promotion and distribution of Project Gutenberg-tm electronic works,
+harmless from all liability, costs and expenses, including legal fees,
+that arise directly or indirectly from any of the following which you do
+or cause to occur: (a) distribution of this or any Project Gutenberg-tm
+work, (b) alteration, modification, or additions or deletions to any
+Project Gutenberg-tm work, and (c) any Defect you cause.
+
+
+Section  2.  Information about the Mission of Project Gutenberg-tm
+
+Project Gutenberg-tm is synonymous with the free distribution of
+electronic works in formats readable by the widest variety of computers
+including obsolete, old, middle-aged and new computers.  It exists
+because of the efforts of hundreds of volunteers and donations from
+people in all walks of life.
+
+Volunteers and financial support to provide volunteers with the
+assistance they need, is critical to reaching Project Gutenberg-tm's
+goals and ensuring that the Project Gutenberg-tm collection will
+remain freely available for generations to come.  In 2001, the Project
+Gutenberg Literary Archive Foundation was created to provide a secure
+and permanent future for Project Gutenberg-tm and future generations.
+To learn more about the Project Gutenberg Literary Archive Foundation
+and how your efforts and donations can help, see Sections 3 and 4
+and the Foundation web page at https://www.pglaf.org.
+
+
+Section 3.  Information about the Project Gutenberg Literary Archive
+Foundation
+
+The Project Gutenberg Literary Archive Foundation is a non profit
+501(c)(3) educational corporation organized under the laws of the
+state of Mississippi and granted tax exempt status by the Internal
+Revenue Service.  The Foundation's EIN or federal tax identification
+number is 64-6221541.  Its 501(c)(3) letter is posted at
+https://pglaf.org/fundraising.  Contributions to the Project Gutenberg
+Literary Archive Foundation are tax deductible to the full extent
+permitted by U.S. federal laws and your state's laws.
+
+The Foundation's principal office is located at 4557 Melan Dr. S.
+Fairbanks, AK, 99712., but its volunteers and employees are scattered
+throughout numerous locations.  Its business office is located at
+809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email
+business@pglaf.org.  Email contact links and up to date contact
+information can be found at the Foundation's web site and official
+page at https://pglaf.org
+
+For additional contact information:
+     Dr. Gregory B. Newby
+     Chief Executive and Director
+     gbnewby@pglaf.org
+
+
+Section 4.  Information about Donations to the Project Gutenberg
+Literary Archive Foundation
+
+Project Gutenberg-tm depends upon and cannot survive without wide
+spread public support and donations to carry out its mission of
+increasing the number of public domain and licensed works that can be
+freely distributed in machine readable form accessible by the widest
+array of equipment including outdated equipment.  Many small donations
+($1 to $5,000) are particularly important to maintaining tax exempt
+status with the IRS.
+
+The Foundation is committed to complying with the laws regulating
+charities and charitable donations in all 50 states of the United
+States.  Compliance requirements are not uniform and it takes a
+considerable effort, much paperwork and many fees to meet and keep up
+with these requirements.  We do not solicit donations in locations
+where we have not received written confirmation of compliance.  To
+SEND DONATIONS or determine the status of compliance for any
+particular state visit https://pglaf.org
+
+While we cannot and do not solicit contributions from states where we
+have not met the solicitation requirements, we know of no prohibition
+against accepting unsolicited donations from donors in such states who
+approach us with offers to donate.
+
+International donations are gratefully accepted, but we cannot make
+any statements concerning tax treatment of donations received from
+outside the United States.  U.S. laws alone swamp our small staff.
+
+Please check the Project Gutenberg Web pages for current donation
+methods and addresses.  Donations are accepted in a number of other
+ways including including checks, online payments and credit card
+donations.  To donate, please visit: https://pglaf.org/donate
+
+
+Section 5.  General Information About Project Gutenberg-tm electronic
+works.
+
+Professor Michael S. Hart was the originator of the Project Gutenberg-tm
+concept of a library of electronic works that could be freely shared
+with anyone.  For thirty years, he produced and distributed Project
+Gutenberg-tm eBooks with only a loose network of volunteer support.
+
+
+Project Gutenberg-tm eBooks are often created from several printed
+editions, all of which are confirmed as Public Domain in the U.S.
+unless a copyright notice is included.  Thus, we do not necessarily
+keep eBooks in compliance with any particular paper edition.
+
+
+Most people start at our Web site which has the main PG search facility:
+
+     https://www.gutenberg.org
+
+This Web site includes information about Project Gutenberg-tm,
+including how to make donations to the Project Gutenberg Literary
+Archive Foundation, how to help produce our new eBooks, and how to
+subscribe to our email newsletter to hear about new eBooks.
diff --git a/22910.zip b/22910.zip
new file mode 100644
index 0000000..e692882
--- /dev/null
+++ b/22910.zip
diff --git a/LICENSE.txt b/LICENSE.txt
new file mode 100644
index 0000000..6312041
--- /dev/null
+++ b/LICENSE.txt
@@ -0,0 +1,11 @@
+This eBook, including all associated images, markup, improvements,
+metadata, and any other content or labor, has been confirmed to be
+in the PUBLIC DOMAIN IN THE UNITED STATES.
+
+Procedures for determining public domain status are described in
+the "Copyright How-To" at https://www.gutenberg.org.
+
+No investigation has been made concerning possible copyrights in
+jurisdictions other than the United States. Anyone seeking to utilize
+this eBook outside of the United States should confirm copyright
+status under the laws that apply to them.
diff --git a/README.md b/README.md
new file mode 100644
index 0000000..c09e7d0
--- /dev/null
+++ b/README.md
@@ -0,0 +1,2 @@
+Project Gutenberg (https://www.gutenberg.org) public repository for
+eBook #22910 (https://www.gutenberg.org/ebooks/22910)