diff options
| author | www-data <www-data@mail.pglaf.org> | 2026-03-26 10:47:12 -0700 |
|---|---|---|
| committer | www-data <www-data@mail.pglaf.org> | 2026-03-26 10:47:12 -0700 |
| commit | 7516a8a28c46d535c44ed7ec35fd2a6631a2b4e6 (patch) | |
| tree | c168447f4f051c7cbaed76c0e9b24940f2848b1a /78301-h | |
Diffstat (limited to '78301-h')
| -rw-r--r-- | 78301-h/78301-h.htm | 21649 | ||||
| -rw-r--r-- | 78301-h/images/cover.jpg | bin | 0 -> 1625818 bytes |
2 files changed, 21649 insertions, 0 deletions
diff --git a/78301-h/78301-h.htm b/78301-h/78301-h.htm new file mode 100644 index 0000000..9945789 --- /dev/null +++ b/78301-h/78301-h.htm @@ -0,0 +1,21649 @@ +<!DOCTYPE html> +<html lang="en"> + <head> + <meta charset="UTF-8"> + <title>Studies in History and Jurisprudence | Project Gutenberg</title> + <link rel="icon" href="images/cover.jpg" type="image/x-cover"> + <style> + body { margin-left: 8%; margin-right: 10%; } + h1 { text-align: center; font-weight: normal; font-size: 1.4em; } + h2 { text-align: center; font-weight: normal; font-size: 1.2em; } + h3 { text-align: center; font-weight: normal; font-size: 1.2em; } + h4 { text-align: center; font-weight: normal; font-size: 1.0em; } + .pageno { right: 1%; font-size: x-small; background-color: inherit; color: silver; + text-indent: 0em; text-align: right; position: absolute; + border: thin solid silver; padding: .1em .2em; font-style: normal; + font-variant: normal; font-weight: normal; text-decoration: none; } + p { text-indent: 0; margin-top: 0.5em; margin-bottom: 0.5em; text-align: justify; } + sup { vertical-align: top; font-size: 0.6em; } + .fss { font-size: 75%; } + .sc { font-variant: small-caps; } + .large { font-size: large; } + .xlarge { font-size: x-large; } + .small { font-size: small; } + .lg-container-b { text-align: center; } + .x-ebookmaker .lg-container-b { clear: both; } + .lg-container-l { text-align: left; } + .x-ebookmaker .lg-container-l { clear: both; } + .linegroup { display: inline-block; text-align: left; } + .x-ebookmaker .linegroup { display: block; margin-left: 1.5em; } + .linegroup .group { margin: 1em auto; } + .linegroup .line { text-indent: -3em; padding-left: 3em; } + div.linegroup > :first-child { margin-top: 0; } + .linegroup .in14 { padding-left: 10.0em; } + .linegroup .in2 { padding-left: 4.0em; } + .linegroup .in37 { padding-left: 21.5em; } + .index li {text-indent: -1em; padding-left: 1em; } + .index ul {list-style-type: none; padding-left: 0; } + ul.index {list-style-type: none; padding-left: 0; } + div.footnote > :first-child { margin-top: 1em; } + div.footnote p { text-indent: 1em; margin-top: 0.0em; margin-bottom: 0.0em; } + div.pbb { page-break-before: always; } + hr.pb { border: none; border-bottom: thin solid; margin-bottom: 1em; } + .x-ebookmaker hr.pb { display: none; } + .chapter { clear: both; page-break-before: always; } + .figcenter { clear: both; max-width: 100%; margin: 2em auto; text-align: center; } + .figcenter img { max-width: 100%; height: auto; } + .id001 { width:60%; } + .x-ebookmaker .id001 { margin-left:20%; width:60%; } + .ig001 { width:100%; } + .table0 { margin: auto; margin-top: 2em; margin-left: 0%; margin-right: 0%; + width: 100%; } + .table1 { margin: auto; width: 90%; } + .colwidth12 { width:12% ; } + .colwidth18 { width:18% ; } + .colwidth69 { width:69% ; } + .colwidth9 { width:9% ; } + .colwidth90 { width:90% ; } + .nf-center { text-align: center; } + .nf-center-c0 { text-align: left; margin: 0.5em 0; } + .c000 { margin-top: 1em; } + .c001 { text-indent: 1em; margin-top: 0.0em; margin-bottom: 0.0em; } + .c002 { page-break-before: always; margin-top: 1em; } + .c003 { margin-top: 4em; } + .c004 { margin-top: 5em; } + .c005 { page-break-before:auto; margin-top: 4em; } + .c006 { vertical-align: top; text-align: center; } + .c007 { vertical-align: top; text-align: justify; text-indent: -1em; + padding-left: 1em; padding-right: 1em; } + .c008 { vertical-align: top; text-align: right; } + .c009 { text-align: center; } + .c010 { margin-top: 2em; text-indent: 1em; margin-bottom: 0.0em; } + .c011 { page-break-before: always; margin-top: 2em; } + .c012 { margin-top: 1em; text-indent: 1em; margin-bottom: 0.0em; } + .c013 { text-decoration: none; } + .c014 { margin-left: 5.56%; text-indent: -5.56%; margin-top: 1em; font-size: 90%; + margin-bottom: 0.0em; } + .c015 { margin-left: 5.56%; text-indent: -2.78%; margin-top: 0.0em; + margin-bottom: 0.0em; } + .c016 { text-indent: 0; margin-top: 0.0em; margin-bottom: 0.0em; } + .c017 { margin-left: 5.56%; text-indent: 1em; margin-top: 0.0em; + margin-bottom: 0.0em; } + .c018 { margin-top: 1em; font-size: 95%; } + .c019 { text-indent: 0; margin-top: 1em; margin-bottom: 0.0em; } + .c020 { margin-top: 2em; } + .c021 { page-break-before: auto; margin-top: 1em; } + .c022 { margin-left: 5.56%; } + .c023 { margin-top: .5em; } + .c024 { border: none; border-bottom: thin solid; width: 10%; margin-left: 0; + margin-top: 1em; text-align: left; } + .c025 { vertical-align: top; text-align: left; padding-right: 1em; } + .c026 { vertical-align: top; text-align: left; } + a:link { text-decoration: none; } + div.tnotes { padding-left:1em;padding-right:1em;background-color:#E3E4FA; + border:1px solid silver; margin:1em 5% 0 5%; text-align: justify; } + .epubonly {visibility: hidden; display: none; } + .htmlonly {visibility: visible; display: inline; } + .x-ebookmaker .htmlonly { visibility: hidden; display: none; } + .x-ebookmaker .epubonly { visibility: visible; display: inline; } + .column-container { margin: auto; clear: both; } + .left { display: inline-block; text-align: left; vertical-align: bottom; + width:49%; } + .right { display: inline-block; text-align: right; vertical-align: top; width:49%; + } + .sigleft { display: inline-block; text-align: left; vertical-align: bottom; + width:34%; } + .sigright { display: inline-block; text-align: right; vertical-align: bottom; + width:64%; } + ins.correction { text-decoration:none; border-bottom: thin dotted gray; } + .quote { font-size: 95%; margin-top: 1.0em; margin-bottom: 1.0em; } + .linegroup .group { margin: 0em auto; } + </style> + </head> + <body> +<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 78301 ***</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> +<div class='tnotes'> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div>Transcriber’s Note:</div> + </div> +</div> + +<p class='c001'>Footnotes have been re-sequenced for uniqueness and have been +collected at the end of text, and are linked for ease of reference.</p> + +<p class='c001'>The table of contents includes references to the Essays in Volume II. +The topics in the table of contents do not necessarily align with the +section headers in the text.</p> + +<p class='c001'>Minor errors, attributable to the printer, have been corrected. Please +see the transcriber’s <a href='#endnote'>note</a> at the end of this text +for details regarding the handling of any textual issues encountered +during its preparation.</p> + +<div class='htmlonly'> + +<p class='c001'>Any corrections are indicated using an <ins class='correction' title='original'>underline</ins> +highlight. Placing the cursor over the correction will produce the +original text in a small popup.</p> + +<div class='figcenter id001'> +<img src='images/cover.jpg' alt='' class='ig001'> +</div> + +</div> +<div class='epubonly'> + +<p class='c001'>Any corrections are indicated as hyperlinks, which will navigate the +reader to the corresponding entry in the corrections table in the +note at the end of the text.</p> + +</div> + +<p class='c001'>The blank cover has been modified to contain the basic +information from the title page and, so modified, is placed +in the public domain.</p> + +</div> + +<div> + <h1 class='c002'>STUDIES<br> <br> IN <br> <br>HISTORY AND JURISPRUDENCE</h1> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div>HENRY FROWDE, M.A.</div> + <div><span class='small'>PUBLISHER TO THE UNIVERSITY OF OXFORD</span></div> + <div>LONDON, EDINBURGH</div> + <div>NEW YORK</div> + </div> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div>STUDIES</div> + <div><span class='xlarge'>IN HISTORY AND</span></div> + <div><span class='xlarge'>JURISPRUDENCE</span></div> + <div class='c000'><span class='small'>BY</span></div> + <div class='c000'><span class='large'>JAMES BRYCE, D.C.L.</span></div> + <div class='c000'><span class='small'>AUTHOR OF</span></div> + <div><span class='small'>‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC.</span></div> + <div><span class='small'>FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY</span></div> + <div><span class='small'>OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY</span></div> + <div><span class='small'>COLLEGES, CORRESPONDING MEMBER OF THE</span></div> + <div><span class='small'>INSTITUTE OF FRANCE</span></div> + <div class='c003'>IN TWO VOLUMES</div> + <div class='c000'>VOLUME II</div> + <div class='c004'>OXFORD</div> + <div>AT THE CLARENDON PRESS</div> + <div>1901</div> + </div> +</div> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div><span class='pageno' id='Page_I'>I</span>OXFORD</div> + <div class='c000'>PRINTED AT THE CLARENDON PRESS</div> + <div class='c000'>BY HORACE HART, M.A.</div> + <div>PRINTER TO THE UNIVERSITY</div> + </div> +</div> + +<div class='chapter'> + <span class='pageno' id='Page_v'>v</span> + <h2 class='c005'>CONTENTS</h2> +</div> + +<table class='table0'> +<colgroup> +<col class='colwidth90'> +<col class='colwidth9'> +</colgroup> + <tr> + <td class='c006' colspan='2'><span class='large'><i>VOLUME I</i></span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY I</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'><span class='small'>PAGE</span></td> + </tr> + <tr> + <td class='c007'><i><span class='sc'>The Roman Empire and the British Empire in India</span></i></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eI'>1–84</a></td> + </tr> + <tr> + <td class='c007'>Conquest or Absorption by modern European nations of the less advanced races</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_1'>1</a></td> + </tr> + <tr> + <td class='c007'>Creation by this process of a sort of unity of mankind</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_2'>2</a></td> + </tr> + <tr> + <td class='c007'>Earlier effort of Rome to unify mankind</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_3'>3</a></td> + </tr> + <tr> + <td class='c007'>Part borne by England in the work of ruling and civilizing new territories</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_4'>4</a></td> + </tr> + <tr> + <td class='c007'>The Colonies of England: the British Empire in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_4'>4</a></td> + </tr> + <tr> + <td class='c007'>Position of Rome and England respectively in their Empires</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8</a></td> + </tr> + <tr> + <td class='c007'>Origin of the British Indian compared with that of the Roman Empire</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8</a></td> + </tr> + <tr> + <td class='c007'>Conditions favouring Roman and British Indian conquest</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_10'>10</a></td> + </tr> + <tr> + <td class='c007'>Military character of Roman and British rule</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_13'>13</a></td> + </tr> + <tr> + <td class='c007'>What the Roman and the English conquerors have owed to natural frontiers</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_14'>14</a></td> + </tr> + <tr> + <td class='c007'>Strength of the Roman and British armies</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_17'>17</a></td> + </tr> + <tr> + <td class='c007'>Efforts to find a scientific frontier</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_19'>19</a></td> + </tr> + <tr> + <td class='c007'>The Romans and English as Road and Railway Builders</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_21'>21</a></td> + </tr> + <tr> + <td class='c007'>Success of both in maintaining internal order and security</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_23'>23</a></td> + </tr> + <tr> + <td class='c007'>Character of Roman and British administration</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_26'>26</a></td> + </tr> + <tr> + <td class='c007'>Despotic system: measure of self-government left to the subjects</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_30'>30</a></td> + </tr> + <tr> + <td class='c007'>Variations in provincial administration in Roman Empire and India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_35'>35</a></td> + </tr> + <tr> + <td class='c007'>Revenue and taxation of the two Empires</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a></td> + </tr> + <tr> + <td class='c007'>Employment of native subjects in civil and military posts</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_42'>42</a></td> + </tr> + <tr> + <td class='c007'>Civil rights of conquerors and of subjects</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_46'>46</a></td> + </tr> + <tr> + <td class='c007'>Respect shown to native religions and customs: contrast of religious feeling in ancient and in modern world</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_51'>51</a></td> + </tr> + <tr> + <td class='c007'>Character of the conquerors as a source of their strength</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_58'>58</a></td> + </tr> + <tr> + <td class='c007'>Contrasts between the two Empires: geographical position of the ruling race</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_61'>61</a></td> + </tr> + <tr> + <td class='c007'>Fusion of Romans and provincials: no similar fusion of English and Indians</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_62'>62</a></td> + </tr> + <tr> + <td class='c007'>Influence of Climate, of Colour, of Religion</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_63'>63</a></td> + </tr> + <tr> + <td class='c007'>Languages and literature in Roman Empire and in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_70'>70</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_vi'>vi</span>Influences which favoured fusion in Roman Empire absent from India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_74'>74</a></td> + </tr> + <tr> + <td class='c007'>Retroactive influences of the provinces on Rome and of India on Britain</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_76'>76</a></td> + </tr> + <tr> + <td class='c007'>What the experience of the English in India has proved</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_79'>79</a></td> + </tr> + <tr> + <td class='c007'>Causes which overthrew the Roman Empire</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_80'>80</a></td> + </tr> + <tr> + <td class='c007'>Probable future of British power in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_82'>82</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr><td class='c009' colspan='2'><span class='large'>ESSAY II</span></td></tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Extension of Roman and English Law throughout the World</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eII'>85-144</a></td> + </tr> + <tr> + <td class='c007'>Geographical areas now covered by Roman and by English Law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_85'>85</a></td> + </tr> + <tr> + <td class='c007'>Extension of Roman Law by conquest</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_88'>88</a></td> + </tr> + <tr> + <td class='c007'>Methods of Legal Administration in the provinces</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_91'>91</a></td> + </tr> + <tr> + <td class='c007'>Gradual assimilation of Roman and Provincial Law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_97'>97</a></td> + </tr> + <tr> + <td class='c007'>Establishment of one law for the Roman Empire</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_99'>99</a></td> + </tr> + <tr> + <td class='c007'>How the Romans were able to create an imperial law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_103'>103</a></td> + </tr> + <tr> + <td class='c007'>Spread of Roman Law after the fall of the Western Empire</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_105'>105</a></td> + </tr> + <tr> + <td class='c007'>Diffusion of English Law over regions settled or conquered</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_110'>110</a></td> + </tr> + <tr> + <td class='c007'>Legal systems which the English found in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113</a></td> + </tr> + <tr> + <td class='c007'>Policy followed by the English in dealing with Indian Law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_117'>117</a></td> + </tr> + <tr> + <td class='c007'>Codification in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_121'>121</a></td> + </tr> + <tr> + <td class='c007'>Reciprocal action of English and Native Law on one another</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_124'>124</a></td> + </tr> + <tr> + <td class='c007'>Merits and working of the Anglo-Indian Codes</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_127'>127</a></td> + </tr> + <tr> + <td class='c007'>Roman Law in the Empire compared with English Law in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_133'>133</a></td> + </tr> + <tr> + <td class='c007'>Probable future of English Law in India</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_138'>138</a></td> + </tr> + <tr> + <td class='c007'>English and Roman Law over the world</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_142'>142</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY III</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Flexible and Rigid Constitutions</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eIII'>145-254</a></td> + </tr> + <tr> + <td class='c007'>Observations on the Constitutions of Rome and England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145</a></td> + </tr> + <tr> + <td class='c007'>Old Classification of Constitutions as Written and Unwritten</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_148'>148</a></td> + </tr> + <tr> + <td class='c007'>Proposed new classification</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_150'>150</a></td> + </tr> + <tr> + <td class='c007'>Flexible Constitutions: how far distinguishable from laws in general</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_154'>154</a></td> + </tr> + <tr> + <td class='c007'>Origin of Flexible Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_159'>159</a></td> + </tr> + <tr> + <td class='c007'>Strength and weakness of Flexible Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_163'>163</a></td> + </tr> + <tr> + <td class='c007'>Such Constitutions are rather elastic than unstable</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_168'>168</a></td> + </tr> + <tr> + <td class='c007'>Illustrations from the Constitutions of Rome and England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_169'>169</a></td> + </tr> + <tr> + <td class='c007'>Dangers possibly inherent in Flexible Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_175'>175</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_vii'>vii</span>Flexible Constitutions suited to aristocratic governments</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_178'>178</a></td> + </tr> + <tr> + <td class='c007'>Checks applied in Rome and in England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_181'>181</a></td> + </tr> + <tr> + <td class='c007'>Influence of Constitutions on the mind of a nation</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_185'>185</a></td> + </tr> + <tr> + <td class='c007'>Illustrations from Rome and England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_189'>189</a></td> + </tr> + <tr> + <td class='c007'>Capacity of Constitutions for Territorial Expansion</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_193'>193</a></td> + </tr> + <tr> + <td class='c007'>Enumeration of existing Rigid Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_196'>196</a></td> + </tr> + <tr> + <td class='c007'>Circumstances under which Rigid Constitutions arise</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_200'>200</a></td> + </tr> + <tr> + <td class='c007'>Enactment and amendment of Rigid Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_205'>205</a></td> + </tr> + <tr> + <td class='c007'>Various modes now in use for amending them</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_210'>210</a></td> + </tr> + <tr> + <td class='c007'>How far can Rigid Constitutions be definite or complete?</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_217'>217</a></td> + </tr> + <tr> + <td class='c007'>Stability of Rigid Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_221'>221</a></td> + </tr> + <tr> + <td class='c007'>The interpretation of Rigid Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_228'>228</a></td> + </tr> + <tr> + <td class='c007'>Contrast of Anglo-American doctrines with those of the European Continent</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_230'>230</a></td> + </tr> + <tr> + <td class='c007'>American views as to Interpretation</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_232'>232</a></td> + </tr> + <tr> + <td class='c007'>Suitability of Rigid Constitutions to Democracies</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_234'>234</a></td> + </tr> + <tr> + <td class='c007'>Recent changes of opinion in the United States and England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_239'>239</a></td> + </tr> + <tr> + <td class='c007'>Probable future of the two types of Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_242'>242</a></td> + </tr> + <tr> + <td class='c007'>Proposals for federalizing the British Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_245'>245</a></td> + </tr> + <tr> + <td class='c007'>Possible creation of new States and Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_249'>249</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY IV</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Action of Centripetal and Centrifugal Forces on Political Constitutions</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eIV'>255-311</a></td> + </tr> + <tr> + <td class='c007'>The influence of aggregative and disjunctive forces on political societies</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_255'>255</a></td> + </tr> + <tr> + <td class='c007'>Tendencies which may act either Centripetally or Centrifugally</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_261'>261</a></td> + </tr> + <tr> + <td class='c007'>Influences of Interest and Sympathy</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_263'>263</a></td> + </tr> + <tr> + <td class='c007'>Illustrations of the action of Racial and Religious sentiment</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_265'>265</a></td> + </tr> + <tr> + <td class='c007'>In the progress of civilization, material interest and sentiment may be opposed</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_269'>269</a></td> + </tr> + <tr> + <td class='c007'>How Constitutions may use the existing Centripetal and Centrifugal forces</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_271'>271</a></td> + </tr> + <tr> + <td class='c007'>Illustrations from Commerce, Law and Religion</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_274'>274</a></td> + </tr> + <tr> + <td class='c007'>Instances of the troubles caused by Racial or Religious sentiment</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_281'>281</a></td> + </tr> + <tr> + <td class='c007'>Methods by which Constitutions may disarm or regulate the centrifugal forces: illustrations</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_286'>286</a></td> + </tr> + <tr> + <td class='c007'>Difficulties due to differences of colour in races</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_291'>291</a></td> + </tr> + <tr> + <td class='c007'>How the Constitutions of the United States and Switzerland have acted</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_296'>296</a></td> + </tr> + <tr> + <td class='c007'>The Centripetal force generally, but not always, dominant in European history</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_300'>300</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_viii'>viii</span>Effects of Conquest and of Dynastic Succession</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_303'>303</a></td> + </tr> + <tr> + <td class='c007'>Probable future strength of the centrifugal and centripetal forces respectively</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_307'>307</a></td> + </tr> + <tr> + <td class='c007'>Present tendency to the enlargement or consolidation of States is not necessarily permanent</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_309'>309</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY V</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Primitive Iceland</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eV'>312-358</a></td> + </tr> + <tr> + <td class='c007'>Discovery and Settlement of Iceland</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_312'>312</a></td> + </tr> + <tr> + <td class='c007'>Beginnings of a Polity: the Thing</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a></td> + </tr> + <tr> + <td class='c007'>Rise of the Goði or Priest-Chieftain</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_317'>317</a></td> + </tr> + <tr> + <td class='c007'>The first political constitution of the island</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_322'>322</a></td> + </tr> + <tr> + <td class='c007'>Judicial organization and powers of the Althing</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_325'>325</a></td> + </tr> + <tr> + <td class='c007'>The Speaker of the Law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327</a></td> + </tr> + <tr> + <td class='c007'>Thingvellir and the meetings of the Althing</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327</a></td> + </tr> + <tr> + <td class='c007'>General character of the Icelandic Republic</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_333'>333</a></td> + </tr> + <tr> + <td class='c007'>Growth and character of the law of Iceland</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_335'>335</a></td> + </tr> + <tr> + <td class='c007'>Complexity of the constitution and the law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_337'>337</a></td> + </tr> + <tr> + <td class='c007'>Sources of our knowledge of the law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341</a></td> + </tr> + <tr> + <td class='c007'>Illustrations of features of the early law</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_343'>343</a></td> + </tr> + <tr> + <td class='c007'>An action for the ejectment of ghosts</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_345'>345</a></td> + </tr> + <tr> + <td class='c007'>The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga the Fair</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_348'>348</a></td> + </tr> + <tr> + <td class='c007'>The introduction of Christianity</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_350'>350</a></td> + </tr> + <tr> + <td class='c007'>Reflections on the early history of Iceland</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_353'>353</a></td> + </tr> + <tr> + <td class='c007'>Fall of the Republic: subsequent fortunes of the isle</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_356'>356</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY VI</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Constitution of the United States as seen in the Past</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eVI'>359-429</a></td> + </tr> + <tr> + <td class='c007'>Value of contemporary views of an institution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_359'>359</a></td> + </tr> + <tr> + <td class='c007'>The <cite>Federalist</cite>: Alex Hamilton and James Madison</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_360'>360</a></td> + </tr> + <tr> + <td class='c007'>The United States in <span class='fss'>A.D.</span> 1788</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_361'>361</a></td> + </tr> + <tr> + <td class='c007'>Predictions of the opponents of the New Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366</a></td> + </tr> + <tr> + <td class='c007'>Views of its supporters: dangers feared by them</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_369'>369</a></td> + </tr> + <tr> + <td class='c007'>Examination of the predictions of 1788</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374</a></td> + </tr> + <tr> + <td class='c007'>Characteristic merits and defects of American Democracy only slightly foreseen</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_378'>378</a></td> + </tr> + <tr> + <td class='c007'>The <cite>Democracy in America</cite> of Alexis de Tocqueville</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_381'>381</a></td> + </tr> + <tr> + <td class='c007'>Merits and flaws in Tocqueville’s study of the United States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_382'>382</a></td> + </tr> + <tr> + <td class='c007'>His insufficient knowledge of England</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_385'>385</a></td> + </tr> + <tr> + <td class='c007'>His preoccupation with France</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_387'>387</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_ix'>ix</span>The deficiencies observable in his book scarcely affect its present value</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_390'>390</a></td> + </tr> + <tr> + <td class='c007'>Condition of the United States in Tocqueville’s day</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_392'>392</a></td> + </tr> + <tr> + <td class='c007'>His description of the salient features of the nation</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_397'>397</a></td> + </tr> + <tr> + <td class='c007'>Advantages which he conceives Democracy to have secured</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_403'>403</a></td> + </tr> + <tr> + <td class='c007'>Evils he discovers in American Democracy</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_404'>404</a></td> + </tr> + <tr> + <td class='c007'>Causes which in his view maintain Republican government</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_406'>406</a></td> + </tr> + <tr> + <td class='c007'>His forecasts: the negroes: weakness of the Federal Union</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_408'>408</a></td> + </tr> + <tr> + <td class='c007'>Points omitted in his description</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_413'>413</a></td> + </tr> + <tr> + <td class='c007'>Chief events in the United States since Tocqueville’s time</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_415'>415</a></td> + </tr> + <tr> + <td class='c007'>Chief political changes of the last sixty-seven years</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a></td> + </tr> + <tr> + <td class='c007'>Examination of Tocqueville’s predictions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_418'>418</a></td> + </tr> + <tr> + <td class='c007'>Summary of Tocqueville’s conclusions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_425'>425</a></td> + </tr> + <tr> + <td class='c007'>General course of events in America since 1788</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_427'>427</a></td> + </tr> + <tr> + <td class='c007'>What Tocqueville would say to-day</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_428'>428</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY VII</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Two South African Constitutions</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eVII'>430-467</a></td> + </tr> + <tr> + <td class='c007'>Originality of the Constitutions of the two Dutch Republics</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430</a></td> + </tr> + <tr> + <td class='c007'>Circumstances under which they arose</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_432'>432</a></td> + </tr> + <tr> + <td class='c007'>Constitution of the Orange Free State</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_436'>436</a></td> + </tr> + <tr> + <td class='c007'>Constitution of the South African Republic (Transvaal)</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_441'>441</a></td> + </tr> + <tr> + <td class='c007'>Observations on the Constitution of the South African Republic</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_448'>448</a></td> + </tr> + <tr> + <td class='c007'>Is it a Rigid or a Flexible Constitution?</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_449'>449</a></td> + </tr> + <tr> + <td class='c007'>Controversy as to the so-called ‘testing power’</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_452'>452</a></td> + </tr> + <tr> + <td class='c007'>The Constitution is certainly a Flexible one</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_453'>453</a></td> + </tr> + <tr> + <td class='c007'>Observations upon both these Constitutions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_455'>455</a></td> + </tr> + <tr> + <td class='c007'>Comparison of these Constitutions with that of Britain and that of the United States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_458'>458</a></td> + </tr> + <tr> + <td class='c007'>Relations of Executive and Legislature in these Dutch Republics</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_460'>460</a></td> + </tr> + <tr> + <td class='c007'>Practical Working of the Constitution of the Orange Free State</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_463'>463</a></td> + </tr> + <tr> + <td class='c007'>Working of the Constitution of the South African Republic</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_464'>464</a></td> + </tr> + <tr> + <td class='c007'>Postscript</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_466'>466</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY VIII</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Constitution of the Commonwealth of Australia</span></td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/pg78300-images.html#eVIII'>468-553</a></td> + </tr> + <tr> + <td class='c007'>Interest attaching to the new Constitution of Australia</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_468'>468</a></td> + </tr> + <tr> + <td class='c007'>Origin and progress of the movement for federalizing Australia</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_471'>471</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_x'>x</span>Causes which induced Federation</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_477'>477</a></td> + </tr> + <tr> + <td class='c007'>Influence of a Pan-Australian sentiment</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_480'>480</a></td> + </tr> + <tr> + <td class='c007'>Physical and racial conditions favouring Federation</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_483'>483</a></td> + </tr> + <tr> + <td class='c007'>Comparison with the conditions of the United States and of Canada</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_487'>487</a></td> + </tr> + <tr> + <td class='c007'>Two leading types of Federal Government</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_489'>489</a></td> + </tr> + <tr> + <td class='c007'>Distribution of powers between the Nation and the States in the Australian Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_491'>491</a></td> + </tr> + <tr> + <td class='c007'>Position of the Australian States under the Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_494'>494</a></td> + </tr> + <tr> + <td class='c007'>Differences from the Federal systems of the United States and of Canada</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_498'>498</a></td> + </tr> + <tr> + <td class='c007'>The National Government: few restrictions on its powers</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_501'>501</a></td> + </tr> + <tr> + <td class='c007'>The Legislature: Representation of the States in the Senate</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_503'>503</a></td> + </tr> + <tr> + <td class='c007'>The House of Representatives</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_506'>506</a></td> + </tr> + <tr> + <td class='c007'>The Executive and the Judiciary</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508</a></td> + </tr> + <tr> + <td class='c007'>Question as to Constitutional Appeals: the British Government yield to Australian sentiment</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_509'>509</a></td> + </tr> + <tr> + <td class='c007'>Intended working of the scheme of Government: The Cabinet</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_513'>513</a></td> + </tr> + <tr> + <td class='c007'>Provision against legislative deadlocks</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_516'>516</a></td> + </tr> + <tr> + <td class='c007'>Relations of the Two Houses</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_518'>518</a></td> + </tr> + <tr> + <td class='c007'>Financial provisions: railways and rivers</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_521'>521</a></td> + </tr> + <tr> + <td class='c007'>Location of the national capital: admission of New States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a></td> + </tr> + <tr> + <td class='c007'>Mode of amending the Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_523'>523</a></td> + </tr> + <tr> + <td class='c007'>Relations of the Australian Commonwealth to the British Crown</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_525'>525</a></td> + </tr> + <tr> + <td class='c007'>General comparison of the Australian Constitution with that of the United States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_527'>527</a></td> + </tr> + <tr> + <td class='c007'>Comparison with that of the Dominion of Canada</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_528'>528</a></td> + </tr> + <tr> + <td class='c007'>Further observations on the Constitution</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_531'>531</a></td> + </tr> + <tr> + <td class='c007'>It is less strictly Federal and more National than that of the United States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_532'>532</a></td> + </tr> + <tr> + <td class='c007'>Its highly democratic character</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_535'>535</a></td> + </tr> + <tr> + <td class='c007'>It contemplates a party system</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_539'>539</a></td> + </tr> + <tr> + <td class='c007'>Difficulties which may arise from the existence of a third party</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_540'>540</a></td> + </tr> + <tr> + <td class='c007'>What political issues are likely to arise in Australia?</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_542'>542</a></td> + </tr> + <tr> + <td class='c007'>Probable prominence of Economic questions</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_545'>545</a></td> + </tr> + <tr> + <td class='c007'>Possible creation and admission of New States</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_547'>547</a></td> + </tr> + <tr> + <td class='c007'>Will New Zealand enter the Federation?</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_548'>548</a></td> + </tr> + <tr> + <td class='c007'>Tendencies to consolidation maybe strengthened by disputes with foreign powers</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_550'>550</a></td> + </tr> + <tr> + <td class='c007'>Future relations of Australia to Britain</td> + <td class='c008'><a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_551'>551</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xi'>xi</span> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'><i>VOLUME II</i></span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY IX</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Obedience</span></td> + <td class='c008'><a href='#eIX'>1-48</a></td> + </tr> + <tr> + <td class='c007'>Different Theories of the Nature of Political Obedience</td> + <td class='c008'><a href='#Page_1'>1</a></td> + </tr> + <tr> + <td class='c007'>The grounds of compliance in general: Indolence</td> + <td class='c008'><a href='#Page_6'>6</a></td> + </tr> + <tr> + <td class='c007'>Deference and Sympathy</td> + <td class='c008'><a href='#Page_9'>9</a></td> + </tr> + <tr> + <td class='c007'>Reason and Fear</td> + <td class='c008'><a href='#Page_12'>12</a></td> + </tr> + <tr> + <td class='c007'>Respective strength of these springs of Obedience</td> + <td class='c008'><a href='#Page_14'>14</a></td> + </tr> + <tr> + <td class='c007'>Will as a political force: Illustrations from the East</td> + <td class='c008'><a href='#Page_15'>15</a></td> + </tr> + <tr> + <td class='c007'>Formation of the habit of Obedience in the individual</td> + <td class='c008'><a href='#Page_19'>19</a></td> + </tr> + <tr> + <td class='c007'>Influences forming Obedience in early societies</td> + <td class='c008'><a href='#Page_21'>21</a></td> + </tr> + <tr> + <td class='c007'>Slight interest of men in liberty for its own sake</td> + <td class='c008'><a href='#Page_24'>24</a></td> + </tr> + <tr> + <td class='c007'>Is the tendency to obey likely to decrease?</td> + <td class='c008'><a href='#Page_26'>26</a></td> + </tr> + <tr> + <td class='c007'>Influences apparently making for subordination</td> + <td class='c008'><a href='#Page_28'>28</a></td> + </tr> + <tr> + <td class='c007'>What may be hoped for the future of democratic government</td> + <td class='c008'><a href='#Page_31'>31</a></td> + </tr> + <tr> + <td class='c007'>How a pessimist might view existing conditions</td> + <td class='c008'><a href='#Page_33'>33</a></td> + </tr> + <tr> + <td class='c007'>Conclusion: The disposition to obey will be permanent</td> + <td class='c008'><a href='#Page_41'>41</a></td> + </tr> + <tr> + <td class='c007'>Note on the application to the definitions of Jurisprudence of a theory of Obedience</td> + <td class='c008'><a href='#Page_44'>44</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY X</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Nature of Sovereignty</span></td> + <td class='c008'><a href='#eX'>49-111</a></td> + </tr> + <tr> + <td class='c007'>Confusions regarding the term Sovereignty</td> + <td class='c008'><a href='#Page_49'>49</a></td> + </tr> + <tr> + <td class='c007'>Sovereignty <span lang="la"><i>de iure</i></span> and <span lang="la"><i>de facto</i></span> must be distinguished</td> + <td class='c008'><a href='#Page_51'>51</a></td> + </tr> + <tr> + <td class='c007'>Sovereignty <span lang="la"><i>de iure</i></span> exists in the sphere of law only, and is not concerned with obedience</td> + <td class='c008'><a href='#Page_56'>56</a></td> + </tr> + <tr> + <td class='c007'>Sovereignty <span lang="la"><i>de facto</i></span>: concrete instances</td> + <td class='c008'><a href='#Page_59'>59</a></td> + </tr> + <tr> + <td class='c007'>Relations of Sovereignty <span lang="la"><i>de iure</i></span> to that <span lang="la"><i>de facto</i></span></td> + <td class='c008'><a href='#Page_64'>64</a></td> + </tr> + <tr> + <td class='c007'>Action and reaction of each on the other</td> + <td class='c008'><a href='#Page_68'>68</a></td> + </tr> + <tr> + <td class='c007'>The Roman doctrine of Sovereignty: the people are the source of political power</td> + <td class='c008'><a href='#Page_73'>73</a></td> + </tr> + <tr> + <td class='c007'>Mediaeval views of Sovereignty: Emperor and Pope</td> + <td class='c008'><a href='#Page_79'>79</a></td> + </tr> + <tr> + <td class='c007'>New theories of the sixteenth and seventeenth centuries</td> + <td class='c008'><a href='#Page_82'>82</a></td> + </tr> + <tr> + <td class='c007'>Bodin, Althaus, Hobbes</td> + <td class='c008'><a href='#Page_84'>84</a></td> + </tr> + <tr> + <td class='c007'>Relation of Hobbes’ system to the events of his time</td> + <td class='c008'><a href='#Page_86'>86</a></td> + </tr> + <tr> + <td class='c007'>Bentham revives Hobbes’ doctrine</td> + <td class='c008'><a href='#Page_88'>88</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xii'>xii</span>Views of John Austin: illustrations of their unsoundness</td> + <td class='c008'><a href='#Page_89'>89</a></td> + </tr> + <tr> + <td class='c007'>Confusion of various questions regarding Sovereignty which are really distinct</td> + <td class='c008'><a href='#Page_94'>94</a></td> + </tr> + <tr> + <td class='c007'>Rights in the moral sphere of Sovereignty <span lang="la"><i>de iure</i></span> and Sovereignty <span lang="la"><i>de facto</i></span></td> + <td class='c008'><a href='#Page_98'>98</a></td> + </tr> + <tr> + <td class='c007'>Sovereignty in International Relations</td> + <td class='c008'><a href='#Page_101'>101</a></td> + </tr> + <tr> + <td class='c007'>Sovereignty in a Federation</td> + <td class='c008'><a href='#Page_104'>104</a></td> + </tr> + <tr> + <td class='c007'>Conclusion: Theoretical Controversies regarding Sovereignty have mostly had their origin in current politics</td> + <td class='c008'><a href='#Page_108'>108</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XI</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Law of Nature</span></td> + <td class='c008'><a href='#eXII'>112-171</a></td> + </tr> + <tr> + <td class='c007'>Origin of the notion of Nature as a ruling force</td> + <td class='c008'><a href='#Page_112'>112</a></td> + </tr> + <tr> + <td class='c007'>It is different from modern conception of the Laws of Nature</td> + <td class='c008'><a href='#Page_117'>117</a></td> + </tr> + <tr> + <td class='c007'>Nature as a force in human society</td> + <td class='c008'><a href='#Page_120'>120</a></td> + </tr> + <tr> + <td class='c007'>The term ‘Natural’ as applied to Customs and Laws</td> + <td class='c008'><a href='#Page_122'>122</a></td> + </tr> + <tr> + <td class='c007'>St. Paul and the Greek philosophers on Natural Law</td> + <td class='c008'><a href='#Page_124'>124</a></td> + </tr> + <tr> + <td class='c007'>The Roman Law of the Nations (<span lang="la"><i>Ius Gentium</i></span>)</td> + <td class='c008'><a href='#Page_128'>128</a></td> + </tr> + <tr> + <td class='c007'>How the ‘common law of the nations’ was formed</td> + <td class='c008'><a href='#Page_131'>131</a></td> + </tr> + <tr> + <td class='c007'>Cicero on the Law of the Nations and Law of Nature</td> + <td class='c008'><a href='#Page_135'>135</a></td> + </tr> + <tr> + <td class='c007'>Growth of the idea of Natural Law among the jurists</td> + <td class='c008'><a href='#Page_138'>138</a></td> + </tr> + <tr> + <td class='c007'>Practical identification of <span lang="la"><i>Ius Gentium</i></span> and <span lang="la"><i>Ius Naturae</i></span></td> + <td class='c008'><a href='#Page_142'>142</a></td> + </tr> + <tr> + <td class='c007'>Points of difference which remained: Slavery</td> + <td class='c008'><a href='#Page_144'>144</a></td> + </tr> + <tr> + <td class='c007'>Extension of Roman citizenship removes the need for a <span lang="la"><i>Ius Gentium</i></span></td> + <td class='c008'><a href='#Page_147'>147</a></td> + </tr> + <tr> + <td class='c007'>Senses in which the jurists use the term ‘Nature’</td> + <td class='c008'><a href='#Page_148'>148</a></td> + </tr> + <tr> + <td class='c007'>Value and practical influence of the notion of Natural Law</td> + <td class='c008'><a href='#Page_151'>151</a></td> + </tr> + <tr> + <td class='c007'>The Law of Nature and Law of God in the Middle Ages</td> + <td class='c008'><a href='#Page_157'>157</a></td> + </tr> + <tr> + <td class='c007'>The Law of Nature in Modern Times</td> + <td class='c008'><a href='#Page_161'>161</a></td> + </tr> + <tr> + <td class='c007'>Its relation to the Law of England</td> + <td class='c008'><a href='#Page_164'>164</a></td> + </tr> + <tr> + <td class='c007'>Its influence on the rise of International Law</td> + <td class='c008'><a href='#Page_167'>167</a></td> + </tr> + <tr> + <td class='c007'>‘Natural Law’ as meaning a Philosophy of Law</td> + <td class='c008'><a href='#Page_169'>169</a></td> + </tr> + <tr> + <td class='c007'>Conclusion: Comparative quiescence of the idea in recent times</td> + <td class='c008'><a href='#Page_170'>170</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XII</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Methods of Legal Science</span></td> + <td class='c008'><a href='#eXII'>172-208</a></td> + </tr> + <tr> + <td class='c007'>No Philosophy of Law among the Roman Jurists; is such a Philosophy necessary or serviceable?</td> + <td class='c008'><a href='#Page_172'>172</a></td> + </tr> + <tr> + <td class='c007'>Four Methods employed in Legal Science</td> + <td class='c008'><a href='#Page_174'>174</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xiii'>xiii</span>The Metaphysical Method: German <span lang="de"><i>Naturrecht</i></span></td> + <td class='c008'><a href='#Page_174'>174</a></td> + </tr> + <tr> + <td class='c007'>The Analytic Method: the Benthamites</td> + <td class='c008'><a href='#Page_178'>178</a></td> + </tr> + <tr> + <td class='c007'>Errors in John Austin’s use of it</td> + <td class='c008'><a href='#Page_180'>180</a></td> + </tr> + <tr> + <td class='c007'>The Historical Method</td> + <td class='c008'><a href='#Page_184'>184</a></td> + </tr> + <tr> + <td class='c007'>The Comparative Method</td> + <td class='c008'><a href='#Page_186'>186</a></td> + </tr> + <tr> + <td class='c007'>Value of these four Methods respectively</td> + <td class='c008'><a href='#Page_190'>190</a></td> + </tr> + <tr> + <td class='c007'>How they may best be applied to Legal Study</td> + <td class='c008'><a href='#Page_193'>193</a></td> + </tr> + <tr> + <td class='c007'>Did the Romans suffer from having no general Philosophy of Law?</td> + <td class='c008'><a href='#Page_197'>197</a></td> + </tr> + <tr> + <td class='c007'>Merits observable in the Roman Jurists: comparison of their treatises with those of English lawyers</td> + <td class='c008'><a href='#Page_199'>199</a></td> + </tr> + <tr> + <td class='c007'>Summary: The Roman Jurists are philosophical in spirit and in their practical handling of law</td> + <td class='c008'><a href='#Page_207'>207</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XIII</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The Relations of Law and Religion</span></td> + <td class='c008'><a href='#eXII'>209-246</a></td> + </tr> + <tr> + <td class='c007'>Apparent Antagonism of Law and Religion</td> + <td class='c008'><a href='#Page_209'>209</a></td> + </tr> + <tr> + <td class='c007'>Close connexion of Law and Religion in early states of Society</td> + <td class='c008'><a href='#Page_211'>211</a></td> + </tr> + <tr> + <td class='c007'>Differences in this respect between different peoples</td> + <td class='c008'><a href='#Page_215'>215</a></td> + </tr> + <tr> + <td class='c007'>The Jews in Roman times: primitive Christianity</td> + <td class='c008'><a href='#Page_216'>216</a></td> + </tr> + <tr> + <td class='c007'>Islam; identification of Law with Religion</td> + <td class='c008'><a href='#Page_218'>218</a></td> + </tr> + <tr> + <td class='c007'>Illustrations from a Musulman University: the Mosque El Azhar at Cairo</td> + <td class='c008'><a href='#Page_219'>219</a></td> + </tr> + <tr> + <td class='c007'>Description of El Azhar and its Teaching</td> + <td class='c008'><a href='#Page_220'>220</a></td> + </tr> + <tr> + <td class='c007'>Course of Instruction: Graduation: Endowments</td> + <td class='c008'><a href='#Page_225'>225</a></td> + </tr> + <tr> + <td class='c007'>Resemblances of El Azhar to the European Universities of the Middle Ages</td> + <td class='c008'><a href='#Page_229'>229</a></td> + </tr> + <tr> + <td class='c007'>Causes of the arrested development of Musulman Universities</td> + <td class='c008'><a href='#Page_233'>233</a></td> + </tr> + <tr> + <td class='c007'>Nature and consequences of the Musulman identification of Law and Religion</td> + <td class='c008'><a href='#Page_234'>234</a></td> + </tr> + <tr> + <td class='c007'>Identity of State and Church under Islam</td> + <td class='c008'><a href='#Page_240'>240</a></td> + </tr> + <tr> + <td class='c007'>How Christianity avoided a similar identification</td> + <td class='c008'><a href='#Page_242'>242</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XIV</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Methods of Law-making in Rome and in England</span></td> + <td class='c008'><a href='#eXIV'>247-338</a></td> + </tr> + <tr> + <td class='c007'>Relations of the History of Law to the Constitutional or Political History of a Country</td> + <td class='c008'><a href='#Page_247'>247</a></td> + </tr> + <tr> + <td class='c007'>Law-making Authorities in general</td> + <td class='c008'><a href='#Page_249'>249</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xv'>xv</span>Three main sources of Law: the Ruling Authority, the Magistrate, and the Legal Profession</td> + <td class='c008'><a href='#Page_253'>253</a></td> + </tr> + <tr> + <td class='c007'>The Jurists as makers of Law in earlier times</td> + <td class='c008'><a href='#Page_255'>255</a></td> + </tr> + <tr> + <td class='c007'>Changed position of the Jurists under the Empire</td> + <td class='c008'><a href='#Page_257'>257</a></td> + </tr> + <tr> + <td class='c007'>Differences between the action of Roman and English Jurists</td> + <td class='c008'><a href='#Page_261'>261</a></td> + </tr> + <tr> + <td class='c007'>Roman Treatises compared with English Reports</td> + <td class='c008'><a href='#Page_266'>266</a></td> + </tr> + <tr> + <td class='c007'>Magistrates and Judges: in what sense Law-makers</td> + <td class='c008'><a href='#Page_269'>269</a></td> + </tr> + <tr> + <td class='c007'>The Praetor at Rome</td> + <td class='c008'><a href='#Page_273'>273</a></td> + </tr> + <tr> + <td class='c007'>Nature and Working of the Praetor’s Edict</td> + <td class='c008'><a href='#Page_275'>275</a></td> + </tr> + <tr> + <td class='c007'>The English Chancellor</td> + <td class='c008'><a href='#Page_278'>278</a></td> + </tr> + <tr> + <td class='c007'>Praetorian Edicts compared with English Case-Law</td> + <td class='c008'><a href='#Page_281'>281</a></td> + </tr> + <tr> + <td class='c007'>Further observations on Praetorian methods</td> + <td class='c008'><a href='#Page_287'>287</a></td> + </tr> + <tr> + <td class='c007'>Strong and weak points in the English Case-System</td> + <td class='c008'><a href='#Page_289'>289</a></td> + </tr> + <tr> + <td class='c007'>Direct Legislation at Rome: its Organs</td> + <td class='c008'><a href='#Page_293'>293</a></td> + </tr> + <tr> + <td class='c007'>The Popular Assembly: its method of legislating</td> + <td class='c008'><a href='#Page_297'>297</a></td> + </tr> + <tr> + <td class='c007'>Merits of the Roman Statutes</td> + <td class='c008'><a href='#Page_300'>300</a></td> + </tr> + <tr> + <td class='c007'>Legislation by the Senate: its characteristics</td> + <td class='c008'><a href='#Page_303'>303</a></td> + </tr> + <tr> + <td class='c007'>Direct legislation by the Emperor</td> + <td class='c008'><a href='#Page_308'>308</a></td> + </tr> + <tr> + <td class='c007'>Vast powers of the Emperor: his Privy Council</td> + <td class='c008'><a href='#Page_313'>313</a></td> + </tr> + <tr> + <td class='c007'>Defects in Imperial legislation</td> + <td class='c008'><a href='#Page_315'>315</a></td> + </tr> + <tr> + <td class='c007'>Profusion and inferiority of legislation under the later Emperors</td> + <td class='c008'><a href='#Page_318'>318</a></td> + </tr> + <tr> + <td class='c007'>Direct legislation in England: its history</td> + <td class='c008'><a href='#Page_321'>321</a></td> + </tr> + <tr> + <td class='c007'>Advantages of Parliament and Congress for legislation</td> + <td class='c008'><a href='#Page_323'>323</a></td> + </tr> + <tr> + <td class='c007'>Strictures commonly passed on English and Amercan Statutes</td> + <td class='c008'><a href='#Page_325'>325</a></td> + </tr> + <tr> + <td class='c007'>Difficulties incident to Parliamentary legislation</td> + <td class='c008'><a href='#Page_327'>327</a></td> + </tr> + <tr> + <td class='c007'>Reflections suggested by the history of English compared with that of Roman legislation</td> + <td class='c008'><a href='#Page_332'>332</a></td> + </tr> + <tr> + <td class='c007'>Some branches of law better fitted than others to be handled by direct legislation</td> + <td class='c008'><a href='#Page_333'>333</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XV</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>The History of Legal Development at Rome and in England</span></td> + <td class='c008'><a href='#eXV'>339-380</a></td> + </tr> + <tr> + <td class='c007'>Roman and English Law have both been developed in a comparatively independent way</td> + <td class='c008'><a href='#Page_339'>339</a></td> + </tr> + <tr> + <td class='c007'>Conspicuous epochs of legal change at Rome and in England</td> + <td class='c008'><a href='#Page_341'>341</a></td> + </tr> + <tr> + <td class='c007'>Forces and influences chiefly active in determining legal changes</td> + <td class='c008'><a href='#Page_344'>344</a></td> + </tr> + <tr> + <td class='c007'>Roman Legal History during the republican period</td> + <td class='c008'><a href='#Page_345'>345</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xvi'>xvi</span>Effect on the law of the establishment of the imperial autocracy</td> + <td class='c008'><a href='#Page_350'>350</a></td> + </tr> + <tr> + <td class='c007'>Rise of Christianity: dissolution of the Empire in the West</td> + <td class='c008'><a href='#Page_352'>352</a></td> + </tr> + <tr> + <td class='c007'>The decline in legal learning induced Codification</td> + <td class='c008'><a href='#Page_354'>354</a></td> + </tr> + <tr> + <td class='c007'>Political events and External Influences are the chief sources of changes in Roman Law</td> + <td class='c008'><a href='#Page_357'>357</a></td> + </tr> + <tr> + <td class='c007'>Causes of legal change operative in England: the periods of Henry II and Edward I</td> + <td class='c008'><a href='#Page_358'>358</a></td> + </tr> + <tr> + <td class='c007'>The Reformation and the Civil War</td> + <td class='c008'><a href='#Page_361'>361</a></td> + </tr> + <tr> + <td class='c007'>The Reform Act of 1832 and the Victorian Epoch</td> + <td class='c008'><a href='#Page_364'>364</a></td> + </tr> + <tr> + <td class='c007'>The Law of Family and Inheritance at Rome and the Law of Land in England</td> + <td class='c008'><a href='#Page_367'>367</a></td> + </tr> + <tr> + <td class='c007'>Effects of Territorial Expansion on Roman and on English Law</td> + <td class='c008'><a href='#Page_369'>369</a></td> + </tr> + <tr> + <td class='c007'>Economic influences more generally potent in England: political in Rome</td> + <td class='c008'><a href='#Page_371'>371</a></td> + </tr> + <tr> + <td class='c007'>Observations on France and Germany</td> + <td class='c008'><a href='#Page_375'>375</a></td> + </tr> + <tr> + <td class='c007'>Private law is the branch least affected by political changes</td> + <td class='c008'><a href='#Page_377'>377</a></td> + </tr> + <tr> + <td class='c007'>Legal topics in which further advances may be looked for</td> + <td class='c008'><a href='#Page_379'>379</a></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c006' colspan='2'><span class='large'>ESSAY XVI</span></td> + </tr> + <tr> + <td class='c007'> </td> + <td class='c008'> </td> + </tr> + <tr> + <td class='c007'><span class='sc'>Marriage and Divorce in Roman and in English Law</span></td> + <td class='c008'><a href='#eXVI'>381-474</a></td> + </tr> + <tr> + <td class='c007'>Diversity of the Law of Marriage in different countries</td> + <td class='c008'><a href='#Page_381'>381</a></td> + </tr> + <tr> + <td class='c007'>Features generally characteristic of the institution in the ancient Mediterranean World</td> + <td class='c008'><a href='#Page_383'>383</a></td> + </tr> + <tr> + <td class='c007'>Early Marriage law of the Romans</td> + <td class='c008'><a href='#Page_386'>386</a></td> + </tr> + <tr> + <td class='c007'>Subordination of the Wife: the ‘Hand Power’ (<span lang="la"><i>Manus</i></span>)</td> + <td class='c008'><a href='#Page_387'>387</a></td> + </tr> + <tr> + <td class='c007'>Transition to a freer system</td> + <td class='c008'><a href='#Page_389'>389</a></td> + </tr> + <tr> + <td class='c007'>Later Marriage Law: nature of the personal relation it creates</td> + <td class='c008'><a href='#Page_392'>392</a></td> + </tr> + <tr> + <td class='c007'>Relation of the Consorts as respects Property</td> + <td class='c008'><a href='#Page_395'>395</a></td> + </tr> + <tr> + <td class='c007'>General character of the Roman Conception of Marriage: its freedom</td> + <td class='c008'><a href='#Page_400'>400</a></td> + </tr> + <tr> + <td class='c007'>Roman doctrine and practice regarding Divorce</td> + <td class='c008'><a href='#Page_402'>402</a></td> + </tr> + <tr> + <td class='c007'>Influence of Christianity on Imperial Legislation</td> + <td class='c008'><a href='#Page_406'>406</a></td> + </tr> + <tr> + <td class='c007'>Other Roman rules: prohibited degrees: <span lang="la"><i>Concubinatus</i></span></td> + <td class='c008'><a href='#Page_409'>409</a></td> + </tr> + <tr> + <td class='c007'>Marriage under the Canon Law</td> + <td class='c008'><a href='#Page_416'>416</a></td> + </tr> + <tr> + <td class='c007'>The English Law: jurisdiction of the Spiritual Courts</td> + <td class='c008'><a href='#Page_420'>420</a></td> + </tr> + <tr> + <td class='c007'>Relations of the Consorts as respects Property under English Law</td> + <td class='c008'><a href='#Page_424'>424</a></td> + </tr> + <tr> + <td class='c007'>Amendment of English Matrimonial Law by courts of Equity and by Legislation</td> + <td class='c008'><a href='#Page_427'>427</a></td> + </tr> + <tr> + <td class='c007'>Personal Liberty of the Wife now well established</td> + <td class='c008'><a href='#Page_430'>430</a></td> + </tr> + <tr> + <td class='c007'><span class='pageno' id='Page_xvii'>xvii</span>English law has wavered between different theories of the relation</td> + <td class='c008'><a href='#Page_431'>431</a></td> + </tr> + <tr> + <td class='c007'>Divorce under the Canon Law</td> + <td class='c008'><a href='#Page_433'>433</a></td> + </tr> + <tr> + <td class='c007'>History of Divorce in England</td> + <td class='c008'><a href='#Page_436'>436</a></td> + </tr> + <tr> + <td class='c007'>Divorce Laws in the United States</td> + <td class='c008'><a href='#Page_439'>439</a></td> + </tr> + <tr> + <td class='c007'>Laxity of Procedure in Divorce Cases</td> + <td class='c008'><a href='#Page_441'>441</a></td> + </tr> + <tr> + <td class='c007'>Statistics of Divorce in the United States: causes for which it is granted</td> + <td class='c008'><a href='#Page_443'>443</a></td> + </tr> + <tr> + <td class='c007'>Illustrations from the ‘Western Reserve’ counties of Ohio</td> + <td class='c008'><a href='#Page_446'>446</a></td> + </tr> + <tr> + <td class='c007'>Divorce in modern European countries</td> + <td class='c008'><a href='#Page_450'>450</a></td> + </tr> + <tr> + <td class='c007'>Comparison of the phenomena of Divorce in the Roman and in the Modern World</td> + <td class='c008'><a href='#Page_453'>453</a></td> + </tr> + <tr> + <td class='c007'>Causes now tending to weaken the permanence of the Marriage Tie</td> + <td class='c008'><a href='#Page_457'>457</a></td> + </tr> + <tr> + <td class='c007'>Does the growth of Divorce betoken a moral decline?</td> + <td class='c008'><a href='#Page_461'>461</a></td> + </tr> + <tr> + <td class='c007'>Influence of the Church and of the Law</td> + <td class='c008'><a href='#Page_464'>464</a></td> + </tr> + <tr> + <td class='c007'>Does the English Divorce Law need amendment?</td> + <td class='c008'><a href='#Page_465'>465</a></td> + </tr> + <tr> + <td class='c007'>Changes in Theory and in Sentiment regarding Marriage</td> + <td class='c008'><a href='#Page_469'>469</a></td> + </tr> + <tr> + <td class='c007'><span class='sc'>Inaugural Lecture</span></td> + <td class='c008'><a href='#Page_475'>475</a></td> + </tr> + <tr> + <td class='c007'><span class='sc'>Valedictory Lecture</span></td> + <td class='c008'><a href='#Page_504'>504</a></td> + </tr> + <tr> + <td class='c007'><span class='sc'>Index</span></td> + <td class='c008'><a href='#Page_527'>527</a></td> + </tr> +</table> +<div class='chapter'> + <span class='pageno' id='Page_1'>1</span> + <h2 id='eIX' class='c005'>IX <br> <br> OBEDIENCE</h2> +</div> + +<p class='c010'>The question which meets on the threshold of their +inquiries all who have speculated on the nature of +political society and the foundations of law is this: +What is the force that brings and keeps men under +governments? or, in other words, What is the ground +of Obedience?</p> + +<h3 class='c011'>I. <span class='sc'>Theories Regarding Political Obedience.</span></h3> + +<p class='c012'>The answers given by philosophers to this question, +while varying in form, group themselves under two +main heads. Some assign Fear as the ground, some +Reason. One school discovers the power that binds +men together as members of a State in Physical Force, +acting upon them through the dread of death or other +physical evil. The other conceives it to lie in a +rational view of the common advantage, which induces +men to consent of their own free will to forgo some +measure of their (supposed) original personal independence +in order to obtain certain common benefits. +Thus, while the former school finds the origin of law +in Compulsion, the latter finds it in Agreement.</p> + +<p class='c001'>Both schools are of high antiquity, and have been +represented by many eminent names. One gathers from +Plato that divers sophists maintained the former thesis. +It is in substance not far from that assigned to Thrasymachus +in the <cite>Republic</cite>, where the Sophist says that +Justice is nothing but the advantage of the stronger; and +<span class='pageno' id='Page_2'>2</span>in later times Hobbes and Bentham are eminent among +those who embrace it. The other view is most familiar +to moderns from the writings of Rousseau; but it has +a long and interesting history, intertwined with that +of the notions of the State of Nature and the Law of +Nature, and also with the history of the conception +of Sovereignty—topics which are discussed elsewhere +in this volume. Rousseau grounds obedience on the +original ‘social contract’ whereby each and every +person agrees with every other to forgo his natural +freedom by constituting a State which is to act for +all, and in which the citizen recovers his freedom +because he is himself a part of that ‘general will’ +to which he renders a reasonable service. The Aristotelian +doctrine that men are by their very constitution +sociable creatures, naturally drawn to create and to live +in communities, comes nearer to the second view, while +escaping by its generality of expression the errors +into which those who set political society upon the +foundation of contract have frequently been betrayed. +And it need not be added that many other philosophers +in comparatively modern times, basing the State, some +of them on the nature of man, some on eternal reason +or the will of God, have held that it thereby acquires +an absolute right to obedience from its members. +These speculations, however, seldom touch the particular +point I propose to discuss here, viz. the grounds +which actually dispose men to obedience.</p> + +<p class='c001'>Of the two chief older theories, that which represents +men as led by reason to enter into a Contract +has of late fallen into discredit, being indeed so +evidently opposed to what we know of the early state +<span class='pageno' id='Page_3'>3</span>of mankind that it may be doubted whether most +of those who propounded or have adopted it did +not mean it to be taken rather as an apologue or +mythical presentment of moral facts than as a piece +of history. The theory of Force and Fear, on the +other hand, has retained much of its vogue, having +connected itself with a system of jurisprudential terminology +which is, or lately was, influential in England +and not unknown in America. According to Bentham +and his followers, there is in every State a Sovereign +who enjoys unlimited physical, and therefore also +unlimited legal, power. His might makes his right. +He rests on Force and rules by Fear. He has the +sole right of issuing Commands. His Commands +are Laws. They are enforced by Threats, and are +obeyed in respect of the apprehension of physical +harm to follow on disobedience. Whether those who +adhere to this body of doctrine think it historically +true as an account of the origin of law, or merely +adopt it as a concise explanation and summary view +of the principles on which modern law and highly +developed forms of political society are based, is not +always clear from the language they use. But the +importance they attach to Force appears not only from +the contempt they pour on the contractual theory +of government, but also from their omission to refer +to any facts in the character and habits of mankind +except those which are connected with Force and Fear +as factors in the development of the social organism.</p> + +<p class='c001'>A little reflection will, however, convince any one +who comes to the question with an open mind that +both these theories, that of compulsion as well as that +<span class='pageno' id='Page_4'>4</span>of contract, are alike incomplete, and, because incomplete, +are misleading. They err, as all systems are +apt to err, not by pointing to a wholly false cause, but +by extending the efficiency of a true cause far beyond +its real scope. Rousseau is right in thinking that +political society needs a moral justification, and that +the principle of individual freedom is best satisfied +where every one obtains a share in the government to +which he submits. The Contractualists generally may +find a solid basis for authority in the fact that organized +society does actually render to each of its members +some return for the so-called ‘natural liberty’ which +he has surrendered. Even a bad government gives +him at least a measure of protection, however imperfect, +for his person and property against the attacks +of any one but the government itself. Here there +is, if not what we can call an implied contract, at +least a consideration, a sort of mutuality of service +in the political relation, for which each member gives +something, and from which each gains something. +To go further, and either to explain the growth of +government by a conscious bargain at some past +moment, or to conceive the idea of such a bargain +as present to the bulk of those who live in any +actual society now, or to regard the individual members +of society as entitled to act upon contractual +principles towards their government and one another, +is to plunge at once into what are not more palpably +historical errors than unworkable principles. So also +the school of Thrasymachus and that which claims +Hobbes as its founder are right in feeling that some +test must be found of the solidity of a community and +<span class='pageno' id='Page_5'>5</span>the actual working strength of its machinery; and +they discover this in the fact that physical force is +the <span lang="la"><i>ultima ratio</i></span> wherewith to coerce the disturbers +of the community and the transgressors of the law. +Without force in the background, the law might be +defied. It is when the men of this school, or some +of them, go on to represent physical compulsion as +the means by which communities have been in fact +formed—though, to be sure, Hobbes himself alleges a +contract as the very first step<a id='r1'></a><a href='#f1' class='c013'><sup>[1]</sup></a>—and Fear as the motive +which in fact secures respect to the law from the +majority of the citizens, that they depart alike from +history and from common sense. The problem of +political cohesion and obedience is not so simple as +either school of theorists would represent it.</p> + +<p class='c001'>To show that both schools are historically wrong +would not be difficult. This has been often done as +against such of the Contractualists as have held that +conscious reason brought men out of the State of +Nature by a compact; and if the historians who deal +with the earlier stages of human progress have not +cared to demolish the Physical Force doctrine, this +may have happened because none has thought it +worth while to refute a theory whose flimsiness they +have perceived, but which they have deemed to lie +outside the sphere of history. As it is the historian +who best understands how much Force has done to +build up States, so he most fully sees that Force is +only one among many factors, and not the most important, +in creating, moulding, expanding and knitting +<span class='pageno' id='Page_6'>6</span>together political communities. It is not, however, +necessary to institute any historical inquiry in order +to reach this conclusion. An easier course is to interrogate +one’s own consciousness, and to observe one’s +fellow men. The problem of obedience to government +and law is part of the larger and even more obvious +problem of the grounds of Obedience in general. Why +do we all forgo the gratification of many of our personal +desires, desires in themselves harmless, merely because +they are not shared by others? Why do we go on +echoing opinions whose soundness we more than doubt? +Why do we pursue pleasures which give us no amusement, +but rather weariness? Why do we adhere to +a party, political or ecclesiastical, of whose conduct we +often disapprove? Why in fact is so large a part of +our daily conduct determined, not by our own natural +preferences, but by compliance with the opinion of +others or submission to the social conditions that surround +us?</p> + +<h3 class='c011'>II. <span class='sc'> The Grounds of Obedience in General.</span></h3> + +<p class='c012'>Political obedience is not a thing by itself, but a form +of what may be called Compliance in general.</p> + +<p class='c001'>The grounds or motives of Compliance can be +summed up under five heads. Putting them in the +order of what seems to be their relative importance, +they may be described as the following—Indolence, +Deference, Sympathy, Fear, Reason. Let us consider +each separately.</p> + +<p class='c001'>By Indolence I mean the disposition of a man to let +some one else do for him what it would give him +trouble to do for himself. There are of course certain +<span class='pageno' id='Page_7'>7</span>persons to whom exertion, mental as well as physical, is +pleasurable, and who delight in the effort of thinking +out a problem and making a decision for themselves. +There are also moments in the lives of most of us +when under the influence of some temporary excitement +we feel equal to a long succession of such efforts. +But these are exceptional persons and rare moments. +To the vast majority of mankind nothing is more +agreeable than to escape the need for mental exertion, +or, speaking more precisely, to choose only those +forms of exertion which are directly accompanied +by conscious pleasure and involve little fatigue. In +a great many exertions of thought resulting in determinations +of the will there is no pleasure, or at any +rate no conscious pleasure, or at any rate no pleasure +which is not outweighed by an accompanying annoyance. +Such exertions may relate to things in which we +have slight personal interest, and therefore no desires to +gratify, or to things in which our personal interest +is so doubtful that we shrink from the trouble of +ascertaining which way it lies, and are glad to shift +the responsibility from ourselves to whoever will +undertake it for us. The ascendency of one of a +married couple, for instance, or of one member of +a group of persons living together, is usually acquired +in some such way. It is not necessarily the will really +strongest that in these cases prevails, but the will which +is most active, most ready to take a little trouble, +to exert itself on trivial occasions and undertake small +responsibilities. Persons of a resolute and tenacious +character are sometimes also hesitating and undecided, +because they cannot be at the trouble of setting to +<span class='pageno' id='Page_8'>8</span>work, for the little questions of daily life, their whole +machinery of deliberation and volition. In five persons +out of six the instinct to say Yes is stronger than the +instinct to say No—were it not so, there would be +fewer marriages—and this is specially so when the +person who claims consent possesses exceptional force +and self-confidence. In other words, most of us hate +trouble and like to choose the line of least resistance. +In tropical Africa the country is covered by a network +of narrow footpaths, made by the natives. These paths +seldom run straight, and their flexuosities witness to +small obstacles, here a stone and there a shrub, which +the feet of those who first marked them avoided. To-day +one may perceive no obstacle. The prairie which +the path crosses may be smooth and open, yet every +traveller follows the windings, because it is less trouble +to keep one’s feet in the path already marked than it is +to take a more direct route for one’s self. The latter +process requires thought and attention; the former +does not.</p> + +<p class='c001'>Nor is the compliance of indolence less evident in +thought than in action. To most people, nothing is +more troublesome than the effort of thinking. They are +pleased to be saved the effort. They willingly accept +what is given them because they have nothing to do +further than to receive it. They take opinions presented +to them, and assume rules or institutions which they +are told to admire to be right and necessary, because +it is easier to do this than to form an independent +judgement. The man who delivers opinions to others +may be inferior to us in physical strength, or in +age, or in knowledge, or in rank. We may think +<span class='pageno' id='Page_9'>9</span>ourselves quite as wise as he is. But he is clear and +positive, we are lazy or wavering; and therefore we +follow him.</p> + +<p class='c001'>Under the name of Deference it is convenient to +include the various cases in which some emotion, +drawing one person to another, disposes the former to +comply with the will of the latter. Whether the emotion +be love, or reverence, or esteem, or admiration, a persuasion +of superior goodness or of superior wisdom, there +is a feeling on the part of the person attracted which +makes him ready to sacrifice his own impulses, if they +be not of unusual strength, to the will of the person +loved or reverenced or admired. Wisdom and goodness +give their possessor a legitimate authority, wisdom in +making him appear as a fit person to follow where the +question is of choosing means, goodness where it is +a question of the choice of ends; and the belief that +these qualities exist in the person revered or esteemed +is just as effective as the reality, such belief being +obviously the result of many causes besides a rational +scrutiny. The force of the feeling of deference in +securing compliance or adhesion varies in different +nations and in different states of society. The advantages, +for instance, which rank, wealth and learning +give to a candidate for any public post in a modern +country like France or England, only faintly represent +the authority which belonged to birth, learning +and sanctity, whether real or supposed, in simpler +times. A so-called holy man in the Musulman or +Hindu East, a Fakir or a Guru, exerts to-day enormous +power in his own neighbourhood, in respect far less +of any fear of the harm he can do than simply of the +<span class='pageno' id='Page_10'>10</span>veneration he inspires. Even if he does not claim a +direct supernatural mission, his words carry great +weight. And there is abundant evidence in the careers +of famous Europeans in the East to show how readily +in primitive times a remarkable character and career +would permanently attach a halo, not only of admiration +but of submissive deference, to the descendants +of such a person or to the occupant of the office he +had filled.</p> + +<p class='c001'>By Sympathy as a ground of obedience I mean not +merely the emotion evoked by the sight of a corresponding +emotion in another, but the various forms of +what may be called the associative tendency in mankind, +the disposition to join in doing what one sees others +doing, or in feeling as others feel. The root of this +instinct lies very near Indolence; for no way of saving +effort is so obvious as to do what others have done +or are doing; but it is not quite the same thing as +Indolence, for it is a tendency strong among some of the +less indolent races of mankind, and each of us must +have noted from his own personal experience that its +action depends as much upon the susceptibility of the +imagination as upon the slowness or slackness of the will. +There is hardly a more potent factor than this in the +formation of communities, whether social or political, +because it unites with, if it be not almost identical with, +what we call party and civic spirit, substituting a sense +of and a pleasure in the exercise of the collective will +for the pleasure of exerting the individual will, and thus +tending to subordinate the latter, and to make it rejoice +in following, perhaps blindly, the will which directs +the common action. The shock to individual pride is +<span class='pageno' id='Page_11'>11</span>avoided, because each man acts spontaneously, at the +bidding of his own emotion, and each feels that what he +may lose as an individual he recovers as a member of +the body, and that with a better chance of indulging his +passions at the expense of his antagonists. The spirit of +the body seems to live in and inspire him, increasing indefinitely +the force of his own personality. Obedience +to the directing authority is here a first necessity, and +becomes the more implicit the greater the dangers of +whatever enterprise the body may undertake. As +fighting covers great part of the life of primitive communities, +the disposition to obey becomes early strong +among them, because in nothing is obedience so +essential as in war.</p> + +<p class='c001'>Perhaps these three sources of the tendency to comply +are really only forms of, as they are certainly all closely +connected with, the disposition to imitate which is so +strong, not only in man, but throughout the animal +kingdom, so far as we can observe it. When ninety-nine +sheep one after another jump over a fence at +precisely the point where the first of the flock has +jumped it, they reveal a propensity similar to that which +makes a file of savages travelling over a wilderness +each tread in the footsteps of his predecessor, or that +which soon stamps the local accent upon the tongue of +a child brought from some other part of the country, +where the mode of speech was different. There is +evidently a psychological, doubtless indeed a physiological, +cause for this general and powerful tendency +to reproduce the acts and ways of other creatures, +even where, as in the case of a local accent, there is +no motive whatever for doing so. Conscious imitation +<span class='pageno' id='Page_12'>12</span>is of course frequently explainable by the desire to +please, or by a perception of the advantage of doing +as others do. But there are many facts to show that +its roots lie deeper and that it is due largely to a sympathy +between the organs of perception and those of +volition, which goes on in unconscious or subconscious +states of the mind, and which makes the following of +others, the reproduction of their acts, or the adoption +of their ideas, to be the path of least resistance, which +is therefore usually followed by weaker natures, and +frequently even by strong ones.</p> + +<p class='c001'>Of Fear and of Reason nothing need be said, because +the school of Hobbes and Bentham for the one, and +the apostles of democratic theory for the other, have said +more than all that is needed to show the part they +respectively play in political society. Fear is no doubt +the promptest and most effective means of restraining +the turbulent or criminal elements in society; and is +of course the last and necessary expedient when +authority either legally established or actually dominant +is threatened by insurrection. Reason operates, +and operates with increasing force as civilization +advances, upon the superior minds, leading them to +forgo the assertion of their own wills even where +such assertion would be in itself innocent or beneficial, +merely because the authority which rules in the community +has otherwise directed. Reason teaches the +value of order, reminding us that without order there +can be little progress, and preaches patience, holding +out a prospect that evils will be amended by the +general tendency for truth to prevail. Reason suggests +that it is often better that the law should be certain than +<span class='pageno' id='Page_13'>13</span>that it should be just, that an existing authority +should be supported <a id='corr13.2'></a><span class='htmlonly'><ins class='correction' title='ather'>rather</ins></span><span class='epubonly'><a href='#c_13.2'><ins class='correction' title='ather'>rather</ins></a></span> than that strife should be +caused by the attempt to set up a better one. So +also Reason disposes minorities to acquiesce even +where a majority is tyrannical, in the faith that tyranny +will provoke a reaction and be overthrown by peaceable +discussion.</p> + +<p class='c001'>Allowing for the efficacy of Fear as a motive acting +powerfully upon the ruder and more brutish natures, +and for that of Reason as guiding the more thoughtful +and gentle ones, and admitting that neither can be dispensed +with in any community, their respective parts +would nevertheless seem to be less important than are +the parts played by the three first-mentioned motives. +If it were possible either in the affairs of the State, +or in the private relations of life, to enumerate the +number of instances in which one man obeys another, +we should find the cases in which either the motive +of Fear or the motive of Reason was directly and consciously +present to be comparatively few, and their +whole collective product in the aggregate of human +compliance comparatively small. If one may so express +it, in the sum total of obedience the percentage +due to Fear and to Reason respectively is much less +than that due to Indolence, and less also than that due +to Deference or to Sympathy.</p> + +<p class='c001'>In a large proportion of the cases arising in private +life the motive of Fear cannot be invoked at all, because +there is no power of inflicting harm; and Reason just +as little, because the persons who habitually apply +ratiocinative processes to their actions are after all few. +It may be said that conscious thought is not ordinarily +<span class='pageno' id='Page_14'>14</span>applied to action because Habit supplies its place, and +Habit, enabling and disposing us to do without consideration +the acts which otherwise would need to be +considered, is in fact fossil reason. That is largely +so, but Habit is still more often the permanent and +unchanging expression of Indolence. Nothing becomes +a habit so quickly as does the acquiescence due +to Indolence, nor does any tendency strike its roots +so deep. And though it is true as regards public or +civic matters that physical force is always at hand in +the background, we must also recognize that the background +is not in fact usually visible to the majority +of those who act according to the laws which they obey. +They do not necessarily, nor even generally, think of +the penalties of the law. They defer to it from respect +and because other people defer; they are glad that it +is there to save them and other people from trouble. +This attitude is not confined to civilized States, but +has existed always, even in unsettled societies, where +the law might not be able to prevail but for the aid +of private citizens.</p> + +<p class='c001'>Of the three springs of Obedience which have been +represented as on the whole the stronger, Indolence +disguises itself under Deference and Deference is intensified +by Sympathy; that is to say, the tendency of men +to let others take decisions for them which they might +take for themselves becomes much stronger and more +constant when they have any ground for believing +others to possess some sort of superiority, while the +disposition to admit superiority is incomparably more +active where a number of other persons are perceived +to be also admitting it. A society like that in which +<span class='pageno' id='Page_15'>15</span>modern men live in England or America is apt to suppose +that the admission of superiority mortifies a man’s pride, +but this is so far from being generally true that the +attitude of submission is to most men rather pleasurable +than the reverse. So Protestants have been apt to +assume that the natural and normal attitude of man in +religious matters is independence—a wish to seek out +truth for himself, a sense of the duty of consulting his +own conscience; whereas the opposite is the fact, and +those religious systems take the greatest hold upon man +which leave least to individual choice and inculcate, +not merely humility towards the Unseen Powers, but +the duty of implicitly accepting definite traditions or of +revering and following visible ecclesiastical guides.</p> + +<p class='c001'>Some philosophers have talked of Will as the distinctive +note of Man—and in so far as the exercise of +Will implies the conscious exertion of rational choice +it may be admitted to be characteristic of him alone. +But in mere tenacity of purpose and persistence in +a particular course other animals run him hard. A +rogue elephant or a bucking mustang can show as much +persistence, sometimes mingled with a craft which seeks +to throw the opponent off his guard, and bides its time +till the most favourable moment for resistance arrives. +In most men the want of individual Will—that is to say, +the proneness to comply with or follow the will of another—is +the specially conspicuous phenomenon. It is +for this reason that a single strenuous and unwearying +will sometimes becomes so tremendous a power. There +are in the world comparatively few such wills, and when +one appears, united to high intellectual gifts, it prevails +whichever way it turns, because the weaker bow to it and +<span class='pageno' id='Page_16'>16</span>gather round it for shelter, and, in rallying to it, increase +its propulsive or destructive power. It becomes almost +a hypnotizing force. One perceives this most strikingly +among the weaker races of the world. They are not +necessarily the less intelligent races. In India, for +instance, an average European finds many Hindus fully +his equals in intelligence, in subtlety, and in power of +speech; but he feels his own volitions and his whole +personality to be so much stronger than that of the great +bulk of the native population (excluding a very few +races) that men seem to him no more than stalks of +corn whom he can break through and tread down +in his onward march. This is how India was conquered +and is now held by the English. Superior +arms, superior discipline, stronger physique, are all +secondary causes. There are other races far less cultivated, +far less subtle and ingenious, than the Hindus, +with whom Europeans have found it harder to deal, +because the tenacity of purpose and the pride of +the individual were greater. This is the case with the +North-American Indians, who fought so fiercely for +their lands that it has been estimated that in the long +conflict they maintained they have probably killed more +white men than they have lost at the hands of the +whites. Yet they were far inferior in weapons and in +military skill; and they had no religious motives to +stimulate their valour.</p> + +<p class='c001'>No one can read the history of the East without being +struck by the extraordinary triumphs which a single +energetic will has frequently achieved there. A military +adventurer, or the chief of a petty tribe, suddenly rises +to greatness, becomes the head of an army which attacks +<span class='pageno' id='Page_17'>17</span>all its neighbours, and pursues a career of unbroken +conquest till he has founded a mighty empire. Perhaps +he raises vast revenues, constructs magnificent works, +establishes justice, creates a system of administration +which secures order and peace during his lifetime. +Men like Thothmes III, Cyrus, and Darius son of +Hystaspes, Khosroes Anushirwan, Saladin, Tamerlane, +Baber, Akbar the Great, Hyder Ali are in their several +ways only the most striking instances of the tremendous +effect which a man of exceptional force and activity +produces among Oriental peoples<a id='r2'></a><a href='#f2' class='c013'><sup>[2]</sup></a>. One asks why this +happens chiefly in the East. Is there a greater difference +in Asiatic than in European peoples between the +few most highly-gifted men and the great mass of +humanity, so that where the ordinary characters are +weak one strong character prevails swiftly and easily? +Or is the cause rather to be sought in the fact that +in the East there are no permanent institutions of +government to be overthrown? That which is strong +and permanent there—viz. the customs, religious and +legal, of the people—a ruler does not (except in a +fit of insanity) venture to touch, while the thrones +of neighbouring potentates go down at a stroke before +him. In mediaeval and modern Europe, the weakness +of the ordinary man was and is entrenched behind a +fabric of government and law, which the strongest +individual will cannot overthrow; and it is only when +this fabric has been shattered by a revolution, as happened +in France at the end of the eighteenth century, +<span class='pageno' id='Page_18'>18</span>that the adventurer of genius and volition has a chance +of rivalling the heroes of the East.</p> + +<p class='c001'>Thus the comparative stability of governments in +mediaeval and modern Europe does not disprove the +view which finds in the force of individual will, and +the tendency of average men to yield to it, a potent +factor in compelling obedience. For in the European +countries the resistance offered to the ambition of such +a will is effective, not so much because ordinary men +are themselves more independent and more capable of +opposition as because their superior intelligence has +built up well-compacted systems of polity to which +obedience has by long habit become attached. Traditions +of deference and loyalty have grown up +around these systems, so that they enable individuals +to stand firmly together, and constitute a solid +bulwark against any personality less forceful than +that of a Julius Caesar or a Buonaparte.</p> + +<p class='c001'>To this explanation one may perhaps add another. +In the East the monarch is as a rule raised so far above +his subjects that they are all practically on a level, as +compared with him; and those who are for the moment +powerful are powerful in virtue of his favour, which has +elevated and may at any moment abase them. This +has long been the case in Musulman States, and was +to a large extent true even in the Byzantine Empire. +It is in some degree true in Russia now. Where there +is no land-holding or clan-leading aristocracy, nor any +richly endowed hierarchy, there may be nothing to +diminish the impression of overwhelming power which +the sovereign’s position produces. Hence there may +be no order of men to set the example of an independence +<span class='pageno' id='Page_19'>19</span>of feeling and attitude which springs from +their position as the leaders of their dependents and +as entitled to be consulted by the Crown. Such an +order of men existed in the feudal aristocracy of the +Middle Ages, who have done much to create a type +of character in the States of modern Europe. To +them has now succeeded, in some modern countries, +a so-called aristocracy of wealth, which, vain as it may +be of its opportunities for influencing others, is much +less stable than was the land-holding class of old +days, and much less high-spirited. Meanwhile the +general levelling down and up which has created what +we call modern democracy has, in reducing the number +of those whom rank and tradition had made ‘natural +leaders,’ increased the opportunities of strong-willed +and unscrupulous men, restless and reckless, versed in +popular arts, and adroitly using that most powerful of +all agents for propagating uniformity of opinion which +we call the newspaper press, powerful because it drives +the individual to believe that if he differs from the mass +he must be wrong. Such a man may have a career in a +huge democracy which he could not have had a century +ago, because the forces that resist are fewer and feebler +to-day than they were then, and the multitude is more +easily fascinated by audacity or force of will, apart from +moral excellence, apart from intellectual distinction, than +is an aristocratic society.</p> + +<p class='c001'>It may help to explain the theory I am trying to +present if we pause for a moment to examine the influences +under which the habit of obedience is first +formed in the individual man and in the nascent community. +For the individual, it begins in the Family; +<span class='pageno' id='Page_20'>20</span>and it grows up there only to a small extent by the +action of Force and Fear. The average child, even in +the days of a discipline harsher than that which now +obtains, did not as a rule act under coercion, but began +from the dawn of consciousness to comply with the +wish of the parent or the nurse, partly from the sense of +dependence, partly from affection, partly because it saw +that other children did the like. Force might sometimes +be resorted to; but force was in most cases a secondary +and subsidiary agency. Nor did force succeed so well +as softer methods. Everybody knows that the children +who have been most often punished are not the most +obedient, nor is this merely because, being naturally +self-willed, they have needed more correction. After +those little squalls of aimless passion which belong to +a certain period in the child’s life have passed away, the +boy usually moves as a matter of course at his parents’ +bidding until the age is reached when circumstances +oblige him to act for himself, or when the sense of +independence is stimulated by perceiving that others of +his own age will despise him if he remains too submissive. +The child whose constant impulse is to disobey +is as likely to turn out ineffective as the child who +obeys too readily; for perversity is as frequently +due to want of affection, sympathy, and common +sense as to exceptional force of will.</p> + +<p class='c001'>Thus most people enter adult life having already +formed the habit of obeying in many things where +Force and Fear do not come in at all, but in which the +most obvious motive is the readiness to be relieved of +trouble and responsibility by following the directions +of some one else, presumably superior. They have +<span class='pageno' id='Page_21'>21</span>also formed during boyhood the habit of adopting the +opinions of those around them. An acute observer has +said that the chief fault of the English public school +is that it makes this habit far too strong. Custom—that +is to say, whatever is established and obeyed—has +great power over them. No conservatism surpasses +that of the schoolboy.</p> + +<p class='c001'>It would not be safe to try to find a general explanation +of the growth of political communities in the +phenomena of domestic life, though it was a favourite +doctrine of a past generation that the germ or the type +of the State was to be found in the Family. There are +some races among whom the Family and its organization +seem to have played no great part. But it is clear that +in primitive societies three forces, other than Fear, have +been extremely powerful—the reverence for ancient +lineage, the instinctive deference to any person of +marked gifts (with the disposition to deem those gifts +supernatural), and the associative tendency which unites +the members of a group or tribe so closely together +that the practice of joint action supersedes individual +choice. These forces have imprinted the habit of +obedience so deeply upon early communities that it +became a tradition, moulding the minds of succeeding +generations. Physical force had plenty of scope in +the strife of clans or cities, or (somewhat later) of +factions, with one another; but in building up the +clan or the city it was hardly needed, for motives more +uniform and steady in their efficiency were at work. +To pursue this topic would lead us into a field too +wide for this occasion; yet it is well to note two +facts which stand out in the early history of those +<span class='pageno' id='Page_22'>22</span>communities in which Force and Fear might seem to +have had most to do with the formation of governments, +and of the habit of obedience to authority. One is +the passionate and persistent attachment to a particular +reigning family, apart from their personal gifts, apart +from their power to serve the community or to terrify +it. The Franks in Gaul during the seventh and eighth +centuries were as fierce and turbulent a race as the +world has ever seen. Their history is a long record of +incessant and ferocious strife. From the beginning of +the seventh century the Merwing kings, descendants +of Clovis, became, with scarcely an exception, feeble +and helpless. Their power passed to their vizirs, the +Mayors of the Palace, who from about <span class='fss'>A.D.</span> 638 onwards +were kings <span lang="la"><i>de facto</i></span>. But the Franks continued +to revere the blood of Clovis, and when, in 656, a rash +Mayor of the Palace had deposed a Merwing and +placed his own son on the throne, they rose at once +against the insult offered to the ancient line; and its +scions were revered as titular heads of the nation for +a century longer, till Pippin the Short, having induced +the Pope to pronounce the deposition of the last Merwing +and to sanction the transfer of the crown to himself, +sent that prince into a monastery. This instance +is the more remarkable because the Franks, being +Christians in doctrine if not in practice, can hardly have +continued to hold the divine origin of their dynasty.</p> + +<p class='c001'>The other fact to be dwelt upon is this, that where +religion comes into the matter we discover an associative +tendency of immense strength, which binds men +into a community, and wins obedience for those who, +whether as priests or as kings, embody the unity of +<span class='pageno' id='Page_23'>23</span>the community, who represent its collective relation +to the Unseen Powers, who approach them with its +collective service of prayers or sacrifice. Altars have +probably done even more than hearths to stimulate +patriotism, especially among those who, like the Romans, +had a sort of domestic altar for every hearth, and kept +up a worship of family and clan spirits beside the +worship of the national gods. It may be said that +the power of religion in welding men together and +inducing them to obey kings or magistrates or laws +is due to the element of Fear in religion. Such an +element has no doubt been at work, but its influence is +more seen in the requirement of sacrifices to the deities +themselves than in enforcing obedience to the authorities +and institutions of the State. What commends +these latter to reverence is rather the belief that their +divine appointment gives them a claim on the affection +of the citizens, and makes it a part of piety as well as +of patriotism to support them. In the Old Testament, +for instance, the love of Jehovah, and the sense of +gratitude to Him for his favours to His people, are +motives invoked as no less potent than the dread of +His wrath. There has always been a tendency, since +Christianity lost its first freshness and power, to insist +upon the more material motives, upon those which +appear palpable and ponderable, such as the fear of +future punishment, rather than on those of a more +refined and ethereal quality. But it was not by appealing +to these lower motives that Christianity originally +made its way in the Roman Empire. The element of +Fear, though not wholly absent from the New Testament, +plays a very subordinate part there, and became larger +<span class='pageno' id='Page_24'>24</span>in mediaeval and modern times. Yet it may be doubted +whether, in growing stronger, it increased the efficiency +of Christianity as an engine of moral reform. ‘Perfect +love casteth out fear.’ It was the gospel of love, and +not the fear of hell, that conquered the world, and made +men and women willing to suffer death for their faith. +The martyrs in the persecutions under Decius and Diocletian, +and the Armenian martyrs of 1895, who were +counted by thousands, overcame the terror of impending +torture and death, not from any thought of penalties +in a world to come, but from the sense of honour and +devotion which forbade them to deny the God whom +they and their parents or forefathers had worshipped.</p> + +<p class='c001'>Returning to the general question of the disposition +of the average man to follow rather than to make +a path for himself, it may be remarked that the abstract +love of liberty, the desire to secure self-government for +its own sake, apart from the benefits to be reaped from +it, has been a comparatively feeble passion, even in +nations far advanced in political development. It is not +easy to establish this proposition by instances, because +wherever arbitrary power is exercised, there are pretty +certain to be tangible grievances as well as a denial +of liberty, and where a monarch, or an oligarchy, +attempts to deprive a people of the freedom they have +enjoyed, they conclude, and with good reason, that +oppression is sure to follow. But when the sources +of insurrections are examined, it will be almost always +found that the great bulk of the insurgents were moved +either by the hatred of foreign domination, or by +religious passion, or by actual wrongs suffered. Those +who in drawing the sword appeal to the love of +<span class='pageno' id='Page_25'>25</span>liberty and liberty only are usually a group of +persons who, like the last republicans of Rome, are +either exceptional in their sense of dignity and their +attachment to tradition, or deem the predominance of +a despot injurious to their own position in the State. +So we may safely say that rebellions and revolutions +are primarily made, not for the sake of freedom, but +in order to get rid of some evil which touches men +in a more tender place than their pride. They rise +against oppression when it reaches a certain point, +such as the spoiling of their goods by the tax-gatherer, +the invasion of their homes by the minions of tyranny, +the enforcement of an odious form of worship, or +perhaps some shocking deed of cruelty or lust. Once +they have risen, the more ardent spirits involve the +sacred name of liberty and fight under its banner. But +so long as the government is fairly easy and tolerant, +the mere denial of a share in the control of public +affairs is not acutely resented, and a great deal of +paternally regulative despotism is acquiesced in.</p> + +<p class='c001'>In <span class='fss'>A.D.</span> 1863, when Bismarck was flouting the +Prussian Parliament, Englishmen were surprised at +the coolness with which the Prussian people bore the +violations of their not too liberal constitution. The +explanation was that the country was well governed, +and the struggle for political power did not move +peasants and tradesmen otherwise contented with their +lot. The English were a people singularly attached to +their ancient political and civil rights, yet Charles the +First might probably have destroyed the liberties of +England, and would almost certainly have destroyed +those of Scotland, if he had left religion alone. One +<span class='pageno' id='Page_26'>26</span>of the few cases that can be cited where a great +movement sprang from the pure love of independence +is the migration of the chieftains of Western Norway +to Iceland in the ninth century, rather than admit the +overlordship of King Harold the Fairhaired. But even +here it is to be remembered that Harold sought to levy +tribute: and the Norsemen were of all the races we +know those in whom the pride of personality and the +spirit of independence glowed with the hottest flame.</p> + +<p class='c001'>There are even times when peoples that have enjoyed +a disordered freedom tire of it, and are ready to +welcome, for the sake of order, any saviour of society +who appears, an Octavianus Augustus or even a Louis +Napoleon. The greatest peril to self-government is at +all times to be found in the want of zeal and energy +among the citizens. This is a peril which exists in democracies +as well as in despotisms. Submission is less +frequently due to overwhelming force than to the apathy +of those who find acquiescence easier than resistance.</p> + +<p class='c001'>Two questions arising out of the view that has been +here presented regarding the main sources of Obedience +remain to be considered.</p> + +<p class='c001'>One of these, that which bears upon the theory of +jurisprudence as a science, being somewhat technical, +had better not be suffered to interrupt the course of +the general argument. I have therefore relegated it +to a note at the end of this essay.</p> + +<h3 class='c011'>III. <span class='sc'>The Future of Political Obedience.</span></h3> + +<p class='c012'>The other question which deserves to be examined +is a much wider one. We have inquired what have +been the grounds of Obedience in the past, and how it +<span class='pageno' id='Page_27'>27</span>has worked in consolidating political society. We have +seen that political society has depended upon the natural +inequality in the strength of individual wills and in the +activity of individual intellects, so that the weaker have +tended to follow and shelter themselves behind the +stronger, not so much because the stronger have compelled +them to do so as because they have themselves +wished to do so. But the conditions of human life and +society have of late years greatly changed, and are still +continuing to change, in the direction of securing wider +scope for independence of thought and action. Society +has become orderly, and physical violence plays a +smaller and a steadily decreasing part. The multitude, +in most of the civilized and progressive countries, can, +if and when it pleases, exercise political supremacy +through its voting power. There is very much less +distinction of ranks than formerly, so that even those +who dislike social equality are obliged to profess their +love for it. And the opportunities of obtaining knowledge +have become infinitely more accessible than they +were even a century ago. Changes so great as these +must surely—though of course they cannot alter the +fundamental facts of human nature—modify the working +of the tendencies and habits which man shows in +political society. How far, then, are they likely to +modify the tendency to Obedience, and in what way? +In other words, What will be the relation of Obedience +to democracy and to social equality?</p> + +<p class='c001'>It used to be believed, perhaps it is still generally +believed, that with the advance of knowledge, the development +of intelligence, and the accumulation of human +experience, Obedience must necessarily decline, and that +<span class='pageno' id='Page_28'>28</span>therewith governmental control will decay or be deemed +superfluous, the good sense of mankind coming in to do +for themselves what authority has hitherto done for them. +The familiar phrase ‘Anarchy <em>plus</em> a street constable’ +was employed to describe the ideal of a government +restricted to the fewest possible functions, as that ideal +was cherished by the lovers of liberty and the apostles +of <span lang="fr"><i>laissez-faire</i></span>. There is even a school counting among +its members, besides a few assassins, many peaceful +and tender-hearted theorists, men of high personal +excellence, which maintains that all the troubles of the +world spring from the effort of one man, or a group +of men, or the general mass of a people, to regulate the +relations and guide the conduct of individuals. To this +school all forms of government are pretty nearly equally +bad, and a Czar, though a more conspicuous mark for +denunciation, is scarcely worse than is a Parliament.</p> + +<p class='c001'>The answer to this view, which is attractive, not +merely because it is paradoxical, but because it is a protest +against some really bad tendencies of human society, +and whose ideal, however unattainable, offers larger +prospects of pleasure than does that of the ultra-regulators, +seems to be that Obedience is an instinct of human +nature too strong and permanent to be got rid of, and +that the extinction of the State machinery which rules by +this instinct, and when necessary enforces its own authority +by the strong arm, would not really secure freedom +to the weak though it might facilitate oppression by the +strong. To assume that human nature will change as +soon as provisions for State compulsion have been +withdrawn is to misread human nature as we have +hitherto known it. Organizations there will be and must +<span class='pageno' id='Page_29'>29</span>be, even if existing governments come to an end: and +every organization implies obedience, not only because +large enterprises cannot otherwise be worked, +but also because the direction, necessarily committed +to a few, forms in those few the habit of ruling +and disposes others to accept their control. The +decline of respect for the State, or even the growth +of a habit of disobedience to State authorities, so far +from implying a decline in the motives and forces which +produce obedience generally, may indicate nothing more +than that people have begun to obey some other authorities, +and so illustrate our proposition that the +obedience rendered to authorities commanding physical +force is not always nor necessarily the promptest and the +heartiest. New forms of social grouping and organization +are always springing up, and in these, if they are +to strive for and attain their aims, discipline is essential, +because it is only thus that success in a struggle can be +won. To keep men tightly knit together power must be +lodged in few hands, and the rank and file must take +their orders from their officers. Such submission, due +at starting partly no doubt to reason, which suggests +motives of interest, but largely also to deference and +to sympathy, with fear presently added, soon crystallizes +into a habit. Any one who will watch any considerable +modern movement or series of movements outside the +State sphere will perceive how naturally and inevitably +guidance falls into a few hands, and how largely success +depends on the discipline which those who guide +maintain among those who follow; that is to say, on +the uniformity and readiness of obedience, and on the +strength of the associative habit which makes them all +<span class='pageno' id='Page_30'>30</span>act heartily together. Whether it be a political party, +or an ecclesiastical movement, or a combination of +employers or of workmen, the same tendencies appear, +and victory is achieved by the same methods.</p> + +<p class='c001'>I will name in passing three very recent instances, +drawn from the country in which it might be supposed +that subordination was least likely to be found, because +the principles of democracy and equality have had in it +the longest and the fullest vogue. One is to be found +in the Boss system in American politics. Such party +chieftains as Mr. Croker in New York City, Mr. Cox +in Cincinnati, and the well-known masters of the Republican +party in the great States of Pennsylvania +and New York, wield a power far more absolute, far +more unquestioned, than the laws of the United States +permit to any official. One must go to Russia to find +anything comparable to the despotic control they exert +over fellow citizens who are supposed to enjoy the +widest freedom the world has known. A second is +supplied by the American trade unions, in which a few +leaders are permitted by the mass of their fellow workmen +to organize combinations and to direct strikes as +practical dictators. A trade union is a militant body, +and the conditions of war make the leader all-powerful. +The third is to be found in the American Trusts or +great commercial corporations, aggregations of capital +which embrace vast industries and departments of trade +employing many thousands of work-people, and which +are controlled by a very small number of capable men. +Modern commerce, like war, suggests the concentration +of virtually irresponsible power in a few hands.</p> + +<p class='c001'>Whether we examine the moral constitution of man +<span class='pageno' id='Page_31'>31</span>or the phenomena of society in its various stages, we shall +be led to conclude that the theoretic democratic ideal of +men as each of them possessing and exerting an independent +reason, conscience, and will, is an ideal too +remote from human nature as we know it, and from +communities as they now exist, to be within the horizon +of the next few centuries, perhaps of all the centuries +that may elapse before we are covered by the ice-fields +again descending from the Pole or are ultimately +engulfed in the sun.</p> + +<p class='c001'>What, then, is the most that a reasonable optimist may +venture to hope for? He will hope that ‘the masses’ +of democratic countries in the future, since they, like +ourselves, must follow a small number of leaders, will +ultimately reach a level of intelligence, public spirit and +probity which will enable them to select the right leaders, +will make the demagogue repulsive, will secure their +deference for those whose characters and careers they +can approve, and will so far control the associative instinct +as to cause their adhesion to party to be governed +by a moral judgement on the conduct of the party. +The masses cannot have either the leisure or the capacity +for investigating the underlying principles of policy +or for mastering the details of legislation. Yet they +may—so our optimist must hope—attain to a sound +perception of the main and broad issues of national and +international policy, especially in their moral aspects, +a perception sufficient to enable them to keep the +nation’s action upon right lines. For the average man +to do more than this seems scarcely more possible than +that he should examine religious truth for himself, +scrutinizing the Christian evidences and reaching independent +<span class='pageno' id='Page_32'>32</span>conclusions upon the Christian dogmas. +This is what the extreme Protestant theory, which +exalted human reason in the religious sphere no less +than democratic theory did in the political sphere, has +demanded, and indeed must demand, from the average +man. But how many Protestants seek to rise to it? +Many of those who grew up under the influence of that +inspiriting theory can recall the disappointment with +which, between twenty and thirty years of age, they +came to perceive that the ideal was unattainable for +themselves, and that they must be content to form +and live by such views of the meaning of the Bible +and of the dogmas held to be deducible therefrom as a +reliance on the opinions of the highest critical authorities +and of their own wisest friends, coupled with their own +limited knowledge of history and with the canons of +evidence which they had unconsciously adopted, enabled +them to form. Even this, however, has seemed to most +of those who have passed through such an experience +to be better than a despairing surrender to ecclesiastical +authority.</p> + +<p class='c001'>So the optimist aforesaid may argue that the future +for which he hopes will represent, not indeed the +ideal which democracy sets up, yet nevertheless an +advance upon any government the world has yet +seen, except perhaps in very small communities or +for a brief space of time.</p> + +<p class='c001'>The doctrine that the natural instinct and passion of +men was for liberty, because every human being was a +centre of independent force, striving to assert itself; +the doctrine that political freedom would bring mental +independence and a sense of responsibility; that education +<span class='pageno' id='Page_33'>33</span>would teach men, not only to prize their political rights, +but also to use them wisely—this doctrine was first +promulgated by persons of exceptional vigour, exceptional +independence, exceptional hopefulness. These +were the qualities that made such men idealists and +reformers: and they attributed their own merits to the +general body of mankind. It was an admirable ideal. +Let us hold to it as long as we can. The world is still +young.</p> + +<p class='c001'>Having heard the optimist, we must let the pessimist +also state his case. If he is a reasonable pessimist, he +will admit that Obedience may be expected to become +more and more a product of reason rather than of mere +indolence or timidity, because every advance in popular +enlightenment or in the participation of the masses in +government ought, after the first excitement of unchastened +hopes or destructive impulses has passed +away, to engender a stronger feeling of the common +interest in public order, and of the need for subordinating +the demands of a class to the general good. +He will also admit that the progress of social equality +may tend to increase each man’s sense of individual +dignity. But if he is asked to admit further that +governments will become purer and better because +there will come along with that habit of rational +obedience (a habit necessary to enable any government +to be efficient) a stronger interest in self-government, +a more active public spirit, a constant +sense of the duty which each citizen owes to the community +to secure an honest and wise administration, +he will observe that as we have seen that Obedience +rests primarily upon certain instincts and habits woven +<span class='pageno' id='Page_34'>34</span>into the texture of human nature, these instincts and +habits will be permanent factors, not necessarily less +potent in the future than they have been in the past. He +will then ask whether the events of the last seventy years, +during which power has, at least in form and semblance, +passed from the few to the many, encourage the belief +that the spirit of independence, the standard of public +duty, and the sense of responsibility in each individual +for the conduct of government are really advancing.</p> + +<p class='c001'>Are the omens in this quarter of the heavens so +favourable as we are apt to assume?</p> + +<p class='c001'>There is less love for liberty—so our pessimist +pursues—than there used to be, perhaps less value +set upon the right of a man to express unpopular +opinions. There is less sympathy in each country +for the struggles which are maintained for freedom +in other countries. National antagonisms are as +strong as ever they were, and nations seem quite +as willing as in the old days of tyranny to forgo +domestic progress for the sake of strengthening +their militant force against their rivals. There is less +faith in, less regard for, that which used to be called the +principle of nationality. Peoples which have achieved +their own national freedom show no more disposition +than did the tyrants of old time to respect the struggles +of other peoples to maintain theirs. The sympathy +which Germans and Frenchmen used to feel for +the oppressed races of the East has disappeared. +France has ceased to care about the Cretans or the +Poles. England, whose heart went out forty years +ago to all who strove for freedom and independence, +feels no compunction in blotting out two little +<span class='pageno' id='Page_35'>35</span>republics whose citizens have fought with a valour +and constancy never surpassed. The United States +ignore the principles of their Declaration of Independence +when they proceed to subjugate by force the Philippine +Islanders. The modern ideal is no longer liberty, but +military strength and commercial development.</p> + +<p class='c001'>If freedom is less prized, it is perhaps because free +governments have failed to bear the fruit that was +expected from them fifty years ago. The Republic +in France seems, after thirty years, to have made +the country not much happier or more contentedly +tranquil than it was under Louis Napoleon or Louis +Philippe. It maintains, to the eyes of foreign observers, +a precarious life from year to year, now and +then threatened by plots military, political, or ecclesiastical. +A free and united Italy has not realized the +hopes of the great men to whom she owes her unity +and her freedom. The United States have at least +as much corruption in their legislatures, and worse +government in their great cities, with fewer men of +commanding ability in their public life, than before +the Civil War, when it was believed that all evils +would disappear with the extinction of slavery. In +particular, representative government, in which the +hopes of the apostles of progress were centred half a +century ago, has fallen into discredit. In some countries +the representative is more timid, more willing to +be turned into a mere delegate, more at the mercy of a +party organization, than he was formerly. In others the +popular assembly is so much distrusted that men seek +to override it by introducing a so-called plebiscite or +referendum to review its decisions.</p> + +<p class='c001'><span class='pageno' id='Page_36'>36</span>No result was more confidently expected from the +enlightenment of the bulk of the people than the triumph, +a speedy and complete triumph, of sound economic +doctrines, such as those which prescribe the adoption +of Free Trade in commercial legislation and reliance +upon self-help rather than State-help in poor law matters +and generally in social improvements. But the United +Kingdom is the only country in which Free Trade +holds the field, and in the United Kingdom the true +and wholesome principles of poor law administration, +as set forth by Chalmers and by the famous Commissioners +of 1834, have rather lost than gained ground.</p> + +<p class='c001'>The doctrines of <span lang="fr"><i>Laissez-Faire</i></span> and Individualism +have suffered an eclipse. The State interferes more +and more with the power of the individual to do as +he pleases. Its motives are usually excellent, but the +result is to subject his life to a closer and more repressive +supervision. This means more obedience, less +exercise of personal discretion, less of that virtue which +guides the self-determining will to choose the good and +reject the evil. ‘If every action,’ says John Milton, +‘which is good or evil in man at ripe years were to be +under pittance, prescription and compulsion, what were +virtue but a name—what praise could be then due to +well-doing, what gramercy to be sober, just or continent?’</p> + +<p class='c001'>Nor is it only the State (whether through central +or through local authorities) that threatens individual +freedom. Masses of working men surrender themselves +to the control of the few chiefs of their trade +organization, who are hardly the less despotic in fact +because they are elected and because they are nominally +subject to a control which those who have elected them +<span class='pageno' id='Page_37'>37</span>cannot, from the nature of the case, effectively exert<a id='r3'></a><a href='#f3' class='c013'><sup>[3]</sup></a>. +Thus there is, instead of more independence, always +more and more obedience.</p> + +<p class='c001'>To one who believes the principles of Free +Trade and Self-Help to be irrefragably true this +means that the bulk of the people are not, as was +formerly expected, thinking for themselves, perhaps +are not capable of thinking for themselves, while +those persons who are capable fear to contend for +doctrines which happen to be unpopular because opposed +to ignorant or superficial views of what is the +interest of a nation or of the most numerous class in +the nation.</p> + +<p class='c001'>In the enlightenment of the people, which was to +increase their independence of spirit and their zeal for +good government, the chief part was to be played by +the public press. Its influence has increased beyond +the most sanguine anticipations of the last generation of +reformers whether in Great Britain or in Continental +Europe. It employs an enormous amount of literary +talent. Nothing escapes its notice. But in some +countries it has become a powerful agent for black-mailing; +in others it is largely the tool of financial +speculators; in others, again, it degrades politics by vulgarizing +them, or seeks to increase its circulation by +stimulating the passion of the moment. Pecuniary considerations +cannot but affect it, because a newspaper is +<span class='pageno' id='Page_38'>38</span>a commercial concern, whose primary aim is to make +a profit. Almost everywhere it tends to embitter racial +animosities and make more difficult the preservation +of international peace. When it tells each man that +the views it expresses are those of everybody else, +except a few contemptible opponents, it increases the +tendency of each man to fall in with the views of the +mass, and confirms that habit of passive acquiescence +which the progress of enlightenment was once expected +to dispel.</p> + +<p class='c001'>The growth in population of the great industrial +nations, such as Germany, England, and the United +States, may tend to dwarf the sense in each man of his +own significance to the whole body politic, and dispose +him to make less strenuous efforts than he would have +put forth had he thought his own exertions more likely +to tell upon the community. The vaster the people the +more trivial must the individual appear to himself, and +the more readily will he fall in with what the majority +think or determine.</p> + +<p class='c001'>The rise of wages among the poorer classes and the +bettering of material conditions in all classes were +expected to give the bulk of the people more leisure, +and it was assumed that this would induce them to +bestow more attention upon public affairs and so stimulate +them in the discharge of civic duties. Wages have +risen everywhere, notably in England and the United +States, and material conditions have improved. But +new interests have therewith been awakened, and pleasures +formerly unattainable have been brought within +the reach of every class except the very poorest. Whatever +other benefits this change brings, it has not tended +<span class='pageno' id='Page_39'>39</span>to make civic duty more prominent in the mind of the +average man. With some, material enjoyments, with +others physical exercise, or what is called sport (including +the gambling that accompanies many kinds of sport), +with others the more refined pleasures of art or literature, +have come in to occupy the greatest part of such +time and thought as can be spared from daily work; +and public affairs receive no more, perhaps even less, +of their attention than was formerly given.</p> + +<p class='c001'>May it not even be that material comfort and the +surrender of one’s self to enjoyment, whether directed +towards the coarser or towards the worthier pleasures, +tend in softening the character, to relax its tension, or at +least to indispose it to rough work? To a fine taste +things in which taste cannot be indulged become distasteful. +Thus high civilization may end by increasing +the sum of human indolence, at least so far as politics +are concerned, and indolence is, after all, the prime +source of Obedience. Some things no doubt men will +continue to value and (if need be) to defend, because they +will have come to deem them essential. Freedom of +Thought and Speech is probably one of these things, +though the multitude occasionally shows how intolerant +it can be when excited. Civil Equality is another; +the respect for private civil rights, with a tolerably +fair administration of justice for enforcing those rights, +is a third. These have rooted themselves in Germany +and England, for instance, and (with some few +local exceptions) in the United States, as necessaries +to existence. But can the same thing be said of +political freedom, that is, of the right to control, by constitutional +machinery, the government of the State? +<span class='pageno' id='Page_40'>40</span>Is it not possible that the disposition to acquiesce and +submit without the application of compulsive force +may be as strong under these new conditions as it +ever was before? possible that an educated and intelligent +people might, if material comfort and scope for +intellectual development were secured, grow weary +of political contention, and submit to the despotism, +perhaps of a regular monarch, perhaps of a succession +of adventurers, which, tempered in some degree by +public opinion, should secure peace, order and commercial +prosperity? The thing has happened before. +For five centuries the people who had been the most +politically active and who remained the most intelligent +and most civilized in the world made no effort to recover +the political freedom they had lost, having indeed, +within a generation or two, ceased even to think of it.</p> + +<p class='c001'>So far our pessimist. He has obviously omitted, not +only some facts which make against the gloom of his +picture, but also other facts incidental to the phenomena +on which he dwells, which qualify their import or indicate +that they may be merely transient. The most serious +part of the case which he endeavours to make against +the old theory that democratic government fosters the +attachment to freedom, stimulates civic zeal, and intensifies +the independent spirit of the citizen, is the +suggestion that the vast size of modern nations, and the +insignificance of the individual man as compared to the +multitude around him, tend to dwarf his personal sense +of responsibility and to depress his hopes of withstanding +whatever sentiment or opinion may be for the time +predominant. The rule of the majority, if it induces +the belief that the majority must be right, or at any rate +<span class='pageno' id='Page_41'>41</span>that the majority is irresistible<a id='r4'></a><a href='#f4' class='c013'><sup>[4]</sup></a>, brings back the old +dangers of submission. So the familiar tendency to +follow and obey, rather than to think and act for one’s +self, may be even stronger in a democracy than it was +under the monarchies of earlier days.</p> + +<p class='c001'>If, now that both sides have been heard, we are to +attempt to answer the question propounded some pages +back, our answer must be that despite the changes +which have passed upon the modern world, the tendencies +of human nature which make for obedience +have not become, and are not likely to become, less +powerful than they were. That they should disappear +is not to be desired, for they are useful tendencies, +without which society would not hold together. But +they have not been reduced even so far as the reasonable +friends of progress might wish. In the sphere of +religion the compulsion once exercised, not merely +by force, but also by public opinion, has doubtless +in most countries declined. There is also a larger +and freer play of thought and taste in all matters +not appertaining to collective action, that is to say, in +matters involving no collision of wills. But where +this collision arises, as in the spheres of politics and +industry, the disposition of the average man to defer +and fall into line, the tendency of the stronger will +to prevail because it is the stronger, are as great as +ever they were before. Physical force plays a smaller +part than it did in the ruder ages. But Indolence, +Deference, and Sympathy, rather than Reason and +<span class='pageno' id='Page_42'>42</span>the pride of personal independence, have filled the void +which the less frequent appeal to physical force has left.</p> + +<p class='c001'>So far as the question touches England, it may +be that the friends of progress and freedom of the last +generation, the generation of Mazzini and Garrison and +Cobden and Gladstone, assumed too hastily that the +reforming ardour and other civic virtues which had been +evoked by the long battle of Englishmen against +monarchy and oligarchy and class legislation would +remain unabated, after the battle had been won, in days +which see popular self-government an ordinary part of +daily life. When the grosser abuses in administration +have been removed, when everybody’s rights have +been recognized, when new questions, far more intricate +and difficult, but less exciting, have arisen, when it is not +destruction—a thing everybody can clamour for—but +constructive legislation that is needed, public interest +may flag and politics cease to stir emotion as they +formerly did. Just as in Italy the struggle for national +unity and freedom called to the front in the first half +of the nineteenth century a brilliant and lofty group of +men, who have left few successors, so it may be that the +normal attitude of a people towards its public life, and +the normal attraction which public life has for fine +characters and high talents, will fall short of that which +has marked the periods of conflict over great principles. +The standard will not therefore, even should it now +be sinking, rest at a point lower than that at which +average humanity has stood through past ages, though +it will be lower than that to which exceptional needs, +rousing strong emotions and inspiring golden hopes, +had uplifted men during the days of conflict.</p> + +<p class='c001'><span class='pageno' id='Page_43'>43</span>There is, however, a further reply to be made to our +pessimist before we part from him. Even supposing +that the ideals which democratic theory sets up have +not advanced towards realization, that the love of freedom +and justice has declined, and that the tendency to +indifference, to acquiescence in a dominant opinion, or +to unthinking adherence to some organization, is stronger +than was expected some forty years ago, these may be +only transitory phenomena. In a striking passage of +his <cite>Constitutional History of England</cite> (vol. ii. chap. 17), +Bishop Stubbs comments on the moral and political +decline of the men of the fourteenth century from the +level of the thirteenth, but observes that unseen causes +were already at work which after no long interval +restored the tone and spirit of England. It has often +been so in history, though no generation can foretell +how long a period of intellectual or moral depression +will endure.</p> + +<div> + <span class='pageno' id='Page_44'>44</span> + <h3 class='c011'>NOTE TO THE ABOVE ESSAY</h3> +</div> + +<p class='c014'><span class='sc'>On the Application of the Theory of Obedience +to the Fundamental Definitions of Jurisprudence.</span></p> + +<p class='c012'>The school of jurisprudence which follows Bentham +defines a Law as a Command of the State, represents +every law as resting solely upon the physical force of +the State, through the threat of punishment to those +who transgress the law, and finds in the fear of punishment +the sole motive of the obedience rendered by the +citizens.</p> + +<p class='c001'>There are three objections to this doctrine and definition. +The first is that if it is meant, as the generality +of language used by its propounders implies, to apply +to all political communities, it is untrue as matter of +history, because it suggests a false view of the origin +of law, and is inapplicable to the laws of many communities. +There have been peoples among whom +there was a law but no State capable of enforcing +obedience. In all communities there have been laws +which were in fact obeyed, but which were not deemed +by the people to have emanated from the State. +The great bulk of the rules which determine the +relations of individuals or groups to one another have +in most countries, until comparatively recent times, +rested upon Custom—that is to say, upon long-settled +practice which everybody understands and in which +everybody acquiesces. In such countries customs were +<span class='pageno' id='Page_45'>45</span>or are laws, and do not need to be formally enounced +in order to secure their observance by the people. +Custom is simply the result of the disposition to do +again what has been done before. What Habit is to +the individual, Custom is to the community.</p> + +<p class='c001'>The second objection is that, even in mature States +where there exist public authorities regularly exercising +legislative functions, most laws do not belong in their +form or their meaning to the category of commands. +In order to make them seem commands a forced and +unnatural sense must be put upon them, by representing +the State as directly ordering everything to which it is +prepared to give effect. Statute law takes the form of +a command more often than does any other kind of law. +Yet even in English statute law administrative statutes, +which now constitute a large part of that law, are usually +couched in the form, not of an order to a public body +or an official to do such and such a thing, but of an +authorization which makes action legal which might +otherwise have been illegal. This distinction, though +somewhat technical, nevertheless indicates the unsuitability +of the definition. As for that part of the law +of a country which determines the private rights of the +citizens towards one another, as for instance the conditions +attaching to commercial and other contracts, +their interpretation, the liability they create, or, again, +the rights of succession to property, and the modes +of dealing with heirship or bequests—this largest and +most important part of the law does not consist of +commands. The rules of which it consists are declarations +of the doctrines which the Courts have +applied and will apply; or they are, if you like, +<span class='pageno' id='Page_46'>46</span>assurances given by the State that it will, with +physical force at its disposal, take a certain course in +certain events, and thus they become instructions helpful +to the citizens, showing them how they may get the +law, and physical force, on their side in civil disputes. +But they are not, in any natural sense of the word, +Commands. This is obvious enough in English law, +where most of such rules are to be gathered from +the reports of decided cases: but the same thing is +substantially true of those countries which have embodied +in statutory form their rules upon these matters. +The point is not merely one of form or phrase, though +it may at first sight seem to be so. It goes deeper; +it carries one back to the origin of these laws, and +bears upon their inherent nature. In fact the only +branch of law which is properly covered by the definition +I am examining is Penal or Criminal (with certain parts +of administrative) law, for this branch does consist of +express orders or prohibitions accompanied by threats +of punishment. It may be conjectured that the Benthamites +took their notion of law in general from this +particular department of it, or perhaps from the Ten +Commandments in the Book of Exodus, which, though +no doubt good examples of the categorical imperative, +are anything but typical of law in general.</p> + +<p class='c001'>If the Benthamites had been content to distinguish +rules which the State enforces from courses of conduct +which opinion supports, the distinction, though an older +and more obvious one than they supposed, would have its +worth. The definition of a law as that which the State +is prepared to enforce fits a modern State, though not +universally applicable to early communities. But the +<span class='pageno' id='Page_47'>47</span>Benthamite definition goes further, and may be misleading +even as regards modern laws generally.</p> + +<p class='c001'>The third objection to this definition is that it is +not primarily or chiefly Fear which is the source of +Obedience. It is not Physical Force that has created +the State whence (according to this doctrine) laws issue +and by which they are applied. It is not through Force +that kings reign and princes decree justice. According +to the Hebrew Scriptures it is by God that they reign. +According to Homer it is Zeus who has given to the king +the sceptre and the dooms, that therewith he may rule. +Both expressions convey the same truth, that it is by +the natural or providential order of things, and in virtue +of the constitution of man as a social being, that men are +grouped into communities under leaders who judge +among them. The tendency to aggregation, to imitation, +to compliance and submission, is the basis on which the +State is built. It is of course not only true but obvious +that the State must have physical strength at its disposal +in order to make the law obeyed. The capacity +for applying compulsion holds the State together. But +why is it that the State is able to apply force? Because, +in the ordered and normal State, the same influences +which have drawn men together keep them together, +and make them willingly yield to the State the physical +strength, and the money which purchases physical +strength, needful for its purposes. Where a ruler rules +by pure force (apart from the consent of the community), +he is what the Greeks called a Tyrant, or the Italians +in the fourteenth century a Signore, a Usurper reigning +in defiance of law by means of armed men, an Adventurer +who has risen by a revolution, is supported by +<span class='pageno' id='Page_48'>48</span>the soldiery, and will fall when they turn against him. +Such Tyrants are represented in our own day by the +Presidents in some of the Spanish Republics of Central +and South America. Pure Force is really the most +unstable foundation on which either the State or Law +can rest.</p> + +<p class='c001'>Thus the same conclusion to which history leads is +also enjoined on us by a consideration of the psychological +or sociological grounds which induce obedience, +and the Benthamic definition is perceived to be +unsound. These curt and often sweeping definitions +usually are unsound. They are not simple, although +they are summary. They are arbitrary and artificial, +concealing under few words many fallacies. Human +nature and human society are too complex to be thus +dealt with.</p> + +<div class='chapter'> + <span class='pageno' id='Page_49'>49</span> + <h2 id='eX' class='c005'>X <br> <br>THE NATURE OF SOVEREIGNTY</h2> +</div> + +<h3 class='c011'>I. <span class='sc'>Preliminary.</span></h3> + +<p class='c012'>As the borderland between two kingdoms used in +unsettled states of society to be the region where +disorder and confusion most prevailed, and in which +turbulent men found a refuge from justice, so fallacies +and confusions of thought and language have most frequently +survived and longest escaped detection in those +territories where the limits of conterminous sciences +or branches of learning have not been exactly drawn. +The frontier districts, if one may call them so, of Ethics, +of Law, and of Political Science have been thus infested +by a number of vague or ambiguous terms which have +provoked many barren discussions and caused much +needless trouble to students. The words which serve +as technical expressions in adjacent departments of +knowledge are sometimes employed in slightly different +senses in those different departments; and neither in +Ethics nor in Politics has a well-defined terminology +become accepted. It is only of late years, when philosophy +in becoming less creative has become more +critical, that there has been established on the confines +of these three sciences a comparatively vigilant police, +which is competent, at least in the realm of law, to +arrest suspicious phrases and propositions, and subject +them to a rigorous examination.</p> + +<p class='c001'><span class='pageno' id='Page_50'>50</span>No offender of this kind has given more trouble than +the so-called ‘Doctrine of Sovereignty.’ The controversies +which it has provoked have been so numerous +and so tedious that a reader—even the most patient +reader—may feel alarmed at being invited to enter once +again that dusty desert of abstractions through which +successive generations of political philosophers have +thought it necessary to lead their disciples. Let me +therefore hasten to say that my aim is to avoid that +desert altogether, and approach the question from the +concrete side. Instead of attempting to set forth and +analyse the doctrines of the great publicists of the +sixteenth and seventeenth centuries—Bodin, Althaus, +Grotius, Hobbes, and the rest—or the dogmas delivered +by Bentham and Austin, who represent the school +that has had most influence during the last seventy +years in England, I will assume the views of these +and similar writers to be sufficiently known, and +will reserve criticisms upon them till we have seen +whether there may not be found a conception and +definition of the thing more plain, simple, and conformable +to the facts, than could well have been reached +by those who, living in the midst of acute political +controversies, were really occupied in solving problems +which belonged to their own time, and which now, +under changed conditions, seem capable of receiving +an easier solution. If we succeed in finding such a +conception, we may return to inquire why the modern +successors of Hobbes, who had not the same need +for a theory as he had, worried themselves over +what was really a question rather of words than of +substance.</p> + +<p class='c001'><span class='pageno' id='Page_51'>51</span>It is well to begin by distinguishing the senses in +which the word Sovereignty is used. In the ordinary +popular sense it means Supremacy, the right to demand +obedience. Although the idea of actual power is not +absent, the prominent idea is that of some sort of title +to exercise control. An ordinary layman would call +that person (or body of persons) Sovereign in a State +who is obeyed because he is acknowledged to stand at +the top, whose will must be expected to prevail, who +can get his own way, and make others go his, because +such is the practice of the country. Etymologically the +word of course means merely superiority<a id='r5'></a><a href='#f5' class='c013'><sup>[5]</sup></a>, and familiar +usage applies it in monarchies to the monarch, because +he stands first in the State, be his real power great or +small.</p> + +<h3 class='c011'>II. <span class='sc'>Legal Sovereignty</span> (<span lang="la"><i>De Iure</i></span>).</h3> + +<p class='c012'>For the purposes of the lawyer a more definite conception +is required. The sovereign authority is to +him the person (or body) to whose directions the law +attributes legal force, the person in whom resides as of +right the ultimate power either of laying down general +rules or of issuing isolated rules or commands, whose +authority is that of the law itself. It is in this +sense, and in this sense only, that the jurist is concerned +with the question who is sovereign in a given +community. In every normal modern State there +exist many rules purporting to bind the citizen, and +many public officers who are entitled, each in his proper +<span class='pageno' id='Page_52'>52</span>sphere, to do certain acts or issue certain directions. +Who has the right to make the rules? Who has the +right to appoint and assign functions to the officers? +The person or body to whom in the last resort the law +attributes this right is the legally supreme power, or +Sovereign, in the State. There may be intermediate +authorities exercising delegated powers. Legal sovereignty +evidently cannot reside in them; the search for +it must be continued till the highest and ultimate source +of law has been reached.</p> + +<p class='c001'>A householder in a municipality is asked to pay a +paving rate. He inquires why he should pay it, and +is referred to the resolution of the Town Council +imposing it. He then asks what authority the Council +has to levy the rate, and is referred to a section of +the Act of Parliament whence the Council derives its +powers. If he pushes curiosity further, and inquires +what right Parliament has to confer these powers, the +rate collector can only answer that everybody knows +that in England Parliament makes the law, and that by +the law no other authority can override or in any wise +interfere with any expression of the will of Parliament. +Parliament is supreme above all other authorities, or +in other words, Parliament is Sovereign.</p> + +<p class='c001'>The process of discovering the Sovereign is in all +normal modern States essentially the same. In an autocracy +like that of Russia it is generally very short and +simple, since all laws (except customs having legal force) +and executive orders emanate directly or indirectly from +the Czar, and by the law the Czar is the sole legislative +authority. Both these cases are simple and easy, +because we speedily reach one Person, as in Russia, +<span class='pageno' id='Page_53'>53</span>or one Body of Persons, as in Britain, to whom the +law attributes Sovereignty. But there are cases which +present more difficulty, though the principles to be +applied are the same.</p> + +<p class='c001'>In a country governed by a Rigid Constitution which +limits the power of the legislature to certain subjects, +or forbids it to transgress certain fundamental doctrines, +the Sovereignty of the legislature is to that extent restricted. +Within the sphere left open to it, it is supreme, +while matters lying outside its sphere can be dealt with +only by the authority (whether a Person or a Body) +which made and can amend the Constitution. So far as +regards those matters, therefore, ultimate Sovereignty +remains with the authority aforesaid, and we may therefore +say that in such a country legal Sovereignty is +divided between two authorities, one (the Legislature) +in constant, the other only in occasional action.</p> + +<p class='c001'>Another class of cases arises in a Federal State, +where the powers of government are divided between +the Central and the Local Legislatures, each having +a sphere of its own determined by the constitution of +the federation. In such a State the power of making +laws belongs for some purposes to the Central, for +some to the Local Legislatures. Thus in the United +States, while Congress is everywhere the supreme +legislative power for some subjects, the tariff, for +instance, or copyright, or inter-state commerce, the +legislature of each State is within that State supreme +for other subjects, the law of marriage, for instance, or +of sale, or of police administration. Each legislature +therefore (Congress and the State Legislature) has only +a part of the sum total of supreme legislative power; +<span class='pageno' id='Page_54'>54</span>and each is moreover further limited by the fact that the +Constitution of the United States restricts the general +powers of Congress by forbidding it to do certain things, +while the powers of each State Legislature are restricted +not only by the Constitution of the particular State but +by the Constitution of the United States also. These +complications, however, do not affect the general principle. +In every country the legal Sovereign is to be +found in the authority, be it a Person or a Body, whose +expressed will binds others, and whose will is not liable +to be overruled by the expressed will of any one placed +above him or it. The law may, in giving this supremacy, +limit it to certain departments, and may divide +the whole field of legislative or executive command +between two or more authorities. The Sovereignty of +each of these authorities will then be, to the lawyer’s +mind, a partial Sovereignty. But it will none the less +be a true Sovereignty, sufficient for the purposes of +the lawyer. He may sometimes find it troublesome to +determine in any particular instance the range of action +allotted to each of the several Sovereign authorities. +But so also is it sometimes troublesome to decide how +far a confessedly inferior authority has kept within the +limits of the power conferred upon it by the supreme +authority. The question is in both sets of cases a +question of interpreting the law, which defines in the +one case the sphere of power, in the other case the +extent of delegation actually made; and this difficulty +nowise affects the truth that legal Sovereignty is capable +of being divided between co-ordinate authorities, +or of being from time to time interrupted, or rather +<a id='corr54.32'></a><span class='htmlonly'><ins class='correction' title='overriden'>overridden</ins></span><span class='epubonly'><a href='#c_54.32'><ins class='correction' title='overriden'>overridden</ins></a></span>, by the action of a power not regularly at +<span class='pageno' id='Page_55'>55</span>work. It will be understood that I am now dealing with +Legal Sovereignty only, and not at this stage touching +the question of whether, from the point of view of +philosophic theory, Sovereignty is capable of division.</p> + +<p class='c001'>Finally, let it be noted that where Sovereignty is +divided between two or more authorities, one of those +(or possibly even more than one) may have executive functions +only. Where there is but one Sovereign Person or +Body, that Person or Body will evidently have both legislative +and executive powers, <i>i.e.</i> will be entitled to issue +special commands as well as to prescribe general rules. +But a division of Sovereignty may assign legislative +functions to one authority, executive to another. In the +United States, for instance, the President is, by the +Constitution, Sovereign for certain executive purposes +(<i>e.g.</i> the command of the army), and the legislature +cannot deprive him of that Sovereignty. If Congress +were to pass an Act taking the command of the army +from him, that Act would be void. So in England +four centuries ago, although Parliament was already +beginning to be recognized as sovereign for legislative +purposes, the king had, in some departments, an executive +sovereignty which the two Houses of Parliament +did not dispute; and he laid claim in the time of the +first two Stuarts to a sort of concurrent legislative +sovereignty, which it required first a civil war and then +a revolution finally to negative and extinguish.</p> + +<p class='c001'>So also it has been argued that Legal Sovereignty +may be temporary, yet complete while it lasts, as was +that of a Roman dictator. The phenomenon is so rare +that we need not spend time on discussing it; but there +seems to be in principle nothing to prevent absolute +<span class='pageno' id='Page_56'>56</span>legal control from being duly vested in a person or body +of persons for a term which he, or they, cannot extend.</p> + +<p class='c001'>The kind of Sovereignty we have been considering +is created by and concerned with law, and law only. +It has nothing to do with the actual forces that exist in +a State, nor with the question to whom obedience is +in fact rendered by the citizens in the last resort. It +represents merely the theory of the law, which may or +may not coincide with the actual facts of the case, just +as the validity of the demonstration of the fifth proposition +in the first book of Euclid has nothing to do with +the accuracy with which the lines of any actual figure +of that proposition are drawn. The triangle in the figure +which appears in a particular copy of the book may not +have equal sides, nor the angles at the base be equal; +this does not affect the soundness of the proof, which +assumes the correctness of the figure. So law assumes, +and must assume all through, that the machinery required +for its enforcement is working <span lang="la"><i>in vacuo</i></span>, steadily, +equably, and in a manner capable of overcoming resistance. +The actual receiving of obedience is therefore +not (as some have argued) the characteristic mark of a +Sovereign authority, but is a postulate of the law with +regard to each and every of the authorities it recognizes. +Penal laws no doubt contemplate transgression, but they +assume the power of overcoming it. With the fact that +obedience is in any given community rendered imperfectly +or not rendered at all, Law as such has nothing +to do. In other words, the question of where Legal +Supremacy resides is a pure question of Right as +defined by law. The Sovereign who exists as of right +(<span lang="la"><i>de iure</i></span>) has not necessarily anything to do with the +<span class='pageno' id='Page_57'>57</span>Sovereign who prevails in fact (<span lang="la"><i>de facto</i></span>), though, as we +shall see presently, the two conceptions, however distinct +scientifically, exercise a significant influence each +on the other.</p> + +<p class='c001'>Further: the question, Who is Legal Sovereign? +stands quite apart from the questions, Why is he +Sovereign? and, Who made him Sovereign? The +historical facts which have vested power in any given +Sovereign, as well as the moral grounds on which he +is entitled to obedience, lie outside the questions with +which Law is concerned, and belong to history, or to +political philosophy, or to ethics; and nothing but confusion +is caused by intruding them into the purely legal +questions of the determination of the Sovereign and +the definition of his powers. Even the manner in +which, or the determination of the persons by whom, the +Legal Sovereign is chosen is a matter distinct from the +nature and scope of his authority. He is not the less a +Sovereign in the contemplation of law because he reigns +not by his own right but by the choice of others, as an +elective monarch (like the Romano-Germanic emperor) +did, or as an elective assembly does to-day. The +appointing body, even if it can in a stated way and at +a stated time recall its appointment, is not sovereign +over him while his powers last. The fact that the +House of Commons, a part of the Legal Sovereign of +England, is chosen by the people, and that many members +of the House of Lords, another part of the Legal +Sovereign, have been appointed by the Crown, does not +affect the Sovereignty of Parliament, because neither the +people nor the Crown have the right of issuing directions, +legally binding, to the persons they have selected.</p> + +<p class='c001'><span class='pageno' id='Page_58'>58</span>We have already seen that Legal Sovereignty may +be limited or divided. But it is further to be noted +that the totality of possible legal sovereignty may, in +a given State, not be vested either in one sovereign +or in all the sovereign bodies and persons taken together. +In other words, there may be some things +which by the constitution of the State no authority is +competent to do, because those things have been placed +altogether out of the reach of legislation. We have +already remarked that all the American constitutions, +for instance, both State and Federal, forbid the legislature +to interfere with the so-called ‘primordial rights’ +of the citizen. There is thus in the United States no +authority invested with legal power, in time of peace, to +prohibit public meetings not threatening public order, +or to suppress a newspaper. It is true that the people +of each State (or of the Union) retain the power to alter +their Constitution, but until or unless they do alter it +the acting legal Sovereign remains debarred from an +important part of the power of Sovereignty. And we may +imagine a case in which a Constitution has been enacted +with no provision for any legal method of amending it<a id='r6'></a><a href='#f6' class='c013'><sup>[6]</sup></a>. +In fact, a somewhat similar condition of things exists in +all Musulman countries. In Turkey, the Sultan, though +Sovereign, is subject to the Sheriat or Sacred Law, +which he cannot alter; and which no power exists +capable of altering. A good deal may be done in the +way of interpretation; and the desired Fetwa or solemnly +rendered opinion of the Chief Mufti or Sheik-ul-Islam +<span class='pageno' id='Page_59'>59</span>can generally be obtained by adequate extra-legal pressure +on the Sultan’s part. But no Sultan would venture +to extort, and probably no Mufti to render, a fetwa in +the teeth of some sentence of the Koran itself, which, +with the Traditions, is the ultimate source of the Sacred +Law, binding all Muslims always and everywhere.</p> + +<h3 class='c011'>III. <span class='sc'>Practical Sovereignty</span> (<span lang="la"><i>De Facto</i></span>).</h3> + +<p class='c012'>We may now turn back to the more popular +meaning in which the term Sovereignty is used by +others than lawyers<a id='r7'></a><a href='#f7' class='c013'><sup>[7]</sup></a>. Even to the ordinary layman it +generally seems to convey some sort of notion of legal +right, yet it may be, and sometimes has been, used to +denote simply the strongest force in the State, whether +that force has or has not any recognized legal supremacy. +This strongest force may be a king, or an +assembly, or an oligarchic group controlling a king +or an assembly, or an army, or the chief or chiefs +of an army. It may be and ought to be the legal +sovereign, or it may be quite distinct from the legal +sovereign and possess no admitted status in the +Constitution. The expression is perhaps most frequent +in the phrase ‘Sovereign Power,’ which carries with it +the idea of its being, whether legal or not, at any rate +irresistible. We may define this dominant force, whom +we may call the Practical Sovereign, as the person (or +body of persons) who can make his (or their) will +<span class='pageno' id='Page_60'>60</span>prevail whether with the law or against the law. He +(or they) is the <span lang="la"><i>de facto</i></span> ruler, the person to whom +obedience is actually paid.</p> + +<p class='c001'>It is better not to say ‘the person who compels +obedience’ or ‘the person who commands physical +force,’ because it may not be under positive compulsion, +but in virtue of other sources of power than the +command of physical force, that obedience is in fact +rendered. Religious influence or moral influence or +habit may dispose men not only themselves to obey, +but to place their service in making others obey at the +disposal of the person to whom such influence belongs. +A priest or a prophet may be stronger than the king.</p> + +<p class='c001'>The best instances of the Practical or Actual Sovereign +are to be found in communities where legal +sovereignty is in dispute or has disappeared. Cromwell +when he dissolved the Long Parliament, Napoleon +when he overthrew the Directory, the Convention +when it offered the Crown of England to William and +Mary, the Constituent Assembly in France in 1871 +when it made peace with Germany before any regular +republican constitution had been adopted for France, +were actually Sovereign. Even where a Legal Sovereign +exists, there are sometimes particular persons or +groups who stand out as able to control the State. +However, although Thucydides speaks of Pericles as +exercising practical control in Athens, it would be +going too far to apply to him or to any person in his +position such a description as that of <span lang="la"><i>de facto</i></span> sovereign. +In most of the South American republics the Practical +Sovereign is the army, or a general (or combination of +generals) whom the army, whether or no this general +<span class='pageno' id='Page_61'>61</span>be in fact President, will follow. In Egypt, though +the Legal Sovereign is the Khedive—for little regard +need be had to the theoretical suzerainty of the Turk, +which is put in force only when the European Powers +choose to use it for their own purposes—the Practical +Sovereign has for some years past been the British +Government. In Rome, after the revolution which +overthrew the Republic, the Practical Sovereign was +Octavianus Augustus, though the Legal Sovereignty +remained vested in the People, subject to the claim of +the Senate to exercise certain powers. In Syracuse +under Dionysius the Elder, in Florence under Lorenzo +dei Medici, each of those tyrants was Practical Sovereign, +though neither enjoyed legal supremacy. In England +people are accustomed to call the House of Commons +the ‘sovereign power,’ though the law makes the consent +of the other House and that of the Crown just as +necessary to the validity of a statute as is that of the +representatives of the people. In Denmark within +our own time the Practical Sovereign was for some +years the King, because the Constitution, which gives +legal sovereignty to the Legislature and King together, +was for a while virtually in abeyance, there having +been a struggle and deadlock during which the Crown +retained its ministers and raised taxes without the concurrence +of the popular house. One might refer, by way +of illustration, to cases in which some private organization +exerts a power which interferes with that of the +<span lang="la"><i>de iure</i></span> government. Such was the Vehmgericht in +Westphalia in the fifteenth century, such, on a much +smaller scale and in a less effective way, were the Molly +Maguires of Pennsylvania and the Mafia of Sicily. But +<span class='pageno' id='Page_62'>62</span>these cases lie quite outside our definition: as do +those of monarchies in which a strong minister or a +father confessor or even a court favourite has held the +position of Practical Sovereign, that is to say, has been +the person who would and could have his way, wielding +the powers of the State at his sole pleasure through +his influence upon the will of the titular sovereign<a id='r8'></a><a href='#f8' class='c013'><sup>[8]</sup></a>.</p> + +<p class='c001'>The Musulman world furnishes two instances which +deserve a passing word. The Mogul Emperors after +Aurungzebe continued to be sovereigns <span lang="la"><i>de iure</i></span> for +a long time in Northern and Central India, though it +was hard to say, till the East India Company extended +its conquests far inland, who was sovereign <span lang="la"><i>de facto</i></span>. +Since the time of Sultan Selim the First (<span class='fss'>A.D.</span> 1516) the +Turkish Sultans have been (in large measure) Khalifs +<span lang="la"><i>de facto</i></span>. They claim to be Khalifs <span lang="la"><i>de iure</i></span>, but the +better opinion among Muslim sages is that the Khalif +must be, as were the Ommiyads and the Abbasides, +of the tribe of the Khoreish, to which Muhamad +belonged, and in matters of such high sanctity long +possession <span lang="la"><i>de facto</i></span> makes no difference. Possibly +therefore the Shereef of Mecca may be better entitled +to call himself the Khalif <span lang="la"><i>de iure</i></span>, entitled to the +obedience of all the Faithful.</p> + +<p class='c001'>Where the Legal is not also the Practical Sovereign, +it is obviously a far more difficult task to discover the +latter than the former. As respects legal power there +are the fixed rules of law, which in communities that +have reached a certain stage of development indicate +clearly the person (or body) to whom the ultimate right +<span class='pageno' id='Page_63'>63</span>of legislation, or of issuing executive orders, belongs. +But the political philosopher or historian who wishes +to ascertain the actually strongest force in a State lacks +the guidance of such rules as the lawyer possesses. +He has to do with facts which are uncertain, with forces +which are imponderable. In no two countries, moreover, +are the phenomena of Practical Sovereignty quite +the same. Nevertheless it is true that there is in every +State a Strongest Force, a power to which other +powers bow, and of which it may be, more or less +positively, predicted that in case of conflict it will overcome +all resistance. Here, however, we come upon +one of the many difficulties that beset an inquiry into +practical supremacy. Are we to take a condition of +peace, and ask whose will actually prevails while peace +lasts, or are we to suppose a condition of war, and ask +who would prevail if the strife between contending +authorities were to be fought out by physical force? +In the before-mentioned case of Denmark, for instance, +though the Crown practically carried on the government, +it was by no means clear that, if an insurrection +broke out, the Crown would prove to be stronger than +the popular chamber or those who supported it. In +such inquiries the precision with which Legal Sovereignty +can be determined is unattainable, for the +political student finds that the terms suited to the +phenomena of one country are unsuited to those of +another, and that his general propositions regarding +the actually Sovereign Powers must be subject to +so many qualifications that they virtually cease to be +general.</p> + +<p class='c001'>We have, however, found in every political community +<span class='pageno' id='Page_64'>64</span>two kinds of Sovereign, belonging to two +different spheres of thought, the Sovereign <span lang="la"><i>de iure</i></span> and +the Sovereign <span lang="la"><i>de facto</i></span>. Let us see what are the relations +of the two conceptions, or the two concrete +persons, each to the other.</p> + +<h3 class='c011'>IV. <span class='sc'>The Relations of Legal to Practical Sovereignty.</span></h3> + +<p class='c012'>The Sovereign <span lang="la"><i>de iure</i></span> may also be the sovereign <span lang="la"><i>de +facto</i></span>. He ought to be so; that is to say, the plan of +a well-regulated State requires that Legal Right and +Actual Power should be united in the same person or +body. Right ought to have on its side, available for +its enforcement, physical force and the habit of obedience. +Where Sovereignty <span lang="la"><i>de facto</i></span> is disjoined from +Sovereignty <span lang="la"><i>de iure</i></span>, there will not necessarily be a +collision, because the former power may act through +the latter. But there is always a danger that the laws +will be overridden by the Practical Sovereign and +disobeyed by the citizens.</p> + +<p class='c001'>Sovereignty <span lang="la"><i>de iure</i></span> and Sovereignty <span lang="la"><i>de facto</i></span> have +a double tendency to coalesce; and it is this tendency +which has made them so often confounded.</p> + +<p class='c001'>Sovereignty <span lang="la"><i>de facto</i></span>, when it has lasted for a certain +time and shown itself stable, ripens into Sovereignty <span lang="la"><i>de +iure</i></span>. Sometimes it violently and illegally changes the +pre-existing constitution, and creates a new legal system +which, being supported by force, ultimately supersedes +the old system. Sometimes the old constitution becomes +quietly obsolete, and the customs formed under +the new <span lang="la"><i>de facto</i></span> ruler become ultimately valid laws, +<span class='pageno' id='Page_65'>65</span>and make him a <span lang="la"><i>de iure</i></span> ruler. In any case, just as +Possession in all or nearly all modern legal systems +turns itself sooner or later through Prescription into +Ownership—and conversely possession as a fact is +aided by title or reputed title—so <span lang="la"><i>de facto</i></span> power, if +it can maintain itself long enough, will end by being +<span lang="la"><i>de iure</i></span>. Mankind, partly from the instinct of submission, +partly because their moral sense is disquieted by +the notion of power resting simply on force, are prone to +find some reason for treating a <span lang="la"><i>de facto</i></span> ruler as legitimate. +They take any pretext for giving him a <span lang="la"><i>de iure</i></span> title if +they can, for it makes their subjection more agreeable +and may impose some restraint upon him.</p> + +<p class='c001'>Sovereignty <span lang="la"><i>de iure</i></span> in its turn tends to attract to +itself sovereignty <span lang="la"><i>de facto</i></span>, or, in other words, the possession +of legal right tends to make the legal sovereign +actually powerful. Hence a ruler <span lang="la"><i>de facto</i></span> is always +anxious to get some sort of <span lang="la"><i>de iure</i></span> title, and Louis +Napoleon, who had seized power by violence in 1851, +thought himself, and doubtless was, more secure after +he had got two (so-called) plebiscites in his favour in +1852, recognizing him first as President for ten years +and then Emperor. This is not merely because the +Legal Sovereign has presumably a moral claim to +obedience—I say presumably, because he may have +forfeited this claim by tyranny—but also because most +men are governed and all are influenced by Habit, and +therefore tend to go on obeying the person they have +theretofore obeyed. It is moreover easier, in case of +conflict, to know who is <span lang="la"><i>de iure</i></span> sovereign than to foretell +who will prove to be sovereign <span lang="la"><i>de facto</i></span>; and whereas +the <span lang="la"><i>de iure</i></span> sovereign is certain, if victorious, to punish as +<span class='pageno' id='Page_66'>66</span>rebels those who have opposed him, the <span lang="la"><i>de facto</i></span> sovereign, +having been himself a rebel, may possibly be more +indulgent. Under King Henry the Seventh in England +express provision was made by statute for the protection +of persons obeying a <span lang="la"><i>de facto</i></span> king<a id='r9'></a><a href='#f9' class='c013'><sup>[9]</sup></a>. Accordingly, when +strife arises between two persons or bodies of nearly +equal physical resources, each claiming authority, the +person who has the better legal claim will usually have +the better prospect of success, and the ordinary citizen +will be safer in siding with him. This is one of the +reasons why conspiracies and insurrections, even against +the worst <span lang="la"><i>de iure</i></span> sovereigns, so often fail.</p> + +<p class='c001'>Similarly it happens that where sovereignty <span lang="la"><i>de iure</i></span> +is in dispute and uncertain, strife is likely to trouble +the practical sphere in the hands of the claimant who +for the moment holds the government <span lang="la"><i>de facto</i></span>; and +this not merely because some of the people are zealous +to support rights which they think infringed upon, but +also because the sense of stability which supports +a government has been impaired, and the usual check +on a resort to physical force thereby removed.</p> + +<p class='c001'>When a sovereign has been long and quietly established +<span lang="la"><i>de iure</i></span>, the distinction between law and fact is +forgotten, and people assume that whoever has the +legal right will also as a matter of course have the +physical force to support it. This tends to make +the distinction forgotten. Conversely, when <span lang="la"><i>de facto</i></span> +sovereignty is frequently in dispute, as happened in the +Roman Empire during part of the third century <span class='fss'>A.D.</span>, +and happens now in some of the so-called republics +of Central and South America, the <span lang="la"><i>de iure</i></span> sovereign +<span class='pageno' id='Page_67'>67</span>virtually disappears, and nothing but the actual strength +of each <span lang="la"><i>de facto</i></span> sovereign, or pretender to sovereignty, +is regarded. Some of these republics are so much +accustomed to the suspension of <span lang="la"><i>de iure</i></span> government +by <span lang="la"><i>de facto</i></span> disturbance, that they provide that when +a rebellion is over the previously enacted constitution +shall be deemed not to have lost its force<a id='r10'></a><a href='#f10' class='c013'><sup>[10]</sup></a>. It might be +expected that when such a state of things has continued +and become familiar, the conception of a legal +sovereign would itself fade away and be extinguished. +But political necessities and the example of other +countries forbid this in the more civilized communities. +It is so convenient to all parties to maintain the fabric +of ordinary private law with the judicial and executive +machinery required to support that fabric, that even +when the person (or set of persons) who exercises +Practical Sovereignty is frequently changed by revolutions, +the substitution of one head for another is not +deemed to affect the general machinery. Administration +is held to go on <span lang="la"><i>de iure</i></span>, and the new occupant of the +supreme power steps at once into the legal position of +his predecessor. In the Roman Empire of the first four +centuries of our era, the office of Emperor remained +with its recognized functions and powers, though +the holder of the office was frequently changed by +violent means, and seldom possessed what lawyers +would call a good title. The individual man was a pure +<span lang="la"><i>de facto</i></span> sovereign, often with no legal right to the +obedience of the subject, but Caesar Augustus remained +<span class='pageno' id='Page_68'>68</span>unchanged, and probably five-sixths of the population +of the Empire did not know the personal name or the +previous history of him whom they revered as Caesar +Augustus. So the changes in the constitution of +France between January, 1848, and February, 1871, in +which there were three total and absolute ruptures +of legal continuity by revolution, with two interregna +under provisional governments, had little effect on the +laws or the courts or the civil administration of France. +The same thing happened during the dynastic wars of +the fifteenth century in England. Thus even in disorderly +times the idea of rule <span lang="la"><i>de iure</i></span> is not lost +among peoples that have once imbibed it. All through +the English Civil War and Protectorate of the seventeenth +century strenuous efforts were made by the +Long Parliament and by Oliver Cromwell to make +their government appear to be <span lang="la"><i>de iure</i></span>, though the +Restoration Parliament treated it as having been (on the +whole) <span lang="la"><i>de facto</i></span>. In most Central or South American +republics, on the other hand, as among the Italian +republics of the fourteenth century, the interferences +of the <span lang="la"><i>de facto</i></span> sovereign with the course of law and +administration are so numerous that the very notion of +<span lang="la"><i>de iure</i></span> government loses its practical efficacy, and +people simply submit to force, praising the ruler who +least abuses his despotic power.</p> + +<p class='c001'>The action and reaction of power <span lang="la"><i>de iure</i></span> and <span lang="la"><i>de facto</i></span> +upon one another might be illustrated by a diagram—a +sort of political seismographic record—showing +how the disturbance of either disturbs the other, and +how the steadiness of the <span lang="la"><i>de iure</i></span> needle or the frequent +quiverings of the <span lang="la"><i>de facto</i></span> needle indicate the stability or +<span class='pageno' id='Page_69'>69</span>instability of the institutions of a country. One may +express the relations of the two somewhat as follows:—</p> + +<p class='c015'>When Sovereignty <span lang="la"><i>de iure</i></span> attains its maximum of +quiescence, Sovereignty <span lang="la"><i>de facto</i></span> is usually also +steady, and is, so to speak, hidden behind it.</p> + +<p class='c015'>When Sovereignty <span lang="la"><i>de iure</i></span> is uncertain, Sovereignty +<span lang="la"><i>de facto</i></span> tends to be disturbed.</p> + +<p class='c015'>When Sovereignty <span lang="la"><i>de facto</i></span> is stable, Sovereignty +<span lang="la"><i>de iure</i></span>, though it may have been lost for a time, +reappears, and ultimately becomes stable.</p> + +<p class='c015'>When Sovereignty <span lang="la"><i>de facto</i></span> is disturbed, Sovereignty +<span lang="la"><i>de iure</i></span> is threatened.</p> + +<p class='c016'>Or, more shortly, the slighter are the oscillations of +each needle, the more do they tend to come together +in that coincidental quiescence which is an index to the +perfect order, though not otherwise to the excellence, +of a government.</p> + +<p class='c001'>Let us try to sum up the propositions to which the +foregoing inquiry has led us:—</p> + +<p class='c001'>The term Sovereignty is used in two senses, Legal +Supremacy and Practical Mastery.</p> + +<p class='c015'>Legal Sovereignty exists in the sphere of Law: it +belongs to him who can demand obedience as of +Right.</p> + +<p class='c015'>Practical Sovereignty exists in the sphere of Fact: +it is the power which receives and can by the +strong arm enforce obedience.</p> + +<p class='c015'>The Legal Sovereign in any State is ascertained by +determining the Person (or Body) to whom the +law assigns in the last resort the right of issuing +general rules or special orders, or of doing acts +without incurring liability therefor.</p> + +<p class='c015'><span class='pageno' id='Page_70'>70</span>The Practical Sovereign is ascertained by determining +who is the Person (or Body) whose will +in the last resort prevails (or in case of conflict, +will be likely to prevail) against all other wills.</p> + +<p class='c015'>Legal Sovereignty does not depend upon the obedience +actually rendered; for the law assumes +obedience to be always enforceable. Obedience +paid is not a note characterizing the Legal +Sovereign, but a Postulate of his existence. +That the Legal Sovereign does in fact exercise +his rights under the influence of another person +(or body) makes no difference. He is none the +less a Legal Sovereign. A Mikado is Legal Sovereign +though the Shogun may rule in his name. +Thus Legal Sovereignty is Formal, not Material.</p> + +<p class='c015'>Legal Sovereignty is Divisible: <i>i.e.</i> different +branches of it may be concurrently vested in +different Persons (or Bodies), co-ordinate altogether +(Pope and Emperor), or co-ordinate partially +only (President and Congress), though acting +in different spheres.</p> + +<p class='c015'>Practical Sovereignty seems indivisible, for by its +definition it can belong to one Person (or Body) +only, viz. that which is actually the strongest +(though perhaps not known to be the strongest) +in the State. But it may be so far divided that +men obey one ruler in one sphere of action and +another in another sphere. In the fourteenth +century, for instance, all Christians obeyed the +Pope in spiritual matters, their secular government +in temporal, and this whether the latter was +only <span lang="la"><i>de facto</i></span> or also <span lang="la"><i>de iure</i></span>. There might of +<span class='pageno' id='Page_71'>71</span>course be much dispute as to what were spiritual +matters, but no one denied that in matters which +were really spiritual the Church alone should be +obeyed.</p> + +<p class='c015'>Legal Sovereignty may be Limited, <i>i.e.</i> the law of +any given State may not have allotted to any +one Person (or Body), or to all the Persons (or +Bodies) taken together, who enjoys (or enjoy) +supreme legislative (or executive) power, the +right to legislate, or to issue special orders, +on every subject whatever. That is to say, some +subjects may be reserved to the whole People, +or may be declared unsusceptible of being legislated +on at all, even by the whole people. If +there be a reservation to the people of an ultimate +decision on all subjects, as for instance by +way of constant Referendum, the people and +not the legislature may be the true Legal +Sovereign. But a right reserved to the people +of qualified interference, or of altering the +powers of the Legislature from time to time, +does not of itself deprive the legislature of legal +sovereignty.</p> + +<p class='c015'>Practical Sovereignty is, by definition, incapable of +being limited (for Law has nothing to do with it), +though the exercise of it by its possessor may +be restrained by the fear of consequences.</p> + +<p class='c001'>Although Legal and Practical Sovereignty are distinct +conceptions, belonging to different spheres, they +are in so far related that—</p> + +<p class='c015'>Legal Authority is a potent factor in creating Practical +Mastery.</p> + +<p class='c015'><span class='pageno' id='Page_72'>72</span>Practical Mastery usually ripens, after a certain +time, into Legal Authority.</p> + +<p class='c016'>Thus—</p> + +<p class='c015'>In an orderly State, the respect for Legal Sovereignty +keeps questions of Practical Sovereignty +in abeyance.</p> + +<p class='c017'>In a disorderly State, conflicts regarding Practical +Sovereignty weaken and ultimately destroy the +respect for Legal Sovereignty.</p> + +<p class='c016'>To which we may add, with a view to questions to be +discussed presently—</p> + +<p class='c015'>Questions of the Moral Rights conferred and the +Moral Duties imposed by Sovereignty, whether +Legal or Practical, belong to a different province +from that in which the determination of the nature +of either kind of Sovereignty lies. Such questions +are however in so far related to these two that—</p> + +<p class='c017'>Legal Sovereignty carries with it a <span lang="la"><i>prima facie</i></span> +moral claim to the obedience of all citizens;</p> + +<p class='c017'>Practical Sovereignty carries with it no further +moral claim to obedience than such as arises +from the fact that a useless resistance to superior +physical force tends to breaches of the peace and +to suffering which might be spared.</p> + +<p class='c017'>In both cases it may be the duty of the citizen, +where some higher moral interest than that of +avoiding breaches of the peace is involved, to +resist either the Legal or the Practical Sovereign.</p> + +<p class='c001'>Let it be further noted that though one is obliged to +speak of the Practical Sovereign as exerting a limitless +power, and as some of those who have written on Sovereignty +describe the Sovereign as being subject to no +<span class='pageno' id='Page_73'>73</span>restraint whatever, his sole will being absolutely dominant +over all his subjects, there has never really existed +in the world any person, or even any body of persons, +enjoying this utterly uncontrolled power, with no external +force to fear and nothing to regard except the gratification +of mere volition. The most despotic monarch +is bound to respect, and often to bow to, the general +sentiment of his subjects. From some acts even a +Sultan Hakim in Egypt or a Gian Galeazzo Visconti +in Milan recoils, because he feels they might provoke +an insurrection or bring about his own assassination. +A popular majority (although also to some extent limited) +is less sensitive, because individuals, nearly all of them +obscure, have less to fear. In this sense a democracy, +that is to say, the majority in a democracy, may be a +more absolute sovereign than a monarch. But the +majority in a democracy has fewer personal temptations +to abuse power. It is moreover checked by the feeling +that if it does so it may alienate its own more moderate +section. Hence it becomes tyrannical only when it is +swayed by violent passion, or when it is sharply divided +into two sections between whom no moderate party is +left.</p> + +<h3 class='c011'>V. <span class='sc'>Roman and Mediaeval Views of Sovereignty.</span></h3> + +<p class='c012'>Let us now turn to consider the theory of Sovereignty +which, started by Hobbes, reiterated by Jeremy Bentham, +and set forth with dreary prolixity by John +Austin, found much acceptance in England during the +first three quarters of the present century, though it +has latterly lost its former prestige. The modern +form of Hobbes’ doctrine (whose original form will +<span class='pageno' id='Page_74'>74</span>be presently stated and examined) is recommended +by its apparent simplicity and completeness. But we +shall find it to have the defects (1) of confounding two +things essentially distinct, the sphere of law and +the sphere of fact; (2) of ignoring history; and (3) of +being inapplicable to the great majority of actual States, +past or present. It can be brought into conformity +with the facts only by an elaborate process, either of +rejecting a large part of the facts, or else of torturing +and twisting the conception itself. A rule which consists +chiefly of exceptions is not a helpful rule. In +the human sciences, such as sociology, economics, and +politics, just as much as in chemistry or biology, a +theory ought to arise out of the facts and be suggested +by them, not to be imposed upon the facts as the product +of some <span lang="la"><i>a priori</i></span> views. If it needs endless explanations +and qualifications in order to adapt it to the +facts, it stands self-condemned, and darkens instead of +illumining the student’s mind.</p> + +<p class='c001'>Obviously however no such theory would have +emerged or for so long commanded respect but for +causes of considerable weight and permanence. Its +origin therefore, and the sources of its influence, deserve +to be carefully examined by the light which history +supplies. And to explain its origin, one must digress +a little from our proper theme, and go back to the +fountain of modern legal ideas in the Roman law.</p> + +<p class='c001'>The Roman jurists themselves fell into no confusion +between the rights of a legal sovereign and the powers +of the actual or (so-called) ‘political’ sovereign, for they +dealt with legal sovereignty only, and dealt with it, not +as political philosophers, but simply as lawyers. Under +<span class='pageno' id='Page_75'>75</span>the Republic, legislative supremacy belonged to the +people meeting in their <span lang="la"><i>comitia</i></span>, while a certain control +of the executive magistrates, springing from the right +to advise, was practically allowed to the Senate. It +may be argued that the people could have legally +deprived the Senate of its executive powers, and those +who hold this view may if they like hold that the +Senate had not in technical strictness any sort of +sovereignty even in executive matters<a id='r11'></a><a href='#f11' class='c013'><sup>[11]</sup></a>.</p> + +<p class='c001'>For our present purpose the important point is the +period of Justinian, because it was in the form into +which he condensed it that Roman law affected political +speculation after the twelfth century. Now Justinian’s +<cite>Institutes</cite> and <cite>Digest</cite> still talk of the Roman people +as possessing of right supreme legislative authority, +though in point of fact they had not exercised it for more +than five centuries. And in recognizing the Emperor +as the person who actually possesses legislative power, +they deduce his rights from a delegation by the +people of their rights, and perhaps, if we are to take +their words strictly, a delegation not in perpetuity to +the imperial office, but to each individual Emperor +in succession. Like the English of the seventeenth +century, the Romans were determined worshippers +of legality, and sought carefully to obliterate the traces +of revolution, so they continued for a long time to treat +the arrangement by which supreme authority was +vested in a person as the holder of certain magistracies +as a provisional and temporary arrangement<a id='r12'></a><a href='#f12' class='c013'><sup>[12]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_76'>76</span>It need hardly be said that centuries before Justinian’s +day this doctrine of delegation, for a time formally +expressed in the so-called <span lang="la"><i>lex de imperio</i></span> passed at the +accession of each new Emperor, had become a mere +antiquarian curiosity, no more representing the actual +facts than the language of the Anglican liturgy regarding +the Crown represents the actual condition +to-day of the royal prerogative in England. Justinian +and his successors had in the fullest sense of the word +complete, unlimited, and exclusive legal sovereignty; +and the people of old Rome, who are talked of in the +<cite>Digest</cite>, by the lawyers of the second and third centuries, +as the source of the Emperor’s powers, were not in +<span class='fss'>A.D.</span> 533, except in a vague <span lang="la"><i>de iure</i></span> sense, actual subjects +of Justinian, being in fact ruled by the Ostrogothic king +Athalarich (grandson of the great Theodorich). But it is +noteworthy that the lawyers also assigned to the people +as a whole, entirely apart from any political organization +in any assembly, the right of making law by creating +and following a custom, together with that of repealing +a customary law by ceasing to observe it, <i>i.e.</i> by desuetude, +and that they justify the existence of such a right +by comparing it with that which the people exercise by +voting in an assembly. ‘What difference,’ says Julian, +writing under Hadrian, ‘does it make whether the people +declares its will by voting or by its practice and acts, +seeing that the laws themselves bind us only because +they have been approved by the people<a id='r13'></a><a href='#f13' class='c013'><sup>[13]</sup></a>?’</p> + +<p class='c001'>It need hardly be observed that if Tribonian and +the other commissioners employed by Justinian to +<span class='pageno' id='Page_77'>77</span>condense and arrange the old law had, instead of inserting +in their compilation sentences written three +or four centuries before their own time<a id='r14'></a><a href='#f14' class='c013'><sup>[14]</sup></a>, taken it +upon themselves to state the doctrine of legislative +sovereignty as it existed in their own time, they would +not have used the language of the old jurists, language +which even in the time of those jurists represented +theory rather than fact, just as Blackstone’s language +about the right of the Crown to ‘veto’ legislation in +England represents the practice of a period that had +ended sixty years before. But those who in the Middle +Ages studied the texts of the Roman law cared little +and knew less about Roman history, so that the republican +doctrine of popular sovereignty which they +found in the <cite>Digest</cite> may have had far more authority +in their eyes than it had in those of the contemporaries +of Tribonian, to whom it was merely a pretty antiquarian +fiction.</p> + +<p class='c001'>These were the legal notions of Sovereignty with which +the modern world started—the sharply outlined Sovereignty +of an autocratic Emperor, and the shadowy, +suspended, yet in a sense concurrent or at least resumable, +Sovereignty of the People, expressed partly in the +recognition of their right to delegate legislation to the +monarch, partly in their continued exercise of legislation +by Custom.</p> + +<p class='c001'>But there was also another influence, born while the +autocracy of the early Emperors was passing from the +stage of power <span lang="la"><i>de facto</i></span> into that of sovereignty <span lang="la"><i>de iure</i></span>, +<span class='pageno' id='Page_78'>78</span>which told with no less force upon the minds of men +during the Middle Ages, and also in the later days +when a freer philosophy began to attack the problems +of political science. While to the educated classes in +old Rome the Emperor’s legal Sovereignty bore the +guise of a devolution from that of the People, his provincial +subjects, who knew little or nothing of these +legal theories, regarded it as the direct and natural +consequence of Conquest. By the general, probably +the universal, law of antiquity, capture in war made +the captured person a slave <span lang="la"><i>de iure</i></span>. Much more +then does conquest carry the right of legal command. +Conquest is the most direct and emphatic assertion of +<span lang="la"><i>de facto</i></span> supremacy, and as the <span lang="la"><i>de facto</i></span> power of the +Romans covered nearly the whole of the civilized +world, maintained itself without difficulty, and acted on +fixed principles in a regular way, it speedily passed +into Legal Right, a right not unwillingly recognized +by those to whom Roman power meant Roman peace. +This idea is happily expressed by Virgil in the line +applied to Augustus—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line in14'><span lang="la">‘Victorque volentes</span></div> + <div class='line'><span lang="la">Per populos dat iura,’</span></div> + </div> + </div> +</div> + +<p class='c019'>while the suggestion of a divine power encircling the +irresistible conqueror, an idea always familiar to the +East, appears in the words</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'><span lang="la">‘viamque adfectat Olympo,’</span></div> + </div> + </div> +</div> + +<p class='c019'>which complete the passage.</p> + +<p class='c001'>The feeling that the power actually supreme has +received divine sanction by being permitted to prevail, +that it has thereby become rightful, and that it has, +because it is rightful, a claim to obedience, is clearly +<span class='pageno' id='Page_79'>79</span>put in writings which were destined, more than any +others, to rule the minds of men for many centuries +to come.</p> + +<div class='quote'> + +<p class='c001'>‘Let every soul be subject unto the higher powers. For there +is no power but of (= from) God: the powers that be are ordained +of God. Whosoever therefore resisteth the power, resisteth the +ordinance of God: and they that resist shall receive to themselves +damnation (<i>lit.</i> judgement). For rulers are not a terror to good +works, but to the evil. Wilt thou then not be afraid of the power? +do that which is good, and thou shalt have praise of the same; for +he is the minister of God to thee for good. But if thou do that +which is evil, be afraid; for he beareth not the sword in vain: for +he is the minister of God, a revenger to execute wrath upon him +that doeth evil’ (Rom. xiii. 1-5).</p> + +<p class='c001'>‘Submit yourselves to every ordinance of man for the Lord’s +sake; whether it be to the Emperor, as supreme, or unto Governors, +as unto them that are sent by him for the punishment of +evildoers, and for the praise of them that do well. For so is the +will of God, that with well-doing ye may put to silence (<i>lit.</i> bridle) +the ignorance of foolish men’ (1 Pet. ii. 13-15).</p> + +</div> + +<p class='c001'>Here the authority of the Emperor is not only recognized +as being <span lang="la"><i>de iure</i></span> because it exists and is irresistible, +but is deemed, because it exists, to have divine sanction, +and thus a religious claim on the obedience of the +Christian, while at the same time, in the reference to +the fact that the power of the magistrate is exercised, +and is given by God that it be exercised, for good, there +is contained the germ of the doctrine that the Power +may be disobeyed (? resisted) when he acts for evil; +as St. Peter himself is related to have said, ‘We ought +to obey God rather than men’ (Acts v. 29).</p> + +<p class='c001'>These and other similar dicta in the New Testament +are not only evidence of the sentiments of Roman +provincials under the earlier Empire, but are also the +doctrines, delivered under the highest authority, from +which mediaeval thought starts. How they are worked +<span class='pageno' id='Page_80'>80</span>out may be seen by examining the reasonings of +Dante in his <span lang="la"><cite>De Monarchia</cite></span>, or, still better, the political +theories of St. Thomas Aquinas. From the fifth to the +sixteenth century whoever asked what was the source +of legal Sovereignty, and what the moral claim of the +Sovereign to the obedience of subjects, would have been +answered that God had appointed certain powers to +govern the world, and that it would be a sin to resist His +ordinance. From the eleventh century onwards it was +admitted in Western Christendom, though less cordially +in France, Spain, or England than in Italy and Germany, +that there were two Legal Sovereigns, and according +to the view more generally held, each was <span lang="la"><i>de iure</i></span> absolute, +the Pope in spiritual, the Emperor in temporal +matters. Both Pope and Emperor were above all positive +secular Law, but subject to the Law of Nature and the +Law of God, these being virtually the same<a id='r15'></a><a href='#f15' class='c013'><sup>[15]</sup></a>. The +power of the Pope came immediately from God, through +the institution of Peter as chief bishop. The Emperor’s +power, almost equally incontestable, had a double +origin. According to the New Testament, that power +came from God; according to the Roman law, it had +been delegated by the people, the ultimate source +of civil authority. St. Thomas Aquinas recognizes +sovereignty as originally and primarily vested in the +people, hardly less explicitly than does the Declaration +of Independence. These two views were capable of +being combined, and the theory of delegation did +not really reduce the Emperor’s authority, for there +was no actual people capable of recalling the rights +<span class='pageno' id='Page_81'>81</span>delegated<a id='r16'></a><a href='#f16' class='c013'><sup>[16]</sup></a>. But there was also another doctrine, according +to which the Emperor drew his rights from the +Pope, who crowned him, and who as spiritual Sovereign +exercised a higher jurisdiction, being responsible for +the welfare of the Emperor’s soul. After the days of +Pope Gregory the Ninth and the Emperor Frederick +the Second, the doctrine held by nearly all churchmen +of the inferiority of imperial to papal authority damaged +the Emperor’s position. It suffered still more because +after those days the Emperor did not rule <span lang="la"><i>de facto</i></span> +outside Germany, and not always even within it. +Most jurists, however, continued to hold that the +rights of the successor of Augustus still existed +everywhere <span lang="la"><i>de iure</i></span>, though it was admitted that they +consisted only in a sort of over-lordship, which, +always ineffective in practice, became constantly more +evanescent in theory. Controversy continued to rage over +the limits to be drawn between them and the parallel +sovereignty of the successor of Peter; and this controversy +produced in the fourteenth century an anti-ecclesiastical +movement represented in literature by +such men as Marsilius of Padua and the English +Franciscan William Occam. In those writers one finds +the germs of the doctrine, afterwards famous, which +refers the origin of the State to the free consent of +individual men.</p> + +<p class='c001'>In these mediaeval controversies it was assumed +throughout and on all sides that power <span lang="la"><i>de facto</i></span> must +<span class='pageno' id='Page_82'>82</span>follow Sovereignty <span lang="la"><i>de iure</i></span>. But this Sovereignty, +although above positive law, being indeed the source +of such law, was deemed to be held subject to the +Law of Nature, since it is a trust from God. However, +as it became more and more clear that the +Emperor was ceasing to be an effective ruler, the +temporal sovereignty of local kings was fully admitted, +and their rights were based partly on the providence +of God, which had allowed them <span lang="la"><i>de facto</i></span> power, partly +on the feudal relations of lord and vassal, formed by +reciprocal promises of protection on one side, of loyal +support on the other.</p> + +<h3 class='c011'>VI. <span class='sc'>Modern Theories of Sovereignty.</span></h3> + +<p class='c012'>The sixteenth century brought with it four momentous +changes, any one of which would have alone been +sufficient to shake the existing fabric of thought and +belief:—</p> + +<p class='c001'>The Emperor died out as universal Sovereign, and +became thenceforth little more than a German monarch, +with a titular precedence over other princes.</p> + +<p class='c001'>The Pope was gravely wounded by a revolt which +ended by withdrawing half Europe from his sway.</p> + +<p class='c001'>The feudal structure of society began to crumble +away, and therewith the power of the Crown in each +country grew.</p> + +<p class='c001'>A new spirit of inquiry, sceptical in its tendencies +and no longer deferential to authority, sprang up in +Western and Southern Europe.</p> + +<p class='c001'>Thus that traditional doctrine regarding the basis of +authority which had been sufficient for the Middle Ages +faded into dimness. Morals began to be separated from +<span class='pageno' id='Page_83'>83</span>theology, and the outlines of political science to emerge +from feudal law. Men asked what was the basis of +a king’s claim to be obeyed. Did Might give Right? +or did Right give Might? What was Right itself? +Were there any, and if so, what, moral or religious +limitations on the powers of a monarch? and if so, did +his transgression of these limitations justify rebellion +against him? These were not purely speculative +questions, because the wars of religion, which brought +bodies of subjects into collision with monarchs of a +faith opposed to their own, and the Pope into collision +with Protestant monarchs, raised issues of principle that +were momentous, not merely because they troubled conscientious +minds, but also because men felt the need of +guidance and sought for it in some belief which could +stimulate and inspire their action. Kings were everywhere +extending their functions and assuming, more +than ever before, the work of legislators, while at the +same time subjects found that new reasons had arisen +for resisting kings. The old theory which deduced +the rights of kings from the grant of authority divinely +made to Peter and to Caesar was outworn. A new explanation +of the nature of political society was needed; +and from that time onward new theories of State power +began at intervals to appear.</p> + +<p class='c001'>The particular form taken by the problems which +these theories attempted to solve was determined by +the conditions of a time in which the coherence of +nations and states was threatened on the one hand by +religious discord, and on the other by the claims +of local magnates as against the Crown. Hence the +aim of thinkers was to discover something which would +<span class='pageno' id='Page_84'>84</span>secure the unity of the State. They asked, What is it +that holds the State together? Must there not be some +supreme Force to overcome the various forces that in +each State make for division? Where is that Force to +be found? Whence comes its title to rule? In what +persons should it be vested? Can it be, or ought it +to be, checked? These thinkers did not approach +such questions by an induction from the facts of +actual states, as we should do, but were guided partly +by the dogmas of law and theology which the Middle +Ages had bequeathed to them, partly by abstract +theories which their advocacy of kingly authority, or +papal claims, or popular rights, suggested. And this +explains why the Roman Catholic writers, who might +have been expected to maintain the absolute sovereignty +of kings for the purpose of crushing out heresy, +are often found defending the rights of the people, and +arguing for the right to revolt against and depose a +heretical monarch, such as Henry the Eighth, or Elizabeth, +who had fallen away from obedience to that +ecclesiastical authority whose rights came from the grant +to St. Peter.</p> + +<p class='c001'>The first theory, or at least the first which exerted +wide influence, was that of Bodin, a French jurist, +whose book, in its earliest form, was published in 1576. +In his view Sovereignty or <span lang="la"><i>Maiestas</i></span> is the highest +power in a State, which is subject to no laws, but is +itself the maker and master of them. It may reside +either in one person, which is the best and normal +form, or in a number of persons. But in either case +it is above all law, incapable of limitation or division, +and having an absolute claim to the obedience of all its +<span class='pageno' id='Page_85'>85</span>subjects, irrespective of the justice or policy of its acts. +Hence Bodin rejects all so-called limited monarchies +and restricted governments; and while he calls the +Romano-Germanic Empire of his day not a monarchy +but an aristocracy, he finds in the French monarchy a +pure autocracy of the proper type. Nevertheless even +Bodin admits that, in some sort of vague way, the +Sovereign is subject to the Law of God and the Law +of Nature, and conceives that he is therefore bound to +perform any contracts he may make, and to respect the +rights of property and of personal freedom.</p> + +<p class='c001'>The boldest and most logically complete counter +theory to that of Bodin came from a younger contemporary +of his, the Calvinist Iohannes Althusius (John +Althus or Althaus), who was born in 1557, and died +in 1638. Calvin himself, and most theologians of his +school, had returned to the ancient theocratic view that +civil power is derived from God, dwelling especially +on Romans <a id='corr85.19'></a><span class='htmlonly'><ins class='correction' title='xiii?'>viii.</ins></span><span class='epubonly'><a href='#c_85.19'><ins class='correction' title='xiii?'>viii.</ins></a></span> 1. Althusius, however, bases the +government of the State on a contract between the +people and the ruler, and proceeds to assert the rights +of the former, as the ultimate source of all power and +the only true and permanent depositary of sovereignty, +to depose the ruler and resume the delegated power +when he has violated his duties and transgressed the +measure of authority granted to him<a id='r17'></a><a href='#f17' class='c013'><sup>[17]</sup></a>.</p> + +<p class='c001'>Nearly a century later than Bodin a scheme, similar +to his, but more thorough-going was propounded by +Thomas Hobbes of Malmesbury. This scheme, contained +<span class='pageno' id='Page_86'>86</span>in the book entitled <cite>Leviathan</cite> (and in the treatise +<span lang="la"><cite>De Cive</cite></span>), cannot be appreciated without remembering the +time when the book was written, and the circumstances +to which it was addressed. So directly does it contemplate +them that it may almost be called a political +pamphlet—gigantic, but a pamphlet. The Civil War +was raging. The supreme power in England was disputed +between the King and the House of Commons. +Ecclesiastics, both Episcopalian and Presbyterian, had +been prominent in claiming authority for their religious +views, and the nation was splitting up partly on political, +partly on ecclesiastical lines. Hobbes was equally +hostile to all ecclesiastics—to the Anglican theory of +divine right, and to the Presbyterian theory of a covenant +of the people with God. Yet he did not like to +base society upon mere force, because in that he could +find no foundation for justice or moral obligation. +Hence he clung to the notion of a contract. But it +was a new kind of contract, which, not being made +with the Sovereign, and being itself irrevocable, can +give no ground for insurrection. Seeing disunion +and confusion all around him, and men divided by the +pretensions of jarring authorities, Hobbes conceived +that the three things needful were (1) to find a basis for +power which should be permanent and inexpugnable, +(2) to make power one and indivisible, and (3) to make it +absolute and limitless. Perceiving the flaws in the +theory, as old (in a rude form) as the thirteenth century, +which founded government on a compact between +Sovereign and People, he bases his Sovereignty on a +covenant of each member of the community with every +other member to surrender all their several rights and +<span class='pageno' id='Page_87'>87</span>powers into the hands of one Person (or Body), who +thereby becomes Sovereign, but as against whom, seeing +that he is not himself a party to the compact, it cannot +be annulled by those who made it, because they made +it not with him but with one another. His authority +is therefore permanent and unlimited; nor is he, like +Bodin’s Sovereign, bound by any pre-existing institutions. +As the people have, by anticipation, ratified all +his acts, everything that he does, however harsh, is just, +and gives them no ground for complaint. Indeed his +power is justified by the Law of Nature, because the +three fundamental Laws of Nature are (1) that all men +should endeavour to secure peace, (2) that an individual +man should renounce his original rights when the +majority will to do so, (3) that every man should observe +the covenants which have been made by him, including +of course this supreme covenant.</p> + +<p class='c001'>Though Hobbes is chiefly concerned with establishing +his Sovereign <span lang="la"><i>de iure</i></span>, and making his <span lang="la"><i>de iure</i></span> +autocracy complete, he does also conceive him as enjoying +complete <span lang="la"><i>de facto</i></span> power. He could indeed do no +otherwise, for the Sovereign he describes is not an +actual Sovereign. Hobbes does not profess to be +analysing existing States, or explaining existing institutions. +He is presenting an ideal State, and arguing +that mankind (and in particular England) will never be +rid of their present troubles until this Absolute Sovereign +of his has been installed with a <span lang="la"><i>de iure</i></span> title so fully +recognized that <span lang="la"><i>de facto</i></span> power will follow. The Civil +War had raised grave questions in the <span lang="la"><i>de iure</i></span> sphere, +and it was natural to believe that, were those questions +out of the way, Practical Mastery would accompany +<span class='pageno' id='Page_88'>88</span>Legal Sovereignty. Nor was it so strange as some +may fancy to-day, that a philosopher should doubt the +possibility of securing peace and order under a monarch +limited by law, or indeed under any government consisting +of elements so antagonistic as Crown, Lords, +and Commons, were then showing themselves to +be. Hobbes is a thinker of singular clearness and +precision. He is cogent in argument, and adheres to +his main propositions with a consistency greater than +Bodin had shown. He sometimes seems more disputatious +than philosophical. But the reader who would +judge him fairly must bear in mind that he is writing with +a view to the circumstances of his own time, delivering +his blows now at the Solemn League and Covenant, now +at the Levellers, now at the parliamentary legalists<a id='r18'></a><a href='#f18' class='c013'><sup>[18]</sup></a>.</p> + +<p class='c001'>Towards the end of the following century Bentham +revived Hobbes’s doctrine of Sovereignty, taking it over, +however, not so much as either an ideal conception, or +a suggestion pointing a way out of civil war, but rather as +embodying the characteristic features of a normal State. +Bentham was a man of extraordinary ingenuity, fertility, +and boldness, but he was sometimes heedless; he lived +before the days of what we call the historical method, +and he had a hearty contempt, if not for history, yet for +the legal institutions it had produced, which indeed he +thought mostly wrong. Accordingly, neither the absolutistic +proclivities of Hobbes, nor the inapplicability +of the Hobbesian theory to the majority of existing +governments, deterred him from adopting a doctrine +<span class='pageno' id='Page_89'>89</span>which pleased him by its subjection of vague morality +to precise legality, and by its vigorous assertion of the +legal omnipotence of an authority which a reformer of +his drastic type needed for the accomplishment of his +purposes. Bentham therefore had practical reasons for +his adhesion to the scheme of Hobbes, far removed as +he was from Hobbes’s notions of the anarchic State of +Nature and the original covenant. But John Austin, +Bentham’s disciple, had less excuse for the use he made +of Hobbes’s speculations. It has been doubted whether +he understood Hobbes. However this may be, he +would seem to have misconceived the position in which +Hobbes stood, and to have taken the latter’s argument +for an absolute Sovereign as the best way of constituting +authority in a State, as a philosophical analysis of the +nature and essence of authority in a normal State. +Hobbes was the advocate of a scheme intended to cure +actual political evils. Bentham was a practical reformer +of the law, which certainly needed reform. Austin, +however, wrote as a jurist, professing to describe the +normal and typical State. He was therefore bound to +have some regard to facts, and to present a theory of +the State which would have explained and correlated +the facts, putting them in their natural and true connexion. +Instead of this he has given us a theory, which +is so far from being that of the normal modern State, +that it is applicable to only two kinds of States, those +with an omnipotent legislature, of which the United +Kingdom and the late South African Republic are +almost the only examples, and those with an omnipotent +monarch, of which Russia and Montenegro are perhaps +the only instances among civilized countries. In nearly +<span class='pageno' id='Page_90'>90</span>all free countries, except the United Kingdom, legislatures +are now restrained by Rigid constitutions, so +that there is no Sovereign answering the Austinian +definition. In all Muhamadan countries the monarch is +legally, as well as practically, restrained by his inability +to change the Sacred Law; so that, even in those countries +where despotism seems at first sight enthroned, +the definition will not work. Even in the application +of his own theory to the United Kingdom, Austin falls +into an error which betrays its radical unsoundness. +Though he defines a Sovereign as ‘the determinate +superior who receives habitual obedience from the bulk +of a given society’—a definition which belongs to the <span lang="la"><i>de +facto</i></span> sphere and suits a <span lang="la"><i>de facto</i></span> sovereign, but does not +touch the <span lang="la"><i>de iure</i></span> sovereign, who may have no means +of enforcing obedience—still it is plain that his eye is +chiefly fixed on law and legal right, and that he assumes +that to the person who enjoys legal right obedience will +in fact be rendered. A Greek tyrant, such as Agathocles +at Syracuse, received habitual obedience from the bulk +of the Syracusans; but he was clearly not Sovereign +<span lang="la"><i>de iure</i></span><a id='r19'></a><a href='#f19' class='c013'><sup>[19]</sup></a>. But Austin, when he comes to the United +Kingdom, finds his Sovereign not in Parliament, that +is to say, in the Great Council of the Nation consisting +of the Crown, the House of Lords, and the +House of Commons, but in the two former parts of +Parliament, along with—not the House of Commons, +but—the qualified electors of the nation! This view +is opposed not only to law, but also to history, +<span class='pageno' id='Page_91'>91</span>which shows that the Great Council of the Nation has +never been deemed to consist of or include ‘trustees’ +(as Austin calls them) for the Nation, but to be the +Nation itself, assembled for national purposes, its +members being either in their own right or, as representatives, +plenipotentiary, and enjoying, in contemplation +of Law—just as much as did the primitive Folk +Mot from which Parliament has gradually developed—the +plenitude of the nation’s powers. It is moreover +opposed to the facts of the case, because the electors +of the country do not legislate, and have no legal means +of legislating. Their consent is not required to the +validity of the most revolutionary Act of Parliament, +as the consent of a majority of the Swiss electors and +Cantons is required to a change in the Constitution of +the Helvetic Confederation. A statute might conceivably +be passed, of which five-sixths of the electors +notoriously disapproved, and yet it would be just as +good a statute as one against which no voice had been +raised. Parliament may even give itself a competence +which the electors never contemplated, as it did when +it passed the Septennial Act.</p> + +<p class='c001'>Some of those who have admitted that Bentham’s and +Austin’s theory is historically indefensible, have sought +to excuse its faults on the ground that we must test +theories, not by the facts of nascent communities, but +by those which the fully-grown modern State presents. +But it is in truth quite as inapplicable to most of these +modern States as it is to ruder societies. Take, for +instance, the Austro-Hungarian monarchy. Where, on +Austin’s principles, does Sovereignty reside in this dual +State? The ultimate legislative authority, that is to say, +<span class='pageno' id='Page_92'>92</span>the authority which receives commands from no other +authority, but gives them to others, is to be found in the +so-called Delegations, each composed of thirty members +of the Hungarian Parliament, and as many of the +Austrian Reichsrath. But these are themselves chosen +by the two subordinate Parliaments, and must therefore +be subordinate to them, if the British House of Commons +is subordinate to the British Electorate. Moreover, +the Delegations can legislate on a few prescribed +subjects only, all other subjects belonging either to the +two Parliaments respectively, or, in the case of Austria, +to the legislatures of the several provinces (<span lang="de"><i>Kronländer</i></span>) +which make up the Austrian federation, and the Delegations +derive their authority from laws passed by the +Austrian Reichsrath and by the Hungarian Parliament. +Where then does Sovereignty reside? Is it in the +authorities which made the Constitution? The Austrian +half of the Monarchy received its Constitution from +five Statutes passed in 1867, which can be changed only +by a two-thirds majority in both Houses of the Reichsrath; +the Hungarian half from the laws of 1848, which +the Emperor King agreed to bring into force in 1867, +and which apparently the Parliament, with the consent +of the Monarch, can amend. There is evidently no +hope of finding any one Sovereign, in the sense of the +Austinian definition, for this great and powerful State<a id='r20'></a><a href='#f20' class='c013'><sup>[20]</sup></a>. +Or take the United States, whose Constitution has +become a sort of model for many more recent confederations. +<span class='pageno' id='Page_93'>93</span>Austin places Sovereignty in the ultimate +power which can alter the Constitution, viz. the people +(or peoples)—I use both phrases to avoid controversy—of +the States. But in the first place, the people (or +peoples) of the States are not a body habitually acting. +They did not act at all from 1810 till 1867. They have +not acted since 1870. It was because it was impossible +to get them to act that the question of slavery proved +insoluble by constitutional means. Is there not something +unreal and artificial in ascribing Sovereignty to +a body which is almost always in abeyance? Moreover, +the majorities by which the Constitution can legally +be amended are very rarely attainable; and when they +are not attainable, there would therefore seem to be no +Sovereign at all. And as regards one point—the equal +representation of the States in the Senate, even a +three-fourths majority of States can do nothing against +the will of the State or States proposed to be affected, +a further absurd result of the doctrine. One might +pursue the argument by examining the case of other +federations, such as the Germanic Empire, both the old +one and the new one, and show to what strange results +these Austinian principles would lead. But the above +illustrations may suffice to indicate the extreme artificiality +of the doctrine that Sovereignty cannot be +divided, as earlier illustrations have shown the inconveniences +of confounding purely legal supremacy with +actual mastery.</p> + +<p class='c001'>Austin denies that there is any difference between +a government <span lang="la"><i>de iure</i></span> and one <span lang="la"><i>de facto</i></span>, because Sovereignty +<span lang="la"><i>de iure</i></span> must itself issue from the Sovereign +himself, and the same person cannot be both creature +<span class='pageno' id='Page_94'>94</span>and creator. If this means that the British Parliament +and the Czar, being legally omnipotent cannot be legally +controlled, it is an obvious, but infertile remark, and it +conceals the really material fact that both authorities +are obeyed because the long-settled custom or law of +the country has formed the habit of obeying and the +notion that it is a duty to obey. If it means that every +Sovereign <span lang="la"><i>de facto</i></span> is also Sovereign <span lang="la"><i>de iure</i></span>, or the +converse, it is untrue. Hobbes had a reason for +bringing in obedience as the test of the Sovereign. +Bentham and Austin have not this reason, for they +are in the sphere of law, and law is not concerned +with obedience as a fact. The right of a Sovereign +to be obeyed does not to the lawyer rest on Force, +for he assumes that wherever law exists it will make +itself prevail.</p> + +<h3 class='c011'>VII. <span class='sc'>Questions regarding Sovereignty liable to be confounded.</span></h3> + +<p class='c012'>In most of the speculations of the school which traces +its origin to Hobbes, and indeed in some of Hobbes’ +critics also, there would seem to be a confusion of two +or more of six different things, viz.:—</p> + +<p class='c015'>1. The conception and definition of legal supremacy.</p> + +<p class='c015'>2. The conception of practical mastery.</p> + +<p class='c015'>3. The historical question as to the origin of the +notion of Legal Right.</p> + +<p class='c015'>4. The historical question as to the origin of organized +political communities in general, and of the habit +of obedience therein.</p> + +<p class='c015'>5. The moral obligation on the members of a State +<span class='pageno' id='Page_95'>95</span>to render obedience to the authorities within it, +whether those authorities rule by law or by force.</p> + +<p class='c015'>6. The moral obligations which bind the holder of +power, whether <span lang="la"><i>de iure</i></span> or <span lang="la"><i>de facto</i></span>.</p> + +<p class='c001'>In the hands of Bentham, whom Austin follows, the +two last-mentioned confusions, which exercised men’s +minds in the days of Hobbes and Locke, have disappeared. +Bentham has seen, and has stated with +admirable clearness, the line which divides the province +of morality from that of legal obligation.</p> + +<p class='c001'>But he has mixed up the other four, and especially +the first two—for it is rather by implication than by +express words that his writings cover the questions of +the historical origin of Right and of the State—in a way +that has clouded the mind of many a student since his +time, and has in particular produced two capital errors, +that of regarding Law as primarily and normally a command, +which it certainly was not at first and is only +partially now, and that of denying the legal quality of +Customary Law, which has been in all countries the +most fertile, and is still in some practically the only +source of law. This confusion seems to have been +due mainly to two causes. One is the omission of +the followers of Hobbes to pay any regard to the +history of States and Governments, and to perceive +that in many stages of their growth the definitions +which may suit a normal modern State are quite inapplicable. +The other is the attempt to find concise +and summary definitions and descriptions which will +suit all modern States generally, whatever their diversities +from one another, or (to put the same thing in +a different form) the habit of arbitrarily assuming one +<span class='pageno' id='Page_96'>96</span>kind of modern State to be the normal State, even +though the trend of recent tendency may be away from +that type. The remark of Bacon, that men are prone +to assume a greater uniformity in Nature than in fact +exists, and to conceal real distinctions under identical +nomenclature, finds an application in the moral and +political sciences as well as in the sciences we call +physical. This besetting sin of those who frame logical +classifications upon the basis of abstract notions has led +the so-called Analytic School of jurists sometimes to +ignore the most material facts, sometimes to twist +their definitions into a sense far removed from the +natural meaning of the words they use.</p> + +<p class='c001'>The truth seems to be that the difficulties which have +been supposed to surround the subject of Sovereignty +are largely factitious difficulties, and spring from the +attempts made to answer questions essentially different +by the same terms. Had the qualifying terms <span lang="la"><i>de iure</i></span> or +<span lang="la"><i>de facto</i></span> been added every time the word ‘Sovereignty’ +was used, most of these difficulties would have disappeared. +If we take the six questions just stated, and +examine each by itself, there will be nowadays no +great conflict of opinion as to the answer which each +ought to receive.</p> + +<p class='c001'>Questions 1 and 2 have been already dealt with. +When the qualification <span lang="la"><i>de iure</i></span> or <span lang="la"><i>de facto</i></span>, as the case +may be, is in each case added, there need be no more +mystery about either of them.</p> + +<p class='c001'>As regards 3 and 4, <i>i.e.</i> the origin of political power, +whether <span lang="la"><i>de facto</i></span> or <span lang="la"><i>de iure</i></span>, the reply of history is unequivocal. +There never was and never could have +been any social contract in the sense either of Hobbes +<span class='pageno' id='Page_97'>97</span>or of Rousseau or of any of the other philosophers +who have discovered in such a fact the foundation of +organized society. Political communities, as every one +will now admit, grew up of themselves under the influence +of the needs of common defence, of religious +belief, of habit, of the aggregative and imitative instincts +of mankind. Law grew out of custom, and showed +itself first, in most races, in the form of rules for the +settlement of disputes, whether regarding property or +regarding the compensation to be made for murder or +other personal injury. It cannot be said that (as a +general rule) authority based on physical force, the form +in which Sovereignty <span lang="la"><i>de facto</i></span> is commonly supposed +to have begun, preceded authority <span lang="la"><i>de iure</i></span>, for the two +have usually grown up together, custom having in it an +element of fear and an element of moral deference; +and in this growth physical force has played no such +predominant part as the school of Hobbes and Austin +assign to it. Just as in the case of each individual man +the most important, if not the largest part of his knowledge +is that which he acquired in the semi-conscious +years of childhood, so the chief part of the work of +forming political societies was done by tribes and small +city communities before they began to be conscious +that they were forming institutions under which to live: +and the leading conceptions of law and procedure were +definite and potent before the beginnings of that direct +legislation by a Sovereign which is now represented +as the normal action of an organized political body. +Nor is the power of the community as a whole, +apart from its titular Sovereign or its representative +organs, extinct to-day. It survives in the vague but +<span class='pageno' id='Page_98'>98</span>irresistible force of public opinion which controls all +those organs.</p> + +<p class='c001'>When we come to the two last of the above questions +(5 and 6) we find that a sharp distinction between +Legal Sovereignty and Practical Mastery makes it +easier to solve the problems they raise. Obedience to +a ruler who is Sovereign only <span lang="la"><i>de facto</i></span> and not also <span lang="la"><i>de +iure</i></span> is not now deemed a duty, unless the ruler <span lang="la"><i>de iure</i></span> +be powerless, or cannot be ascertained, in which cases +it may be for the general good that the actual holder of +power, even unlawfully obtained, should be supported +as against anarchy or the prospect of civil war. But to +our minds power <span lang="la"><i>de facto</i></span>, apart from legal sanction, +carries no title to respect. When it is abused, the good +citizen not only may but ought to resist it.</p> + +<p class='c001'>With the Sovereign <span lang="la"><i>de iure</i></span> the case is different. He +has a <span lang="la"><i>prima facie</i></span> claim to obedience, which can be rebutted +or disregarded only in one of three events, (<i>a</i>) +if he has lost <span lang="la"><i>de facto</i></span> power, and is therefore unable to +perform a Sovereign’s duties, (<i>b</i>) if he has, in a State +where his powers are limited, himself so gravely transgressed +the constitution or laws as either legally or +morally to forfeit his Sovereignty, (<i>c</i>) if in a State where +his powers are not limited by the Constitution he has +so abused his legal power as to become in fact a Tyrant, +a foe to the objects of peace, security, and justice, for +which government exists. In each of these cases it +would be now generally held that the citizen is absolved +from his allegiance, and that the sacred right of insurrection +which the French of the Revolution and their +friend Jefferson so highly prized must come into play. +In case (<i>b</i>) the proper course would seem to be to resist +<span class='pageno' id='Page_99'>99</span>the <span lang="la"><i>de iure</i></span> Sovereign by constitutional means, so far as +they will go, and only in the last resort by force. If +his transgressions have gone so far as to work forfeiture +of his legal rights, he is of course no longer +Sovereign <span lang="la"><i>de iure</i></span>. In case (<i>c</i>), where no constitutional +remedy exists, the formerly <span lang="la"><i>de iure</i></span> ruler, since he +has made himself a mere Tyrant or ruler against law, +has created a state of war between himself and the +citizens, and opposition to him becomes (as in the case +of the mere <span lang="la"><i>de facto</i></span> tyrant) a duty which is of stronger +or weaker obligation according to the greater or less +enormity of his offences, and the greater or less prospect +of success in such opposition.</p> + +<p class='c001'>As respects the moral restraints by which the Sovereign, +whether <span lang="la"><i>de facto</i></span> or <span lang="la"><i>de iure</i></span>, ought to hold himself +bound, few will now dispute that they are substantially +the same as those which bind an individual man in the +ordinary relations of human life. Each must use his +power in accordance with the general principles of justice +and honour, regarding actual power as a trust from +Divine Providence, and legal power as a trust from +the community also. Only in a single point would it +seem that there may be a difference, though one whose +limits are difficult to fix in practice, between the moral +duty of a Sovereign and that of an individual good +citizen. Both are equally bound to strict justice, strict +good faith, strict avoidance of cruelty, or even unnecessary +harshness. But while the individual ought +often to be not merely just but also generous, since +it is only his own resources which generosity will +impair, it is suggested that the Sovereign has no right +to be generous out of the resources of the community +<span class='pageno' id='Page_100'>100</span>for which he is only a trustee. Similarly, while the good +man may risk his own life to save the lives of others, +the ruler must not risk the life of the community, because +he has not been entrusted with any such power. To +this it has been answered that the Sovereign is entitled +to assume that the community ought to desire and will +desire that its powers should be exercised in the best +and highest spirit for the good of its members and of +the world, and that he may upon this assumption do +everything which a high-minded community would do +were it consulted. The question, though seldom a +practical one, is both interesting and difficult, for even +if the analogy of trusteeship be admitted, there is room +for much controversy as to the application of the +principle in each particular case.</p> + +<p class='c001'>Some few publicists have argued that the Sovereign +Power in a State is entirely discharged from all moral +obligations when it is a question of preserving the +existence of the State itself, and that violence, injustice, +and bad faith then become legitimate expedients. In +reply to such a detestable doctrine, it is enough to +observe (first) that as the Sovereign would be himself +the judge of what does involve the life of the State, +he would be sure to abuse his freedom from moral +ties in cases where the supposed justification did +not really arise, and that thus all confidence of one +nation in the good faith of another would be destroyed, +and (secondly) that the argument must go so far as +to put the claim of a State to preserve its collective +existence higher than that of the individual to preserve +himself from death, for no one will contend +that an individual is justified in killing another man +<span class='pageno' id='Page_101'>101</span>(except of course in self-defence) or bringing a +false charge against him, for the sake of saving his +own life.</p> + +<p class='c001'>This question need not be pursued, because it lies +rather outside the particular subject with which we are +here concerned. But a few words may fitly be said +regarding the bearing of the distinction between that +which exists <span lang="la"><i>de iure</i></span> and that which exists <span lang="la"><i>de facto</i></span> on +the questions that have arisen regarding Sovereignty +in the international sphere.</p> + +<h3 class='c011'>VIII. <span class='sc'>Sovereignty in International Relations.</span></h3> + +<p class='c012'>In that sphere there is no Law, in the strict +modern sense, because no superior authority capable +of adjudicating on disputes and enforcing rules, and +therefore we cannot speak of the Sovereignty of +one State over another State in the same sense in +which a Person or Body within a State may be called +Legally Supreme over the subjects. Nevertheless, +where some legal tie has been created between two +or more States, placing one in a lower position, we +may say that inferiority exists <span lang="la"><i>de iure</i></span>, while if there +is merely an actual and continuing disposition of the +weaker one to comply with the wishes of the stronger, +there is inferiority <span lang="la"><i>de facto</i></span>. Where the laws made by +the legislative authority of one State directly bind the +subjects of another State, the latter State cannot be +called in any sense Sovereign. But between this case +and that of absolute independence there are several +grades of what may be called semi-Sovereignty, or +(perhaps more correctly) imperfect Sovereignty. The +<span class='pageno' id='Page_102'>102</span>dependent State, though not amenable to the laws or +courts of the superior one, may have no right to hold +diplomatic relations with other States, or may, though +entitled to send and receive envoys, have bound itself +by a treaty with the superior State to submit for the +approval of the latter any treaty it may conclude. +Or again, it may have formally accepted the protection +of the superior State, or have undertaken to receive its +executive head from the latter, or to pay tribute to the +latter. In all such cases the tie duly formed between +the superior and inferior State, and notified to other +States, is a fact of high diplomatic moment in determining +the international status of the inferior State. +Other States are bound by international usage to take +note of the fact, and for one of them to attempt to send +an ambassador to, or make a treaty with, an inferior +State which had bound itself to a superior State in the +way above indicated, would constitute a grave breach +of comity—would be treated as what diplomatists call +‘an unfriendly act.’ Although, therefore, there is no +Law, in the strict sense of the word, binding these +inferior States, but only a Contract, still they may +appropriately be said to be <span lang="la"><i>de iure</i></span> dependent, or +imperfectly sovereign. The world is full of them. +There are a great many in India, bound to the British +Crown by engagements which make them more or +less subject to British control. Rumania and Servia +were formerly in this position. There is one left in +South-Eastern Europe, Bulgaria, although the tie binding +it to the Turkish Sultan is wearing very thin<a id='r21'></a><a href='#f21' class='c013'><sup>[21]</sup></a>. +<span class='pageno' id='Page_103'>103</span>Bulgaria is not precluded from sending envoys and +making treaties. There is one in North Africa—Tunis—which +is now, in all but name and legal intendment, +a province of France. Another African case, that of +the late South African Republic, which, though it could +accredit and receive envoys, was liable to have any +treaty made by it (except with its neighbour republic) +disapproved by Great Britain, has given rise to much +controversy. Probably it should not have been called +either an internationally Sovereign State, or a Dependent +State, but rather a State dependent for one particular +purpose and independent for others. The position +of Egypt—which is <span lang="la"><i>de iure</i></span> part of the Ottoman Empire +for some purposes, is also <span lang="la"><i>de iure</i></span> (for certain other +purposes) under the control of six European Powers, +and is <span lang="la"><i>de facto</i></span> under the control of one of those six—is +a very peculiar one. The varieties of relation in which +one State may legally stand to another are indeed +endless, and elude any broad classification.</p> + +<p class='c001'>Quite different from these cases are those in which +a State, though practically dependent on another State, +has contracted no public engagement which affects +her theoretical independence. In such cases, third +parties (<i>i.e.</i> States) are not <span lang="la"><i>prima facie</i></span> bound (by +international usage and comity) to pay any regard +to the fact that the inferior State is <span lang="la"><i>de facto</i></span> dependent. +They may properly treat it as being completely +Sovereign. But just as there are some cases in which +a <span lang="la"><i>de facto</i></span> Sovereign becomes morally entitled to +<span class='pageno' id='Page_104'>104</span>obedience from the citizens of a community, so there +are some extreme cases in which a State, while +technically independent, is notoriously so much <span lang="la"><i>de +facto</i></span> under the protection and control of a stronger +State that it would be improper for third parties to +ignore the actual relation. England (strictly speaking) +has no legal control over Afghanistan or Nepal, and +had none over independent Burma down to 1885, but +Burma was annexed because it toyed with France, and +any negotiations by a third power with Afghanistan or +Nepal would be resented by England. Persia may +possibly sink into a similar position as regards Russia.</p> + +<h3 class='c011'>IX. <span class='sc'>Sovereignty in a Federation.</span></h3> + +<p class='c012'>One peculiar case remains to be mentioned in which +theoretical views of the nature of Sovereignty, and +a certain tendency to confuse the spheres of <span lang="la"><i>de iure</i></span> +and <span lang="la"><i>de facto</i></span>, produce difficulties. It is the case of +communities uniting themselves in a Federation, and +resigning to it a part of their self-government, and +either a part or the whole of their Sovereignty. +There have been several such instances, but it will +be sufficient to examine one.</p> + +<p class='c001'>When the thirteen semi-independent States—semi-independent +because they had parted with some of their +powers by the instrument of confederation of 1776—that +lay along the Atlantic coast of North America adopted +(between 1787 and 1791) the newly drafted Constitution +of the Union, they neither expressly reserved +nor expressly disclaimed the right to withdraw from it +and resume their previous condition. Questions presently +<span class='pageno' id='Page_105'>105</span>arose as to the right of a State to treat as null +any act of the Federal legislature which she deemed +to go beyond the powers conferred upon it by the +Constitution, and ultimately as to her right to withdraw +altogether from the Union. In the discussions of +these points much stress was laid on the sovereignty +which the several States had (so it was urged) originally +possessed, which they had never in terms renounced, +and which the Eleventh Amendment to the Federal +Constitution had, when it declared that no State could +be sued by a private person, virtually admitted.</p> + +<p class='c001'>The earlier statesmen, such as Hamilton and Madison, +held that Sovereignty was by the Constitution divided +between the Nation, acting through Congress and +the President, and the States. This was all the more +natural, because both the National and the State organs +of government were agents of the people, from whom +it was admitted that all powers had come, and in whom, +therefore, ultimate Sovereignty must lie, though whether +in the people as one whole, or in the several peoples +of the several States, was another question. But the +publicists of the next generation, who on each side led +the contest over slavery, refused to acquiesce in any +doctrine of division. Like Bodin, Hobbes, Bentham, +and other Europeans, they proclaimed Sovereignty +indivisible; but while the Northern men found it in +the Nation as a whole, the Southerners, led by Calhoun, +insisted that it remained in the several States, suspended +or temporarily qualified, but capable of resuming its +former proportions in each State whenever that State +should quit the Union.</p> + +<p class='c001'>On these questions, which were treated as questions +<span class='pageno' id='Page_106'>106</span>of pure law, there was immense debate—acute, learned, +passionate, and such debate might have gone on for +ever; for each side had a perfectly arguable case, the +point being one which the Constitution had (perhaps +intentionally) evaded. The term Sovereignty acquired +to the disputants a sort of mystic meaning, and many +forgot that while the respective rights of the nation +and the States were <span lang="la"><i>de iure</i></span> the same in 1860 as +they had been in 1791, a new state of things had +in fact grown up, which the old <span lang="la"><i>de iure</i></span> conception +did not suit. Controversy there would in any case +have been, but the controversy was greatly darkened +by the metaphysical character which the use of the +abstract term Sovereignty imparted to it; and which +helped to conceal the momentous change which the +political conditions of the country had undergone.</p> + +<p class='c001'>The moral of a concrete case like this is the same +as that suggested by a study of the errors of the modern +followers of Hobbes. Hobbes seems to assume that +his Sovereign <span lang="la"><i>de iure</i></span> will be also Sovereign <span lang="la"><i>de facto</i></span>. +Austin cannot admit any one to be a Sovereign who is +not so both <span lang="la"><i>de iure</i></span> and <span lang="la"><i>de facto</i></span>. The lawyers on both +sides in America grew so hot over their legal controversy +as to forget the incompetence of law to +deal with certain classes of questions. They ignored +history, and got too far away from facts. In the sphere +of pure law political facts need not be regarded, for +Law assumes that while it remains law its decisions +will be accepted. But when it is attempted to transfer +the principles and conclusions of law to the sphere of +controversies in which not only vast interests, but also +violent passions are engaged, there is danger that the +<span class='pageno' id='Page_107'>107</span>law may turn out not to have been made for the new +facts and not to be capable of dealing with them, so that +efforts to apply it to them will not carry the full moral +weight which law ought to exert. That each party should +have a plausible legal case makes the risk of conflict +greater, because men think themselves justified in resorting +to force to defend their legal case, whereas if they left +law out of the matter, they might be more willing to consider +their chances of practical success, and therefore +more ready to accept a compromise. What is deemed +a good case <span lang="la"><i>de iure</i></span> has sometimes proved a temptation +to a weak State to resist when it had better have +agreed with its adversary, or a temptation to a strong +State to abuse its strength, whether by resorting to +force when it ought to have accepted arbitration, or +by expending on the annihilation of its opponent an +amount of blood and wealth out of all proportion to the +issues involved.</p> + +<p class='c001'>Knots which the law cannot untie may have to be +cut by the sword. So it happened in the case of the +United States. The Supreme Court tried its hand and +failed. The only legislative authority which could have +been invoked to settle the dispute by constitutional +means was one consisting of a two-thirds majority of +each House and a three-fourths majority of the States +(acting either through Conventions or through their +legislatures), such being the only authority capable +of amending the Constitution. It was practically impossible +to obtain a majority of three-fourths of the +States for an amendment dealing with slavery or with +State sovereignty. The resources of law being exhausted, +the question of Sovereignty was tried <span lang="la"><i>de facto</i></span> +<span class='pageno' id='Page_108'>108</span>by a war which lasted nearly four years, and in which +about a million of men are supposed to have perished.</p> + +<h3 class='c011'>X. <span class='sc'>Conclusion.</span></h3> + +<p class='c012'>Upon a review of the long and, on the whole, unprofitable +controversies that have been waged regarding +the abstract nature of Sovereignty, one is struck by +the fact that with the possible exception of the German +philosophers from Kant to Hegel, these controversies +have been at bottom political rather than philosophical, +each theory having been prompted by the wish to get +a speculative basis for a practical propaganda. It was +so when the Pope and the Emperor were at war in the +days after Gregory the Ninth and Boniface the Eighth. +It was so in the days of Bodin, of Althaus, of Hobbes, +of Locke, of Rousseau, of De Maistre and Haller. +The Romans and the English have contributed less to +these controversies than most other nations, not only +because both have been eminently practical as well as +eminently legal-minded peoples, but because both had +the good fortune to obtain a clear <span lang="la"><i>de iure</i></span> Sovereign, +who was for some centuries in Rome, and has been for +some centuries in England (with short transitional +periods, in both cases, of uncertainty), the undisputed +possessor not only of <span lang="la"><i>de iure</i></span>, but also of <span lang="la"><i>de facto</i></span> power. +Save during a few intervals of conflict, all that we +English have needed to know about Sovereignty is +where the law places it<a id='r22'></a><a href='#f22' class='c013'><sup>[22]</sup></a>. We were beginning to +<span class='pageno' id='Page_109'>109</span>know this as far back as the thirteenth century; and +just at the time when Bodin’s book opens the long +disputations of post-mediaeval theorists, Sir Thomas +Smith set forth the legal supremacy of Parliament +in words to whose clearness and amplitude nothing +can be added to-day<a id='r23'></a><a href='#f23' class='c013'><sup>[23]</sup></a>. In the seventeenth century +a struggle which arose over the respective rights +of the component parts of this composite Sovereign +was settled <span lang="la"><i>de facto</i></span> by a civil war and by a revolution, +which negatived any right of separate legislation claimed +for the Crown and placed the judiciary in a position of +independence. Yet the change then made <span lang="la"><i>de facto</i></span> was +so far from being fully expressed <span lang="la"><i>de iure</i></span> that whoever +should to-day study legal texts only, might conclude that +the Crown and the House of Lords are just as important +members of the composite Sovereign as is the House +of Commons. Since 1689 <span lang="la"><i>de iure</i></span> Sovereignty has +coincided with <span lang="la"><i>de facto</i></span> obedience. The idea that power +<span lang="la"><i>de facto</i></span> naturally goes along with authority <span lang="la"><i>de iure</i></span> +has grown to be almost a part of an Englishman’s mental +constitution, a happy result whereof let us all say—<span lang="la"><i>Esto +perpetua</i></span>. France and Germany have been less fortunate +in their history, and consequently more prolific in their +theories. Yet with the exception of a few belated +defenders of the old doctrine of ‘divine right,’ Frenchmen +<span class='pageno' id='Page_110'>110</span>are now agreed as to the source of all political +power, and the Germans, equally agreed upon this +point, are chiefly occupied in debating where, according +to the Constitution of their Empire, sovereign power is +to be deemed in point of theory to reside.</p> + +<p class='c001'>After long wanderings through many fields of speculation, +as well as many a hard-fought fight, all civilized +nations have come back to the point from which the +Romans started twenty centuries ago. All hold, as did +the Romans, that sovereign power comes in the last +resort from the people, and that whoever exercises it +in a State, exercises it by delegation from the people. +All also hold that in the internal affairs of a State, +power legally sovereign—even if the Constitution +subjects it to no limitation—ought to be exercised +under those moral restraints which are expected +from the enlightened opinion of the best citizens, +and which earlier thinkers recognized under the name +of Natural Law. The sphere in which no Sovereignty +<span lang="la"><i>de iure</i></span> exists, that of international relations, where all +power is <span lang="la"><i>de facto</i></span> only, is also the sphere in which +morality has made least progress, and in which justice +and honour are least regarded.</p> + +<div class='nf-center-c0'> +<div class='nf-center c020'> + <div><span class='sc'>Note.</span></div> + </div> +</div> + +<p class='c012'>The above article was written, now a good many +years ago (though it has been revised subsequently), +when I had not before me some writings on the +subject of Sovereignty, to which a brief reference ought +to be made. First among them comes Sir H. Maine. +Two lectures (in the volume entitled the <i>Early History +<span class='pageno' id='Page_111'>111</span>of Institutions</i>) contain an ingenious criticism of the +system of Bentham and Austin. This criticism would +now command general assent, yet Maine suddenly stops +short of the conclusions one would naturally expect. +He points out so clearly that most of the propositions +of Austin are either unreal or self-evident, that one is +inclined to fancy that the praise he nevertheless bestows +is due more to respect for the destructive work which +he holds Bentham and Austin to have done than to +a belief in the substantial value of their doctrines. +Mr. F. Harrison, in an article published in the <cite>Fortnightly +Review</cite> some time afterwards, has a very interesting +discussion of these two lectures, and of the Austinian +theory, which he also condemns in substance, while +handling it tenderly, and holding it to be serviceable as +bracing to the reader’s mind. Mr. D. G. Ritchie (now +professor at the University of St. Andrew’s), in an +article on ‘The Conception of Sovereignty’ in the +<cite>Annals of the American Academy of Political and Social +Science</cite> for January, 1891, criticizes the Austinian view +more stringently, and makes many acute remarks, with +most of which I find myself in agreement. Mr. Henry +Sidgwick devotes a chapter in his <cite>Science of Politics</cite> +to the topic, and subjects the notion that Sovereign +Power is absolute and irresponsible to a penetrating +and suggestive analysis. Sir F. Pollock discusses the +question in his <cite>Introduction to the Science of Politics</cite>, and +shows very clearly the unsoundness of the Austinian +view. Finally, Mr. C. E. Merriam, junior, in his +<cite>History of the Theory of Sovereignty since Rousseau</cite>, +has presented a full and useful account of the chief +doctrines put forward on the subject, not stating a theory +of his own, but adding pertinent criticisms on the +views which he summarizes.</p> + +<div class='chapter'> + <span class='pageno' id='Page_112'>112</span> + <h2 id='eXI' class='c005'>XI<br> <br> THE LAW OF NATURE</h2> +</div> + +<h3 class='c011'>I. <span class='sc'>The Idea of Nature as a Ruling Force.</span></h3> + +<p class='c012'>It would not be possible, within the compass of +anything less than a substantial volume, either to present +a philosophical analysis of the ideas comprised or implied +in the term Law of Nature, or to set forth and explain +the various senses in which that term has been in fact +employed, and the influence which, in those various +senses, it has exerted as well upon political theory as +upon positive law. What I propose to do here is something +less ambitious and more closely connected with +the study of the Roman law. It is to sketch in outline +the process by which the notion of Nature as the source +of law grew up and passed into philosophy, and from +philosophy into legal thought; to show how the notion +took a comparatively definite shape in the minds of the +Roman jurists; to describe the practical use to which +they put it, and finally to indicate (in the briefest way) +some of the consequences in modern times due to the +prominence which the Romans assigned to it. The +subject has been treated by so many writers, some of +them well known to all students, that much of it may be +passed over as familiar. My chief aim will be to show +that there is far less of a vague and merely abstract +character in the conception than has sometimes been +attributed to it; that it had a pretty definite meaning +<span class='pageno' id='Page_113'>113</span>to the Roman jurists; and that they used it in a +thoroughly practical spirit.</p> + +<p class='c001'>When man, having attained some mastery over nature, +begins to turn his thoughts to an explanation or +classification of the phenomena among which he finds +himself and of which he is a part, two general observations +present themselves to his mind. The first of +these is that beneath all the differences which mark off +from one another the living creatures, both animals and +plants, wherewith the world is filled, there exist certain +noticeable similarities in respect of which they may be +distributed into groups. Individual animals differ from +one another, but all those of a certain kind or species +have certain points in common, which constitute their +character as a kind. So also different kinds have still +many things in common. All sorts of dogs have certain +common characteristics; and though dogs differ from +wolves, dogs and wolves have many points of resemblance. +Now the most general and most remarkable +of these phenomena in which living creatures are alike +to one another are the processes of growth through +which they pass. They are born in a similar way; they +enter on life small and weak; they become larger and +stronger; they gain teeth at certain periods; they shed +their hair or plumage at certain periods; they at last +become weaker and die. So plants spring out of the +earth from seed, shoot up and give off leaves, bloom +into flowers, form seed, wither down again into the +earth and die.</p> + +<p class='c001'>From the habit of noting these phenomena four +conceptions seem to arise. The first is this, that of +the various characteristics of each creature, those which +<span class='pageno' id='Page_114'>114</span>it has in common with other creatures of the same kind +are the most deeply rooted and permanent. The second +is that these characteristics exist from the origin of the +creature, and are its Birth-gift. The third is that one +group of the common characteristics, and the most +important of them all, is the group which includes the +phenomena of growth and decay. And the fourth is +that in these phenomena of growth there is evidence +of some sort of force working upon and through the +creatures, something wholly irrespective of, and nowise +referable to, their volitions, something stronger than +they are, and which determines the course of their +life-processes.</p> + +<p class='c001'>The second observation is that among human beings +there is a similar identity of dominant characteristics +combined with an endless diversity of individuals, a +diversity greater than that between different individuals +of each lower species. In all men, however otherwise +unlike, there may be noted the same general tendencies, +the same appetites, passions, emotions. It is these +passions and emotions that move men’s actions, and +move them upon principles and in ways which are +always essentially the same, despite the contrasts which +one man presents to another, despite the jars and conflicts +in each man which spring from the fact that +passion may urge him in one direction, and interest in +another, while fear may arrest action altogether. Thus +there is formed the conception of a general constitution +of man as man, over and above all the peculiarities +of each individual, a constitution which is not of his +own making, but is given to him in germ at the outset +of his life, and is developed with the expansion of his +<span class='pageno' id='Page_115'>115</span>physical and mental powers. The most notable marks +of this constitution of man as man are therefore its +Origin at his birth, and its unfolding in the process +of his Growth. So here also the phenomena of +Birth and Growth stand out as the notes of that sort +of unity which includes all mankind and makes Man +what he is.</p> + +<p class='c001'>The language in which I am seeking to present +these conceptions, though untechnical, is inevitably +tinged by our modern habits of thought. But we may +well believe that in substance such conceptions were +present to persons of a reflective turn long before a set +of abstract terms in which to express them had been +invented. They had worked themselves into the texture +of educated minds, and had been conveyed in figurative +language by poets before metaphysicians laid hold of +the matter.</p> + +<p class='c001'>When metaphysicians appear, that is to say, when +thought, consciously speculative, begins to attempt systematic +and comprehensive solutions of the problems +of the universe which it has begun to realize as +problems, a new period opens. Looking round upon +the animated (and now also with a clearer eye upon +the inanimate) world, philosophers feel the need of +finding a Cause for the regularity they observe in +the working of physical forces and in the growth of +living creatures upon settled and uniform lines. They +conclude that there must exist a power, either personal—a +Deity or Deities—or impersonal, a sort of immanent +and irresistible force in things themselves, which has +stamped its will or tendency upon the movements +and processes of the material universe. They discover +<span class='pageno' id='Page_116'>116</span>analogies between the action of such a Power in the +inanimate and in the animated world, and between +its action on other animals and its action on man. +Thus they figure it to themselves as governing both +on somewhat similar principles, and aiming at somewhat +similar ends. The name they give it is drawn +from Birth. It is Φύσις, <span lang="la"><i>Natura</i></span>, Nature.</p> + +<p class='c001'>When they apply this method of inquiry or way +of considering phenomena to Man regarded, not as +a mere animal, but as a rational being, they find in him +complex faculties and impulses working towards certain +ends, ends which, despite infinite differences of detail, +are substantially the same for all men. They note +certain characteristics and tendencies which they call +Normal, as being those prescribed by the general +rules of his moral and physical constitution, and they +deem every thing varying therefrom to be either a +morbid aberration, or a fact of quite secondary consequence. +And as in the wider sphere of animated +being, so in that of man taken by himself, they conceive +his constitution as being the result of a Power +which has framed it with an intelligent purpose, so +harmonizing its various activities as to fit them to +attain a main and central end. Just as in the animal +organism all the forces and processes of the body are +so united as best to subserve its development, so in +man regarded as a thinking being all the capacities, +intellectual and emotional, seem to be correlated and +guided by a presiding influence, that of the Rational +Will, in obedience to which all the parts and all the +impulses find their proper line of action. Thus that +central and supreme power which in the material universe +<span class='pageno' id='Page_117'>117</span>has been called Nature comes to be called in +man Reason, and conversely, Nature is conceived of +as necessarily Rational. For as in the universe at +large the general tendency of things and that which +makes their harmony is thought of, not merely as a fact, +but also as a principle or pervading force, not merely +as the sum of the phenomena, but also as a Power ruling +the phenomena, so when a similar canon is applied by +analogy to man, this power is found in Reason. And +the recognition of reason as the harmonizing principle +in man causes Nature, the force which gives to all +things their shape and character, to be conceived of +as an intelligent force moulding phenomena upon +settled lines to definite ends.</p> + +<p class='c001'>Thus the conception of Nature, when it is ready to +be applied to human society, includes two elements. +One is that of Uniformity or Normality—the idea that +the essence and ruling principle in all kinds of objects +and beings and processes resides in that which they +have in common, <i>i.e.</i> in the Type which runs through +them. The other element is that of Force and Control—the +idea that types have been formed and that processes +work under the guidance of an intelligent Power, a +power which in the case of the material universe may +or may not be what is called conscious and personal +(since as to this philosophers differ), but whose +analogue in man is conscious and personal. Thus +Nature and Reason are brought very near: or at any +rate, there is what may be called a rational quality in +Nature.</p> + +<p class='c001'>This view of nature and her processes as characterized +by uniformity of action, and this view of such +<span class='pageno' id='Page_118'>118</span>uniformity as necessarily due to some directing Force, +took shape, at a more advanced stage of thought than +the stage we are now considering, in the much canvassed +expression Laws of Nature<a id='r24'></a><a href='#f24' class='c013'><sup>[24]</sup></a>. This term, used to describe +the uniformity of sequence in the phenomena of the +material universe, opens up a line of reflection with +which I am not here directly concerned. It is due to +an imagined analogy between an ordered community, +whose members obey rules made for them by a +governing authority, and the ordered universe, every +part of whose machinery works with a regularity which +suggests rational direction by an irresistible Force. As +laws are the framework of a State, so the sequences in +the processes of Nature are deemed to be the framework +of the external world. With the (moral) Law +of Nature I am about to discuss these Laws of +Nature—physical or external Nature—have of course +nothing to do. In the latter, Nature, meaning the +aggregate of natural phenomena, is passive, and obeys +laws set to her; whereas the expression ‘Law of +Nature’ represents her as the power which makes and +prescribes laws. The ‘Laws of Nature’ are deemed +to be imposed upon the world of nature by the Power +which rules it, or, as the Greeks would say, they are +laws given to the Kosmos by the Demiurgos; whereas +our (moral) ‘Law of Nature’ is (as will presently appear) +the law which Nature herself (or God ‘the author of +Nature’) sets to mankind, her children. Nevertheless +in the expression ‘Laws of Nature’ (in the physical +<span class='pageno' id='Page_119'>119</span>sense) the word Nature is sometimes used to describe, +not only the passive subject which obeys, but also the +active ruler who commands: and this double usage has +tended to induce confusion. It may be partly responsible +for the phrase ‘a violation of the Laws of Nature,’ +though obviously a Law of Nature cannot be violated. +All that phrase can mean is that men may, ignorantly +or knowingly, act in disregard of a certain sequence of +physical phenomena, receiving the inevitable recompense<a id='r25'></a><a href='#f25' class='c013'><sup>[25]</sup></a>. +By the ancients, the two notions were not confounded, +and indeed the phrase ‘Laws of Nature,’ in the +precise sense it bears to moderns, occurs very rarely +among them, as one may indeed say that the idea in +any such sense as ours was by them but faintly apprehended<a id='r26'></a><a href='#f26' class='c013'><sup>[26]</sup></a>. +But, distinct as these conceptions are, they +have in common the notion that Reason as a Power +presides over and orders all things. And Wordsworth +has in a noble passage boldly identified with the moral +law the Force which directs the majestically uniform +march of the celestial bodies, when he says of Duty—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>‘Thou dost preserve the stars from wrong,</div> + <div class='line'>And the most ancient heavens by Thee are fresh and strong.’</div> + </div> + </div> +</div> + +<p class='c012'><span class='pageno' id='Page_120'>120</span>Now let us turn to the phenomena of political society +and see how the conception works itself out in this +field.</p> + +<h3 class='c011'>II. <span class='sc'>Origin of the Conception of Natural Law.</span></h3> + +<p class='c012'>When the observer applies himself to social phenomena, +he perceives again, as he has perceived in +studying the whole animated creation, two facts equally +patent and equally general—Uniformity and Diversity. +In human customs, civil and religious, in the rules +and maxims and polities of tribes and nations, there +are many things wherein one community differs from +another<a id='r27'></a><a href='#f27' class='c013'><sup>[27]</sup></a>. But there are also many things wherein all +agree. All deem some acts, and speaking generally, +though with many variations, the same kinds of acts, +to be laudable or pernicious, and award praise or +penalties accordingly. All recognize somewhat similar +relations between individuals, or families, or classes, as +indispensable, and try to adjust and regulate these +relations upon similar principles. The forms which +such relations take are no doubt differentiated by the +particular stage, be it higher or lower, of civilization +which various peoples have respectively reached. The +customs of a number of savage tribes, while bearing +some resemblance <span lang="la"><i>inter se</i></span>, bear a slighter resemblance to +those of more advanced nations. Yet even between the +<span class='pageno' id='Page_121'>121</span>savage tribe and the semi-civilized or civilized community +there are marked similarities, and the customs +of the former are perceived often to contain the germ +of what has been fully developed among the latter.</p> + +<p class='c001'>Now the customs and rules wherein tribes or nations +agree are evidently the result of dispositions and +tendencies which belong to man as man. In other +words, they are the expression of what is permanent, +essential, and characteristic of man, so that if a traveller +were to come upon some hitherto undiscovered tribe, +he might expect to find these phenomena present there, +just as in each child as it grows up there appear the +familiar qualities and tendencies which belong to the +whole human species. Hence such phenomena of +usage are deemed to be normal, and therefore Natural, +that is, they are due to the Force which has made the +human species what it is. So here in the sphere of +human customs and institutions we perceive the same +contrast between that which is variable as being due to +circumstance or environment, or what we call chance, +and that which is constant and uniform as being due +to causes present, if not everywhere, yet at any rate +in the enormous majority of cases. And the source of +the constancy is to be found here in the political, no +less than in the ethical and social sphere, in the constitution +of man as a moral and intellectual being. +Nature is therefore, on this view, a ruling power in +social and political phenomena as well as in those of +material growth and of moral development.</p> + +<p class='c001'>The customs and usages of mankind are the early +forms of what come afterwards to be called Laws—seeing +that all law begins in custom—as indeed the +<span class='pageno' id='Page_122'>122</span>Greeks call both by the same name. Accordingly those +who began to philosophize about human society gave +shape to their speculation in theories about Laws.</p> + +<p class='c001'>Now Laws, the rules and binding customs which +men observe and by which society is held together, +fall into two classes. Some are essentially the same, +in all, or at any rate in most communities, however +they may superficially vary in their arrangement or in +the technical terms they employ. They aim at the +same objects, and they pursue those objects by methods +generally similar. Other laws differ in each community. +Perhaps they pursue objects which are peculiar to that +community; perhaps they spring out of some historical +accident; perhaps they are experimental; perhaps they +are due to the caprice of a ruler. Those which prevail +everywhere, or at any rate, generally, appear to issue +out of the mental and moral constitution common to +all men. They are the result of the principles uniting +men as social beings, which Nature, personified as a +guiding power, is deemed to have evolved and prescribed. +Hence they are called Natural. Being the +work of Nature, they are not only wider in their area, +but also of earlier origin than any other rules or +customs. They are essentially anterior in thought as +well as in date to the laws each community makes for +itself, for they belong to the human race as a whole. +Hence they are also deemed to be higher in moral +authority than the laws which are peculiar to particular +communities, for these may be enacted to-day and +repealed to-morrow, and have force only within certain +local limits.</p> + +<p class='c001'>This antithesis of the Customs and Laws which are +<span class='pageno' id='Page_123'>123</span>Natural, Permanent, and Universal to those which are +Artificial, Transitory, and Local, appears in some other +fields as well as in that purely legal one which we are +about to consider. In particular, it takes three forms, +which may be called the Ethical, the Theological, and +the Political.</p> + +<p class='c001'>The ethical appears early, and indeed before there is +any proper science of Ethics. One of the first difficulties +which men advancing in civilization encounter is the +conflict between the Law of moral duty ruling in the +heart and the laws enacted by public authority which +may be inconsistent with that law. This conflict is +the subject of the <i>Antigone</i> of Sophocles. We are all +familiar with the famous lines in which the heroine +replies to the king, who had accused her of breaking +the laws of the city, by declaring that those laws were +not proclaimed by Zeus or by Justice, who dwells with +the deities of the nether world:—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>οὐ γάρ τί μοι Ζεὺς ἦ ὁν κηρύξας τάδε</div> + <div class='line'>οὐδ’ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη.</div> + </div> + </div> +</div> + +<p class='c012'>Antigone goes on to say that these laws of the gods, +unwritten and steadfast, live not for to-day or yesterday, +but for ever, and no one knows whence they spring:—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>οὐ γάρ τι νῦν γε κἀχθές, ἀλλ’ ἀεί ποτε</div> + <div class='line'>ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾿φάνη.</div> + </div> + </div> +</div> + +<p class='c012'>The same poet enforces the same view in a lofty +passage of another drama, where the moral laws are +described as the offspring of the gods, and not of man’s +mortal nature, and which no forgetfulness can ever lap +in slumber<a id='r28'></a><a href='#f28' class='c013'><sup>[28]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_124'>124</span>The idea frequently recurs in later literature, and is +nowhere more impressively stated than in the <span lang="la"><i>Apologia</i></span> +of Socrates, where the sage speaks of himself as being +bound to obey the divine will rather than the authorities +of the State, treating this divine will as being +directly, though internally, revealed to him by ‘a divine +sign,’ and being recognized by his own conscience as +supreme.</p> + +<p class='c001'>The theological view is vaguely present in early times, +as for instance in Homer, where certain duties, such as +that of extending protection and hospitality to suppliants, +are associated with the pleasure and will of Zeus. It is +most familiar to us from St. Paul, who compares and +contrasts the Law of Nature, which prescribes right +action to all men, being instilled into their minds by +God, with the Positive revealed Law which God has +given to one particular people only.</p> + +<p class='c001'>‘When the Gentiles which have not the Law, do by +nature the things contained in the Law, these, having +not the law, are a law unto themselves; which show the +work of the law written in their hearts, their conscience +also bearing witness, and their thoughts the meanwhile +accusing or else excusing one another<a id='r29'></a><a href='#f29' class='c013'><sup>[29]</sup></a>.’</p> + +<p class='c001'>A similar view, <span lang="la"><i>mutatis mutandis</i></span>, is found in not a few +of the Greek philosophers. Heraclitus speaks of one +divine law whence all human laws draw nourishment. +Socrates, as reported by Xenophon, contrasts the laws</p> + +<p class='c001'><span class='pageno' id='Page_125'>125</span>of the city with the unwritten laws which in every +country are respected as substantially the same, and +says that these latter laws were laid down by the Gods +for mankind<a id='r30'></a><a href='#f30' class='c013'><sup>[30]</sup></a>, adding that the fact that their infraction +carries its own penalty with it seems to suggest a divine +source. Similar passages occur in Plato, who contrasts +abstract justice and rightful laws with the actual laws +and customs that prevail in political communities. The +contrast becomes more definite in Aristotle, whose +views are specially important, because they profoundly +influenced the scholastic philosophers of the Middle +Ages. He divides Justice as it appears in the State +into that which is Natural and that which is Legal or +Conventional, the former having everywhere the same +force, while the latter consists of matters which were +originally indifferent and might have been settled in +one way or another, but which have become positively +settled by enactment or custom. Some (he proceeds) +think that there is no such thing as Natural Justice, +because ‘just things’ are not the same everywhere, +whereas physical phenomena are everywhere identical. +This is true: nevertheless, even as the right hand is +naturally stronger than the left, although there are left-handed +men, so there is a real difference between rules +which are and rules which are not natural<a id='r31'></a><a href='#f31' class='c013'><sup>[31]</sup></a>. Similarly, +in a more popular treatise, Aristotle divides law into that +which is Common, being in accordance with Nature +and admitted among all men, and that which is Peculiar +<span class='pageno' id='Page_126'>126</span>(ἴδιος), settled by each community for itself<a id='r32'></a><a href='#f32' class='c013'><sup>[32]</sup></a>. This he +treats as a familiar conception, to which an advocate +pleading a cause may appeal when he finds positive law +against him. He quotes the passage already cited from +Sophocles, and two lines of Empedocles descanting on +Universal Law. So Demosthenes refers to the ‘common +law of all mankind’ which justifies a man in defending +his property by force<a id='r33'></a><a href='#f33' class='c013'><sup>[33]</sup></a>.</p> + +<p class='c001'>The Stoics took up the idea and worked it out with +great fullness and force, especially on its ethical side. +They developed the Aristotelian conception of Nature +as the guiding principle immanent in the universe. +This principle is Reason, <i>i.e.</i> the Divine Reason; and +Natural or Common (= Universal) Law is its expression. +So also in Man, who is a part of universal nature, +Reason is the ruling and guiding element, ordering all +his faculties in such wise that when they are rightfully +developed in action he is obeying his true nature. Thus +the formula ‘to live according to Nature’ becomes the +concise statement of what is at once his duty and his +happiness.</p> + +<p class='c001'>Philosophers were however by no means unanimous +on the subject. The Sceptics and the New Academics +denied altogether that there was such a thing as the +<span class='pageno' id='Page_127'>127</span>‘naturally just (φύσει δίκαιον),’ pointing to the diversities +in the positive law of all States, and also to the disagreements +among speculative thinkers. But the Socratic +or Aristotelian or Stoic view prevailed, having ethical +or religious considerations to recommend it to those +who greatly desired to find an ethical basis for life, and, +if possible, create thereout a religion.</p> + +<p class='c001'>What I have called the Political form of the idea is to +be found in the notion, as old as Epicurus, that there is +a close connexion between the Law of Nature and the +Common Good, a connexion sometimes represented by +saying that Natural Justice prescribes what is useful +for all, sometimes by holding that practical utility is +the test of whether any law is to be deemed to have +the authority of Nature behind it<a id='r34'></a><a href='#f34' class='c013'><sup>[34]</sup></a>. This notion comes +right down through the ancient world to modern times, +and is really implicit in nearly all that has been written +on the subject. No one would have repudiated the +high metaphysical or theological view of the Law of +Nature more vigorously than Bentham, yet there is +an affinity between his method of applying utility as +against positive laws and the methods of several of +the ancient philosophers. And so a German critic is +justified when he talks of Bentham and Austin as the +‘propounders of theories of Natural Law.’ With the +political outcome of the idea, however, we are not at +this moment concerned. It is enough to indicate how +it has found expression in these various fields<a id='r35'></a><a href='#f35' class='c013'><sup>[35]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_128'>128</span>What I have sought to do in this introductory statement +is to show how the notion of Nature as a force +governing social as well as physical phenomena grew +up, and to indicate the wide influence it had attained at +the time when Rome became mistress of the world. +Let us now turn to the Romans, and inquire what they +meant by Natural Law, how the conception shaped +itself in their hands, and to what practical use they +turned it.</p> + +<p class='c001'>The Roman conception has two sources, the one +historical, the other theoretical. I begin with the +historical, which is the earlier in date, and incomparably +the more important<a id='r36'></a><a href='#f36' class='c013'><sup>[36]</sup></a>.</p> + +<h3 class='c011'>III. <span class='sc'>The Roman ‘Law of the Nations.’</span></h3> + +<p class='c012'>Long before the time when the city on the Tiber had +become the undisputed mistress of Italy, Rome began +to be the resort of many strangers who did not possess +even that qualified kind of citizenship (summed up in +the words <span lang="la"><i>connubium</i></span> and <span lang="la"><i>commercium</i></span>) which included +the capacity for forming family ties, and for +entering into business relations according to Roman +<span class='pageno' id='Page_129'>129</span>rules. These strangers or aliens (<span lang="la"><i>peregrini</i></span>) had +originally no civil rights, public or private, but they +nevertheless dealt with Roman citizens, sold to them, +bought from them, lent and borrowed money, entered +into partnership, acted as factors or supercargoes, +made wills, gave or received legacies. Similarly, +some of them contracted marriages with Roman +citizens, and became connected by various family +bonds. It was necessary for the Roman courts to +deal with the relations, and especially of course with +the business relations, which were thus created. Yet +the courts could not apply the rules of pure Roman law +to them, because it was a precondition to the doing +of certain formal acts under that law, to the holding +certain legal relations, and (in some kinds of suits) to +the use of the appropriate forms of procedure, that the +doer or holder should be a full citizen. Accordingly +the Roman courts, when they had to administer justice +between these strangers, or between them and citizens, +were obliged to find certain principles and rules which +could guide their action in the same way as the principles +and rules of the pure Roman law guided them +when dealing with citizens.</p> + +<p class='c001'>The phenomenon of having a different law for +strangers and for citizens is one which at first sight +seems strange to us moderns, because in modern civilized +countries ordinary private law is administered with little +regard to the nationality or allegiance of the persons concerned, +the law of the country being regularly applied, +except where it can be shown that the domicil of a party +to a suit, or the fact that a contract was made with +reference to another law than that of the court exercising +<span class='pageno' id='Page_130'>130</span>jurisdiction, or the situation of the property dealt with, +requires the application of some other (<i>i.e.</i> foreign) +law<a id='r37'></a><a href='#f37' class='c013'><sup>[37]</sup></a>. But in the ancient world foreigners everywhere +stood on a different level from citizens, as regards not +only political, but also private civil rights; the sense +of citizenship being much more intense in small communities, +and there being no such bond of fellowship +as the Christian Church subsequently formed for the +Middle Ages and the modern world<a id='r38'></a><a href='#f38' class='c013'><sup>[38]</sup></a>. Indeed it was the +Roman Empire and the Church taken together which +first created the idea of a law common to all subjects +and (later) to all Christians, a law embodying rights +enforceable in the courts of every civilized country.</p> + +<p class='c001'>How then did the Roman magistrates find the law +which they needed for the above-mentioned purpose? +As they could not apply their own law, so neither could +they select the law of any one of the States which +surrounded Rome, because the persons between whom +justice had to be done came from a great number of +States and tribes, each of which had a law of its own. +Being unable therefore to borrow, they were forced to +create. They would appear to have created—I say +‘appear,’ because our knowledge of the matter is far +from complete—by taking those general principles of +justice, fair dealing, and common sense, which they +<span class='pageno' id='Page_131'>131</span>found recognized by other peoples as well as their +own, and by giving effect to those mercantile and other +similar usages which they found prevailing among the +strangers resident at Rome. Thus by degrees they +built up a body of rules and a system of legal procedure +which, while it resembled their own system in +many of its general features, was less technical and +more consonant to the practical convenience and +general understanding of mankind. They called it the +Law of the Nations or of Mankind (<span lang="la"><i>ius gentium</i></span>)<a id='r39'></a><a href='#f39' class='c013'><sup>[39]</sup></a>, not +in the sense of law valid as between nations (what we +should call International Law<a id='r40'></a><a href='#f40' class='c013'><sup>[40]</sup></a>), but as being the common +or general law, just as the expression <span lang="la"><i>nusquam gentium</i></span> +means ‘nowhere at all<a id='r41'></a><a href='#f41' class='c013'><sup>[41]</sup></a>.’ It is the law which nations +in general used and could comprehend. Each of these +nations, or communities—Tuscans, Umbrians, Greek +cities of Southern Italy, Carthaginians, and so forth—had +a law of its own, with certain peculiarities which +no other people could be expected to know or perhaps +to relish. But the principles of good faith and equity +<span class='pageno' id='Page_132'>132</span>underlay, and were recognized in, the laws of all, so +that this Law of the Nations represented the common +element which all shared, and by which all might be +content to be judged. Thus it comes near to what the +Greeks had called the ‘common law of mankind.’ Yet +it is not to be identified with that law, for it is conceived +of as something concrete, resting entirely on the fact +that men observe it, and possibly not always in accordance +with abstract justice.</p> + +<p class='c001'>We need not here examine the question, which indeed +our data do not enable us to answer, by what practical +methods or processes the Roman Courts proceeded to +frame this Law of the Nations; whether, and if so how +far, they actually did inquire into the customs and rules +of the peoples with whom they came most in contact; +or whether they were content to proceed upon the +general principles of justice and utility; or whether +they followed in the main their own law, stripping off +its technicalities while preserving its substance. All +three methods might be more or less used. But probably +they were chiefly influenced by the customs which +they found actually recognized by traders from various +nationalities resident at Rome. Before the Courts +stepped in to administer justice among the strangers, +commercial practice had doubtless created a body of +customs which were in fact observed, though no express +and binding sanction had yet been given to them. One +may illustrate this by recalling the fact that much of +our own mercantile law is based upon the customs of +merchants which English Courts, seeing them recognized +by honest traders as actually binding, and seeing +that contracts were made with regard to them, and that +<span class='pageno' id='Page_133'>133</span>they were in fact understood as being conditions implied +in such contracts, proceeded to enforce, treating them +as being really part of the contract. This process of +turning custom into law went on actively so late as the +time of Lord Mansfield, of whom it has been said that +he and the juries at the Guildhall in the City of London +created no small part of English commercial law. So +the English officials, when they began to administer +justice among traders in India, found a number of +customs actually observed, and built up a body of law +out of these rules, <em>plus</em> their own notions of what was +fair and just, together with such recollections as they +had of the principles of English law<a id='r42'></a><a href='#f42' class='c013'><sup>[42]</sup></a>.</p> + +<p class='c001'>What is certain is that the Romans did not formally +enact any parts of this new Law of the Nations. It +was built up solely by the practice of the courts and +the action of the jurists; and it took definite shape only +in the edicts of the Praetors and Aediles<a id='r43'></a><a href='#f43' class='c013'><sup>[43]</sup></a>. By the +end of the Republic it had grown to considerable +dimensions, and long before that date had begun to +exercise a potent influence upon the development of +the law which belonged to citizens only, and which +was therefore called <span lang="la"><i>ius civile</i></span>. Such dicta of the professional +jurists regarding <span lang="la"><i>ius gentium</i></span> as we possess +belong to a later time, and the earliest authority who +mentions it is Cicero. He says that ‘our ancestors +distinguished the law of citizens from the law of the +<span class='pageno' id='Page_134'>134</span>nations, that which is proper to citizens not being +therewith part of the law of the nations, whereas that +which belongs to the law of the nations ought to +belong to the law of citizens also<a id='r44'></a><a href='#f44' class='c013'><sup>[44]</sup></a>’; and in several +other passages he contrasts the two kinds of law, +observing in one place that the <span lang="la"><i>ius gentium</i></span>, like part of +the <span lang="la"><i>ius civile</i></span>, is unwritten, <i>i.e.</i> not included in statutory +enactments<a id='r45'></a><a href='#f45' class='c013'><sup>[45]</sup></a>. He talks of it as a body of positive law +resting on custom and agreement, but unfortunately +does not tell us how that particular part of it which the +Roman Courts administered had been formed. We +may, however, safely conclude that the procedure of +the magistrates in granting actions and allowing defences +in certain cases had been the chief agency whereby it +received a definite form, and that the materials were (as +already observed) chiefly furnished by the habits of +dealing which had arisen among the strangers resident +at Rome in their intercourse with Romans and with one +another, in their bargains and transfers of property, in +the forms and conditions relating to loan and pledge +and selling and hiring, such conditions being usually +embodied in documents to which a specific legal effect +would be attached. Broadly speaking, the basis or +source of the underlying principles of <span lang="la"><i>ius gentium</i></span> +would as respects commercial matters be found in +good faith and common sense, and as respects family +matters and inheritance in natural affection.</p> + +<p class='c001'>This sketch, slight as it is, may suffice to indicate how +the Romans were brought to deal in a concrete and +<span class='pageno' id='Page_135'>135</span>practical way with the phenomenon we were considering +on its abstract side, viz. the distinction between +customs and laws which are substantially common to +all (more or less civilized) communities, and those +which are peculiar to one or a few only. That which +struck a Greek thinker who reflected on the state of +the Mediterranean world in the fifth or fourth century +<span class='fss'>B.C.</span>, viz. virtual uniformity in some customs and laws, +endless diversity in others, struck every Roman magistrate +who had to preside in urban or provincial courts +during the third and second centuries <span class='fss'>B.C.</span> The Greek +formed a philosophic theory: the Roman, being a ruler, +was forced to construct a working system. But the +Greek had little occasion to apply his theory; and +the Roman did not think of basing his system on +any theory at all. His <span lang="la"><i>ius gentium</i></span> grew up and spread +out and bore fruit, and was already influencing both +the old law of Rome herself and the administration of +Roman courts in the provinces before (so far as we +know) anybody had thought of connecting the Law of +Nature with the Law of the Nations.</p> + +<h3 class='c011'>IV. <span class='sc'>Connexion of the Law of Nature with the Law of the Nations.</span></h3> + +<p class='c012'>This connexion belongs to the last days of the Roman +Republic, and was probably due to that increased +interest in philosophy and ethics which owed so much +to the literary activity of Cicero, who was not only +a statesman and an orator, but an ardent student of +philosophy and a voluminous writer on philosophical, +especially ethical, topics. It is the fashion now to +depreciate Marcus Tullius. He was probably also +<span class='pageno' id='Page_136'>136</span>depreciated in his own time. The learned black-letter +lawyers, who had been his fellow pupils under Q. +Mucius the Augur, doubtless said of him, as Sugden +is reported to have said of Lord Chancellor Brougham, +that if only he knew a little about law he would know +something about everything. And the Greek philosophers +with whom he loved to discourse probably +hinted to one another, when their eloquent patron was +not by, that, after all, no Roman would ever be a thinker. +We can admit a measure of truth in both criticisms. But +Wisdom is justified of all her children, and Cicero has +outlived both the lawyers and the philosophers of his +own time. His eager and capacious intellect, playing +round political and legal, as well as metaphysical and +moral inquiries, and using a brilliant style to popularize +and render attractive all that he touched, gave a currency +to the ideas of Greek speculators which made them tell +more widely than ever before upon the Roman mind, +and all the more so when, in the generation that succeeded +his own, the career of political distinction through +forensic and senatorial and platform oratory began to be +closed by the growth of an absolute monarchy. Indeed +Cicero’s own philosophical treatises were due to that retirement +from active political life which the ascendency +of Julius Caesar caused; and his composition of them was +prompted (as he tells us) by a wish to stimulate the +flagging public spirit of his younger contemporaries.</p> + +<p class='c001'>Now the theory of the Law of Nature, suggested by +Heraclitus and Socrates, preached more actively by +Zeno and Chrysippus, had been much discussed and +widely diffused during the centuries between Aristotle +and Cicero. Its acceptance and influence were aided +<span class='pageno' id='Page_137'>137</span>by the changes which had been going on in the +world, the Hellenization of Asia, the admixture of +religions and mythologies, and that more easy and +frequent intercourse between the Western and Eastern +Mediterranean countries which enabled the peoples to +know more of one another. The doctrine, though not +confined to the Stoics, received among them special +prominence, and became a corner-stone of their ethical +teaching. Moral duty was by them practically deduced +from, or identified with, the Law of Nature. Cicero, +though he would not have described himself as a Stoic, +substantially adopts their language on this point, and lays +great stress on Nature as the source of the highest law +and morality, invoking the doctrine in his speeches as +well as expounding it in treatises<a id='r46'></a><a href='#f46' class='c013'><sup>[46]</sup></a>. With him the Law of +Nature springs from God, is inborn in all men, is older +than all the ages, is everywhere the same, cannot be +in any wise altered or repealed. It is the basis of all +morality. It ought to prescribe the provisions of +positive law far more extensively than it in fact does, +and to give that law a higher and more truly moral +character. We might expect Cicero to go on, if not +to identify it with the <span lang="la"><i>ius gentium</i></span> which he contrasts +with the peculiar law of Rome, at any rate to describe +it as the source and parent of <span lang="la"><i>ius gentium</i></span>. This, +however, he does not actually do, though more than +once he comes near it<a id='r47'></a><a href='#f47' class='c013'><sup>[47]</sup></a>. <span lang="la"><i>Ius gentium</i></span> is to him a part +<span class='pageno' id='Page_138'>138</span>of positive law, though much wider in its range than +<span lang="la"><i>ius civile</i></span>, whereas the Law of Nature is altogether +an ethereal thing, eternal, unchangeable, needing no +human authority to support it, in fact St. Paul’s ‘law +written on the hearts of men.’</p> + +<p class='c001'>Although Cicero was the most copious and eloquent +writer among those Romans who pursued the study +of philosophy in his generation, he did not by any +means stand alone. Most of the prominent statesmen, +orators, and authors occupied themselves with ethical +speculation; and this was no less true of the leading +spirits of the following century. The great jurists +of the Augustan and post-Augustan age, such as +Antistius Labeo, Massurius Sabinus, and Cassius, +refer to the Law of Nature as a source of law +already familiar. Two influences were indeed at work, +which gave to philosophy a greater prominence +than it had perhaps ever enjoyed before or has ever +enjoyed since. Faith in the old religions having +practically vanished from the educated classes, some +substitute was needed, and the more pure and earnest +minds sought this in philosophy. The career of +political life having been, in its old free form, closed +by the vesting of all real power in the hands of one +person, who presently became recognized as legally +sovereign, men were more and more led to seek solace, +or enjoyment, or at any rate occupation, in the study +of metaphysics and ethics. Jurisprudence continued +to be pursued by many of the most powerful and +<span class='pageno' id='Page_139'>139</span>cultivated intellects; and philosophy was not only +a main part of education which such men received, but +claimed much of their time and thought. They were +so permeated by it, that both its methods and its +principles must needs influence their treatment of legal +matters, whether as writers, or as magistrates, or as +advisers of the monarch and framers of legislation. +The idea of the Law of Nature as the source of +morality and the true foundation of all civil laws, the +idea of all mankind as forming one natural community +of which all are citizens, and in which all are +equal in the eyes of Nature—this idea had come to +pervade the minds of thinking men, whether or no +they were professed adherents of any school of philosophy. +It was taken as a generally accepted truth, +and was therefore assumed and referred to without +adducing arguments on its behalf, far removed from +the actual facts of the world as was the ideal to which +it pointed.</p> + +<p class='c001'>The growth and acceptance of the doctrine may be +compared with the process whereby certain notions, +now pretty generally received in nearly all civilized +countries, have made their way during the last two +centuries. Such are the doctrines known in America +as those of the Declaration of Independence, and in +France as the principles of 1789. Such is the doctrine +of the freedom of the individual conscience, and +the consequent wrongfulness of religious persecution. +These doctrines began to be asserted (especially in +England) during the seventeenth century. They were +diffused slowly, and constantly denied by the powers +that be, but they have been now virtually accepted in +<span class='pageno' id='Page_140'>140</span>principle by all thinking men. Few think it necessary +to argue on their behalf; yet they are very far from +having secured their full effect, for in some countries +the rulers refuse to apply them, and in almost all +countries they are admitted to be subject to exceptions +which render their full application difficult. They represent +rather an ideal towards which society is held +to be moving, than a positive basis on which existing +society is built.</p> + +<p class='c001'>Although, however, the Romans of the earlier imperial +period saw that their conception of the Law of +Nature was a long way from being realizable in such +a world as was then present, they also discovered in the +changes that had passed upon that world much which +recommended the conception as true and sound. The +extension of Roman dominion was completing the process +which the conquests of Alexander the Great had +begun. Eastern religions invaded the West; Greek +and Latin became world-languages; commerce brought +all the Mediterranean peoples together; nations and +nationalities were blent and ultimately fused in a common +subjection to Rome. The provincial rose as the +old Roman citizen sank, so that equality came nearer +and nearer. The old mutually exclusive systems of +citizenship and law seemed obsolete; and therewith +the traditional reverence for the ancient legal institutions +of the Quirites passed away, even from the conservative +minds of lawyers<a id='r48'></a><a href='#f48' class='c013'><sup>[48]</sup></a>. In particular the idea of +<span class='pageno' id='Page_141'>141</span>a community of all mankind, as opposed to the small +civic communities of earlier days, began to approach +a realization in the great empire which had gathered +all civilized men under its wings, had secured for them +peace, order, and a just administration of the laws, +and had admitted every one, whatever his race, tongue, +or birthplace, to a career of honourable ambition in +civil and military office, a career whose possibilities +included even the imperial dignity itself.</p> + +<p class='c001'>For this all-embracing commonwealth, this <span lang="la"><i>societas +omnium hominum</i></span>, of which the Greek philosophers +and Cicero had written, and which had taken concrete +shape in the Roman Empire, there would seem to be +needed some common law, since the ideas of law and +state were correlative<a id='r49'></a><a href='#f49' class='c013'><sup>[49]</sup></a>, according to the dictum, <span lang="la"><i>Quid +est civitas nisi iuris societas<a id='r50'></a><a href='#f50' class='c013'><sup>[50]</sup></a>?</i></span> Now there was a law +which could actually be applied to all Roman subjects, +non-citizens and citizens alike, and which was supposed +to be the law common to all men as being the law +which all nations used, and which had therefore been +applied by Roman Courts where persons outside the +pale of Roman law proper were concerned. Just as +the law of Rome drew its authority from the will of +the people, whether signified expressly by enactments +or tacitly by usage and consent, so this general law +rested on custom, on the understanding and will of +collective mankind, evidenced by their practice; and its +source was therefore one which met and satisfied the +view that the community are the source of law. Now this +<span class='pageno' id='Page_142'>142</span>common law of mankind was the <span lang="la"><i>ius gentium</i></span>. Though +in point of fact gathered and moulded by Roman Courts, +it was deemed to represent the essence of the law which +prevailed among various neighbour peoples, and of the +usages which common sense and the needs of commerce +had sanctioned among men in general, wherever +dwelling. It was conceived of as being common to all +mankind (<span lang="la"><i>ius commune omnium hominum</i></span><a id='r51'></a><a href='#f51' class='c013'><sup>[51]</sup></a>) (<span lang="la"><i>omni humano +generi commune</i></span><a id='r52'></a><a href='#f52' class='c013'><sup>[52]</sup></a>), or as the law which exists among all +peoples (<span lang="la"><i>ius quod apud omnes populos peraeque custoditur</i></span><a id='r53'></a><a href='#f53' class='c013'><sup>[53]</sup></a>) +(<span lang="la"><i>ius quo gentes humanae utuntur</i></span><a id='r54'></a><a href='#f54' class='c013'><sup>[54]</sup></a>). It was applicable +to persons who had no rights of citizens in any +city (ἀπόλιδες)<a id='r55'></a><a href='#f55' class='c013'><sup>[55]</sup></a>. It was coeval with the human race +itself (<span lang="la"><i>cum ipso humano genere proditum</i></span><a id='r56'></a><a href='#f56' class='c013'><sup>[56]</sup></a>). It was in all +these respects contrasted with <span lang="la"><i>ius civile</i></span>, just as the Law +of Nature (<span lang="la"><i>ius naturale</i></span>) was similarly contrasted. Finally +it was the law which natural reason had created (<span lang="la"><i>ius quod +naturalis ratio constituit</i></span><a id='r57'></a><a href='#f57' class='c013'><sup>[57]</sup></a>). When this point had been +reached, it became practically identical with the Law +of Nature, and the identity, implicitly suggested in +Cicero’s remark that the agreement of all nations must +be deemed a law of nature<a id='r58'></a><a href='#f58' class='c013'><sup>[58]</sup></a> was formally enounced by +jurists at least as early as the time of Hadrian. In +Justinian’s <cite>Institutes</cite> the identification is complete.</p> + +<p class='c001'><span class='pageno' id='Page_143'>143</span>A third conception, to which reference has not +yet been made, contributed to this fusion, viz. the conception +of Equity (<span lang="la"><i>aequum et bonum, aequitas</i></span>). Equity +means to the Romans fairness, right feeling, the regard +for substantial as opposed to formal and technical +justice, the kind of conduct which would approve itself +to a man of honour and conscience. It completes the +idea of the higher kind of law by adding a third +element, or rather a third source, that which springs +from the breast of man and represents his natural +sense of justice, his sympathetic good feeling towards +his fellow men. Thus we may say that seen from the +point of view of theology or metaphysics, this universal +or Natural law is prescribed by God or by Nature. +Seen from that of history and political science, it +issues from the will of mankind, who, organized as +nations, have created it by custom and practice. Seen +from the side of ethics and psychology, it represents +the tendencies and habits of the typical good man, +who desires to treat his neighbour as he would wish +to be himself treated. The coincidence of these three +streams of origin or lines of thought enlarges the +conception, defines it, gives to it, taken as a whole, +a harmonious symmetry. Thus it becomes complete +on its theoretical as well as on its practical side.</p> + +<p class='c001'>In the Roman jurists of the best age we note three +qualities not always united in lawyers—a love for theoretical +perfection, an attachment to ancient usage, and +a sense of practical convenience. The first delivered +them from the tyranny of the second, the second moderated +their devotion to the first, the third found a middle +term between the other two and guided them in the +<span class='pageno' id='Page_144'>144</span>adjustment of principle to fact. The blending of the +notion of Natural Law, as the ethical standard of conduct +and the ideal of good legislation, with the notion +of the law formed by the usages and approved by the +common sense of all nations as embodying what was +practically useful and convenient, satisfied both the +philosophical and the historical instincts of the jurist. +Had there been a similar combination of ideas and +habits in the English jurists of the seventeenth and +eighteenth centuries, our legal progress would have +been more rapid, and, if the phrase be permissible, +more ordered and rhythmical.</p> + +<h3 class='c011'>V. <span class='sc'>Relation of Natural Law to General Customary Law.</span></h3> + +<p class='c012'>There are, however, misconceptions against which +we must be on our guard in grasping and appraising +this identification of Natural Law with the sum of +that which is common in the customs of mankind.</p> + +<p class='c001'>In the first place it was not a complete identification. +There were some points in which Natural Law and +the Law of the Nations differed, and one of these was +of profound importance. That point was Slavery. It +was universal in the ancient world, and so must be +deemed a part of <span lang="la"><i>ius gentium</i></span>. But philosophers had +pointed out (even before the time of Cicero) that it was +contrary to nature<a id='r59'></a><a href='#f59' class='c013'><sup>[59]</sup></a>. Here, therefore, is a large department +in which the sanction of Nature could not be +claimed for this part of <span lang="la"><i>ius gentium</i></span> any more than +it could for much of <span lang="la"><i>ius civile</i></span>. Slavery, says one +jurist, is an institution of the Law of the Nations, +<span class='pageno' id='Page_145'>145</span>whereby one man is subjected to the ownership of +another against Nature<a id='r60'></a><a href='#f60' class='c013'><sup>[60]</sup></a>. And where we find the rigour +of the old law of Slavery modified, this is always said +to be in deference to nature and humanity, not to anything +in <span lang="la"><i>ius gentium</i></span>. And the Roman jurists indeed go +so far as to hold that by Nature all men are equal<a id='r61'></a><a href='#f61' class='c013'><sup>[61]</sup></a>. So +on the other side there were some provisions of statute +law (for instance, in the rules regarding inheritance) +which, though they had been suggested by principles +ascribable to the Law of Nature, were, as resting on +Roman statutes, referred to the category of <span lang="la"><i>ius civile</i></span> +rather than to that of <span lang="la"><i>ius gentium</i></span>.</p> + +<p class='c001'>Secondly, the Romans did not, when they referred +any particular institution to the <span lang="la"><i>ius gentium</i></span>, necessarily +intend to convey that it was universally prevalent. +The origin of <span lang="la"><i>hypotheca</i></span> for instance (mortgage of immovables) +and of the <span lang="la"><i>syngraphe</i></span> (written acknowledgement +of a debt) was due to Greek usage, and by no +means general over the world. These legal institutions, +however, since they did not belong to Roman law +proper, were held to be part of <span lang="la"><i>ius gentium</i></span>.</p> + +<p class='c001'>Thirdly, there is no ground for thinking that when +the Roman jurists said that Natural Reason was the +source of <span lang="la"><i>ius gentium</i></span>, they had altered their historical +view of the origin and character of the latter body of +law, or fancied that there ever had been an age, however +remote, however simple and primitive, during +which its precepts, in any concrete shape they knew +<span class='pageno' id='Page_146'>146</span>or could imagine, had actually prevailed among mankind. +The expression ‘lost Code of Nature,’ which a +distinguished writer has used<a id='r62'></a><a href='#f62' class='c013'><sup>[62]</sup></a>, is therefore an unfortunate +one, for it seems to imply that the Romans were +under the belief that there had once been a so-called +State of Nature, in which the <span lang="la"><i>ius gentium</i></span> served as +law. So far were they from such a delusion that they +ascribe to <span lang="la"><i>ius gentium</i></span> war, captivity, slavery, and all the +consequences of these facts, while in the golden age, +the <span lang="la"><i>Saturnia regna</i></span> of the poets, all men were free<a id='r63'></a><a href='#f63' class='c013'><sup>[63]</sup></a> and +war was unknown—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'><span lang="la">‘Necdum etiam audierant inflari classica, necdum</span></div> + <div class='line'><span lang="la">Impositos duris crepitare incudibus enses<a id='r64'></a><a href='#f64' class='c013'><sup>[64]</sup></a>.’</span></div> + </div> + </div> +</div> + +<p class='c019'>Their identification of the Law of Nature, which they +accepted as a doctrine of philosophy, with the Law of +Nations, which their courts had been administering and +their text-writers expounding for two or three centuries +at least, affected neither the essentially ideal character of +the former nor the distinctly practical character of the +latter. Had it done either of these things it might +have worked for evil. But in point of fact it did not +palpably quicken the pace of legal reform, nor did it +induce any theoretic vagueness in their views of law, +or suggest crochets or subtleties which could impede +the manipulation of positive rules. The jurists use +<span class='pageno' id='Page_147'>147</span>the two terms as practically synonymous, though +generally employing <span lang="la"><i>ius naturae</i></span> or <span lang="la"><i>naturalis ratio</i></span> +when they wish to lay stress on the motive or +ground of a rule,<span lang="la"><i>ius gentium</i></span> when they are thinking +of it in its practical application. To borrow the language +of logic, the connotation of the two terms is different, +while their denotation (save as aforesaid, and +especially save as regards slavery) is the same.</p> + +<p class='c001'>Thus happily united by a synthesis which satisfied +at once the practical good sense and the philosophic +temper of the Roman jurists, the two conceptions of +the Law of Nature and the Common Law of Mankind +went on their way rejoicing. But after a while an event +befell which deprived the latter expression of its ancient +concrete basis, and rendered it, except for historical +purposes, and as a description of a body of rules of +a particular historical origin, virtually obsolete. This +was the extension of Roman citizenship to all the subjects +of the Roman Empire by an edict of the Emperor +Antoninus Caracalla between 212 and 217 <span class='fss'>A.D.</span>, an act +which destroyed the distinction between <span lang="la"><i>ius gentium</i></span> +and <span lang="la"><i>ius civile</i></span> so far as the persons governed by each +were concerned, for there were thereafter comparatively +few <span lang="la"><i>peregrini</i></span> (non-citizen subjects), since <span lang="la"><i>ius civile</i></span> was +now enjoyed by all the dwellers in the Roman world<a id='r65'></a><a href='#f65' class='c013'><sup>[65]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_148'>148</span>This may be one of the reasons why, in the constitutions +of the Emperors collected in the Codes of +Theodosius the Second (<span class='fss'>A.D.</span> 438) and of Justinian +(<span class='fss'>A.D.</span> 534), constitutions the earliest of which date from +Hadrian, the term <span lang="la"><i>ius gentium</i></span> never occurs. It is +frequent in the <cite>Institutes</cite> of Justinian (<span class='fss'>A.D.</span> 533), but that +book (based on the <cite>Institutes</cite> of Gaius) is, although +a statute, yet primarily a manual for learners who were +going to use the extracts from old jurists contained in +the Digest, so that the term could not be omitted. +When the later Emperors wish to assign a ground +for some enactment which they are issuing, they +commonly speak of Nature, or Natural Reason, or +Humanity, or Equity, using these words almost indiscriminately +to describe the same thing.</p> + +<h3 class='c011'>VI. <span class='sc'>Meaning attached by the Roman Jurists to Nature.</span></h3> + +<p class='c012'>Now let us inquire a little more closely what the +Roman jurists and legislators meant to convey when +they talk of Nature, or the Law of Nature, and what +are the positive rules of law which they ascribed to this +source, or established in obedience to this principle.</p> + +<p class='c001'>The following senses in which they use the word +Nature may be enumerated, though these cannot be +sharply distinguished, for some run into others.</p> + +<p class='c001'>1. The character and quality of an object, or of +a living creature, or of a legal act or conception (e.g. +<span lang="la"><i>natura venenorum</i></span>, <span lang="la"><i>natura hominum</i></span>, <span lang="la"><i>natura apium</i></span> (<span lang="la"><i>fera +est</i></span>), <span lang="la"><i>natura contractus</i></span>, <span lang="la"><i>natura dotis</i></span>).</p> + +<p class='c001'>2. The physical system of the Universe (<span lang="la"><i>rerum +natura</i></span>), and the character which it bears. Thus it is +<span class='pageno' id='Page_149'>149</span>said that Nature has taken some objects (<i>e.g.</i> the sea +and air) out of the possibility of private ownership.</p> + +<p class='c001'>3. The physical ground of certain relations among +men, as for instance of blood relationship (<span lang="la"><i>cognationem +natura constituit</i></span>). So the rule that children born out of +wedlock follow the condition of the mother is ascribed +to Nature (<span lang="la"><i>liberi naturales</i></span>); so the rule that persons +under puberty should have a guardian.</p> + +<p class='c001'>4. Reason, whether in the sense of logic and philosophical +principle on the one hand, or as meaning +what we should call ‘common sense’ on the other, is +often denoted by the term Nature. Nature (it is said) +prescribes that no one should profit by harm and injury +to another, and that whoever bears the disadvantages +of a thing should also reap the advantages of it; +and Nature allows a buyer to make a profit on a re-sale. +The expression Natural Reason (<span lang="la"><i>naturalis ratio</i></span>) is commonly +used when the former meaning is to be conveyed, +and Paulus indeed says that Natural Reason is a sort +of tacit law. To use the term Reason as equivalent to +common sense and convenience comes very near the +doctrine that Utility is the basis of law, and the word +<span lang="la"><i>utilitas</i></span> is frequently employed by the Romans.</p> + +<p class='c001'>5. Good feeling and the general moral sense of mankind. +For instance, Nature directs that parents should +be supported by their children, and that a freedman +should render a certain respect and help to his patron. +Nature prohibits theft, and makes certain offences (<i>e.g.</i> +adultery) disgraceful, while other offences are not necessarily +base (<span lang="la"><i>turpia</i></span>). So—and this is an interesting +illustration of Roman sentiment—it is against Nature to +contemplate the probability that a freeman may become +<span class='pageno' id='Page_150'>150</span>a slave—although this is an event which may sometimes +happen. One may refer either to this or to the preceding +category the ascription to Nature of the principle that +faith must be kept by a debtor, even where he has not +bound himself in a formal way. (<span lang="la"><i>Is Natura debet quem +iure gentium dare oportet, cuius fidem secuti sumus.</i></span>)</p> + +<p class='c001'>One jurist only, Ulpian, gives a yet further sense to +the term Law of Nature, making it cover those instincts +and physical relations which other animals have in +common with man, and which may be called the raw +material upon which Custom acts<a id='r66'></a><a href='#f66' class='c013'><sup>[66]</sup></a>. But this fancy of +his, which appears now and then in other ancient +writers<a id='r67'></a><a href='#f67' class='c013'><sup>[67]</sup></a>, and received great attention in the Middle +Ages because the passage was embodied in Justinian’s +<cite>Institutes</cite>, is devoid of practical importance even for +Ulpian’s own treatment of legal topics. It has been +much ridiculed by the moderns, but has recently +received a sort of reinforcement or illustration from +an unexpected quarter. Mr. Darwin has suggested +that the origin of our moral ideas is to be sought in +the accumulated experience of animals, which in the +course of long ages ripened, to some slight extent, in +the higher species, and ultimately ripened far more +completely in man, into the beliefs and usages which +<span class='pageno' id='Page_151'>151</span>govern the life of primitive peoples, and out of which +morality has been insensibly developed in comparatively +recent times. Upon any such hypothesis the gap +between man and other animals would become less +wide, and a certain community might be ascribed to +them with man in what may be called the rudimentary +protoplasm of customary law.</p> + +<p class='c001'>In its practical applications, the idea of Nature or the +Law of Nature, blent with the idea of Equity (for the two +terms are in some departments, and in the mouths of +many jurists, equivalent and interchangeable), extends +itself over nearly the whole field of law. It supplements +or modifies the relations of parents and children, of +patrons and freedmen, and even of slaves, as these +relations had been established by the ancient strict law +of Rome. A slave is to <span lang="la"><i>ius civile</i></span> merely a thing, but +a regard for Nature causes him to be treated as being +in some respects a person. In the law of property, of +inheritance, of obligations, and of procedure, a great +many principles drawn from this source have been +embodied in rules which qualify or supersede the +rigour of the older law in most important points. It +is only by examining these in detail that the skill, and +tact, and sound judgement, which the Romans showed +in working out the idea, can be duly appreciated. To +enumerate them here would, however, be impossible: +one might as well try to enumerate the numerous +points in which Equity has affected and amended the +common law of England.</p> + +<p class='c001'>Speaking broadly, the Law of Nature represented to +the Romans that which is conformable to Reason, +to the best side of Human Nature, to an elevated +<span class='pageno' id='Page_152'>152</span>morality, to practical good sense, to general convenience. +It is Simple and Rational, as opposed to that +which is Artificial or Arbitrary. It is Universal, as +opposed to that which is Local or National. It is +superior to all other law because it belongs to mankind +as mankind, and is the expression of the purpose of the +Deity or of the highest reason of man. It is therefore +Natural, not so much in the sense of belonging to men +in their primitive and uncultured condition, but rather +as corresponding to and regulating their fullest and +most perfect social development in communities, where +they have ripened through the teachings of Reason<a id='r68'></a><a href='#f68' class='c013'><sup>[68]</sup></a>. +But if any disciple of Bentham, looking not at the +sonorous language occasionally used to describe its +origin, but at its practical applications, calls it the +expression of good sense and good feeling, the law +which springs from an enlightened view of Utility, he +will not be far wrong, as indeed the idea of practical +convenience is frequently associated with those of +Nature and Reason in the Roman texts<a id='r69'></a><a href='#f69' class='c013'><sup>[69]</sup></a>. A modern +precisian might say that the Romans ought to have +called it not ‘the Law of Nature,’ but ‘materials supplied +by Nature for the creation of a law,’ a basis for law +rather than the law itself. To the Romans, however, +such a criticism would probably have seemed trivial. +They would, had the distinction been propounded to +them, have replied that they knew what the critic +<span class='pageno' id='Page_153'>153</span>meant, and had perceived it already; but that they +were concerned with things, not words, and having +a practical end in view, were not careful about logical +or grammatical minutiae.</p> + +<p class='c001'>This conception, or at any rate the attempt to apply +this conception to Positive Law, would seem to be +exposed to two dangers. One is that of wasting time +and pains in hunting for those institutions or rules which +are most characteristic of man in the earlier stages of his +progress, or which have been in fact most generally in +vogue among men. This danger the Roman jurists +completely avoided. Their Law of Nature had nothing +to do with any so-called State of Nature, and they +never troubled themselves about primitive man, leaving +him to the poets and the philosophers. And though +they talked of their <span lang="la"><i>ius gentium</i></span> as roughly equivalent +to their <span lang="la"><i>ius naturae</i></span>, we do not find them endeavouring +to support their view of what is reasonable and natural +by instances drawn from such and such peoples who +had adopted the rules they had themselves made part +of their <span lang="la"><i>ius gentium</i></span><a id='r70'></a><a href='#f70' class='c013'><sup>[70]</sup></a>. They are content to ascribe to +<span lang="la"><i>ius gentium</i></span> that which is so obviously reasonable and +convenient that the general usage of mankind approves +it, such as the principle that the shores of the sea are +open to the common use of all (a principle which, +however, English and Scottish law have never fully +admitted), the principle that a thing which has no owner +<span class='pageno' id='Page_154'>154</span>becomes the property of the finder, the principle that +a debtor ought to pay his debts. <span lang="la"><i>Redde quod debes +aequissima vox est, et ius gentium prae se ferens.</i></span></p> + +<p class='c001'>The other danger is that the idea of Nature, as the +true guide to the making and interpreting of law, may +lead to speculative vagueness, and that the identification +of Nature with Morality may tempt the legislator +or the judge into efforts to enforce by law duties best +left to purely moral sanctions. This danger also the +Romans escaped. They escaped it by virtue of their +eminent good sense and their practical training. The +lofty precepts of morality which they were fond of +proclaiming, and which they sometimes declare it to +be the duty of the lawyer to teach and of the magistrate +to apply, had after all not much more to do with +the way in which they built up the law than the +flutings of the columns or the carvings on the windows +have to do with the solid structure of an edifice. These +decorations adorned the Temple of Justice, but were +never suffered to interfere either with its stability or +with its convenience for the use of men. In point of +fact, the rules of Roman law, down to the age of Constantine, +whose successors, wanting the sage advisers of +an earlier day, tried some foolish experiments, furnish +a model of the way in which moral principles should be +applied to positive law. Though the Romans did not +in theory draw any very clear line between the sphere +of law and that of morals, they succeeded admirably in +practice in keeping their moral zeal on the safe side of +the line which divides the standard of conduct which +the State may, and that which it had better not, try to +enforce; while they certainly did impart to the law as it +<span class='pageno' id='Page_155'>155</span>left their hands a spirit of honour, good faith, and +equitable fairness which modern systems have never +surpassed, and which is in some respects higher than +that of our own English law.</p> + +<p class='c001'>The Roman jurists of the first three centuries of the +Empire were a unique phenomenon in the history of +mankind, and they had a unique opportunity. They +were at once the makers, the expounders, and the +appliers of law. They worked for the whole civilized +world. They were hampered by no meddlesome legislatures, +for legislatures did not exist, and hardly at all +by capricious monarchs, for the good Emperors encouraged +them, while the voluptuaries, as well as the +unlettered soldiers, left them alone. Their only restraint +was that useful and necessary one which dwells in the +deference of the wise for one another, and in the respect +of the leaders of a great profession for the opinion of +the profession as a whole. They were not indeed philosopher-kings +in Plato’s sense, but they were sufficiently +imbued with the spirit of philosophy to value principle +and to rise superior to prejudice. Accordingly they were +able to do a work which has been of inestimable value +for all time, since it has become, like the philosophical +ideas of the Greeks and the religious ideas of the +Semites, part of the common heritage of mankind. +Rome is the only city to which it has been given to rule +the whole of the civilized world, once as a temporal, +once as a spiritual power. In both phases she welded +the diverse and incongruous elements into a united +body, whose elements, even when they had again been +disjoined, retained traces of their former union. And +on both occasions it was largely through law that she +<span class='pageno' id='Page_156'>156</span>worked, the ecclesiastical law of her later period being +an efflux of the civil law of her earlier.</p> + +<p class='c001'>We have now traced the origin and growth of the +conception of a Law of Nature in the ancient world, +and have perceived how, having taken shape and received +an ethical colour among the Greeks, it was +turned to practical account by the Romans. It was not +to them, as it has often been deemed by recent English +writers, a purely negative and barren conception, +nor was it wholly a destructive and, if the expression +may be permitted, a ground-clearing conception. Doubtless +a large part of its work was done in first undermining +and finally overcoming the traditional authority +of the old peculiar and usually cumbrous Law of the +City (<span lang="la"><i>ius quiritium</i></span>), which was often harsh and sometimes +arbitrary. Another part was done in explaining +old rules so as to amend their operation. But the +conception of Nature as a source of Law was also a +corrective and expansive force, not merely in sweeping +away what had become obsolete, but also in establishing +what was new and suited to the time. It +found a solid basis for law in the reason and needs of +mankind, and it softened the transition from the old +to the new, first by developing the inner meaning of +the old rules while rejecting their form, extracting the +kernel of reason from the nut of tradition, and secondly +by appealing to the common sense and general usage +of mankind, embodied in the <span lang="la"><i>ius gentium</i></span>, as evidence +that Nature and Utility were really one, the first being +the source of human reason, the latter supplying the +grounds on which reason worked. Thus the idea of +Nature, coupled with that of customs generally observed +<span class='pageno' id='Page_157'>157</span>by mankind, which embodied their experience, became +a fertile and creative idea, which turned the law of a +city into the law of the world, and made it fit to be +a model for succeeding ages.</p> + +<h3 class='c011'>VII. <span class='sc'>The Law of Nature in the Middle Ages.</span></h3> + +<p class='c012'>When the succession of Roman jurists as a professional +class came to an end, and the level of culture +in the whole community declined in Western Europe +after the destruction of imperial power in the Western +provinces, the ecclesiastics, among some of whom a +tincture of legal knowledge remained, naturally identified +the law of Nature with the law of God. We have +this clearly expressed in the passages from Isidore of +Seville (who wrote early in the seventh century) which +obtained immense circulation and influence by being +incorporated (in the twelfth century) in the introductory +paragraphs of the <cite>Decretum</cite> of Gratian, the oldest part +of the collected Canon Law. Isidore says<a id='r71'></a><a href='#f71' class='c013'><sup>[71]</sup></a>: ‘All laws are +either divine or human. The divine rest upon Nature, +the human upon custom; and the latter accordingly +differ among themselves, because different laws have +pleased different nations.’ Gratian himself, in the +paragraph preceding, says: ‘Mankind is ruled by two +things, natural law and customs. Natural Law is that +<span class='pageno' id='Page_158'>158</span>which is contained in the law and the gospel, whereby +every one is commanded to do to another that which +he would have done to himself.’ This identification, +already suggested by the Stoics and by some of the +Roman jurists themselves<a id='r72'></a><a href='#f72' class='c013'><sup>[72]</sup></a>, was inevitable as soon as +Christianity appeared on the scene. St. Paul, as we +have seen, recognized a law written by God on men’s +hearts; St. Augustine speaks of the Eternal Law which +governs the City of God. Nature—that is to say the +Power that rules all things, the Force that is in all +things—is, to a Christian, God; as St. Chrysostom +says, ‘when I speak of Nature I mean God, for it is He +who has made the world<a id='r73'></a><a href='#f73' class='c013'><sup>[73]</sup></a>.’ The idea receives its final +expression in Dante’s identification of the Divine Love +with the Force that pervades the universe—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'><span lang="it">‘L’Amor che muove il sol e le altre stelle.’</span></div> + </div> + </div> +</div> + +<p class='c019'>Accordingly the scholastic philosophers posit a Law +of Nature as being the work of God. St. Thomas of +Aquinum introduces a useful distinction which exercised +an enduring influence. The Eternal Law which governs +all things is the expression of the Reason of God, the +supreme Lawgiver. That part of it which is not +revealed, but is made known to man by his own reason, +may fitly be called Natural Law, as being the outcome +of human reason, itself created and directed by the +Divine Reason. Thus the sharing in the Eternal Law +by a rational creature is Natural Law<a id='r74'></a><a href='#f74' class='c013'><sup>[74]</sup></a>. And so Suarez +<span class='pageno' id='Page_159'>159</span>says that the Law of Nature is in God the Eternal Law, +and in men is the light which carries this eternal law +into their souls, being applied by conscience.</p> + +<p class='c001'>I cannot here pursue an inquiry into the treatment of +these notions by the scholastic theologians and philosophers, +nor by their successors who belong to the +school of the Catholic Renaissance in the sixteenth +century, for the subject is a vast one. Neither have +I space to deal with the students and teachers of the +Roman Law during the thirteenth, fourteenth, and +fifteenth centuries, of whom however it may be said +that Natural Law has in their pages a less definite +character than it bore to the ancient jurists, and is +more coloured by that ethical atmosphere which they +found in the treatment of it by Cicero and Aristotle +and by such ecclesiastical authorities as Gratian and +St. Thomas. It was during these centuries less widely +and effectively used in the sphere of pure law than in +those of speculation and actual political controversy. +In these latter spheres it played a great part, being +appealed to by the advocates as well of imperial as +of papal pretensions, the one side claiming its support +for the temporal, the other side for the spiritual potentate. +All admitted that it stood above both these +powers, and some maintained that where either power +transgressed it, he might be lawfully resisted by his +subjects<a id='r75'></a><a href='#f75' class='c013'><sup>[75]</sup></a>. Now and then princes put it forward as +a ground for legislation. Philip the Fair of France, +proposing to liberate serfs, says (<span class='fss'>A.D.</span> 1311) that ‘every +human creature formed in the image of Our Lord ought +<span class='pageno' id='Page_160'>160</span>by natural law to be free.’ Now and then a jurist +specifies matters in which it limits the legislator’s +power, as Baldus says, neither Emperor nor Pope +could validly authorize the taking of usury<a id='r76'></a><a href='#f76' class='c013'><sup>[76]</sup></a>. But one +can hardly say that the idea emerges as an independently +formative power in the growth either of the Canon +Law in Europe, or of the law of Islam in the East, +for the obvious reason that ecclesiastical systems do +not need it. The Bible in Christendom, the Koran +where Islam ruled, supplied all the philosophical basis +and all such indications of the Divine Will as were +needed to give law a moral character. So, although +the term is indeed frequently used by mediaeval writers +of all types, it is generally used with a theological or +ethical bearing. Nature, except in such a sense as +was given to it by St. Paul, or in such expressions as +were sanctioned by Aristotle or by the texts of the +jurists, would have sounded strange, and might have +savoured of heterodoxy. As the Chancellor says in +the second part of Goethe’s <cite>Faust</cite>—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'><span lang="de">‘Natur und Geist! so spricht man nicht zu Christen:</span></div> + <div class='line'><span lang="de">Desshalb verbrennt man Atheisten.’</span></div> + </div> + </div> +</div> + +<p class='c012'>Yet throughout this period the place which this conception +holds and the function which it discharges in the +world of thought, if not in that of practice, are of high +import. It is an assertion of the supremacy of the +eternal principles of morality, of the duty of princes to +obey those principles, of the right of citizens to defend +<span class='pageno' id='Page_161'>161</span>them, if need be even by rebellion or tyrannicide. It +proclaims the responsibility to God of all power, whether +spiritual or temporal, and the indestructible rights of the +individual human being. Finding in the Divine Justice +the ultimate source of all law, it imposes a restraint upon +the force which positive law has at its command, and +sets limits to the validity of positive laws themselves. +Whether or no the individualistic spirit of the Teutonic +races contributed to this remarkable change from the +attitude of the Roman lawyers is a question I will not +attempt to discuss. But it is clear that the influence of +Christian teaching had, even under a dominant and persecuting +ecclesiastical system, stimulated the vindication +in the name of Natural Law of principles which are +the foundation both of civil and of religious liberty.</p> + +<h3 class='c011'>VIII. <span class='sc'>The Law of Nature in Modern Times.</span></h3> + +<p class='c012'>When the European mind, stimulated by Greek literature +and by the ecclesiastical revolt of the sixteenth +century, as well as by a group of coincident external +causes, began to play freely round the great subjects +of thought, a still wider career opened for this ancient +conception. The history of that career, however, +belongs to the domain of philosophy and of political +science rather than to that of jurisprudence. Though +it was chiefly from the Roman texts that the men of the +Renaissance and Reformation eras drew their notions +of Nature and natural law<a id='r77'></a><a href='#f77' class='c013'><sup>[77]</sup></a>, and though the term +<span class='pageno' id='Page_162'>162</span><span lang="la"><i>ius gentium</i></span> reappears as indicating the recognition +of Natural Law by mankind at large, the speculations +which these notions inspired turned largely upon +such questions as the origin of law in general, a point +which, as already observed, had not much occupied the +Romans, and (still more) upon the source of authority +and political power, and on the right of any constituted +authority to demand obedience. The systems of the +Middle Ages, which deduced the powers of the Pope +from Christ’s words to St. Peter, and the powers of the +Emperor either directly from God or mediately through +the Pope, and which found the source of all other spiritual +and temporal power in some sort of delegation from one +or other of these potentates, had now vanished, and +thinkers were much concerned to find a new and +sounder foundation on which to plant the Monarch +and the State. Thus Nature came to play a new part: +and presently there appeared theories regarding an +original State of Nature, a conception not necessarily +connected with that of the Law of Nature, yet one +which has historically been closely associated therewith. +This newly-invented State of Nature was neither +the Golden Age of Hesiod, nor the <span lang="la"><i>Saturnia regna</i></span> of +Virgil, nor the brutish savagery (<span lang="la"><i>mutum et turpe pecus</i></span>) +of Horace. The man of the State of Nature was highly +intelligent, and he was also highly self-assertive. In +Hobbes he appears as in perpetual war with his fellows<a id='r78'></a><a href='#f78' class='c013'><sup>[78]</sup></a>; +and that ingenious and uncompromising philosopher +finds in this fact the basis of his theory of the State, +holding that men, in order to get rid of their distracting +<span class='pageno' id='Page_163'>163</span>strife, agreed with one another to surrender all their +natural rights to get what they can for themselves by +force into the hands of a Monarch, who thereby acquired +a perpetual title to the obedience of all; the contract, +since not made with him, being nowise dissoluble in +respect of any misfeasance on his part. Locke, on the +other hand, argues for a Natural Law which issues +from Reason, is prior to all governments, and being +superior to them entitles men to vindicate their natural +rights against tyranny. With him, therefore, as with +most thinkers of the seventeenth and eighteenth (and +indeed also of earlier) centuries, Natural Law, being +the offspring of Reason and the foundation of Natural +Rights, is the ally of freedom. It is invoked, under the +name of Natural Right, by the framers of the Declaration +of Independence in 1776, and therewith enters the +field of modern politics as a conqueror. Contemporaneously +the doctrine was being spread over the Old World +by Rousseau in his theory of the State of Nature and +the Social Contract (first published in 1762): and it +presently became the basis of the Declaration of the +Rights of Man made by the French Convention in 1789.</p> + +<p class='c001'>The old theory had now developed into a destructive +political force. Any one can see to-day that this revolutionary +quality was always latent in it: the singular +thing is that, unlike most revolutionary ideas, it should +have kept the explosive element so long dormant. That +which had been for nearly two thousand years a harmless +maxim, almost a commonplace of morality, became +in the end of the eighteenth century a mass of dynamite, +which shattered an ancient monarchy and shook the +European Continent. Liberty, Equality, Fraternity, are +<span class='pageno' id='Page_164'>164</span>virtually implied in the Law of Nature in its Greek no +less than in its French dress. They are even imbedded +in the Roman conception, but imbedded so deep, and +overlaid by so great a weight of positive legal rules +and monarchical institutions as to have given no hint of +their tremendous possibilities.</p> + +<p class='c001'>Let us return from this glance at the political history +of the conception to note three directions in which it +has acted, in modern times, within the sphere of law +proper.</p> + +<p class='c001'>The first of these is its action upon the law of England. +Our system of Equity, built up by the Chancellors, the +earlier among them ecclesiastics, takes not only its name +but its guiding and formative principles, and many of its +positive rules, from the Roman <span lang="la"><i>aequitas</i></span>, which was in +substance identical with the Law of Nature and the +<span lang="la"><i>ius gentium</i></span>. For obvious reasons the Chancellors and +Masters of the Rolls did not talk much about Nature, +and still less would they have talked about <span lang="la"><i>ius gentium</i></span>. +They referred rather to the law of God and to Reason. +But the ideas were Roman, drawn either from the Canon +Law, or directly from the <cite>Digest</cite> and the <cite>Institutes</cite>, and +they were applied to English facts in a manner not +dissimilar from that of the Roman jurists. The very +name, Courts of Conscience, though the conscience may +in the immediate sense have been the King’s, suggests +that moral element on which the Romans insisted so +strongly; and the wide, sometimes almost too wide, +discretionary power which Equity judges exercised, +finds its prototype in the passages in Roman texts +which refer to natural equity as the consideration which +guides the judge in qualifying, in special cases, the normal +<span class='pageno' id='Page_165'>165</span>strictness of law. A passage in the remarkable little +book called <cite>Doctor and Student</cite>, written by Christopher +St. German early in the sixteenth century, observes +that the term ‘Law of Nature’ is not much employed +by English common lawyers, who generally prefer +(it is remarked) to talk of the Law of Reason, and to +say that such and such a rule is grounded in reason, +or that reason points to such and such a conclusion. +Nevertheless the author recognizes the Law of Nature +or Reason as one of the three departments of the Law +Eternal or Will of God, which is made known to man +partly by Reason, partly by Divine revelation in the +Scriptures, partly by the orders of princes or of the +Church, having an authority derived from God. Some +(it is added) say that all the law of England is part of +the law of Reason; but St. German prudently doubts +whether this can be proved. However, we have here +another evidence of the influence of the old conception, +and even, in the reference to a general Law of Nature +shared in by unreasonable creatures (‘for all unreasonable +creatures live under a certain rule to them given +by Nature, necessary for them to the consideration of +their being’), a recurrence of the old notion countenanced +by Ulpian, that the Law of Nature extends to the lower +animals as well as to mankind. Nor are dicta of +English judges referring to the Law of Nature wanting. +Yelverton, under Edward the Fourth, says that in the +absence of authority the judges ‘should resort to the +Law of Nature which is the ground of all laws.’ And +the law merchant, <i>i.e.</i> the customs commonly observed +by traders of divers countries, is referred to as part of +the Law of Nature by Lord Chancellor Stillington in +<span class='pageno' id='Page_166'>166</span>the same reign<a id='r79'></a><a href='#f79' class='c013'><sup>[79]</sup></a>. Here we have the old identification +of <span lang="la"><i>ius naturae</i></span> and <span lang="la"><i>ius gentium</i></span> which was beginning in +Cicero’s days. Still later, the idea reappeared in the +doctrine that as the Law of Nature is the foundation +of all law, positive enactments plainly repugnant to it +or to Common Right and Reason (an equivalent expression) +ought to be held invalid. Dicta to this effect were +delivered by Lord Coke and Lord Hobart, and were +approved by Lord Holt; though little (if any) effect has +ever been given to them. Similar references to the +‘eternal principles of justice’ as capable of overruling +the acts of State legislatures may occasionally be gleaned +from the reports of cases decided by American State +Courts. Blackstone, repeating Cicero, declares that ‘the +Law of Nature is binding over all the globe in all +countries: no human laws are of any validity if contrary +to this<a id='r80'></a><a href='#f80' class='c013'><sup>[80]</sup></a>’; and he ascribes to ‘natural reason and the just +construction of law<a id='r81'></a><a href='#f81' class='c013'><sup>[81]</sup></a>’ the extension which his contemporary, +Lord Mansfield, gave to the enforcement of implied +contracts<a href='#f81' class='c013'><sup>[81]</sup></a>. So we find the Indian Civil Procedure Code of +1882 laying down that a foreign judgement is not operative +as a bar if it is, in the opinion of the Court which +deals with the question, ‘contrary to natural justice.’ But +the chief practical applications in recent times of the +ancient conception have, very appropriately, arisen where +European judicial administration has been brought into +contact with foreign semi-civilized peoples on whom the +law of their European conquerors could not properly be +imposed. Thus in British India the Courts have been +<span class='pageno' id='Page_167'>167</span>directed to apply ‘the principles of justice, equity, and +good conscience<a id='r82'></a><a href='#f82' class='c013'><sup>[82]</sup></a>’ in cases where no positive law or +usage is found to be applicable.</p> + +<p class='c001'>The second line of action is the part which the terms +<span lang="la"><i>ius naturae</i></span> and <span lang="la"><i>ius gentium</i></span> played in the creation of +International Law. That branch of jurisprudence has +a twofold origin. It is due partly to customs which +grew up among maritime nations in the course of trade, +together with the usages and understandings which +formed themselves in the diplomatic intercourse of +States, partly to the doctrines thought out and delivered +by a succession of legal writers, of whom the most famous +are Hugo Grotius, Albericus Gentilis, Leibnitz, and +Puffendorf. These thinkers, finding that large parts of +the field of international relations were not covered by +pre-existing custom, or that the existing customs were +often discrepant, were obliged to seek for some general +and permanent basis whereon to build up a system of +positive rules. This basis could not be looked for in +the laws of any State or States, because no such laws +could have force beyond the limits of those States, and +that which was needed was something which all States +were to observe. Neither could it be expressly deduced +from the Imperial Roman law, because the Romano-Germanic +Empire had become a mere shadow of its +former self, and the old Roman law, being the law of +a State (though a World-State), did not contain all the +necessary materials, not to add that anything imperial +was in the earlier part of the seventeenth century regarded +<span class='pageno' id='Page_168'>168</span>with suspicion by Protestants. Accordingly, +Grotius and his successors recurred to the Law of Nature +as being, according to the theory of the ancient Roman +jurists, a law grounded in reason and valid for all mankind. +They used it copiously, and some of them called +their writings ‘Treatises on the Law of Nature and of +Nations,’ using the old phrase <span lang="la"><i>ius gentium</i></span><a id='r83'></a><a href='#f83' class='c013'><sup>[83]</sup></a> in what +began to be taken as a new sense<a id='r84'></a><a href='#f84' class='c013'><sup>[84]</sup></a>. It was indeed their +wish to represent this Law of Nature as being essentially +a Law for the Nations, <i>i.e.</i> a law governing the intercourse +<span class='pageno' id='Page_169'>169</span>of nations. There had in fact been always a close +connexion between the two conceptions. For although +the Roman jurists of imperial times had employed the +term ‘Law of the Nations’ to denote, not the law applicable +between nations, but a part of the law which +was applied within the Roman dominions, still they had +held their <span lang="la"><i>ius gentium</i></span> to have been not only created by +the customs of the nations of the world, but therewith +also binding on nations generally, and to be indeed (save +in some special points) a concrete embodiment of the law +which Natural Reason gives to all mankind. Thus the +name ‘Law of Nature and Nations’ became well settled; +and it is only in our own days that the more precisely +descriptive (if not quite satisfactory) term ‘International +Law’ has, in superseding the older name, acquired a +general acceptance.</p> + +<p class='c001'>Thirdly, the expression Law of Nature has, within comparatively +recent times, obtained in Germany, France, +and Italy, the meaning of the Philosophy of Law, that +is to say, the metaphysical basis of legal conceptions +and of the most general legal doctrines. Some observations +will be found elsewhere in this volume<a id='r85'></a><a href='#f85' class='c013'><sup>[85]</sup></a> upon this +<span lang="de"><cite>Naturrecht</cite></span> or <span lang="fr"><cite>Droit Naturel</cite></span>, to which much labour and +thought have been devoted by Continental writers, +though very little by those of England or of the United +States. Whatever value the works of these writers +may have for metaphysics or ethics, they shed comparatively +little light upon law in its proper sense. The +study of Law in general seems nowadays likely to be +practically useful chiefly on its concrete side, as what +the Romans call a <span lang="la"><i>ius gentium</i></span>, that is to say, as a +<span class='pageno' id='Page_170'>170</span>collection and examination, a criticism and appraisement +of the rules adopted by civilized nations on +topics with which the legislation of all or most of +such nations has to deal. In other words, Comparative +Jurisprudence promises more fruit than abstract speculation +on the foundations of law.</p> + +<h3 class='c011'>IX. <span class='sc'>Conclusion.</span></h3> + +<p class='c012'>Except from the lips of the Continental theorists just +referred to, we now seldom hear the term Law of Nature. +It seems to have vanished from the sphere of politics as +well as from positive law. A phrase which was, in the +eighteenth century, a potent source of inspiration to +some and a tocsin of alarm to others, is not now invoked +by either of the two schools of thought which condemn, +or seek to overthrow, existing institutions. The +Social Democrats do not appeal to Nature, perhaps +because they have realized that there never was a state +of society in which all property was held in common by +large organized communities, and perhaps also because +they feel that so complex a system as they desire could +not well be described as natural. Anarchists do not +appeal to the Law of Nature, because their quarrel is +with law altogether, and those among them who are +educated enough to desire to find a philosophical basis +for their doctrines are also educated enough to feel and +honest enough to admit that history, which knows +to-day far more about primitive man than she did +a century ago, would afford no such basis in any state +of nature she could possibly set before us.</p> + +<p class='c001'>Nevertheless the notion sometimes appears, and +properly appears, in unexpected places. The British +<span class='pageno' id='Page_171'>171</span>Order in Council for Southern Rhodesia, of October 20, +1898, directs the Courts of that territory to be ‘guided in +civil cases between natives (<i>i.e.</i> Kafirs) by native law, +so far as that law is not repugnant to natural justice +or morality, or to any Order made by Her Majesty in +Council.’</p> + +<p class='c001'>Whether this time-honoured conception has or will +hereafter have any practical value for the modern world +is a further question, but one for conjecture rather than +discussion. We have seen what good work it did for +the ancient world in breaking down race prejudices, +and in particular for the Roman jurists in giving them +a philosophical ideal towards which they could work +in expanding and refining the law of the Empire. Nor +should we forget that in later times it has sometimes +stimulated resistance to oppression, and has corrected +the tendency, always present among lawyers and in +a ruling class, to defer unduly to tradition and to +defend institutions which have become incompatible +with reason, and hurtful to the common interest. This +kind of work may not seem to be needed from the old +idea in our own times. There is not much risk, either +in Europe or in North America, that tradition will check +reform, or that institutions will be respected and maintained +merely because they exist. But our planet may +expect, even according to the most pessimistic physicists, +to last for millions of years. Who can say that an idea +so ancient, in itself simple, yet capable of taking many +aspects, an idea which has had so varied a history and +so wide a range of influence, may not have a career +reserved for it in the long future which still lies before +the human race?</p> + +<div class='chapter'> + <span class='pageno' id='Page_172'>172</span> + <h2 id='eXII' class='c005'>XII <br> <br>THE METHODS OF LEGAL<br>SCIENCE</h2> +</div> + +<p class='c010'>Whoever, having heard the Roman law praised as +a philosophical system, enters upon the study of it, and +peruses either the <span lang="la"><cite>Corpus Iuris Civilis</cite></span> or the writings +of modern German civilians, will presently find himself +asking, Where is the legal philosophy of the Romans +to be found? By which of them is the subject treated +in the abstract? Where are those general views on +the nature and essence of law with which a philosophical +treatment of it ought to begin? And where +is that theory of the historical evolution and development +of law which represents another method of treating +jurisprudence in a scientific spirit?</p> + +<p class='c001'>There is scarcely anything answering to the student’s +expectations, either in the original Roman texts, or in +those modern books wherein the scattered rules and +maxims of the ancient jurists have been rearranged +in systematic form. In the proem and introductory +title of Justinian’s <cite>Institutes</cite> and in the first few titles +of his <cite>Digest</cite> may be found some few dicta, more +sonorous than exact, about Justice and Nature and +the origin of law. Nothing more in the <span lang="la"><cite>Corpus +Iuris</cite></span> nor in any other of the few old legal writings +that have survived. There is no trace that any lawyer +ever composed a treatise on that which we in England +<span class='pageno' id='Page_173'>173</span>call General Jurisprudence, and which the Germans +call Rechtsphilosophie or Naturrecht (Philosophie de +Droit, Droit Naturel). Cicero, who at one time intended +to write a book on the civil law, throws out +some remarks on the subject, but these are rather +philosophical than legal, and it would seem either that +no later philosopher, whether Greek or Roman, whether +Academic or Stoic, followed in this path, or else that +the treatises of those who did were not thought worthy +of being preserved, or even of being quoted by the +compilers of Justinian’s <cite>Digest</cite> .</p> + +<p class='c001'>This absence of what the enlightened modern layman, +though certainly not the professional English lawyer, +expects in a refined and comprehensive system of +jurisprudence, raises the question which those who +approach the study of law, especially in a university, +doubtless often put to themselves—Has the Roman law +suffered from the want of a foundation of legal philosophy, +or is that foundation really needless, and can +a practically useful and scientifically symmetrical system +of law exist without it?</p> + +<p class='c001'>In order to answer this question let us consider what +is meant by the Philosophy of Law, or the Science of +Law in general, conceptions to which it might be +convenient to restrict the terms Jurisprudence (or +General Jurisprudence) hitherto somewhat laxly used<a id='r86'></a><a href='#f86' class='c013'><sup>[86]</sup></a>, +and what are the proper relations of such a science +on the one hand to a working system of law, and on +the other hand to the principles and considerations +which guide the legislator.</p> + +<p class='c001'><span class='pageno' id='Page_174'>174</span>Seeing that in each of the so-called moral or social +or political sciences the essential characteristic is its +method, and that it is by its possession of a method that +its claims to be a science must be tried, we had better +begin by inquiring what method or methods the science +of law in general recognizes and applies; and whether, +if there be more than one, any one of these is entitled +to be deemed the right method. As law is a science +directed to practice, the test of rightness will evidently +be the practical utility of the method in producing a +system of law which shall be symmetrical, harmonious, +and suited to the needs of the people whose social relations +it has to adjust and regulate.</p> + +<p class='c001'>Four methods are commonly spoken of as employed +in legal science, being the following:—</p> + +<p class='c001'>The Metaphysical or <span lang="la"><i>a priori</i></span> method.</p> + +<p class='c001'>The Analytic method.</p> + +<p class='c001'>The Historical method.</p> + +<p class='c001'>The Comparative method.</p> + +<p class='c016'>This classification is doubtless open to criticism, but +being in actual use, it may serve our present needs.</p> + +<p class='c001'>The Metaphysical method, which, without stopping to +search for a definition, we may describe as being the +method which most German, French, and Italian writers +on the Philosophy of Law or the ‘Law of Nature’ have +adopted, begins by investigating the abstract ideas of +Right and Law in their relation to Morality, Freedom, +and the human Will generally. It may thus be regarded +as that branch of metaphysics, of psychology, +of ethics, perhaps also of natural theology (according +to the delimitation of these departments of inquiry +which any one may adopt), which concerns itself with +<span class='pageno' id='Page_175'>175</span>the civil relations of men to one another in the most +general and abstract form of those relations. It proceeds +to deal with the fundamental legal conceptions or +categories of the subject, such as Sovereignty, Obedience, +Right, Claim, Duty, Injury, Liability, and with the +notions involved in certain fundamental and universal +legal institutions such as the Family, Property, Inheritance, +Marriage, Contract, in each case endeavouring +to discover the ethical or psychological basis of the +conception or institution, and to build up the institution +in its simplicity, purity, and perfection on that basis, +determining the form which it ought to take—that is to +say, which God or Nature designed it to take—in conformity +to its essence and indwelling creative principle. +In the language of Plato, it seeks to discover and +describe the Idea (εἶδος) of the conception or institution. +In particular, this method treats the notion of Right +from all possible sides, connecting it with the Deity, +with nature in general, with man’s nature, with the +family, with the primordial social and political relations +of men, and endeavours in like manner to determine +the conception of Duty and the essence of Moral +Obligation, and the reasons why Obligation attaches +to certain human relations, whether it springs out of +these relations, <i>e.g.</i> out of those of the Family, or +whether, coming from some other source, it gives to +them a new moral quality. With certain philosophers +the method extends itself to politics, and discusses +questions some of which hardly belong to the legal +sphere, <i>e.g.</i> the rights of majorities as against minorities; +the grounds on which a ruler may demand +submission, or those on which subjects may properly +<span class='pageno' id='Page_176'>176</span>resist or depose a ruler; the relations of civil authority +to ecclesiastical authority, and the limits within which, +in case of conflict, obedience is due to one or to the +other, perhaps even the limits within which the legislator +may fitly enforce duties primarily moral.</p> + +<p class='c001'>The writers who have followed this method may +be divided into two classes. Some remain in the +field of abstractions. Positing a few extremely general +ideas or principles, they develop out of these by way of +deduction or explication the rest of their doctrine down +to such legal details, usually scanty, as they condescend +to give. The whole system is, or seems to be, spun +out of the author’s fundamental conceptions. Others, +while using abstract terms with equal boldness, turn +out when closely scrutinized to have really drawn their +notions from the concrete, and to be merely generalizing +from phenomena, more or less numerous, which they +have seen or heard or read of. Obviously, even the +more professedly abstract writers of the former class +do in fact found themselves largely, often more +largely than they fancy, upon observation, for this no +man can help doing, however much he may prefer the +‘high <span lang="la"><i>priori</i></span> road.’ There is, however, a marked difference +between the way in which this method is handled +by different types of thinkers. Some soar so high +through the empyrean of metaphysics that it is hard +to connect their speculations with any concrete system +at all. Others flutter along so near the solid earth +of positive law that we can (so to speak) see them +perching on the stones, and discover the view they +take of the questions with which the practical lawyer +or legislator has to deal.</p> + +<p class='c001'><span class='pageno' id='Page_177'>177</span>The worth of the books, abundant on the Continent +of Europe but scarce in England and the United States +(though a little less scarce in Scotland), which have been +composed by writers of this school, will be estimated +differently by those who enjoy speculation for its own +sake, and by those who think it a waste of time unless it +bears fruit in truths of definite practical utility. If the +latter criterion of value be accepted, the importance of +these treatises cannot be placed very high. The foliage +is luxuriant, but the fruit scanty. A vigorous and ingenious +mind will doubtless, in whatever way he may treat +the subject, stimulate thought in the student, and will +probably throw out just and suggestive remarks which +may be treasured up as practically helpful. As some +brilliant thinkers, at the head of whom stand Immanuel +Kant and G. W. F. Hegel, have adopted this method +in handling the Philosophy of Law, and have given a +powerful impulse to many able disciples, it would be +foolish and presumptuous to disparage their treatises. +Nevertheless, the general conclusion of English lawyers +has been that not much can be gathered from lucubrations +of this type. They are decidedly hard reading; +and the harvest reaped is small in proportion to the time +spent. Threading its way through, or, as some would +say, playing at hide-and-seek in, a forest of shadowy +abstractions, this method keeps too far away from the +field of concrete law to throw much light on the difficulties +and controversies which the student of any +given system encounters. Nevertheless, while this is +the general character of the school, there are some +books referable to it wherein one finds legal conceptions +analysed with an acuteness which cannot but +<span class='pageno' id='Page_178'>178</span>sharpen the reader’s wits, and others which pile up +much ingenious and subtle thinking round the points +where law and ethics come into contact, some legal +problems being really ethical problems also. Even a +student who has experienced many disappointments +will not lightly abandon the hope that some lawyer +with a gift for speculation will one day employ this +method—in itself a method with legitimate claims to +respect—to produce a book nearer to the realities of the +subject than any which the last two centuries have seen. +There is more to be expected from such a man than +from a metaphysician who thinks he understands law. +Higher and rarer gifts are no doubt needed for metaphysics +than for law; indeed even high poetic genius +is not so rare as a really original genius for speculation. +But the lawyer who rises into metaphysics has +at any rate his body of practical knowledge to keep him +in the path of sense: the metaphysician dealing with +law may easily lose himself in mere words.</p> + +<p class='c001'>The Analytic Method, standing in a marked and sometimes +a scornful opposition to the method we have been +considering, leaves metaphysics and ethics on one side, +and starts from the concrete, that is to say, from the actual +facts of law as it sees them to-day. It takes the terms, +whether popular or technical, which are in current use. +It endeavours to define these terms, to classify them, to +explain their connotation, to show their relation to one +another. It is of course frequently obliged, when it +attempts, as it must attempt, to be logical, to modify +the existing terminology, and attach a new specific and +technical sense of its own to some words, or even to +invent terms altogether new.</p> + +<p class='c001'><span class='pageno' id='Page_179'>179</span>This method, though it is essentially, in its more +obvious and rudimentary form, so much a matter of +common sense as to have been more or less employed +by all who have thought or written about law, and may +possibly have been used in Egypt under the Fourth +Dynasty, is most familiar to us as that employed with +boldness and spirit by Jeremy Bentham, and subsequently +proclaimed by the school he founded to be the +only helpful mode of handling the subject. That +school rendered a service to legal study in England by +the keen east wind of criticism which they unloosed to +play upon our law, and which ended by uprooting a +good many old and probably rotten trees. They roused +an interest in the discussion of general legal doctrines +which had been wanting during the first three quarters +of last century. But they fell into two grave errors.</p> + +<p class='c001'>They laid the foundations of legal science in the +so-called Theory of Utility, which, be it sound or unsound, +has nothing to do with the Analytic Method, +nor with Positive Law. In the first place, it is a theory +of human action which properly belongs to ethics or +psychology; and secondly, in so far as it can be deemed +to affect law, it affects neither the classification and +exposition, nor the application of law (except in so far +as it may subserve interpretation), but the making of +law. That is to say, it belongs not to the jurist but to +the legislator. Its place is that of a practical guide +to the science we call the Principles of Legislation. +But in this application it is no new discovery, for all +legislators have at all times professed, and many have +honestly sought, to be guided by it. Expediency, to +use the older and less formal term, is a principle +<span class='pageno' id='Page_180'>180</span>obvious in legislation and dangerous in law, for though +the commentator may properly use it, the judge may +readily abuse it. That Bentham, who was first and +foremost a reformer, should incessantly insist on the +doctrine of utility, till he almost crushed his legal +analysis under the weight of his ethical theory, was +perhaps natural. He was really trying to create a +Theory of Legislation. But John Austin, the most +prominent of his professional disciples, was a writer on +law rather than a reformer, so in him the fault is less +excusable. Indeed, Austin pushed the habit further, for +he must needs, after basing Law on Utility, identify +Utility with the Law of God, in doing which he +wanders off into the field of Natural Theology, and +virtually repeats the error, which he had censured in +the Roman lawyers, of assuming a Law of Nature as +the basis of legal doctrines. So that Bentham and he +are not unjustly described by the Germans as the +authors of ‘theories of Natural Law.’</p> + +<p class='c001'>The second error of this school was that of relying +too much upon current English notions and terms. +They did not extend their view far enough either into +the past, or over the legal systems of other times and +countries. Bentham was, to be sure, chiefly occupied +with schemes of reform, and did not profess to be a +jurist. Austin deserves credit for having gone to +Roman law, and sought in it those general ideas in +which he found, or thought he found, English law +lacking. Unfortunately he did not fully master the +Roman system; and his overweening self-confidence +betrayed him into a dogmatic censoriousness which +was unbecoming even when he was exposing the +<span class='pageno' id='Page_181'>181</span>errors of Blackstone, and was still less pardonable +when he poured scorn on the legal luminaries of +Rome. He did not perceive how deep some of the +difficulties of legal theory lie, nor that there are some +conceptions which it is safer to describe than to +attempt to define. Hence his solutions are sometimes +crude, and his efforts, in themselves most laudable, +after exactitude, are apt to fail for want of subtlety. +On several fundamental questions, such as the origin +and essence of law and the nature of sovereignty, +Austin is palpably wrong, and the most eminent of +those later writers who started as his disciples have +been largely occupied in disclaiming and correcting +his mistakes.</p> + +<p class='c001'>The really great merit of the English Analytic School—a +merit which was no doubt the main source of its +influence, but which we are now in some danger of +forgetting—was its destructive energy. When Bentham +began his career, case law, which reigned supreme, was +by the legal profession generally, though of course not +by such a man as Lord Mansfield, regarded as a mere +string of precedents. No idea of philosophical arrangement, +much less of literary finish, had begun to work +upon the mass—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'><span lang="la">‘Quum neque Musarum scopulos quisquam superarat,</span></div> + <div class='line'><span lang="la">Nec dicti studiosus erat.’</span></div> + </div> + </div> +</div> + +<p class='c019'>Blackstone had indeed rendered the immense service +of presenting within moderate compass and in graceful +diction a complete view of the law. But he brought an +insufficient grasp of history and philosophical principle, +and still less an exact analysis, to his exposition, finding +little to criticize and nothing to require amendment in +<span class='pageno' id='Page_182'>182</span>rules and a procedure which half a century later few +ventured to justify. This genial optimism, which was +satisfied with any explanation, because it took the law +as it stood to be the best possible, provoked Bentham. +He writes with the air of one who does well to be +angry; and the tradition descended to Austin, by whose +time the grosser scandals of the law were beginning to +be removed.</p> + +<p class='c001'>Between Bentham and Austin there is one conspicuous +difference<a id='r87'></a><a href='#f87' class='c013'><sup>[87]</sup></a>. Bentham had not only a vigorous +but a fertile and inventive mind, acute and ingenious, +if sometimes warped or liable to become what is now +called ‘cranky.’ He drops plenty of good things as +he goes along. Austin is barren. Few or no suggestive +thoughts are to be gathered where he has passed. His +dry, persistent iteration, with its honest struggle after +precision of terms, has a certain value as a mental +discipline, just as it tests one’s powers of endurance to +traverse a stony and waterless desert. An old Scottish +lady consoled her friend, who had been dragged two +miles in a broken carriage by runaway horses, with the +remark that it must have been a precious experience. +But it is generally better to get one’s discipline from +books which also yield profitable knowledge. Of this +there is in Austin nothing which may not nowadays be +found better stated elsewhere. Most recent authorities +are now agreed that his contributions to juristic science +are really so scanty, and so much entangled with error, +that his book ought no longer to find a place among +those prescribed for students.</p> + +<p class='c001'><span class='pageno' id='Page_183'>183</span>How then, it may be asked, did it happen that +Bentham and even Austin made a great impression +upon some powerful minds in the last generation? +Bentham did, because he was the first man who had +the courage to denounce the artificialities, absurdities, +and injustices of the unreformed law and procedure of +England. No small part of the credit for the reforms +which Romilly, Brougham, and their fellow workers +carried out belongs to the man who had begun to call +for them full thirty years before. Austin did, because +in his time systematic legal study, and in particular legal +education, were almost extinct in England. There was +no legal teaching either in the old Universities, or in +London. Though the grosser abuses of procedure had +been removed, yet the subtleties of special pleading, as +well as the long-winded and highly artificial intricacies +of conveyancing, still flourished, and the law was regarded +as a forest of details through which it was useless, +even if possible, to drive paths for the student to follow. +A disciple of the old reformer who brought to the novel +enterprise of teaching and systematizing law a faith in +the reformer’s doctrines and a zeal for general principles, +not unnaturally received the sympathy and the +deference of the eager youth who believed, and rightly +believed, that the practice of the law, as well as its +substance, would gain from the application of an independent +and fearless criticism to it. By this service +Austin has earned our gratitude, and deserves to be +remembered with respect. So, though the legal writings +of Bentham and his disciples have now only a historical +interest, we must not forget that they stimulated men +to handle law in a new spirit, and that those whom +<span class='pageno' id='Page_184'>184</span>they influenced had much to do with the establishment +of the modern schools of law and the introduction of +new methods of preparation for professional work.</p> + +<p class='c001'>The third method is the Historical. Instead of taking +law as a datum, like the two other previous methods, +it seeks to find how law sprang up and grew to be +what it is. It sees in law a product of time, the germ +of which, like the germ of the State, exists in the nature +of man as a being made for society, and which develops +from this germ in various forms according to the +environing influences which play upon it. Although +law may not have been created by the State, it tends as it +grows to become more and more closely associated +with the State as a function of the latter’s energy. +Though its leading doctrines and its fundamental institutions +are in some respects essentially the same in all +civilized communities, still every given system is, in +the historian’s view, for ever changing, growing, and +decaying, both in its theory and in its substance, <i>i.e.</i> +both in the ideas which create and underlie the legal +conceptions and rules, and in the particular forms +which those rules have assumed no less than in the +institutions by which such rules are put in force.</p> + +<p class='c001'>The utilities of the Historical Method as applied to +any given system of law are two.</p> + +<p class='c001'>It explains many conceptions, doctrines, and rules +which no abstract theory or logical analysis can explain, +because they issue, not from general human reason +and the nature of things, but from special conditions in +the country or people where the law in question arose. +All law is a compromise between the past and the +present, between tradition and convenience. Hence +<span class='pageno' id='Page_185'>185</span>pure analysis, since it deals with the present only, can +never fully explain any legal system.</p> + +<p class='c001'>This is not to say that the Historical method is a +mere record of accidents. On the contrary it endeavours +to eliminate, or at least to reduce to due proportions, +that element of accident which results from the personal +fancies and arbitrary volition of individual lawgivers. +It conceives of national character and the circumstances +of national growth as creative forces, whereof law is +the efflux and expression, being itself a living organism, +which in its turn helps to shape the mind of the people. +Accordingly it shows that each nation, rather than +individual men, however potent, is, through what the +Germans call its Legal Consciousness (<span lang="de"><i>Rechtsbewusstsein</i></span>) +the maker and moulder of its law.</p> + +<p class='c001'>A second merit of this method is that of indicating +that the conceptions and rules which prevail at any +given time, however obviously reasonable and useful +they may appear to the generation now living, will not +always appear so, but must undergo the same change +and decay which previous rules have experienced. It +teaches us never to condemn the past because it is not +the present, nor ever to forget when we praise the +present that it too will some day be the past. This is +one of those truisms which men are always forgetting to +apply, and of which legislators in particular need to be +often reminded.</p> + +<p class='c001'>The risk principally incidental to the Historical +method is, that it is apt to lapse, either into mere antiquarianism +on the one side, or into general political and +social history on the other. Some charge it with retarding +improvement by justifying the past. Those who +<span class='pageno' id='Page_186'>186</span>oppose reforms have often so abused it: just as those +abuse it who when they palliate crimes by dwelling +on the ‘so-called conditions of the age’ attenuate all +moral distinctions. ‘In judging Phalaris,’ a modern +lecturer is reported to have said, ‘we must not forget +that the moral standard of Phalaris’ time is not that of +our own.’ Nevertheless History, when she explains and +is supposed to justify the past, justifies it as the past, +and must not be deemed to defend it for the purposes +of the present.</p> + +<p class='c001'>It is, however, a weak point in the Historical method +as applied to the science or philosophy of law that it is +more applicable to the law of any particular country +than to the theory of law in general, for the details +of legal history vary so much in different countries +that immense knowledge and unusual architectonic +power are needed to combine their general results +for the purposes of a comprehensive theory. Indeed, +I doubt if any man of the requisite capacity (unless +perhaps Rudolf von Ihering) has yet produced a treatise +on jurisprudence or the philosophy of law by means +of this method. The thing, however, may be done, +and so will doubtless be done some day. Everything +happens at last.</p> + +<p class='c001'>Lastly, there is the so-called Comparative Method, +which is the youngest of the four. It is concerned +with space as the Historical method is with time. It +collects, examines, collates, the notions, doctrines, rules, +and institutions which are found in every developed +legal system, or at least in most systems, notes the +points in which they agree or differ, and seeks thereby +to construct a system which shall be Natural because +<span class='pageno' id='Page_187'>187</span>it embodies what men otherwise unlike have agreed +in feeling to be essential, Philosophical because it +gets below words and names and discovers identity +of substance under diversity of description, and Serviceable, +because it shows by what particular means +the ends which all (or most) systems pursue have +been best attained. The process is something like +that which a Roman Praetor might have followed +in constructing the general or theoretical part of his +<span lang="la"><i>ius gentium</i></span><a id='r88'></a><a href='#f88' class='c013'><sup>[88]</sup></a>. If indeed we are to suppose the +Praetor ever really did study the laws of the various +neighbours of Rome, he was one of the founders of this +method, though to be sure the Roman commissioners, +who are said to have been sent out to examine the laws +of other countries before the Decemviral legislation, +preceded him in this attempt.</p> + +<p class='c001'>The comparative science of jurisprudence appears, +however, in two forms. One of these must, like the +science of comparative grammar, crave the aid of history, +for the study of the differences between two +systems becomes much more profitable when it is +seen how the differences arose, and this can be explained +only by social and political history. This +form may be deemed an extension of the historical +method, which it resembles in helping us to disengage +what is local or accidental or transient in legal doctrine +from what is general, essential, and permanent, and +in thereby affording some security against a narrow +or superficial view. It is really an historical study +of law in general; and, like history, it is not directed to +practical ends.</p> + +<p class='c001'><span class='pageno' id='Page_188'>188</span>The other form, though it cannot dispense with the +aid of history, because the differences between the laws +of different countries are not explicable without a knowledge +of their sources in the past, has a narrower range +in time, being directed to contemporary phenomena. It +has moreover a palpably practical aim. It sets out by +ascertaining and examining the rules actually in force +in modern civilized countries, and proceeds to show by +what means these rules deal with problems substantially +the same in those countries. For example, it takes +such a topic as the liability of an employer for the acts +of his servant, or the structure and management of +incorporated companies, compares the enactments it +finds in France, in Germany, in the British Colonies +and in the States of the American Union, points out +their differences, and seeks to determine which mode +of handling the difficulties of the subject is the simplest +and most likely to work well in practice. The next step +would be to test each legislative experiment by the +results it has secured in each country. Here, however, +the task becomes more difficult, and requires qualities +in the investigator which are not altogether those +needed by the jurist.</p> + +<p class='c001'>What the Comparative method does for legal training +and legal theory it does in its first mentioned and historical +form. Ample as the materials may appear, they +are really somewhat scanty, because there have been in +the world not many distinct types of legal system or doctrine, +and few of these have reached a high development. +Of the ancient and long since departed systems little +is left, and that little not very helpful for this particular +purpose. There are some fragments of old Celtic law +<span class='pageno' id='Page_189'>189</span>from Ireland, with larger fragments of old Teutonic +law chiefly from Iceland, Norway, Friesland, and the +Carolingian Empire, some old Slavonic land and family +customs, besides what may be gleaned from the ancient +books of India, and what has recently been discovered +in Egypt, in the clay tablets of Babylon, and in inscriptions +among the ruins of Greek cities. Of the modern +systems, on the other hand, there are besides those of +Teutonic origin, practically only three worth mentioning: +Hindu law, which has been fully developed only in two or +three directions; Muhamadan law, which is deficient on +some of the sides we should deem the most important; +and the Roman law, which now covers all those parts of +the civilized world that are not covered by English law, +including the continent of Europe and the colonies of +European nations (some British colonies as well as +French, Dutch, German, and Portuguese) except those +which lie in the temperate parts of North America and +in Australasia. So far, therefore, as the doctrines of +law in its civilized and developed forms, suited to a +progressive modern nation, are concerned, the comparative +method is virtually restricted to a comparison +of English and Roman conceptions and rules. And the +fundamental ideas and principles of English law itself +have been in some departments so much affected by +Roman law that they can hardly be treated as independent +material for comparative study.</p> + +<p class='c001'>It is when we leave the field of legal philosophy and +jurisprudence in general for the field of particulars and +details that the practical value of the Comparative +method begins. An examination of the various ways +in which economic and social problems have been dealt +<span class='pageno' id='Page_190'>190</span>with in recent times, and in which commerce has +been regulated and crime checked, is in the highest +degree interesting and useful. But that is not quite +the kind of legal study which we are here primarily +engaged in considering. No doubt the way in which +questions of liability and responsibility and negligence, +to take a familiar example, are dealt with in +the laws of different countries, does throw light +upon general juristic conceptions and upon the lines +which Courts ought to follow in developing these +difficult branches of any concrete system. But on +the whole, it is rather to the province of legislation +than to that of law that this part of comparative jurisprudence +belongs; and, as has been already observed, +the utility for practical guidance of the results which an +examination of the legislation of various civilized states +supplies is somewhat reduced by the difficulty of determining +how much of those results, be they good or +evil, is in each case attributable to legal enactments, +how much to the social and economic environment in +which the enactments work.</p> + +<p class='c001'>If we are to attempt to estimate the respective worth +of these four methods for the creation of a theory or +philosophy or science of law, we must begin by settling +for whom such a science is designed and to whom it +will be useful.</p> + +<p class='c001'>Three kinds of persons will primarily and directly +profit by having such a science built up on the best lines, +viz. the teachers and students of law, the practitioners of +law, including both advocates and judges, and the makers +of law, <i>i.e.</i> legislators and draftsmen. Legislators, however, +whether monarchs or members of legislative assemblies, +<span class='pageno' id='Page_191'>191</span>have in modern countries seldom sought to acquire +any specifically legal knowledge, though some persons +who sit in the legislatures of modern countries usually +happen to possess it. Thus it is rather of the two other +classes we must think, that is to say, of the value of +a scientific theory for facilitating the acquisition of legal +knowledge by the learner, and of its value in helping +the practitioner (whether advocate or judge) to apply it +with accuracy, perspicacity, ingenuity, and promptitude. +In proposing this test I do not mean to ignore the +importance which belongs to the philosophy of every +great branch of learning, as an end in itself, apart from +all practical benefits to be derived from it. That importance +is, however, as the Romans say of freedom, <span lang="la"><i>res +inaestimabilis</i></span>, a thing too precious to receive a valuation +in any recognized currency. Practical utility, on the +other hand, can be tested and valued, so it is to the +practical utility of this science in making men thorough +masters of law that we had better confine our view.</p> + +<p class='c001'>All the four methods are legitimate and capable of +being applied in a truly scientific spirit. None therefore +is to be either neglected or disparaged. If, +however, we judge them by their fruits, we shall find +that the Historical has given the best crop. The +Metaphysical tends to be not merely abstract but vague +and viewy. Of the treatises in which it has been employed +the best are indeed not to be deemed empty. +Scattered through not a few of them one finds acute +and suggestive remarks. They subserve a sound +analysis by their treatment of ethical problems: and +sometimes they present what are really considerations +of practical expediency disguised in the robes of +<span class='pageno' id='Page_192'>192</span>sacerdotal transcendentalism. The difficulty which forbids +many among us to give more study to these books is +the shortness of life. Much talent, sometimes of a high +order, has gone to the making of them. But they are, +and not solely the German ones, terribly hard reading.</p> + +<p class='c001'>The Analytic method keeps much nearer to the realities +of law, and is serviceable for the clarifying of our +ideas. Its English votaries have, however, generally +wanted breadth of view, and have tried to force definitions +on facts, instead of letting the facts prescribe the +definition. They have been unequal to the subtlety of +nature (for law also is a product of nature), and this +largely because they have neglected the materials for +induction which history supplies.</p> + +<p class='c001'>The Comparative method (as already observed) suffers +from a lack of material for the purposes of a philosophy +of law in general, and becomes in practice an examination +of Roman conceptions with the help of light from +England in those departments of English law which +have been least influenced by Rome<a id='r89'></a><a href='#f89' class='c013'><sup>[89]</sup></a>, and of some +glimmers from the East and from the laws of ancient +European peoples.</p> + +<p class='c001'>The Historical method, on the other hand, may at +least be relied upon to give us facts. Facts are always +helpful, when men have been trained to use them. It +is the business of historical criticism to impart this +training, just as it is the business of logic to teach men +how to analyse a current conception and to distinguish +the various senses in which a term may be used.</p> + +<p class='c001'><span class='pageno' id='Page_193'>193</span>If the question is propounded—How should these +four methods, or some or one of them, be used for +the purpose of legal instruction and the formation of a +legal mind and power of handling legal problems, may +we not answer it in some such way as the following?</p> + +<p class='c001'>The philosophy or theory of Law should begin by +determining the place of law among the human or +moral as opposed to the physical sciences, and should +examine its relations to Psychology, Ethics, Politics, +and Economics. As this inquiry will start from a +general survey of the nature of man and the general +ideas he forms, it will fall within the scope of what we +have called the Metaphysical method.</p> + +<p class='c001'>The notions and conceptions which are essential to +law and lie at the bottom of all systems will then be +investigated, and particularly the following fundamental +conceptions—Right, Obligation, Duty, Liability, Law, +Custom. Some will prefer to deduce these conceptions +by the metaphysical method from the phenomena of +human nature and the principles that connect these +phenomena. Some will prefer to start from current +notions as embodied in current language, and to reach +correct definitions by analysing the meaning conveyed +by each term and setting out the facts it is intended to +cover. Whichever method be adopted—and there is less +real difference between the two than the description +here given of them might seem to convey—the Historical +method ought to accompany and aid the application of +either. For although the object of the inquiry is to obtain +a statement which shall be adequate and exact for the +science of law as a fully developed product of civilized +societies, we always need to be warned by History +<span class='pageno' id='Page_194'>194</span>against assuming that our present notions are sufficiently +wide, and sufficiently possessed of the elements of necessity +and permanence to secure that our propositions +shall be generally true and enable our definitions to hit +what is really essential. The once popular definition +of law as a Command of the State is an instance of +the danger of forgetting the past, for the fact that it +would have been palpably untrue in certain stages of +political development shows that it does not rest upon +a sufficiently broad foundation.</p> + +<p class='c001'>From these general conceptions the inquiry will +advance to a second order of ideas and categories, +more specifically and purely legal, such as Ownership, +Possession, Contract, Tort, Marriage, Guardianship, +Slavery, Conveyance, Pledge, Lien, Prescription, Inheritance, +Sale, Partnership, Bailment, Crime, Fraud, +Negligence. Here we come still closer to the rules of +concrete systems. A German metaphysician may no +doubt deduce the abstract idea of Ownership or Contract +from the general principles he has previously +laid down in his speculative treatment of the subject. +A Socratic analyst may by testing current terms and +phrases, and unfolding the meanings involved in these +terms, arrive at definitions of them. But the examination +of the conceptions and the definition of the terms +must be mainly based on a study of the facts which in +one or more actual legal systems these conceptions +cover. In this study the Historical method can render +effective help, because the rules actually regulating in +any given system all the relations denoted by these +terms are sure to have something irregular or apparently +arbitrary about them, something which pure reason +<span class='pageno' id='Page_195'>195</span>would not have suggested. The forms, for instance, +which Possession, Inheritance, and Pledge have taken +both in Roman and in English law have many peculiarities +explicable only by tracing the causes that +produced them. The definition which the jurist will +propound for the purposes of his science of law in +general will avoid such peculiarities, but he cannot +afford to be ignorant of them or of their origin, else +he may miss some side of their significance.</p> + +<p class='c001'>Although in theoretical Jurisprudence the part of +History is on the whole secondary, it is nevertheless +indispensable. For History shows us cases where +things that are really different go by the same name, +and other cases where things that are really the same +go by different names, cases where a rule has been +extended beyond, and others where it has not been +extended to, its proper or natural range, and thus it +guides the jurist, explaining the facts on which he +has to found his theory. The Comparative method +renders a similar service in preventing him from +laying too much stress on the special shape in which +a doctrine or institution appears in the particular +system whose history he is studying, and generally +in pointing out identity of substance or effect coupled +with diversity of form or expression.</p> + +<p class='c001'>All the above-named categories or conceptions or +institutions, together with some few others of minor +importance, belong to the science of law in general, +because they appear in every fully developed system. +When, however, we get more into particulars, it becomes +increasingly difficult to lay down general doctrines or +suggest general rules applicable to all communities, +<span class='pageno' id='Page_196'>196</span>because details must be settled with reference to the +needs and usages of a given community, and that which +suits one would hardly suit another. Here therefore +the Philosophy or Science of Jurisprudence will bid +farewell to the student, handing him over to those who +teach the law of England or Scotland or France or +Russia, as the case may be, and bidding him remember +to apply the general principles he has mastered to the +criticism of the details which he will thenceforth be +occupied in learning.</p> + +<p class='c001'>The principles which constitute the Science or +Theory of Law in general can be adequately stated +within moderate compass. The subject is not a large +one, unless a writer spreads himself out in ethics on +the one hand or accumulates historical details on the +other. Nor is it in the knowledge to be given that +the value of the study will chiefly lie; it is rather in the +training to use the right methods in the right way. +Before he is plunged into details, the student ought to +acquire the habit of looking for principles, of analysing +terms, of perceiving that legal doctrines have all had +their growth from rude beginnings and will change +further. These aptitudes will serve him when he +enters the domain of technical law, which is a domain +less of Reason than of Authority. And authority, though +it may be called the reason of the past, rules not because +it is reason but because it has the sanction of a past +pronouncement.</p> + +<p class='c001'>Arguments founded on the reason of things or on +the tendency of historical development will avail nothing +in practice against a positive rule, whether contained in +a statute or deducible from a decided case. Seldom +<span class='pageno' id='Page_197'>197</span>indeed will a judicious advocate invoke either Reason or +History, unless perhaps in arguing before the House +of Lords a point whereon little authority exists. But +in reasoning from decided cases, and even in interpreting +statutes, his mastery of the methods already +described will stand him in good stead. Nor is it to be +forgotten that the judge and the writer of text-books +have, each of them, important functions in guiding the +development of the law. When a question is to be dealt +with regarding which authority is scanty or the decisions +are conflicting, a jurist belonging to either of these +classes may apply the philosophic habit of mind formed +by his theoretic studies to the task of finding a solution +which shall be sound and durable, because conformable +to principle, and standing in the true line of historical +development.</p> + +<p class='c001'>Let us return, now that we have sketched a scheme +for a Theory or Science of Law in general, to the +question whence we started, whether the Romans, who +never produced any such theory or science, suffered +from the want of it. If they did suffer, why do we +praise their treatment of law, and why in particular do +we call it a philosophical treatment? If they did not +suffer, what becomes of the importance of a Science or +Theory to the modern lawyer? Why should he trouble +himself about it at all?</p> + +<p class='c001'>What is it which we admire in the Roman jurists, and +in the Roman law generally?</p> + +<p class='c001'>The characteristic merits of the Roman law—and +I speak of course only of the Private Law, for Public +or Constitutional Law must be considered apart—are +its Reasonableness and its Consistency. It is +<span class='pageno' id='Page_198'>198</span>pervaded by a spirit of good sense. Except in two +departments, those of the Paternal Power and of +Slavery, its rules almost always conform to considerations +of justice and expediency. Very little needs +to be excused as the result of historical causes. Even +Slavery and the <span lang="la"><i>Patria Potestas</i></span>, the former universal +in the ancient world, the latter so deep-rooted among the +Romans that it could never be altogether expunged, are +in the later centuries so steadily and carefully mitigated +that most of their old harshness disappears. The moral +tone of the law is, take it all in all, as high as that of any +modern system; and in some few points higher than +our own. By its Consistency I mean the harmony and +symmetry of its parts, the maintenance through a multiplicity +of details of the leading principles, the flexibility +with which these principles are adapted to the varying +needs of time, place, and circumstance. So the excellence +of the jurists resides in their clear practical sense, +in the air of enlightenment and of what may be called +intellectual urbanity which pervades them. Most of +them express themselves with a concise neatness and +finish which gives us the pith of their view in the fewest +and simplest words. They dislike what is arbitrary +or artificial, taking for their aim what they call elegance +(<span lang="la"><i>elegantia iuris</i></span>), the plastic skill (so to speak) in developing +a principle which gives to law the character of Art, +preserving harmony, avoiding exceptions and irregularities. +Yet they never sacrifice practical convenience +to their theories, nor does their deference to authority +prevent them from constantly striving to correct the +defects of the law as it came down from their predecessors.</p> + +<p class='c001'><span class='pageno' id='Page_199'>199</span>In these respects the Roman law and the Roman +lawyers of the classical age (the first two and a half +centuries of the Empire) may be deemed more philosophical +than our own law or its luminaries. Our law, +equal to the Roman in its sense of justice and in its +subtlety, and in some respects distinctly superior to the +Roman, is also a far larger and more complex structure, +as it has to regulate a far more complex society. But +it has less symmetry and consistency, more intricacy +and artificiality, than the Roman: and few of our legal +writers can be placed on a level with the greatest of +the classical jurists. Compare Lord Coke for instance, +or Lord St. Leonards, with Papinian or Gaius. Lord +St. Leonards was a man greatly admired by the profession, +and his books secured an authority unsurpassed, +if indeed equalled, by any other legal writings of the +century<a id='r90'></a><a href='#f90' class='c013'><sup>[90]</sup></a>. His knowledge was immense, and it was +minute. His treatises show the same acuteness and +ingenuity in arguing from cases which his forensic +career displayed. But these treatises are a mere accumulation +of details, unillumined and unrelieved by any +statement of general principles. In literary style, and +no less in the cast and quality of his intellect, he is +harsh and crabbed, but his frequent obscurity must +<span class='pageno' id='Page_200'>200</span>be due less to a want of clear thinking than to the +fact that our legal text-books have so rarely aimed +at excellence of literary form that this famous case-lawyer +had no ideal of lucidity or finish before him. +Lord St. Leonards is not an exceptional instance. +That sound and very learned legal author whom the +early Victorian era so much valued, Mr. John William +Smith (Smith’s <cite>Leading Cases</cite> and <cite>Contracts</cite> ), illustrates +the same tendencies.</p> + +<p class='c001'>Now the merits we have noted in the Roman law and +the Roman jurists are largely merits of method. To +set forth the causes to which the excellence of the +Roman law is ascribable would involve a long digression, +and I have dealt with those causes elsewhere. +So let us confine ourselves to the jurists. They reason +and they write as men who have been thoroughly +trained, who have been imbued with a large and liberal +view of law, who have philosophy and analysis and +the sense of historical development equally at their +command. They are endowed in fact with the qualities +which, as we have been led to think, a course of the +Theory or Science of Law ought to impart. How then +did they acquire these qualities?</p> + +<p class='c001'>First, by the study of philosophy. Though our data +scarcely justify a general statement, it seems probable +that many of the jurists, especially of such as grew up at +Rome, received instruction in Greek philosophy. It has +been suggested that not a few professed the doctrines of +the Porch. Anyhow the conception of Nature as a force +or body of tendencies prompting and guiding the progress +of law was familiar to them, and appears to have +influenced their ideas. Then by a searching and sifting +<span class='pageno' id='Page_201'>201</span>of legal terms and maxims, what may be called an exetastic +method, they sharpened the edge of their minds and +gave clearness to their notions. Both the philosophical +and the rhetorical training given to young men fostered +the habit of analysis; and the disputations which went +on among the lawyers, stimulated by the controversies +of the two great schools, Sabinians and Proculians, +doubtless trained men in dialectic, wherein the framing +and the dissecting of definitions play no small part. +The history of law does not seem to have been taught, +and regarding some parts of their earlier legal history +the Romans of the later Empire may have known less +than we know to-day. The sketch taken from Pomponius +which we have in the beginning of Justinian’s +<cite>Digest</cite> is uncritical, and in many points defective. But +these jurists, from their study of the development of +equitable principles through the action of the Praetor, +had a training in historical method which must have been +eminently profitable. During the last two centuries +of the Republic and the first century of the Empire, +the law of Rome was being constantly amended and +developed far less by the comparatively rough method of +legislation than by the delicate methods of interpretation, +discussion, and the issuing of praetorian Edicts, +and developed in such wise that the new had always +arrived before the old departed, so that the process of +evolution was always before their eyes, and its lessons +familiar to them.</p> + +<p class='c001'>Finally, the administration of justice by the <span lang="la"><i>Praetor +peregrinus</i></span>, who doubtless based himself mainly upon +the commercial usages of the merchants who from +various quarters resorted to Rome, and still more +<span class='pageno' id='Page_202'>202</span>the issuing of provincial edicts by the magistrates +who were sent to rule the provinces according to +systems which combined some Roman rules and principles +with other rules which belonged to the particular +province, supplied abundant materials for observing in +what points the special and peculiar law of Rome agreed +with or differed from the laws of other peoples and +states<a id='r91'></a><a href='#f91' class='c013'><sup>[91]</sup></a>. The jurists were thus led, not by theory, but +by the practical needs of the case, to apply and to profit +by the Comparative method, no less than by the three +other methods above enumerated. And accordingly +they did in fact obtain, without any paraphernalia of +a Philosophy or Science embodied in separate treatises +or ostentatiously taught as a separate subject, those very +gifts and aptitudes which a systematic and enlightened +scheme of legal education ought to confer. They did +not set out with abstractions, like our German and +Scottish friends. They did not, like Bentham and +Austin, crack a set of logical nuts, in the effort to +divide and define the matter and the leading conceptions +of law. But they applied to the handling of +their own concrete rules and problems a mastery +of general principles and a love for harmony and consistency +which are essentially philosophical. They +were pervaded by the sense of historic growth and +change, for had they not before them the relations of +<span class='pageno' id='Page_203'>203</span>the old and the new in many institutions—the development +of <span lang="la"><i>Formula</i></span> beside <span lang="la"><i>Legis Actio</i></span>, of <span lang="la"><i>Ius Gentium</i></span> +beside <span lang="la"><i>Ius Civile</i></span>, of <span lang="la"><i>Bonorum possessio</i></span> beside <span lang="la"><i>Haereditas</i></span>, +of <span lang="la"><i>Longi temporis praescriptio</i></span> beside <span lang="la"><i>Usucapio</i></span>? The one +thing in which it may be said that a systematic science +of law might have helped them was the arrangement +and distribution of topics. For this they certainly +cared little and did little. But the taste for systematic +arrangement was never strong in the ancient world. +Perhaps the modern appreciation of it dates back to the +scholastic philosophy of the Middle Ages, which spent +much thought on what the logicians called Division. +Perhaps it has been reinforced by the more recent +progress of Natural History, which furnishes in the +classification of the animal and vegetable kingdoms the +grandest example of orderly schemes of distribution +based on scientific lines.</p> + +<p class='c001'>This excellence of the Romans in the sphere of concrete +law confirms the view we were led to take that the +contents of a Philosophy or Science of Law in general +are not large, being indeed confined to the defining of +the relation of Law to Ethics and other cognate branches +of philosophy, and to the examination of some fundamental +legal conceptions, important no doubt, but not +very numerous. The solid and essential value of legal +science begins in the manipulation of the material presented +by an actual system of law, in the moulding of +the old customs so as to reconcile them with the always +changing needs of the people. And this has been the +doctrine and practice of the greatest foreign masters of +the Roman law in modern times. It was the doctrine +of Savigny, who opposed his historical method to the +<span class='pageno' id='Page_204'>204</span>abstractions of the contemporary Hegelians, and it prevailed +in the struggle. I remember the way in which it +was conveyed to me by one of the greatest of Savigny’s +school, Dr. Karl Adolf von Vangerow, to whose brilliant +and stimulating lectures I listened at Heidelberg, now +many years ago. Inspired by my Scottish and Oxford +training with the notion that in order to study +a subject rightly one must begin with its metaphysics, +I asked the professor, on one of the days when his +students were permitted to call on him, what book on +the Philosophy of Law (<span lang="de"><i>Rechtsphilosophie</i></span>) I ought to +read. He raised his eyebrows till they seemed to reach +the top of his head, and said with a deprecating wave of +his hand, ‘I doubt whether that kind of reading will +help you with your legal studies. I see little use in +it. But if you really do want to study such a topic——well, +there is the <span lang="de"><i>Naturrecht</i></span> of my colleague Herr +Dr. Röder: you can look at it.’ Nearly all the jurists +to whom the development of modern Roman law in the +nineteenth century in Germany has been due have taken +a similar view, and have spent their powers either on +the same questions as those which occupied the Roman +sages or on the application of Roman principles and +doctrines to the phenomena and conditions of modern +times, and especially of modern commerce. They +have been philosophical in their use of the analytic +and historical methods, philosophical, that is to say, +as compared with Lord Coke or Lord St. Leonards, +and they have greatly improved on the division and +classification of topics which we find in the Roman +books. But they have troubled themselves about the +abstract philosophy of law just as little as those two +<span class='pageno' id='Page_205'>205</span>famous judges, or as those august Romans who divided +their time between the composition of legal treatises and +advising the Emperor on the ordinances which he issued +for the whole civilized world.</p> + +<p class='c001'>Not a few of the great Roman jurists (including +Julian, Papinian, and Ulpian) sat in the imperial consistory, +and were practically not only judges of the highest +Court of Appeal but also legislators. An estimate of +their scientific merits must include this branch of their +activity, whether as settling the form of decrees to +be passed by the Senate, or as drafting enactments +to be issued in the name of the Emperor. For legal +science is not merely either expository on the one hand, +or on the other dispensatory and corrective, securing +to each what is his, but is also Constructive and Ameliorative, +framing rules under which society may advance +steadily and smoothly, may get rid of obsolete doctrines, +may find new facts adequately dealt with under +new rules. It was a great advantage for the Empire, +and one which furnished some compensation for the +absence of representative legislatures that the business +of law-making lay in the hands of competent +legal experts. Legislation presents itself to us as +being above all things an expression of the will of the +people, who know where the shoe pinches them, and +have the general interest, not that of a monarch or a +privileged class, in their minds. Yet a wise despot, with +pure purposes and a command of the best legal advice, +may be expected to legislate in the general interest, and +most of the legislation of the emperors during the first +three centuries, though it was often misguided in the +sphere of financial administration, was conceived in the +<span class='pageno' id='Page_206'>206</span>interest of the population at large. What was specially +due to the lawyers who advised the Emperor was the +policy followed in amending the general private law, and +in bringing it into a more orderly and consistent condition. +In this respect they vindicated their claim to be truly +scientific. The work of law reform went on upon broad +principles, unhasting and unresting, till the anomalies +and injustice of the old system had been almost entirely +removed. Yet there was left for a long time in the provinces +a local variety of law which corresponded to and +respected the local needs and sentiments of the populations. +No passion for a rigid uniformity seems to have +blinded the advisers of the Emperor to the truth that +the first business of law is to subserve the well-being +of the people and to win their confidence as well as command +their obedience. In this respect also they were +not merely ‘priests of justice,’ as they liked to call themselves, +but also worthy servants of science. The Roman +Empire maintained itself in the East for more than eleven +centuries after the last of the classical jurists. In the +West its influence survived its political existence, and its +law in particular became the foundation of that which +came to prevail over Continental Europe. As it was +largely owing to the strength derived from its legal and +administrative structure that the Eastern Empire lived +so long, so the permanence of the Roman law in the +West is some proof of the attachment of the people +to it, and so of its intrinsic merits. Both facts are +alike a tribute to the scientific character of the system +and to the scientific genius of the men who moulded it. +For no system could have passed through the changes +which the East underwent, or survived the storms which +<span class='pageno' id='Page_207'>207</span>broke upon the West, save one which by the dominance +of clear and broad principles and the symmetrical +development of rules from those principles had become +at once intelligible, flexible, and consistent.</p> + +<p class='c001'>Let us see what are the conclusions to which we +have, by this somewhat devious course, been led.</p> + +<p class='c001'>1. There are four chief methods of studying law—the +Metaphysical, the Analytical, the Historical, and the +Comparative.</p> + +<p class='c001'>2. Each of these has its proper sphere and its distinctive +value, even if the two latter are of most general +practical service.</p> + +<p class='c001'>3. All four ought to find a place in a complete +scheme of legal training.</p> + +<p class='c001'>4. The two former are applicable only to the rudiments +and to some particular parts of the subject, the two +latter are profitable all through it, and specially so when +they can be combined.</p> + +<p class='c001'>5. The Roman jurists pass so lightly over the theoretical +side of law that the first method supplies them with +little more than a few general phrases. Although their +definitions are the result of analysis, they do not formally +or of set purpose employ the second. They use the +Historical method freely, though almost unconsciously. +At one stage in the growth of their law they applied +to some extent the Comparative method, being led to it +by the facts they had to deal with. But they seldom +mention any law but their own.</p> + +<p class='c001'>6. The Romans, though saying little about the +broad aspects or so-called Philosophy of Law, do in +fact pursue it in a philosophic spirit; and to this spirit +the excellence of their system is largely due.</p> + +<p class='c001'><span class='pageno' id='Page_208'>208</span>7. Their example shows us that it is not the effort +to discuss law in a metaphysical or abstract way that +makes a body of law truly philosophical, but rather the +power of so framing general rules as to make them the +expression of legal principles, and of working out these +rules into their details so as to keep the details in +harmony with the principles.</p> + +<p class='c001'>In other words, it is Reasonableness, Simplicity, +Self-consistency that make the excellence of a legal +system, and the best methods of study are those which +attune the lawyer’s mind to seek after these qualities, +and which enable him to hold a middle course between +viewiness and the pursuit of an impossible perfection +on the one hand and bondage to the letter on the +other.</p> + +<div class='chapter'> + <span class='pageno' id='Page_209'>209</span> + <h2 id='eXIII' class='c005'>XIII <br> <br> THE RELATIONS OF LAW AND <br>RELIGION</h2> +</div> + +<h3 class='c011'>THE MOSQUE EL AZHAR</h3> + +<p class='c012'>To the modern European world Religion and Law +seem rather opposed than akin, the points of contrast +more numerous and significant than the points of resemblance. +They are deemed to be opposed as that +which is free and spontaneous is opposed to that which +is rigid and compulsive, as that which belongs to the +inner world of personal conscience and feeling is +opposed to that which belongs to the outer world of +social organization and binding rights. The one springs +from and leads to God, who is the beginning and the +end of all religious life; the other is enforced by and +itself builds up and knits together the State. Even +where the law in question is the revealed Law of God +the contrast remains. The efforts which we find in +the New Testament, and especially in some of St. Paul’s +Epistles, to reconcile the law delivered to Israel with +the dispensation of the New Covenant, all point to and +assume an antagonism. Grace, that is to say, the +spontaneous goodness and favour of God, is felt as the +antithesis to the Law; and it is only when human +nature has been brought into complete accord with +<span class='pageno' id='Page_210'>210</span>God’s will that the antithesis vanishes, and we have +the Perfect Law of Liberty.</p> + +<p class='c001'>This law of liberty, moreover, is not positive law at +all, but supersedes that law; for when all men have +been so made perfect, the need for human law has +ceased, because their several wills, being in accord with +the will of God, must needs be also in accord with one +another.</p> + +<p class='c001'>This antagonism of Law and Religion has been +conspicuous in the relations to each other of the +lines of thought followed by the ministers of religion +on the one hand and the students or practitioners +of law on the other. In the theology of the +Reformers of the sixteenth and two following centuries +Legalism is a term of reproach and is contrasted +with the freedom of the Gospel. Readers of +the <cite>Pilgrim’s Progress</cite> will remember the part played +in it by old Mr. Legality. The clergy have been apt +to dislike lawyers, to accuse them of cramping the +freedom of the Church, and of desiring to bind it in State +fetters. Erastianism, of which some lawyers and statesmen +have been known to be proud, is a name of dark +reproach on ecclesiastical lips, while the legal profession +on its part, though it has always had to yield +precedence to the other gown, conceives that the +Church needs to be strictly controlled, gladly seizes +occasion for limiting the action of her ministers, often +suspects them of trying to evade or pervert the law, +and is prone to bring accusations, more or less railing, +against them, as seeking to compass their (possibly +excellent) ends by irregular or even illegal methods.</p> + +<p class='c001'>But in earlier times, and in many countries, the two +<span class='pageno' id='Page_211'>211</span>lines of thought, the two branches of learning, the two +professions, whether as teaching or as practising professions, +were either united or deemed to have a close +affinity. In the lowest forms of organized society, such +as we find among the aborigines of Canada and South +Africa, the first kind of profession that appears is +usually that of the wizard or practitioner of magic, and +the rudiments of a priest are developed out of the medicine +man, who represents the most rudimentary form of +the physician. But in this stage of progress there is no +religion properly so called, and the usages that prevail +and which are the material out of which law will +grow, are too few, too rude, and too often interrupted +by violence, to form a system of settled and harmonized +rules. When, however, Religion and Theology +begin to emerge from the superstitions of the savage +state, and when custom, already settled, and growing +more complex with the progress of culture, has +enabled civil society to organize itself in institutions, +Law and Theology are usually found in close affinity. +Law everywhere begins with Custom. Now many +of the Customs which form Law are concerned with +worship, because the relations they regulate are relations +depending on religion. The Family is a religious +as well as a natural organism, for it is often sacred, +and in many peoples is held together by the common +worship which its members owe to the spirits of +their ancestors. Hence the maxims that regulate marriage, +and the relation of parents to children, and the +devolution of property, have a religious basis, and are +precepts of religion no less than rules of law. To take +vengeance for the killing of a near relative is a duty +<span class='pageno' id='Page_212'>212</span>which the pious son or brother owes to the ghost of +the slain; while on the other side the slaughter has +created a legal right the enforcement of which, by +compelling the payment of a proper compensation +to be exacted from the slayer or his kinsfolk, will also +satisfy the religious obligation. Other relations of men +to one another not primarily religious become so by +being placed under supernatural protection. Where +a promise or agreement is to be rendered specially +binding, the party engaging himself takes an oath +invoking the Divine Power, and perhaps takes it +at a shrine, or (as in Iceland) on a temple-ring, or (as +in the Middle Ages) on the relics of a saint. These +contracts are not confined to private affairs. Treaties are +made in the same solemn way. Compacts such as that +for the single combat of Paris and Menelaus in the <cite>Iliad</cite> <a id='r92'></a><a href='#f92' class='c013'><sup>[92]</sup></a>, +are placed under the sanction of the gods by a formal +appeal to them as witnesses. And when a person who +had violated such an oath dies suddenly, his death is +ascribed to the anger of the Powers to whose keeping his +promise had been committed<a id='r93'></a><a href='#f93' class='c013'><sup>[93]</sup></a>. In such cases the priest +of the deity invoked is apt to become the interpreter of +the obligation undertaken, or the arbiter as to how far +it has been performed. Possibly he is made the keeper +of an object for which safe custody is desired, or the +depositary of an object whose ownership is disputed. +Sometimes, indeed, it is rather within the breasts of +chiefs or kings (since they act as judges and exercise +<span class='pageno' id='Page_213'>213</span>executive power) than in those of priests that the +knowledge of customs and maxims is deemed to reside. +But in these cases the royal office has itself, if not a +priestly, yet a sacred character, and the priest plays no +leading part in the political or social system. The +nature of the religion, and its more or less mystical +tendency, have of course a good deal to do with the +place allotted to the priesthood in early societies.</p> + +<p class='c001'>Where legal rules take the form of written records +embodying what is held to have been delivered to a +people either directly by the deity or through sages +recognized as inspired or guided by some divine power, +the sanctity of law reaches its maximum. It is then +a part of religion, and those who know it and expound +it have a religious no less than a legal function.</p> + +<p class='c001'>In such documentary records Law and Religion are +often so closely interwoven as to be scarcely separable. +Many rules are secular in one aspect, religious in +another, so that it may be doubted which kind of motive +prompted them, which kind of object they were designed +to secure. A regulation of ceremonial purity may have +its, perhaps forgotten, origin in considerations of a +sanitary nature. A sacrifice prescribed as an atonement +for sin may also operate as a civil penalty. +Offences against the community may be deemed +primarily offences against the deity and so dealt with; +and a frequent punishment for what we should now +call crimes is to devote the culprit to the wrath of +the powers of the nether world, or to deprive him +of the protection of those who rule the upper world, +and therewith expose him to outlawry, the oldest of all +legal sanctions.</p> + +<p class='c001'><span class='pageno' id='Page_214'>214</span>In nations living under the influence of such ideas, +the exponents of Law and Religion tend to be the +same persons, because these two branches of public +administration are conceived as being the same, or at +least two different sides of the same thing. Such persons +may or may not be priests performing sacrifices +or consulting the deity through oracles, or omens, or +a sacred lot. But they are the depositaries of the sacred +traditions, and it is they who interpret those traditions +and apply them to concrete cases. As such they are +usually among the ablest and most educated persons +in the community, sometimes prominent members of +the ruling class.</p> + +<p class='c001'>Yet Religion must not in such a state of society be +conceived as the dominant power, which gives birth to +Law. In early societies the duties and acts which belong +to the external or secular side of life are more important +than is the part of life concerned with the emotions +felt towards the deity, whether of reverence, love, or +fear. But in the observance of all the established +customs and in the performance of all the prescribed +ceremonies, that which is pleasing to the gods is not +separated even in thought from that which is salutary +for the community. The service of the deity consists, +apart from occasions of orgiastic excitement, not in the +emotional attitude of the soul, but in the discharge of the +duties recognized as owed to the family and the community, +duties which are more or less moral according to +the character of the religion—for righteousness may +hold a higher or a lower place among them—but which, +whether they relate on the one hand to sacrifices offered +and fasts observed, or on the other hand to the fulfilment +<span class='pageno' id='Page_215'>215</span>of all that the tribe or the State expects from its +citizens, are external duties. In most early nations, these +duties are prescribed not by religious emotion, but by +settled usages and rules which have the sanction alike +of the State whose welfare is involved in their observance, +and of the unseen Powers that protect it. The +people have not yet begun to distinguish by analysis +the three elements of Law, Morality and Devotion, +though here and there the voices of lofty spirits, such +as the prophets of Israel, are heard proclaiming the +supremacy of the law of righteousness as the true expression +of the Will of God, and obedience to it as the +truest service that can be rendered by His creatures.</p> + +<p class='c001'>The relation borne by Law, Morality, and Worship, +each to the other, differs widely in different peoples. +The student of early society must be always on his +guard, like the student of natural history, against +expecting a greater uniformity than in fact exists, and +against generalizing broadly from a few striking instances. +Even so brilliant a speculator as Sir Henry +Maine fell into the error of assuming the system of +paternal power to be practically universal in certain +stages of society. Among our Scandinavian and Low +German ancestors, for example, it would appear (so far +as our imperfect data go) that the worship of the gods +had not very much to do with legal usages and civil +polity, though to be sure other influences came in at +a comparatively early stage to turn the current of their +development<a id='r94'></a><a href='#f94' class='c013'><sup>[94]</sup></a>. The same may be true of the Gadhelic +<span class='pageno' id='Page_216'>216</span>tribes, though the knowledge we have regarding their +usages and worship while still heathen is lamentably +scanty. There is, however, in the records of early +Rome and of the Greeks, as well as in those of some +Eastern nations, a good deal to illustrate the view +I have been trying to state.</p> + +<p class='c001'>A striking example of conditions of thought and +practice in which religion had (at a comparatively advanced +stage) been so involved in law as to be almost +stifled by law is furnished by the Jewish people as we find +them under Roman dominion. The lawyers referred +to in the New Testament<a id='r95'></a><a href='#f95' class='c013'><sup>[95]</sup></a> (a class of whom there are +but few traces before the Captivity) are not priests +(though of course a priest might happen to be +learned in the law), yet they have a quasi-sacerdotal +position as conversant with and able to interpret +a body of rules which are of divine origin, and embrace +the relations of man to God as well as to his +fellow men. Between religious duty and religious +ceremony on the one hand and the performance of +civil duties on the other there is no line of demarcation: +all are of like obligation and are tried by similar +canons. Hence piety tends to degenerate into formalism: +hence the precisians who insist upon petty +externalities and neglect the weightier duties deserve +and incur the rebukes of a higher spiritual teaching. +It may indeed be said that one great part of the +work recorded in the Gospels, regarded on its historical +side, was to disjoin Law from Religion or +<span class='pageno' id='Page_217'>217</span>Religion from Law. And this work was performed +not merely by superseding parts of the law known as +that of Moses, or by giving a new sense to that law, but +also by transforming Religion itself, purging away the +externals of sacrifice and other ceremonial rights, and +leading the renewed and purified soul into ‘the glorious +liberty of the people of God.’</p> + +<p class='c001'>That majority of the Jewish race which did not accept +the teachings of Christ continued for many centuries, +scattered and depressed as it was after the destruction +of Jerusalem, to treat its ancient law-books and the +traditions which had gathered round them as being +both a body of civil rules and a religious guide of life. +Despite the tendency to formalism which has been +noted, there were among the Rabbis of the early +centuries <span class='fss'>A.D.</span> not a few who dwelt upon the moral +and emotional side of the Mosaic Law, and who +through it sustained the spirit of the sorely tried +nation.</p> + +<p class='c001'>In the Christian Church also ceremonies and external +observances came before long to play a great +part in worship, and were for ages an essential element +in the popular conception, indeed in the practically +universal conception, of Christianity itself both as +a theology and as a religion. The atmosphere which +surrounded nascent Christianity was an atmosphere +saturated with rites and observances. There were in the +primitive Church some few usages and in the New +Testament some few texts on which it was possible to +erect a fabric of ceremonial worship. But even if these +conditions had been absent, the tendencies of human +nature to create a body of ritual and to attach a sort +<span class='pageno' id='Page_218'>218</span>of legal sanction to the external duties which custom +prescribed would have prevailed.</p> + +<p class='c001'>How far the rites and practices which nearly every +branch of the Christian Church has to a greater or less +extent enjoined are each of them interwoven with the +vital tenets of the faith, is a question not likely to be +settled in any future that we can foresee. But the conception +of the ‘Kingdom of the Heavens’ as something +dissevered from the obligations imposed by legal tradition +has also remained ever since in Christianity as a +principle of profound significance, which has at different +times emerged in various forms to become sometimes +a destroying, sometimes a vivifying and transforming +force. Such sayings as ‘Where the Spirit of the Lord +is, there is liberty,’ or ‘He hath made you kings and +priests to God,’ or ‘Ye are not under the Law but under +Grace,’ have from time to time roused men to hold +themselves delivered from all bonds of custom expounded +or rules enforced by ecclesiastical authority.</p> + +<p class='c001'>I will not, however, attempt to follow out the intricate +relations between the two conceptions, as they appear +in the long course either of Christian or of Jewish +annals, but will pass on to consider the phenomena +of their connexion in another field, one in which the +phenomena are comparatively simple, and lie open +to-day to the study of every traveller in a land where +the old and the new stand in striking contrast.</p> + +<p class='c001'>The best modern instance of the identity of Religion +and Law is to be found in that originally misconceived +and subsequently perverted form of Judaism which +still prevails extensively over the eastern world, and +recognizes Muhamad of Mecca as the last and greatest +<span class='pageno' id='Page_219'>219</span>of the prophets of Jehovah. In Islam, Law is Religion +and Religion is Law, because both have the same source +and an equal authority, being both contained in the same +divine revelation. I cannot better illustrate their union +than by giving a short account of an ancient and +splendid University where they are taught as one, +hoping that so much of digression as is thereby involved +will be pardoned in respect of the interest which +this famous seat of learning deserves to excite, and of +the light which it casts on the early history of the Universities +of Europe—of Bologna and Paris, of Padua +and Salamanca and Prague, and of our own Oxford +and Cambridge.</p> + +<p class='c001'>About three hundred and fifty years after Muhamad, +and towards the end of the tenth century of the +Christian era, Johar, general of the Fatimite Sultans +established at Tunis, conquered Egypt. When he +built Cairo (El Kahira, ‘the Victorious’), not far from +the decayed Memphis, he founded in the new city a +mosque which presently obtained the name of El Azhar, +that is to say, ‘The Flowers’ or ‘The Flourishing.’ +The Fatimites, belonging to the schismatic sect of the +Shiites, were particularly anxious to establish their +ecclesiastical position against the orthodox Sunnites, +and, just as Protestant princes in the sixteenth century +founded universities for the defence of their tenets—as, +for instance, Elector John of Saxony set up the +University of Jena—so the second Fatimite ruler +of Egypt, Khalif Aziz Billah, resolved to attract +learned men to his capital. He gathered famous +teachers to the Mosque, and there was soon a great +afflux of students. Sultan Hakim (probably a madman), +<span class='pageno' id='Page_220'>220</span>who went so far beyond the doctrines of +Shiism as to declare himself an incarnation of Ali +and a Mahdi, closed El Azhar, and transferred the +University to another mosque which he had founded. +However, the teaching staff was subsequently brought +back to El Azhar (which returned finally to Sunnite +orthodoxy with the conquest of Egypt by Saladin in +1171 <span class='fss'>A.D.</span>), and it has been now for many centuries +the greatest University in the Musulman world, being +situate in what has been, since the decline of Bagdad, +the greatest purely Musulman city<a id='r96'></a><a href='#f96' class='c013'><sup>[96]</sup></a>. The number of +students sometimes reaches ten thousand; at the +time of my visit (in 1888) it was estimated at eight +thousand.</p> + +<p class='c001'>The whole teaching of the University is carried +on within the walls of the Mosque, a large group +of buildings, approached by six gates, and standing +in the oldest part of Cairo. The chief entrance is +from the Alley (or arcade) of the Booksellers in the +Bazaar. At the outer portal, in the portico, the +visitor leaves his shoes. To the left of the inner +portal I found a noble square hall, said to date +from the fourteenth century, as lofty as the chapel +of Magdalen College and about as large, though +different in shape, with beautiful marbles on the walls, +and an aisle separated from the rest of the chamber +by a row of tall columns, supporting slightly pointed +arches. The sunlight came in through large openings, +<span class='pageno' id='Page_221'>221</span>filled by no glass, under the roof. In the centre there +were sitting or kneeling or crouching some eighty or +ninety men in an irregular circle, mostly young men, +yet many over thirty and some as old as fifty, with +their shoes laid beside them on the matting. In front of +them, sitting cross-legged on a low wooden throne, was +an elderly professor, holding a book in his hands, and +appearing to read from it. Now and then a question +came to him from the circle, which he answered +quickly; but otherwise the audience were perfectly +still, and no sound was heard save his own low voice +and the beating of the wings of the birds as they flew +to and fro above. The book was an authoritative +commentary on the Sacred Law, to which he added his +own explanations as he read; and he was treating +of the four requisites of prayer, especially of the first of +the four, viz. Devotional Intent. No one took notes, +but all listened with the closest attention. He was +the Chief Sheik of the Mosque, and in virtue of his +office, also the Sheik-ul-Islam or chief ecclesiastical and +legal authority of Egypt, which, being expressed in +the terms of an English University, would make him +Chancellor, Regius Professor of Divinity and Regius +Professor of Civil Law rolled into one, and therewithal +also Archbishop of Canterbury and Lord High +Chancellor.</p> + +<p class='c001'>In the similar but rather less spacious and ornate +room opposite I found another class, smaller, and +composed of somewhat younger men, listening to +a lecture on what the Muslims call Dealings, <i>i.e.</i> civil +law. The subject was Wills, and the requisites to the +validity of a will, such as the sanity, freedom and full +<span class='pageno' id='Page_222'>222</span>age of the testator, were being explained with reference +to a book of authority which lay before the lecturer, +a younger man than the Chief Sheik. He spoke with +a fluency, clearness and evident power of interesting +the class, which reminded me of a brilliant teacher whom +I had heard twenty-five years before discoursing on the +same subject at Heidelberg.</p> + +<p class='c001'>Led hence under the lofty gateway which gives +access to the great court, I saw, like an earlier traveller, +characters inscribed above the gate, and was told by +my Virgil that their import was—‘Actions must be +judged by their intent, and every man shall be requited +according to what he purposed’—a maxim which belongs +in one sense to religion, in another to law, but requires, +like the corresponding phrase of our civilians—<span lang="la"><i>Actus +non est reus nisi mens sit rea</i></span>—to be carefully defined and +qualified before it can be applied, seeing how often +good intent is followed by bad result.</p> + +<p class='c001'>The great Court of the Mosque is a quadrangle nearly +as large as that of Christ Church, Oxford, and was once, +like that of Christ Church, surrounded by arcades +resting on columns, of which now only a few remain. +There are three tanks for ablutions and a great cistern +of Nile water beneath, whence vessels are filled by boys +who carry it round among the groups. It is the hour +of forenoon rest between the morning lecture and the +noontide meal, and a confused din of many voices rises +from the six or seven hundred persons scattered through +the quadrangle, whose ample space they do not crowd. +The men, mostly young, are sitting or lying all over +the flagged surface, reading or talking or reciting with +a book open before them, many swaying backwards and +<span class='pageno' id='Page_223'>223</span>forwards as they chant, all in the blaze of sunlight. Piles +of thin, tough cakes, of which more anon, stand here and +there. Through the groups walks a sturdy official +bearing aloft a formidable symbol of order, two long +and heavy flat strips of leather attached to a stout +handle, wherewith he coerces any disturber of the peace +of the Mosque. Discipline is easily maintained, for the +Oriental, unless violently excited, is submissive to +authority, and dangerous only in a mob. Moreover +the students are mostly poor, and therefore attentive +to their studies. The arcade on the south-east side +is filled with knots of boys from eight to fourteen years +of age sitting round their teachers, each with a metal +slate, a brass ink-horn, and a reed pen; some gathered +round a teacher armed with a long palm stick. They +read aloud from the slate what they have written, thus +learning by heart verses of the Koran, copies of which +are set up on wicker stands, because the sacred volume +must never be lower than the reader’s waist.</p> + +<p class='c001'>Adjoining the great quadrangle is the Liwan, or hall +for prayer and preaching. It is really two parallel halls, +partially separated by a wall, and divided into nine aisles +by rows of columns nearly four hundred in number, +the shafts of granite or marble with carved capitals. +They were doubtless brought hither from Christian +churches long since destroyed<a id='r97'></a><a href='#f97' class='c013'><sup>[97]</sup></a>, churches that may +have echoed to the voices of Athanasius and of Cyril. +Along the side towards Mecca are four short recesses +(Kiblas) resembling the apses of an early Christian +<span class='pageno' id='Page_224'>224</span>basilica, though much smaller, one for each of the four +legal orthodox sects of Muslims. Beside the chief Kibla +there is placed, high up on the wall, a small wooden box +containing relics, among which is one equally fit to be +revered by Jews, Christians and Muslims, viz. a piece +of Noah’s Ark. The effect of the hall is due rather to +its vastness and to the maze of pillars than to any +beauty in form or decorations; for the walls are plain, +and the low roof makes the interior more sombre +than either the famous mosque of Kêrwan or the +still more rich and majestic mosque of the Ommiyad +Khalifs at Cordova. As I entered this Liwan, the hour +of midday prayers had arrived, and the crowd of +students rose suddenly and, turning towards the four +Kiblas, performed their devotions. This done, the +multitude, passing noiselessly, for every foot is unshod, +through the maze of columns, sorted itself into classes, +each grouped in an incomplete circle round its own +professor. Every regular professor has his column, at +whose foot he sits, leaning against it; and here he +reads or talks loudly enough to be heard over the din +by those near him, for the clamour of many voices +is lessened by the amplitude of the chamber. The +younger or less privileged lecturers mostly gather +their hearers outside in the Court, though I found +a class of youths learning the elements of grammar at +the foot of one of the Liwan columns. The lectures +were mostly on grammar, which has a religious side, +because it includes prosody and the proper pronunciation +of the Koran. One eminent professor, who was also +Select Preacher for the time being, was discoursing on +Ibn Malek’s treatise on Arabic Grammar, holding in his +<span class='pageno' id='Page_225'>225</span>hand the treatise, which is a poem of one thousand +verses. All the class had copies, and continued to +listen with untroubled gravity while a cat walked +across between them and the professor. Another +teacher, lecturing on logic, was being interrupted by +a running fire of questions from his pupils, which he +answered with swift promptitude and terseness.</p> + +<p class='c001'>There are about two hundred and thirty professors, +that is to say, persons authorized to teach and engaged +in teaching<a id='r98'></a><a href='#f98' class='c013'><sup>[98]</sup></a>. As in the universities of mediaeval +Europe, graduation consists in a certificate of competence +to teach; and this is given to those who have +spent the prescribed time in study by inscribing in +the copy of the book which the graduate has been +studying a statement by the teacher that he has +mastered the contents of that book. When a certificate +of wider attainments is sought, the candidate is +examined orally by two or three sheiks. As in the +Middle Ages, there are no written examinations; and +indeed writing is but little used, the aim of teaching +being rather to cultivate the memory. The books +studied are always the same, so there is no occasion +for examination statutes and Notices of Boards of +Studies. The freshman begins with what is called +Balagha, the use of language, a subject which comprises +grammar, logic (with the elements of metaphysics), and +rhetoric. Next follows theology, the Nature of God +and the functions of the Prophet, after which comes the +Law, including both the precepts of religion as applied +in practice and those of what we should call civil or +<span class='pageno' id='Page_226'>226</span>secular law, both of them based on the Koran and the +Hadith or sacred tradition. Instruction is no longer +given in medicine here. When taught, it was taught, +as it is still in the University of Fez, from an Arabic +translation of Aristotle. The course prescribed for +one who aspires to be a Kadi (Judge of the Sheriat +or Sacred Law) is fourteen years, but an even longer +time would be needed to fit a man to be a Mufti +or doctor of the law. Five or six years, I was told, +would qualify a student to become a village schoolmaster, +able to teach the elements of religion and to +advise the peasants on questions of divorce, just as in +rural England the schoolmaster used to draw wills, with +much ultimate benefit to the legal profession: and the +same length of study might enable a man to become Imam +(curate in charge) of a small mosque. Study consists, +in every branch, chiefly in learning by heart. Even +religion is taught through rules for prayer and alms-giving, +which must be exactly remembered. But there +is also a large field for the development of subtlety of +mind in the casuistical distinctions which form a large +part of law, both moral and civil. Neither physical +science, nor history, nor any language save Arabic is +recognized, nor (which is more surprising) do arithmetic +and mathematics now find a place<a id='r99'></a><a href='#f99' class='c013'><sup>[99]</sup></a>.</p> + +<p class='c001'>The students come from all parts of the Musulman +world, but the large majority from Egypt: and the Muslim +legal sect to which most Egyptians belong (the Shafite) +<span class='pageno' id='Page_227'>227</span>is accordingly the most numerous<a id='r100'></a><a href='#f100' class='c013'><sup>[100]</sup></a>, amounting to nearly +half the total. They are mostly poor, and live to some +extent on the charitable gifts of the citizens, paying +nothing for their instruction. But a certain number +share in a kind of endowment which deserves notice, +because it is the germ of a College—a germ, however, +which never grew into a plant.</p> + +<p class='c001'>The word <em>Riwak</em> (accent on the last syllable), properly +a colonnade or corridor, is used at El Azhar to denote +an apartment or set of apartments, allotted to certain +students as sleeping-quarters. There are in the +Mosque buildings many Riwaks, and several are set +apart for students coming from some particular countries<a id='r101'></a><a href='#f101' class='c013'><sup>[101]</sup></a>. +There is one for the Syrians, one for the +natives of Mogreb (North-West Africa, from Tripoli +to Morocco), one for the Kurds, one for the natives of +Mecca and Medina (El Haramein), one for the Sudanese +of Sennaar, and so forth. Some are well ventilated and +comfortable, such as that endowed by Ratib Pasha for +Hanefites: some plain and bare. It is of course only in +the three or four colder months that a roof is needed; +during the summer night quarters <span lang="fr"><i>à la belle étoile</i></span> are +preferable. Practically, I was told, every student who +wished could obtain quarters in a Riwak, because only +<span class='pageno' id='Page_228'>228</span>the poor desire to be so accommodated: and a sleeping-place +means no more than a bit of floor on which to +spread your prayer carpet and place your chest of +books and clothes. But the Riwaks (or most of them) +also supply rations of bread to those students who +apply for them when they have reached a certain stage +of proficiency, that is, have mastered two or three books +and obtained a certificate to that effect. These rations +consist of wheaten cakes, thin and tough, and are supplied +out of endowments which have from time to +time been bestowed on the Mosque or on particular +Riwaks by pious founders. These wheaten cakes are +in fact the very rudest form of what is called in +Scotland a Bursary, and in England an Exhibition +or Scholarship; and the assignment of a Riwak as +lodgings to students from a particular district may be +compared with the earliest provision of a dwelling and +a pittance for students in England, the acorn out of +which there has grown the superb system of the +Colleges of Oxford and Cambridge, many of them +originally connected with particular counties.</p> + +<p class='c001'>The Mosque, that is to say the University, as distinguished +from the particular Riwaks, had at one time +considerable endowments, called in Arabic Wakfs (pronounced +Wakufs); but a large part of these endowments +were seized by Muhamad Ali early in the nineteenth +century (about 1820). In respect of them a considerable +sum is now paid from the public treasury, and a further +income is derived from the Wakfs which not having been +seized, are now administered by the Government department +in charge of charitable foundations. The present +income of such foundations as remain is trifling, and +<span class='pageno' id='Page_229'>229</span>the slender incomes of the senior professors are supplemented +by small payments from Government and by +gifts from pious persons. The richer students are also +expected to offer gifts, and sometimes a charitable +citizen will send a sheep to give the poor students +a better dinner on a feast-day<a id='r102'></a><a href='#f102' class='c013'><sup>[102]</sup></a>.</p> + +<p class='c001'>Before leaving the University I was presented to its +head, the Sheik El Azhar, whom I found sitting to +hear and determine divers matters, his lectures having +been disposed of in the forenoon. He was too great +a man to rise to receive me, nor is it easy to rise when +one sits cross-legged; but he placed his hand upon his +heart with a dignified courtesy and invited me to seat +myself beside him. His disciples were kneeling round +him. He was more like an old Lord Chancellor than +an old archbishop, with an air rather of complacent +judicial shrewdness than of apostolic unction. When +it had been explained to him that I was a lawyer and +that law was taught in the Universities of England, +he remarked that religion consists in conduct and +behaviour, whereto I replied that the Roman jurists +stated another side of the same truth when they said, +‘Iuris praecepta haec sunt, <span lang="la"><i>honeste vivere, alterum non +laedere, suum cuique tribuere</i></span>.’</p> + +<p class='c001'>It was impossible to spend a day in El Azhar without +being struck by its similarity to the Universities of +<span class='pageno' id='Page_230'>230</span>Europe as they existed in the thirteenth and fourteenth +centuries.</p> + +<p class='c001'>In both an extreme simplicity of appliances. Nothing +more than a few buildings capable of giving shelter +has been needed here or was needed there: for a +University is after all only a mass of persons possessing +or desiring learning, a concourse of men, some +willing to teach and others eager to be taught.</p> + +<p class='c001'>In both a like simplicity of educational arrangements. +Every graduate is, or may be if he likes, a teacher, +and graduation is nothing more than a certificate of +knowledge qualifying a man to teach.</p> + +<p class='c001'>In both, comparatively slender funds, which however +increase slowly by the gifts of private benefactors. +The whole establishment of El Azhar costs about +£14,000 sterling a year, rather more than half of +which goes in salaries to the professors, while about +£1,600 goes in prizes and charitable aid to the +students. Eight thousand (roughly speaking) are +taught there at a cost of £1 15s. per student. The +University of Oxford and its colleges (taken together) +with about three thousand undergraduate students +have an annual revenue of about £333,000<a id='r103'></a><a href='#f103' class='c013'><sup>[103]</sup></a>; Harvard +University in Massachusetts with nearly four thousand +students has £235,000 (of which tuition fees contribute +£114,000).</p> + +<p class='c001'>In both, the greatest freedom for the student. He +may study as much or as little as he pleases, may +select what professor he pleases, may live where he +<span class='pageno' id='Page_231'>231</span>pleases, may stay as long as he pleases, and may be +examined or not as he pleases.</p> + +<p class='c001'>In both, a narrow circle of subjects and practically no +choice of curriculum. El Azhar teaches even fewer +branches than did Oxford or Bologna in the thirteenth +century, for in Musulman countries the Koran has +swallowed up other topics more than theology, queen +of the sciences, and the study of the Civil and Canon +Laws did in Europe. But a vast range of matters which +are to-day taught in German, in American, and even in +English Universities lie outside both the Trivium and +Quadrivium and the professional faculties as they stood +in the Middle Ages.</p> + +<p class='c001'>In both, little separation between teachers and pupils, +and a mixture of students of all ages, from boys of +twelve to men of fifty. In Oxford there is a tradition +that marbles used to be played by students on the +steps of the Schools. Why not, when one sees boys +of twelve learning to read the Koran at El Azhar? +Oxford may well have been then, like this mosque +now, a school for persons of all ages.</p> + +<p class='c001'>In both, a body of men liable to turbulence, and +easily roused by political passion. A multitude living +together without family ties or regular industrial +occupation is prone to fanaticism; and the students of +El Azhar, like the Softas at Constantinople, like the +monks of Alexandria in the days of Cyril and Hypatia, +have sometimes raised tumults; though these would be +repressed more savagely here, should they displease +the ruling powers, than were those for which Paris and +Oxford were famous in days when their scholars were +fired by religious or political excitement, and when the +<span class='pageno' id='Page_232'>232</span>movements of public opinion and the tendencies we +now call democratic found through the eager crowd of +university youth their most free and prompt expression.</p> + +<p class='c001'>Finally, in both, a kind of teaching and study which +tends to the development of two aptitudes to the neglect +of all others, viz. memory and dialectic ingenuity. The +first business of the student is to know his text-book, +if necessary to know every word of it, together with +the different interpretations every obscure text may +bear. His next is to be prepared to sustain by quick +keen argument and subtle distinction either side of +any controverted question which may be proposed for +discussion. As the habit of knowing text-books +thoroughly—and the knowledge of Aristotle and the +Corpus Juris possessed by mediaeval logicians and +lawyers was wonderfully exact and minute—made men +deferential to authority and tradition, so the constant +practice in oral dialectical discussion made men quick, +keen, fertile, and adroit in argument. The combination +of brilliant acuteness in handling points not yet settled, +with unquestioning acceptance of principles and maxims +determined by authority, is characteristic of Muhamadan +Universities even more than it was of European ones +in the Middle Ages, and tended in both to turn men +away from the examination of premises and to cast the +blight of barrenness upon the extraordinary inventiveness +and acuteness which the habit of casuistical discussion +develops. And the parallel would probably +have been closer could it have been drawn between +the Musulman Schools, not as they are now, but as +they were during the great age in <a id='corr232.31'></a><span class='htmlonly'><ins class='correction' title='Bagdad'>Bagdad,</ins></span><span class='epubonly'><a href='#c_232.31'><ins class='correction' title='Bagdad'>Bagdad,</ins></a></span> in Spain +and in Egypt, and the schools of Western Europe in +<span class='pageno' id='Page_233'>233</span>the days of Abelard or Duns Scotus. For El Azhar +to-day impresses one as a University where both +thought and teaching are in a state of decline, where +men gnaw the dry bones of dogmas and rules which +have come down from a more creative time.</p> + +<p class='c001'>To what causes shall we ascribe the striking contrast +between the later history of schools which at one time +presented so many similar features? Why has Musulman +learning stood still in the stage it reached many +centuries ago, while Christian learning, developing +and transforming itself, has continually advanced? +Why has El Azhar actually gone back? Why does +it accomplish nothing to-day for the deepening, or +widening, or elevating of Musulman thought?</p> + +<p class='c001'>Of racial differences I say nothing, because to discuss +these would carry us too far away from our main +subject. Their importance is apt to be overrated, and +they are often called in to save the trouble of a more +careful analysis, being indeed themselves largely due +to historical causes, though causes too far back +in the past to be capable of full investigation. Here +it is the less necessary to discuss them, because many +races have gone to make up the Musulman world, and +some of these had attained great intellectual distinction +before Islam appeared. Nor will I dwell on the tremendous +catastrophe which overwhelmed the Musulman +peoples of Western Asia in the twelfth, thirteenth, +and fourteenth centuries, when many flourishing seats +of arts and letters were overwhelmed by a flood of +barbarian invaders, first the Seljukian Turks, then the +Mongols of Zinghis Khan, then the Ottoman Turks +whose rule has lain like a blight upon Asia Minor, +<span class='pageno' id='Page_234'>234</span>Syria, and Irak for the last fourteen generations of men. +Before the Seljuks and the Mongols came, philosophy +and learning, science and art, had in some favoured +spots reached a development surpassing that of contemporary +Christian states, a development which in the +schools of Irak and of Persia had wandered far from +orthodox Musulman traditions, but which certainly +showed that Islam is not incompatible with intellectual +development. That culture, however, which had adorned +the days of the earlier Khalifs, decayed even in Spain +and in Barbary, where it was not destroyed by a +savage enemy. It was not strong enough to recover +itself in Syria, Asia Minor, or Egypt, and could neither +elevate and refine the Turk nor send up fresh shoots +from the root of the tree he had cut down. Even in +Persia, though Persia remained a national kingdom, +preserving its highly cultivated language and its love +of poetry, creative power withered away. While +therefore giving full credit to the Arabs, Syrians, and +Persians of the earlier Musulman centuries for their +achievements, we are still confronted by the fact that +the soil which produced that one harvest has never +been able to produce another. Scarcely any Musulman +writer has for five hundred years made any contribution +to the intellectual wealth of the world. Even +the Musulman art we admire at Agra and Delhi, at +Bijapur and Ahmedabad, was largely the work of +European craftsmen. The majestic mosques of Constantinople +are imitations of Byzantine buildings. Thus +we are forced back upon the question why the Universities +of Islam, with all that they represent, have +languished and become infertile.</p> + +<p class='c001'><span class='pageno' id='Page_235'>235</span>Among the causes to be assigned we may place +first of all the greater intellectual freedom which +Christianity, even in its darkest days, permitted. The +Koran, being taken as an unchangeable and unerring +rule of life and thought in all departments, has enslaved +men’s minds. Even the divergence of different +lines of tradition and the varieties of interpretation +of its text or of the Traditions, has given no such +opening for a stimulative diversity of comment and +speculation as the Christian standards, both the Scriptures +themselves, the product of different ages and +minds, and the writings of the Fathers, secured for +Christian theology.</p> + +<p class='c001'>In the second place, the philosophy, theology, and +law of Islam have been less affected by external +influences than were those of Christian Europe. Greek +literature, though a few treatises were translated and +studied by some great thinkers, told with no such +power upon the general movement of Musulman +thought as it did in Europe, and notably in the fifteenth +and sixteenth centuries; and Greek influence among +Muslims, instead of growing, seems to have passed +away.</p> + +<p class='c001'>Thirdly, there has been in the Musulman world an +absence of the fertilizing contact and invigorating +conflict of different nationalities with their diverse +gifts and tendencies. Islam is a tremendous denationalizing +force, and has done much to reduce the +Eastern world to a monotonous uniformity. The Turks +seem to be a race intellectually sterile, and like the +peoples of North Africa in earlier days, they did not, +when they accepted the religion of Arabia, give to its +<span class='pageno' id='Page_236'>236</span>culture any such new form or breathe into it any such +new spirit as did the Teutonic races when they embraced +the religion and assimilated the literature of the Roman +world. Only the Persians developed in Sufism a really +distinct and interesting type of thought and produced +a poetry with a character of its own; and the Persians, +being Shiites, have been cut off from the main stream +of Musulman development, and have themselves for +some centuries past presented the symptoms of a +decaying race.</p> + +<p class='c001'>Lastly, the identification of Theology and Law has +had a baleful influence on the development of both +branches of study. Law has become petrified and +casuistical. Religion has become definite, positive, +frigid, ceremonial. Theology, in swallowing up law, +has itself absorbed the qualities of law. Each has +infected the other. In El Azhar theology is taught +as if it were law, a narrow sort of law, all authority +and no principle. Law is taught as if it was theology, +an infallible, unerring, and therefore unprogressive +theology. Religious precepts are delivered in El Azhar +as matters of external behaviour and ceremony. Some +of the duties enjoined, such as prayer, are wholesome +in themselves; some, such as almsgiving, are laudable +in intention, but beneficial in result only when +carried out with intelligence and discrimination; some, +such as pilgrimage to Mecca, are purely arbitrary. All, +however, are dealt with from the outside: all become +mechanical, and the precise regulations for performing +them quench the spirit which ought to vivify them. +The intellect being thus cramped and the soul thus +drilled, theology is dwarfed, and its proper development +<span class='pageno' id='Page_237'>237</span>arrested. It is not suffered to create, or to help in the +creation of, philosophy: and accordingly in El Azhar, +philosophy, in that largest sense in which it is the +mother of the sciences, because embodying the method +and spirit whence each draws its nutriment, finds no +place at all.</p> + +<p class='c001'>We are thus brought back to that general question +of the relations of religion and law in the Musulman +world from which, in the interest naturally roused by +the sight of a University recalling the earlier history of +Oxford and Cambridge, I have been led to turn aside.</p> + +<p class='c001'>The identification of religion and law rests upon +two principles. One is the recognition by Islam of +the Koran as a law divinely revealed, covering the +whole sphere of man’s thought and action. Being +divine it is unerring and unchangeable.</p> + +<p class='c001'>The other is the promulgation of this revelation +through a monarch both temporal and spiritual, Muhamad, +the Prophet of God.</p> + +<p class='c001'>Since the revealed law is unerring, it cannot be +questioned, or improved, or in any wise varied. Hence +it becomes to those who live under it what a coat of +mail would be to a growing youth. It checks all freedom +of development and ultimately arrests growth, the +growth both of law and of religion.</p> + +<p class='c001'>Since the revelation comes through a prophet who +is also a ruler of men, a king and judge, as well as an +inspired guide to salvation, it is conveyed in the form +of commands. It is a body of positive rules, covering +the whole of the Muslim’s conduct towards God and +towards his fellow men.</p> + +<p class='c001'>Three results follow of necessity.</p> + +<p class='c001'><span class='pageno' id='Page_238'>238</span>Religion tends to become a body of stereotyped observances, +of duties which are prescribed in their details, +and which may be discharged in an almost mechanical +way. The Faith is to be held, but held as a set of +propositions, which need not be accompanied by any +emotion except the sense of absolute submission to the +Almighty. Faith, therefore, has not the same sense +as it has in the New Testament. It is by works, not +by faith (save in so far as faith means the acceptance +of the truths of God’s existence and of the prophetic +mission of Muhamad) that a Muslim is saved. There +is little room for the opposition of the letter and the +spirit, of the law and grace, for religion has been +legalized and literalized. Nevertheless there is in +many Muslims a vein of earnest piety, and a piety +which really affects conduct. Those Westerns who +have praised Islam have often admired it for the +wrong things. They admire the fierce militant spirit, +and the haughty sense of superiority it fosters. They +undervalue the stringency with which it enforces +certain moral duties, and the genuine, if somewhat +narrow piety which it forms in the better characters.</p> + +<p class='c001'>Law becomes a set of dry definite rules instead +of a living organism. It is a mass of enactments +dictated by God or His mouthpiece, instead of a group +of principles, each of which possesses the power of +growth and variation. The two motive powers, whether +one calls them springs of progress or standards of +excellence, which guided the development and made +the greatness of Roman Law, the idea of the Law +of Nature and the idea of Utility, as an index to +the law of nature, are absent. There is no room for +<span class='pageno' id='Page_239'>239</span>them where the divine revelation has once for all +been delivered. Reason gets no fair chance, because +Authority towers over her. Forbidden to examine +the immutable rules, she is reduced to weave a web of +casuistry round their application. It is only through +the interpretation of the sacred text and of the traditions +that the Law can be amended or adapted to the +needs of a changing world: and one reason why the +Musulman world changes so little is to be found +in the unchangeability of its Sacred Law. The +difficulties which European Powers have found in +their efforts—efforts which to be sure have been +neither zealous nor persistent—to obtain reforms in +the Ottoman Empire, are largely due to the fact that +the Sacred Law has a higher claim on Muslim +obedience than any civil enactment proceeding from +the secular monarch.</p> + +<p class='c001'>Such a system will obviously give little scope for +the development of a legal profession. Advocacy is +unknown in Musulman countries. The parties conduct +their respective cases before the Kadi<a id='r104'></a><a href='#f104' class='c013'><sup>[104]</sup></a>. They may +produce to him opinions signed by doctors of the law +in favour of their respective contentions, but the only +notion the Musulman (<i>i.e.</i> the non-Occidentalized +Musulman) can form of an advocate in our sense of +the word is a paid, and presumably false, witness.</p> + +<p class='c001'>The community suffers politically. The duty of +unquestioning obedience, and the habit of blind submission +to authority, dominate and pervade the Musulman +mind so completely that its only idea of government +<span class='pageno' id='Page_240'>240</span>is despotism. Nothing approaching to a free +ruling assembly, either primary or representative, has +sprung up in a Musulman country; and it would need +almost an intellectual revolution to make such a system +acceptable or workable there<a id='r105'></a><a href='#f105' class='c013'><sup>[105]</sup></a>.</p> + +<p class='c001'>Finally, it is a consequence of the system described +that there is an absolute identity of State and Church. +The Church is the State, but it is a highly secular +State, wanting many of the attributes we associate +with the Church. It commands as a matter of course +the physical force of the State, and needs no special +anathemas of its own. Its priests, so far as it can +be said to have priests, are lawyers, and its lawyers +are priests, and its students graduate from the University +into what is one and the same profession. As +the Church is pre-eminently a militant Church, born +and nursed in war, its head, the Khalif, is also of right +supreme temporal sovereign. The Pope is Emperor, +and the Emperor is Pope. They are not two offices +which one man may fill, as the Emperor Maximilian +wished to be chosen Pope. They are one office. And +accordingly when any spiritual pretender arises, claiming +to be a prophet of God, he becomes forthwith, <span lang="la"><i>ex necessitate +terminorum</i></span>, a temporal ruler, like the Mahdi +of the Sudan at the present moment (1888). The only +exception to this absolute identification of Church and +State (which is of course a fact making most powerfully +<span class='pageno' id='Page_241'>241</span>for despotism) is to be found in the incompetency of the +Khalif to pronounce upon the interpretation of the +sacred law. This attribute of the Pope is lacking. +The spiritual head of the Musulman world, for this +purpose, and therewith also its legal head, is a lawyer, +the Sheik-ul-Islam, to whom it belongs to deliver +authoritative interpretations of questions arising on +the law, <i>i.e.</i> on the Koran and the Traditions. Such +an opinion is called a Fetwa. Against it even a Khalif +cannot act without forfeiting his right to the obedience +of his subjects, so when any Sovereign claiming to +be Khalif wishes to do something of questionable +legality, he takes care to procure beforehand from +the Sheik-ul-Islam a fetwa covering the case. Being +in the Khalif’s power, the Sheik rarely hesitates, yet +he is in a measure amenable to the opinion of his own +profession, and might be reluctant to venture too far. +So too the Khalif, though he might depose a recalcitrant +Sheik (were such a one ever to be found), and +replace him by a more pliant instrument, must also +have regard to public sentiment, a power always formidable +in the sphere of religion, and the more formidable +the more the mind of a people is removed from +the influence of habits properly political, and is left to +be coloured by religious feeling.</p> + +<p class='c001'>Islam owes these features of its religion, its law +and its politics to its source in a divine revelation +complete, final, and peremptory. But it is not the only +religion that has a like source. The Musulmans class +three religious communities as Peoples of the Book. +The other two are the Jews and the Christians. Of the +Jews I have spoken already. Their system, as it stood +<span class='pageno' id='Page_242'>242</span>at the time of our Lord’s appearing, resembled in many +points that which Islam subsequently created, though +there was never in it any complete identification of the +spiritual and the secular power, because it had a regular +hereditary priesthood, which, though for a time acting +as leader and ruler, had no permanent coercive secular +authority. The Jewish system had, moreover, in the +words of the Prophets and in the Psalms influences +complementary to the Mosaic law and the Traditions, +and corrective of any evils which might spring from +undue respect for the latter. Moreover, the historical +development of that system was checked by external +conquering forces, which ultimately deprived it of the +chance of becoming a temporal power.</p> + +<p class='c001'>What, however, shall we say of Christianity? Why +has the course of its history been so unlike that of +Islam? Why has its origin in a divine revelation +not impressed upon it features like those we have +been considering? I must be content to indicate, +without stopping to describe, a few, and only a few, +of the more salient causes.</p> + +<p class='c001'>The Christian revelation as contained in the Old and +New Testaments is not, except as regards sections of +the Mosaic law, a series of commands. It is partly +a record of events, partly a body of poems, partly +a series of addresses, discourses, and reflections, speculative, +hortatory, or minatory, and mostly cast in a +poetic form, and partly a collection of precepts. These +precepts are all, or nearly all, primarily moral precepts, +which are addressed to the heart and conscience, and +they proceed from teachers who had no compulsive +power, so that such authority as the precepts possess +<span class='pageno' id='Page_243'>243</span>is due only to their intrinsic worth, or to the belief +that they express the Divine will. Especially in the +case of the New Testament (though the same thing +is essentially true of the Prophets) the precepts are +directed not so much to the enjoining of specific right +acts fit to be done as to the creation of a spirit and +temper out of which right acts will naturally flow. Had +the Pentateuchal law been taken over bodily into +Christianity, things might have been different, though +the other elements of the revelation would have kept +its influence in check. But fortunately among the forces +that were at work in the primitive Church, there were +some strongly anti-Judaic, so any evil that might have +been feared from that quarter was averted.</p> + +<p class='c001'>It is impossible to make a code out of the New +Testament. The largest collection of positive precepts, +delivered with the most commanding authority, is that +contained in the fifth, sixth, and seventh chapters of +St. Matthew’s Gospel. But these are so far from being +laws in the ordinary sense of the word that no body +of Christians has ever yet come near to obeying +them. Indeed hardly any body of Christians has +ever seriously tried to do so. They are obviously +addressed to the heart and intended not so much to +prescribe acts as to implant principles of action.</p> + +<p class='c001'>Similarly the Epistles are either moral exhortations +and expositions of duty or else metaphysical discussions. +Neither out of them can any code be framed which +a lawgiver could attempt to enforce. Even on the +external observances of religion and constitution of the +Church, so little is said, and said in such general terms, +that Christians have been occupied during the last +<span class='pageno' id='Page_244'>244</span>four centuries in debating what it was that the authors +of the Epistles meant to enjoin.</p> + +<p class='c001'>After the canonical Scriptures come the Fathers of +the Church, whose writings were at one time universally, +and by a large part of Christendom still are, +deemed to enjoy a high measure of authority. They +may be compared to those early Musulman writers +from whom the traditions of Islam descend, or to the +early recorders of and commentators on those traditions. +The Fathers, however, did not generally affect to lay +down positive rules, but were occupied with exhortation +and discussion. Neither out of their treatises +could a body of law be framed, nor did any one think +of doing this till long after their day. Even then it +was as guides in doctrine and discipline, not as the +source of legal rules, that they were usually cited.</p> + +<p class='c001'>Christianity began its work not only apart from all +the organs of secular power, but in the hope of creating—indeed +for a time, in the confidence that it would +create—a new society wherein brotherly love should +replace law.</p> + +<p class='c001'>Before long it incurred, as a secret society, the suspicion +and hatred of the secular power, and had indeed +so much to suffer that one might have expected its professors +to conceive a lasting distrust of that power in its +dealings with religion. This, however, did not happen. +So soon as the secular monarch placed his authority at +the disposal of the Church, by this time organized as +a well-knit hierarchy, the Church welcomed the alliance, +and began ere long to invoke the help of carnal +weapons. This was the time when she might in her +growing strength have been tempted to impose her +<span class='pageno' id='Page_245'>245</span>precepts upon the community in the form of binding +rules. But the field was already occupied. She was +confronted and overawed by the majestic fabric of the +Roman law. In the East that law continued to be +upheld and applied by the civil authorities. In the +West it suffered severe shocks from the immigration +of the barbarian tribes; but as it was associated with +Christian society, the Church clung to it, and was +in no condition for some centuries to try to emulate +or supersede it. When the time of her dominance +came in the eleventh, twelfth, and thirteenth centuries, +she did indeed build up a parallel jurisdiction of her +own, with courts into which laymen as well as clerks +were summoned, and she created for these courts that +mass of decrees, almost rivalling the Civil Law in bulk +and complexity, which we call the Canon Law. In the +canon law there may seem to be an analogue to the +sacred law of Islam. But the resemblances are fewer +than the differences. The canon law never had any +chance of ousting the civil law, which had already +entered on a period of brilliant development and potent +influence at the time when the decrees of earlier +Councils and Popes were beginning to be formed into +a systematic digest of rules; and temporal rulers were +generally able to hold their own against Popes and +archbishops. Moreover the canon law, being partly +based on or modelled after the Roman civil law, +escaped some of the faults that might have crept +into it had it been erected on a purely theological +foundation. The Church was already so secularized +that its law was largely secular in spirit, and +ecclesiastical jurists were at least as much jurists +<span class='pageno' id='Page_246'>246</span>as they were churchmen. The question propounded +in the twelfth century, whether an archdeacon could +obtain salvation, shows that the churchman who betook +himself to legal business was deemed to be +quitting the sphere of piety. Thus law, canon as well +as civil law, remained law, and religion remained +religion. The canon law is the law of the Church +as an organized and property-holding society or +group of societies. It is the law for dealing with +spiritual offences. It is the law which regulates certain +civil relations which the Church claims to deal with +because they have a religious side. But there is no +general absorption of the civil by the ecclesiastical, +no general lowering of the spiritual to the level of the +positive, the external, and the ceremonial. In the +fifteenth and sixteenth centuries the New Learning +and the great ecclesiastical schism removed the danger, +if danger there ever was, that there should descend +upon Christianity that glacial period which has so long +held Islam in its gripe.</p> + +<div class='chapter'> + <span class='pageno' id='Page_247'>247</span> + <h2 id='eXIV' class='c005'>XIV<br> <br> METHODS OF LAW-MAKING IN <br>ROME AND IN ENGLAND</h2> +</div> + +<h3 class='c011'><span class='sc'>Introductory.</span></h3> + +<p class='c012'>The relations borne by the growth and improvement +of the law of a country to that of the constitutional +development of that country as a State are instructive +in many aspects—instructive where the lines of progress +run parallel to one another, instructive also where +they diverge. I propose in the following pages to +consider them as they concern the organs and the +methods of legislation at Rome and in England. The +political side of this subject is a very large one, indeed +too large to be discussed here, for it would involve +a running commentary upon the general history of these +two States. I will only remark that the inquiry would +show us, among other things, the fact that the progress +of Rome from a republic, half oligarchic, half democratic, +to a despotism, did not prevent the phenomena +which mark the evolution of its legislation from bearing +many resemblances to the evolution of legislation in +England, where progress has been exactly the reverse, +viz. from a strong (though indeed not absolute) monarchy +to what is virtually a republic half democratic, half +plutocratic. The present inquiry must be confined to +the legal side of the matter, viz. to the Organs and +the Methods of Legislation regarded not so much as +the results of political causes, but rather as the sources +<span class='pageno' id='Page_248'>248</span>whence law springs and the forces whereby it is +moulded.</p> + +<p class='c001'>The working of these Organs and Methods may be +studied, and their excellence tested, with regard to both +the aspects of law itself, its Substance and its Form. +The merit of a system of Law in point of Substance is +that it be righteous and reasonable, satisfying the moral +sentiments of mankind, giving due scope to their activity, +securing public order, and facilitating social progress. +In point of Form, the merit of Law consists in brevity, +simplicity, intelligibility, and certainty, so that its provisions +may be quickly found, easily comprehended, +and promptly applied. Both sets of merits, those of +Substance and those of Form, will depend partly on +the nature of the persons or bodies from whom the +Law proceeds, that is the Organs of Legislation, partly +on the Methods employed by those persons or bodies. +But the merits of Substance open up a field of inquiry +so wide that it will be better to direct our present +criticism of Organs and Methods chiefly to those excellences +or defects of the law which belong to its form. +I propose to consider these as they worked in Rome, +and have worked down to and in our own time in +England, assuming the broad outlines of the legal +history of both States to be already known to the +reader, and dwelling on those points in which a comparison +of Rome and England seems most likely to +be profitable.</p> + +<h3 class='c011'>I. <span class='sc'>Law-Making Authorities in General.</span></h3> + +<p class='c012'>First let us see what, speaking generally, are the +authorities in a community that make the Law, and +<span class='pageno' id='Page_249'>249</span>How—that is to say, by what modes or through what +organs, they make it.</p> + +<p class='c001'>Broadly speaking, there are in every community two +authorities which can make Law:—the State, <i>i.e.</i> the +ruling and directing power, whatever it may be, in +which the government of the Community resides, and +the People, that is, the whole body of the community, +regarded not as organized in a State, but as being +merely so many persons who have commercial and +social relations with one another. There is, to be +sure, a school of juridical writers which does not admit +that the people do or can thus make Law, insisting +that Custom is not Law till the State has in some +way expressly recognized it as such. But this view +springs from a theory so incompatible with the facts +in their natural sense, that a false and unreal colour +must be put upon those facts in order to make them +fall in with it. It is unnecessary to pursue a question +which is apt to become merely a verbal one. Let it +suffice to say that Law cannot be always and everywhere +the creation of the State, because instances can +be adduced where Law existed in a country before +there was any State; and because the ancient doctrine, +both of the Romans and of our own forefathers—a +doctrine never, till recently, disputed—held the contrary. +A great Roman jurist says, with that practical directness +which characterizes his class, ‘Those rules, which +the people without any writing has approved, bind all +persons, for what difference does it make whether the +people declare their Will by their votes or by things +and acts<a id='r106'></a><a href='#f106' class='c013'><sup>[106]</sup></a>?’ This is the universal view of the Romans, +<span class='pageno' id='Page_250'>250</span>and of those peoples among whom the Roman law, in +its modern forms, still prevails. And such has been also +the theory of the English law from the earliest times.</p> + +<p class='c001'>Now the State has two instruments or organs by +which it may legislate. One is the ruling Person or +Body, in whom the constitution expressly vests legislative +power. The other is the official (or officials), whether +purely judicial, or partly judicial and partly executive, +to whom the administration of the law is committed, and +whom we call the Magistrate. This distinction does not +refer to the instances in which legislative authority is, +by an act of the Governing Power, specially delegated to +some magisterial person or body. Those instances are +really to be deemed cases of mediate or indirect legislation +by the supreme Government (like the power given +by statute to a railway company to make by-laws). The +position of the Magistrate is different, because judicial +administration, and not legislation in the proper sense, +is the work he has been set to do.</p> + +<p class='c001'>Similarly the People have two modes of making +Law. In the one they act directly by observing certain +usages till these grow so constant, definite, and certain +that everybody counts upon them, assumes their existence, +and feels sure that they will be recognized and +enforced. In the other they act indirectly through +persons who have devoted themselves to legal study, +and who set forth, either in writing or, in earlier times, +by oral discourse, certain doctrines or rules which the +community accepts on the authority of these specially +qualified students and teachers. Such men have not +necessarily either any public position or any direct +commission from the State. Their views may rest on +<span class='pageno' id='Page_251'>251</span>nothing but their own reputation for skill and learning. +They do not purport to make law, but only to state +what the law is, and to explain it; but they represent +the finer and more highly trained intellect of the community +at work upon legal subjects, just as its common +and everyday understanding, moved by its sense of +practical convenience, is at work in building up usages. +So the maxims and rules these experts produce come +to be, in course of time, recognized as being true law, +that is to say, as binding on all citizens, and applicable +to the decision of disputed questions.</p> + +<p class='c001'>Taking then these four Organs or Sources, we find +that one Source—the People, as makers of Customary +Law—is so vague and indeterminate that one can say +little about it as an Organ, though the process by which +Custom makes its way and is felt to be binding is a curious +process, well deserving examination. Two remarks may +however be made on it. The first is this, that it is +essential to the validity of a rule claimed to have been +made by Usage that it shall possess a certain extension +in Time and a certain extension in Space. It must +have prevailed and been observed for so long a period +that no one can deny its existence. It must have +prevailed over so wide an area, that is to say, have been +used by so many persons, that it cannot be alleged to +be a merely local usage, unknown outside the locality, +and therefore not approved by the tacit consent of the +community at large. (The size of the area is of course +in each case proportioned to the size of the whole community. +A custom observed by a population of a few +thousand people in a canton of Switzerland may make +the custom law for the canton, though observance by a +<span class='pageno' id='Page_252'>252</span>similar number would not make a similar custom law for +a large country like Bavaria.) The other remark is that +sometimes the observance of a custom by a particular +class of the community, as for instance by agriculturists +or merchants, may suffice to establish the rule for the +community at large<a id='r107'></a><a href='#f107' class='c013'><sup>[107]</sup></a>. This happens where the custom is +by its nature such that only agriculturists or merchants +(as the case may be) would need to have a custom on +the matter at all. Universality of practice by them is +then sufficient to make the custom one valid for the +whole community, which may be taken to have tacitly approved +it. Sometimes, however, the usage of a particular +class is deemed to become law by its being imported as +an implied condition into legal transactions, especially +contracts, entered into by members of that class; and +this view has been frequently taken by our English +Courts of mercantile usages, which they have in the +first instance enforced rather as unexpressed elements +in a contract than as parts of the general law. It need +hardly be added that the fact that the meaning and +extent of a rule of Customary Law are often uncertain, +and give rise to judicial controversy, does not prevent the +rule itself from being valid previous to its determination +in such controversy, for this is exactly analogous +to a disputed question regarding the interpretation of +a statute. Though the meaning of a statute may have +been doubtful until determined by the Courts, the +statute was operative from the first, and is rightly +applied to ascertain the validity of rights which accrued +before its meaning was determined.</p> + +<p class='c001'><span class='pageno' id='Page_253'>253</span>We have thus to examine three Sources of Law—the +Governing Person or Body, the Magistrate, and +the Jurists or Legal Profession. These are the three +recognized and permanent legislative organs of a +community. Every mode of creating law discoverable +in any organized community may be reduced to +one of these, and in most civilized communities all of +these may be found co-existent. Sometimes, however, +one or other is either absent or is present in a quite +rudimentary condition. In the East, as for instance in +such countries as Turkey or Persia, there is little that +can be called general legislation. Hatts are no doubt +occasionally promulgated by the Sultan, though they are +sometimes not meant to be observed, and are frequently +not in fact observed. So far as new law is made, it +is made by the learned men who study and interpret +the Koran and the vast mass of tradition which has +grown up round the Koran. The existing body of +Musulman law has been built up by these doctors +of law during the last twelve centuries, but chiefly in +the eighth and ninth centuries of our era: and a vast +body it is. The Kadi or judge is himself a lawyer, +and he might mould the system by his decisions, +but decisions are not reported, and the authority of +a Kadi is deemed lower than that of one of the more +learned Muftis or doctors of the law. On the other hand +there are countries, such as Russia for instance, where +the direct promulgation of his will by the Sovereign +is the only recognized form of legislation, the decisions +of judges and the opinions of legal writers enjoying +a much lower authority. In other countries, as in +Germany, legal writers are numerous and influential, +<span class='pageno' id='Page_254'>254</span>but the magistrates, their decisions having been but little +reported, have, till our own time, held for the most part +a subordinate place, and played a comparatively small +part in the development of law. This was at one time +the case in France also, where cases decided by the +higher courts of law used to stand little, if at all, +above treatises composed by legal writers of established +reputation. Nowadays, however, cases are more fully +reported, and an authority is accorded to decisions +scarcely lower than that which they have long enjoyed +in England and America.</p> + +<p class='c001'>At Rome, and also in England, all these three main +Sources or Organs have existed in full force and +efficiency, though not in equal efficiency at different +periods in the history of either State. At Rome, as in +England, we begin with customary law. The customary +law of the Quirites is known to and administered by a +small privileged class; and so far as there is any legislation +at all, it is the work of members of this class who +carry in their minds and expound and insensibly amplify +the sacred traditional ordinances. Then direct legislation +by the people in their assemblies, and afterwards +(though in its germ perhaps almost concurrently) the +law-making action of the magistrate begin to appear. +They go on hand-in-hand for many centuries, seconded +by the never intermitted labours of the jurists, until at +last the magistrate’s work is over, the jurists have lost +their impulse or their skill, and the direct activity of the +Sovereign (who is by this time a monarch) becomes +the chief surviving fountain of law. I propose to take +these three sources and compare the way in which they +acted in the Roman city and Empire with their action +<span class='pageno' id='Page_255'>255</span>and development—in many respects parallel, in a few +respects contrasted—in England, whose law has now +spread over a large part of the British Empire.</p> + +<h3 class='c011'>II. <span class='sc'>Jurists as Makers of Law.</span></h3> + +<p class='c012'>Let us begin with the Jurists, since they are the first +repositories and interpreters of those customs out of +which law grew. One may distinguish three stages in +their attributes and their action at Rome. In the first +stage, during the days before the enactment of the +Twelve Tables, and even after that date down to the +third century <span class='fss'>B.C.</span>, they were a small body of men, all +of them patricians, and some of them priests, retaining +in their memory and transmitting to their disciples +a number of rules and maxims, often expressed in some +carefully phrased and scrupulously guarded form of +words, such as the <span lang="la"><i>lex horrendi carminis</i></span>, which Livy +quotes in his account of the trial of Horatius for killing +his sister<a id='r108'></a><a href='#f108' class='c013'><sup>[108]</sup></a>. An important place among these rules was +held by the formulas which it was necessary to use in +actions or other legal proceedings, the slightest variation +from the established phraseology of which would +be a fatal error. Such knowledge, with the connected +knowledge of the days on which ancient superstition +forbade or permitted legal proceedings to be taken, was +in these early times strictly reserved by its possessors +to their own class, as a sacred deposit of political as +well as religious importance.</p> + +<p class='c001'>In the following period, which may be said to extend +till the end of the free Republic, these restrictions +vanished. The progress of the plebeians in political +<span class='pageno' id='Page_256'>256</span>power as well as in wealth made it impossible to +exclude them from the possession of legal lore. Some +plebeians became no less distinguished as sages of +the law than patricians had been; indeed Tiberius +Coruncanius, the first plebeian chief pontiff, is occasionally +described as the founder of the later school +of scientific lawyers. He is said to have been the +first person who offered himself to the public as +willing to advise on legal questions. The profession +attracted many able and ambitious men, because +it was one of the three recognized avenues to high +office, the alternative to arms and to political oratory. +One may fairly call it a profession in this sense, +that those who adopted it made it the main business +of their life, and by it won their way to fame and +influence. But it was not such a profession as the +bar is in modern countries, not a gainful profession +whereby a fortune could be amassed, not a close +profession into which entrance is granted only upon +definite terms and subject to definite responsibilities. +Any man who liked might declare himself ready to give +legal advice or settle legal documents. He had no +examination to pass, no fees to pay, no dinners to eat. +He acquired no right of exclusive audience of the +Courts; he became amenable to no jurisdiction of his +compeers or of any constituted authority. The absence +of these things did not, however, prevent the Roman +lawyers from having a good deal of what might be +called professional feeling, a high sense of the dignity +of their calling, and a warm attachment to the old forms +and maxims of the law. These Republican jurists composed +treatises, only a few scattered extracts from which +<span class='pageno' id='Page_257'>257</span>have come down to us, and gave oral teaching to the +disciples who surrounded them while they advised their +clients, as they sat in state in the halls of their mansions.</p> + +<p class='c001'>With the fall of the Republic there begins a third +period which covers about three centuries. It had +been the custom for a man who had a point of law +to argue before a <span lang="la"><i>iudex</i></span><a id='r109'></a><a href='#f109' class='c013'><sup>[109]</sup></a> trying a case to endeavour to +obtain from some eminent jurist an opinion in his +favour, which he produced to the <span lang="la"><i>iudex</i></span> as evidence of +the soundness of the view for which he was contending. +Now Augustus, partly to enlarge and inspirit the action +of the jurists, partly to attach them to the head of the +State, permitted certain of the more eminent among +them to give <span lang="la"><i>responsa</i></span>, <i>i.e.</i> answers or opinions on +points of law, under and with his authority, directing +such opinions, when signed and sealed, to be received +by a <span lang="la"><i>iudex</i></span> trying a case as settling a controverted +point. His successor, Tiberius, issued formal commissions +to the same effect<a id='r110'></a><a href='#f110' class='c013'><sup>[110]</sup></a>. Here we enter the third +stage, for from this time forward not only did it +become obligatory on the <span lang="la"><i>iudex</i></span> to defer to an opinion +given by one of the ‘authorized’ jurists, but there +was also created an inner privileged order within +the whole body of jurists, this inner order consisting +<span class='pageno' id='Page_258'>258</span>of those, usually no doubt the most conspicuous by +learning and ability, who had obtained the imperial +authorization. And out of this privileged class the +Emperor was apparently accustomed to choose the great +judicial officers of state, the praetorian prefect—in later +times the quaestor also—the members of the Imperial +Council, and possibly the chief judicial magistrates of +the provinces, so that the career of a jurist continued +to be, though in a somewhat different form, one of the +main paths to distinction and power. Oratory, which +had formerly swayed the people, was now practically +confined to the Senate and the Law Courts, and thus +became separated from politics: for even in the Senate +few ventured to speak with freedom. As the profession +of law was now the chief rival to the profession of arms +it drew to itself a large part of the highest ability of the +Empire. After the great decline in literature and art +which marks the period of the Antonines, the standard +of learning, acuteness, and philosophical grasp of mind +among the jurists still continued to be high. Even +their Latin style is more pure and nervous than we find +among other writers of the third century. The period of +their productive activity—that which we commonly call +the classical period of Roman Law—may be said to close +with Herennius Modestinus, who was praetorian prefect +about the middle of the third century of our era. Thereafter +we possess only a few names of notable jurists, +scattered at long intervals, and apparently inferior to +their predecessors.</p> + +<p class='c001'>Although throughout these three periods the jurists +may fitly be described as a Source of Law, their function +was by no means the same from the beginning till the end. +<span class='pageno' id='Page_259'>259</span>In the first period they were the depositaries of a mass +of customs which changed very little; and they did not +so much create law as give a definite shape and expression +to it in the carefully phrased rules and unvarying +formulas which each generation handed down to the +next. The events and circumstances of the second +period, which saw the knowledge of the old customs +much more widely diffused, and saw also a considerable +growth of statute law, threw upon them the duty of +expounding both customs and statutes, and of covering +the ground which neither customs nor statutes had +occupied. This meant a good deal in a thriving and +expanding community, so the <span lang="la"><i>interpretatio iuris</i></span> (as the +Romans call it) which they describe as the chief service +rendered by these legal sages, became large in quantity, +though it was almost entirely confined to the filling +up of interstices, and did not attempt to produce new +principles or lay down broad rules. Its authority, moreover, +was a purely moral authority, based upon nothing +but the respect paid to the intellect and learning of the +particular jurist from whom some doctrine or dictum +emanated, regard being of course had to the length of +time during which, or the approval of the profession +with which, a doctrine or dictum had been accepted. +With the introduction in the third period of a specific +commission from the Emperor, the jurist, that is the +authorized jurist, became recognized as competent +to make law (<span lang="la"><i>iuris conditor</i></span>). He acted only by interpreting, +<i>i.e.</i> by delivering an opinion on a point previously +doubtful, but his decision, once given, had an +authority independent of his personal fame, the authority +of the Emperor himself, by this time a source of law +<span class='pageno' id='Page_260'>260</span>through the magisterial powers conferred upon him for +life. Let us note further, that whereas in the earlier +part of the second period it was largely through the +modelling of the system of actions and pleading that +the influence of the jurists was exerted, in the later part +of that period and during the whole of the third, it was +chiefly by means of their writings that they developed +the law. Most of these writings were the work of men +who enjoyed the <span lang="la"><i>ius respondendi</i></span>; yet some of those +who belong to a time before that right began to be +granted carry no less weight. Antistius Labeo does not +seem to have enjoyed it, but he is always quoted with +the greatest respect, and it seems doubtful whether it +was possessed by Gaius, who was, centuries after his +death, placed among the five most authoritative writers.</p> + +<p class='c001'>It does not here concern me to enlarge upon the +labours of the great legal luminaries of the earlier +Empire, either as writers of treatises (it is in this +capacity that we know them best, from the fragments +of their works preserved in Justinian’s <cite>Digest</cite> ) or as +advisers of the Sovereign, assessors in his supreme +Court of Appeal, and prompters of his legislative +action. For the present purpose it is sufficient to +suggest some reasons which may account for the more +considerable part which the Roman jurists played as +a source of law than that which can be attributed to +legal writers in England. Though some few of our +English treatises are practically law, constantly cited +and received as authorities—Coke upon Littleton +supplies an example from former times, and Lord St. +Leonards on Vendors and Purchasers from our own—they +are not to be compared in point of quantity or +<span class='pageno' id='Page_261'>261</span>importance with the text-books out of which Justinian’s +compilation was framed. In earlier days it was no +doubt different. The writings of Glanvill and Bracton, +with the book ascribed to Britton and the treatise called +Fleta, were all to some extent recognized as law in the +fourteenth century; that is to say, they would have +powerfully, and in most doubtful cases decisively, +influenced the mind of any judge to whose knowledge +they came when he had to determine a point of law. +In that age there was no such distinction drawn +between what is and what is not legally binding as the +wider experience and the more precise analysis of +modern times has made obvious to our minds. Moreover, +in an age when customs were still uncertain, +because largely fluid and imperfectly recorded, the statement +of what a writer held to be law had an incomparably +greater force than in later days. And it may be +added that the extracts from the Roman Law, of which +Bracton’s treatise, for instance, is full, would, at least to +the ecclesiastical lawyers, carry with them the authority +of the Roman law itself. After the fifteenth century, comparatively +few books hold a place of authority; and perhaps +the best example of those which do is Littleton’s +<cite>Treatise on Tenures</cite> . By this time the abundance of +reported cases began to make it less necessary to have +recourse to treatises; nor was the writing of them a +favourite occupation of the earlier common lawyers.</p> + +<h3 class='c011'>III. <span class='sc'>Difference between the Action of Roman and that of English Jurists.</span></h3> + +<p class='c012'>What are the causes of this singular difference +between the course of legal development in England +<span class='pageno' id='Page_262'>262</span>and that which it took in Rome? The most obvious +is the different position in which the imperial commission +placed certain of the more eminent jurists. They +were thereby practically erected into legislators, for +their formally expressed opinions were treated as +though proceeding from the Emperor himself, and +the Emperor was from the first virtually, and afterwards +technically also, a fountain of legislation. True +it is that this authority was not at first extended +to the treatises of these jurists. It attached, at least +in earlier days, only to the <span lang="la"><i>responsa</i></span> which they had +authenticated by their seal, and a <span lang="la"><i>responsum</i></span> probably +carried authority only for the particular case +in which it was delivered. But nothing was more +natural than that its weight should be accepted for +all purposes, and that the utterances of the privileged +jurists, whether contained in a collection of <span lang="la"><i>responsa</i></span> +or in any other kind of law-book, should command a +deference seldom yielded to any private writer, however +eminent. Nor does the fact that both in their <span lang="la"><i>responsa</i></span> +and in their other writings these jurists differed from +one another, maintaining opposite views on many important +points, seem to have substantially detracted +from their influence. Such divergences were indeed, +down to Justinian’s time, a source of embarrassment +to practitioners and judges. Looking at the thing +as a matter of theory, we may wonder how the inconvenience +could have been borne with, for unless a +statute was passed settling a controverted point, the +point might remain always controvertible. But this +is one of the many instances in which we find that +a system which seems, when regarded from outside, +<span class='pageno' id='Page_263'>263</span>unworkable, did in fact go on working. Probably, +when the controversy was one of importance, there +came after a time to be a distinctly preponderating +view, which practically settled it; and possibly the +sense of responsibility under which the authorized +jurists wrote contributed to make them not only careful +but guarded and precise in the statement of their +conclusions.</p> + +<p class='c001'>Another cause for the greater relative importance +of the Roman jurists as creators or moulders of law +may be found in the social position of the legal profession +at Rome. In England the profession is and +always has been followed primarily as a means of +livelihood. Out of the many who have failed to find +it remunerative, some few have devoted themselves to +study and have enriched our jurisprudence by valuable +treatises. But the general tendency has been for the +men of greatest mental vigour and diligence, and also +for the men of the widest practical legal experience, +to be so completely absorbed by practice as to have +no leisure for the composition of books. English law-books +are written mostly by young men who have +not yet obtained practice, or by older men who through +the negligence of Fortune, the undiscernment of solicitors, +or perhaps some deficiency in practical gifts, have +never succeeded in obtaining it. In some remarkable +instances they are the work of persons whose eminence +has raised them to the judicial bench. But they are +hardly ever written, and indeed could scarcely be +written, by the men in full practice, yet such men have +the great advantage of being in daily contact with the +working of the law as a concrete system, and they +<span class='pageno' id='Page_264'>264</span>include, not indeed all, but a great part of the best +legal talent of each generation. At Rome, however, +the jurist of republican days, making no gain from his +professional work, and not needing it, for he was a man +of rank and means, took practice more easily, and devoted +a good deal of his time to the literary side of +his life. Thus we are told that Labeo spent half his +year in Rome giving instruction to his disciples and +advice to his clients, the other half in the country +composing his admirable treatises. Under the Empire +the profession doubtless attracted a large number of +persons of lower station and smaller means. But the +habit of writing and of teaching went on among the +leaders.</p> + +<p class='c001'>In this habit of teaching we may find a further reason +for the prominence of the jurist. The giving of oral +instruction in law to those who were preparing themselves +for its practice, was at Rome always an important +branch of a jurist’s activity. Cicero tells us how he +and others among the youth of his own generation +stood as disciples round the chair of Mucius Scaevola, +gathering the crumbs of legal wisdom which dropped +from his lips, putting questions and doubtless taking +notes of the explanations which the sage deigned to +give. Other leading luminaries were surrounded by +similar groups. Two centuries later, Gaius is generally +thought to have been a teacher of law, and won his +high reputation largely by the educational treatise which +has come down to us. And in still later times the two +great law schools of Beyrut and Constantinople were +the chief homes of legal learning, and those who +lectured in them among the chief legal lights of the +<span class='pageno' id='Page_265'>265</span>Roman world. Four members of the Commission +which prepared the Digest were chosen by Justinian +from among these teachers, and given the place of +honour next after Tribonian, the president of the Commission. +In England, on the other hand, legal teaching +had during the last century and a half fallen sadly into +abeyance, and has only within the last few years shown +signs of reviving. Yet it is clear that the practice of +teaching is of the utmost value for the composition +of treatises, not only because it supplies a motive and +an occasion, but also because it tends to make a book +more systematic and lucid, since the teacher feels in +lecturing the paramount necessity of logical arrangement +and of clear expression. The best survey, at once +concise and comprehensive, of English law that has ever +appeared—Mr. Justice Blackstone’s book—was founded +on oral lectures given in Oxford: and the great works +of Chancellor Kent and Justice Story in America had +a like origin. The merits of these two last-named +writers are just the kind of merits which the habit of +teaching tends to produce. Nor ought we to forget +a more recent example, the small but eminently acute +and suggestive volume of lectures on the Common Law +of Mr. Oliver Wendell Holmes, now Chief Justice of +Massachusetts.</p> + +<p class='c001'>The main cause of the smaller number in England +of legal writers who have taken rank as Sources of +Law, is doubtless to be sought in the fact that the +highest juridical talent of the most experienced men +has with us poured itself through a different channel, +finding its expression in the decisions of the Judges. +It is our series of Reported Cases, now swollen to +<span class='pageno' id='Page_266'>266</span>many hundreds of volumes, a mass of law so large +that few lawyers possess the whole of it, that really +corresponds to the treatises of the great Roman jurists. +The Reports fill a place in English legal studies corresponding +in a general way to that which those +treatises filled in the Roman Empire. They are the +work of a similar class of men, those who from active +practice have risen to the highest places in the profession. +Men in such a position have rarely the leisure +to occupy themselves with writing law-books, nor have +they usually an impulse to do so, since what they +have to say can be adequately delivered in their spoken +or written judgements. And though the merits of our +English judicial decisions are not altogether the same +as those of the great Roman text-books, still the judgements +of the most eminent judges will, if taken as +a whole, bear comparison either with those text-books +or with any other body of law produced in any country. +In logical power, in subtle discrimination, in breadth +of view, in accuracy of expression, such men as Lord +Hardwicke, Lord Mansfield, Lord Stowell, Sir William +Grant, Mr. Justice Willes, Sir George Jessel, Lord +Cairns, and Lord Bowen, to take a few out of many +great names, may fairly rank side by side with Papinian +or Ulpian, with Pothier or Savigny.</p> + +<p class='c001'>This is not the place for an attempt to estimate the +respective advantages of case law and text-book law. +But it may be remarked that they have more in +common than might at first sight appear. English +text-books are almost entirely a collection of cases +with comments interspersed. Sometimes a general +rule is stated which may go a trifle further than the +<span class='pageno' id='Page_267'>267</span>cases do; sometimes an opinion is thrown out on +a point not covered by authority. Still the cases are +the gist of the book. I have heard an eminent judge<a id='r111'></a><a href='#f111' class='c013'><sup>[111]</sup></a> +of our own time observe that the easiest way to codify +the law of England would be to enact that some eight or +ten established text-books, such, for instance, as Jarman +on Wills, Chitty on Contracts, Williams on Executors, +Lindley on Partnership, Smith’s Mercantile Law, Sugden +on Powers, Smith’s Leading Cases, Hawkins on the Interpretation +of Wills, Dicey on Domicil, should have the force +of statutes. To do this would add little to the volume +of the existing English law, for the text-books mentioned +are in reality digested summaries of decisions that lie +scattered through the Reports. And similarly the +treatises of the Roman lawyers contain a large number +of cases, <i>i.e.</i> opinions given by eminent lawyers upon +sets of facts laid before them or imagined by them +in order to show the application of a principle. The +Romans themselves attribute high authority to a concurrent +line of decisions<a id='r112'></a><a href='#f112' class='c013'><sup>[112]</sup></a>; and doubtless decisions given +by magistrates or by emperors found their way into, +and influenced the text-books, though we do not know +what means were taken of recording them. In fact the +difference between the English and the Roman system +resides chiefly in two points. With us the binding +force of a rule depends on its having been actually +applied to the determination of a concrete case. With +the Romans an opinion delivered in a <span lang="la"><i>res iudicata</i></span> is +not necessarily weightier than if it was delivered in any +other way. It is valid simply because it proceeds from +a high juridical authority. Probably in early imperial +<span class='pageno' id='Page_268'>268</span>days there was a difference between the force of a +jurist’s <span lang="la"><i>responsum</i></span> signed, sealed, and produced to +a <span lang="la"><i>iudex</i></span>, and an opinion expressed in any other way by +the same jurist, like our distinction between so much +of a judgement as is needed for the decision of the +case and the accompanying <span lang="la"><i>obiter dicta</i></span>. But any such +difference seems to have presently disappeared. And +secondly, while the opinions on points of law of English +jurists are scattered here and there over hundreds of +volumes, with only a chronological arrangement, those +of Roman jurists were gathered into systematic treatises.</p> + +<p class='c001'>The Roman system has the merits of logical arrangement, +of consecutiveness, of conciseness; the English, +wanting these, has advantages in being so copious as +to cover an immense variety of circumstances, and in +consisting of opinions delivered under the stress of +responsibility for doing justice in the particular case. +It presents moreover to students an admirable training +in the art of applying principles to facts. Both systems +have the defect of uncertainty, because under both there +may be a conflict of views resting on equal authority. +Broadly regarded, both may be said to spring from the +same source. According to German writers, the law +made by the jurists springs from what these writers +call the ‘legal consciousness of the people,’ and derives +its ultimate authority from Custom, <i>i.e.</i> from the tacit +acceptance by the people of certain doctrines and rules. +We in England dwell upon its formal recognition by +the Courts as the proof of its authority. But in both +cases that which becomes recognized as law has passed +through and been shaped in the workshop of Science. +It is the learning and skill of trained professional +<span class='pageno' id='Page_269'>269</span>students, whether English judges or Roman text-writers, +that has done the work which the people, or the Courts +for the people, have accepted.</p> + +<h3 class='c011'>IV. <span class='sc'>Magistrates and Judges as Makers of Law.</span></h3> + +<p class='c012'>We come now to consider the second of the three +great sources of law, the Official or Magistrate. He +holds an intermediate place between the Jurist on the +one hand, and the Supreme Power, whether an Emperor +or a Parliament, on the other, speaking with more of +plenary authority than the former and with less than +the latter. He may at first sight appear to be not +really a species by himself, but merely a particular +instance of legislation by the Supreme Power in the +State, acting not directly (<i>i.e.</i> not as itself enunciating +legal rules) but mediately, by delegating its function +of legislation to a person clothed with its authority +and speaking in its name.</p> + +<p class='c001'>This view has in fact been held by some writers. +That it is, however, an erroneous view will appear, when +we come to scrutinize the Roman facts as the Romans +understood them, and the English facts as they were +understood in the fifteenth century. Delegation by +the supreme legislative authority to some officer or +magistrate no doubt may, and frequently does, take +place. In England, for example, Acts of Parliament +sometimes commit the duty of making rules to an +official, such as the Lord Chancellor, or to such a body +as the Council of Judges of the Supreme Court of +Judicature, or to the Privy Council, that is to say, to +a Minister advised by his permanent official staff, who +<span class='pageno' id='Page_270'>270</span>procures the approval of the Crown in Council to what +he issues in the form of an Order in Council<a id='r113'></a><a href='#f113' class='c013'><sup>[113]</sup></a>. Where +the function is so delegated, the rules or ordinances made +in pursuance of the statute have the full force of the +statute that gave power to make them. Here the phenomenon +is too common and too simple to need explanation +or discussion. It is quite another thing to maintain that +the legislative action of the Magistrate is always of this +character, a mere instance of the exercise of delegated +power. The view is not historically true of the Roman +Magistrate—Praetor, Censor, Aedile, or whatever else +he may be, firstly because he did not in fact receive +any such delegation from the people; secondly, because +nobody supposed him to have received it. He was +always distinctly conceived of as acting by his own +authority, whatever that may be, a matter to which we +must presently return. It is not true of the English +Judge—whether of the <span lang="la"><i>iudices terrae</i></span> of the Common +Law Courts when they take shape in the twelfth and +thirteenth centuries, or of the Chancellor of the fifteenth, +or of indeed their modern successors, seeing that the +theory of the English law and constitution has remained +in these points, at least, substantially unchanged. That +theory is that the judges of the Common Law Courts +are nothing more and nothing less than the officers who +expound and apply the Common Law, a body of usages +held to be known to the people and by which the +people live, usages which existed, in their rudimentary +state, as far back as our knowledge extends, most of +which have not been formally embodied in any legislative +<span class='pageno' id='Page_271'>271</span>act, but which have been always recognized as +binding. Such customary rules are not law because +they are declared to be so by the judges; on the +contrary the judges enforce them because already, +antecedently to their decision, binding law. The judges +have never received delegated authority from Parliament. +So far as authority has been delegated to them +it is the authority of the Crown. But the Crown cannot +empower them, and never purported to empower them, +to make the law. This is abundantly clear regarding +the Common Law Courts, who are merely the exponents +of the customs of the land.</p> + +<p class='c001'>The case of the mediaeval Chancellor is rather +different. He is rather more than an exponent of the +law. He virtually creates law by his executive action. +But he does not do so by any expressly delegated +power. At a time when it was well settled that the +Crown alone could not (except possibly in some few +directions—and even this was not admitted by the House +of Commons) legislate, Parliament, so far from giving +even by implication any authority to the Chancellor, was +jealous of and tried to fetter his action. To allege that +what are called the legislative functions of any English +judge arise from a commission given him by the Supreme +Power, <i>i.e.</i> Parliament, to exercise them, is an inversion +of historic truth and legal doctrine, an attempt to support +a false theory by imaginary facts<a id='r114'></a><a href='#f114' class='c013'><sup>[114]</sup></a>. It is easier and safer +<span class='pageno' id='Page_272'>272</span>to look at our system in the aspect it bore to those +who witnessed the earlier stages of its growth, and to +recognize the existence of a peculiar form of law-making—that +which naturally and inevitably arises out +of the application and administration of the law, +especially where that law is largely customary, not +embodied in formal declarations of a sovereign’s will. +If therefore we are to have a theory of the position of +the Magistrate or Judge, a definition of his functions, +we must rather call him (however vague the expression +may appear to those who prefer the phantom of precision +to the substance of truth) the recognized and +permanent organ through which the mind of the people +expresses itself in shaping that part of the law which +the State power does not formally enact. He is their +official mouthpiece, whose primary duty is to know and +to apply the law, but who, in applying it, expands it and +works it out authoritatively, as the jurists do less +authoritatively. He represents the legal intelligence +of the nation, somewhat as upon one theory of papal +functions the bishop of the old imperial See represents +the religious intelligence and spiritual discernment of the +Christian community on earth; and therefore, like the +Pope, he represents the principle of that development +which it is his function to guide. As the Romans call +their Praetor the living voice of the law, so is the Magistrate +always, in England as at Rome, the voice whereby +the people, the ultimate source of law, shape and mould +in detail the rules which seem fitted to give effect to +their constant desire that the law shall be suitable to their +needs, a just expression of the relations, social, moral, +and economic, which in fact exist among them. The +<span class='pageno' id='Page_273'>273</span>Magistrate is by no means their only voice, for they also +express themselves, especially upon urgent questions, +by direct legislation; and the more they get accustomed +to do so, the narrower does the province of the Magistrate +become. But there are many things which legislation +cannot do in the earlier stages of a State’s growth, +partly because proper machinery is wanting, partly +because political dissensions intervene, partly because +legal ideas are still fluid, fluctuating, and unfit for expression +in terms at once broad and definite. Moreover, +in even the most highly organized States, some things +always remain which a legislature cannot conveniently +deal with, or where its action needs to be constantly +supplemented, and perhaps even corrected, by some +organ which can work in a more delicate and tentative +manner.</p> + +<p class='c001'>So much—that I may not further illustrate what +will become clearer from a survey of the Magistrate +as he has appeared in history—may be said of Legislation +by a State Official in general, whether he be +a Roman <span lang="la"><i>Magistratus</i></span> or an English Chancellor. Now +let us come to the Roman Praetor.</p> + +<p class='c001'>In the early days both of Rome and of England the +administration of justice belonged to the chief magistrate +of the State and to the assembly of the people, who in +the very earliest days had normally acted together. In +England, although the judicial functions of the Assembly +survived for some purposes (as they survive to-day in +Parliament), the conduct of ordinary judicial work which +could not conveniently be exercised by the Assembly +passed to the king, and when judges appeared, they +were his officers. In Rome also the king was the head +<span class='pageno' id='Page_274'>274</span>of the judicial system: and when the kingly office was +abolished, the functions that had been his were transferred +to the two Consuls, who were virtually annual +kings. After a time, owing to political disputes which +need not be described here, a third annual magistrate +was added, called the Praetor<a id='r115'></a><a href='#f115' class='c013'><sup>[115]</sup></a>, who, while capable of +exerting nearly all the executive power of the Consuls, +received the administration of justice as his special +province. As the city grew and litigation increased, +more Praetors were added. The first had been appointed +in <span class='fss'>B.C.</span> 367; the second, who presently became +charged with suits in which one or both of the parties +did not enjoy Roman citizenship, dates from about <span class='fss'>B.C.</span> +247. He came to be called <span lang="la"><i>Praetor peregrinus</i></span>, while +the original Praetor was described as the Praetor of +the City (<span lang="la"><i>urbanus</i></span>). The latter remained the head of +the judicial system, and I shall therefore speak of the +Praetor in the singular. Other Praetors were added, +partly in order to act in the provinces, partly in order +to undertake special kinds of jurisdiction. By the time +of Trajan there were eighteen of them.</p> + +<p class='c001'>In the later republican period we may speak of the +Praetor as being partly a Judge, partly a Minister of +Justice who directed the general working of the Courts. +It was his duty to issue when he assumed office a statement +of the rules by which he intended to guide his +judicial action during his year, as well as a table of the +formulae in which applications ought to be made to him +for the exercise of his functions. These rules were published +<span class='pageno' id='Page_275'>275</span>in a document called the Edict. It contained +a concise statement of the cases in which he would +allow an action to be brought, and of the pleas which +he would admit as constituting defences to actions. +This statement did not purport to supersede the old +actions and rules which had either come down as +a settled part of the ancient customary law, or had +been enacted by any statute of the popular assembly. +The Praetor always held himself to be bound by +statutes<a id='r116'></a><a href='#f116' class='c013'><sup>[116]</sup></a>. But his Edict added materially to the old +actions and rules, incidentally modified them, ultimately +did supersede many of them. He awarded remedies +which the older law had not awarded. He recognized +defences (<i>e.g.</i> in cases of fraud) which the old law had +not recognized. He provided means of enforcing rights +more effective than those which the old law had provided. +As the later Romans said, he acted for the sake +of aiding, or supplying the omissions of, or correcting, +the old strict law, with a view to the public advantage<a id='r117'></a><a href='#f117' class='c013'><sup>[117]</sup></a>.</p> + +<p class='c001'>Each Edict was valid only for the Praetor’s year of +office. Each succeeding Praetor, however, usually repeated +nearly all the declarations that had been contained +in the Edicts of his predecessors, though it often +<span class='pageno' id='Page_276'>276</span>happened that a new Edict introduced some improvement +in point of form and expression, or perhaps so +varied, or added to, the announcements in the last +preceding Edict as to introduce an improvement in substance, +for when a Praetor thought that it was necessary +to promise a new remedy by action, or to recognize a +new plea, it was his duty to insert it. In this way the +practice of the Courts was continually changing, yet +each single change was so slight that the process was +very gradual, hardly more rapid than that which has +gone on, at certain periods in the history of English +law, through the action of the Court of Chancery, or +that which went on in the Court of King’s Bench under +Lord Mansfield. There was no permanent enactment +of a new rule, for a Praetor’s declarations bound himself +only and not his successors<a id='r118'></a><a href='#f118' class='c013'><sup>[118]</sup></a>. But as his promises +were usually repeated by his successors, a Praetor when +he promised a new remedy, practically created a new +right, or enlarged and confirmed an old one.</p> + +<p class='c001'>To us moderns the function thus committed to a +Magistrate seems a large function, and his power +a possibly dangerous power. No modern constitutional +State would vest such a power either in a Judge +or in a Minister of Justice. But to the Romans the +Praetor is (above all things) the representative of the +<span class='pageno' id='Page_277'>277</span>Executive and Judicial Power of the State. He is the +State embodied for certain purposes. He is something +more than a mere minister, whom the people have chosen +to serve them in a certain capacity. He represents the +majesty of the State over against the people, and deals +with them rather as a Ruler than as a Servant. Few +nations have formed so strong and definite a conception +of State power as the Romans did; and none, perhaps, +expressed it so distinctly in the authority, very wide, +very drastic, and yet eminently constitutional, which +they entrusted to their great State officials. The +conception was to them so dear, or so necessary, that +even when the misdeeds of a monarch had led to the +abolition of monarchy, they did not restrict the magisterial +power itself, but divided it between two co-ordinate +magistrates whose co-existence made each a check on +the other; and when the powers of these two (the +Consuls) were subsequently found to need limitation, +they devolved upon other magistrates (the Tribunes) +the right to step in and check the exertion in some +particular instance of the consular power.</p> + +<p class='c001'>The Praetor, therefore, having (like the Consul) <span lang="la"><i>imperium</i></span> +(<i>i.e.</i> the power of issuing commands as an +executive officer, and of compelling obedience to them +by putting forth material force), is a stronger personality +than the English Common Law Judge, and can act more +boldly and more effectively. We hear of no demand +for a restriction of his functions, but only of a statute +which checked arbitrary discretion by requiring him to +administer the law in accordance with his Edict. Moreover, +while the English judge is, down till the Revolution, +an official removable by the Crown, the Praetor +<span class='pageno' id='Page_278'>278</span>has no one over him, and has, therefore, not only a +more unfettered discretion in carrying out his judicial +and quasi-legislative mission, but also a clearer sense +of his duty to do so, because this is the function which +the nation expects him to discharge. The English +Judge is primarily a judge, appointed to pronounce a +decision: the Praetor is also an executive magistrate, +placed at the head of the whole judicial administration +of what was originally a small community, with the duty +of providing that the system works properly. His wider +powers give him a sense of the obligation laid on him +to see that justice is duly done, that the system of +procedure is such as to enable justice to be done, that +wrongs for which there ought to be some remedy have +some remedy provided against them; in short, that the +law as a machinery for setting things right and satisfying +the demands of the citizens is kept in proper order, with +such improvements and extensions as the changing +needs of the nation suggest. His business is not merely +to declare the law but to keep the law and its machinery +abreast of the time.</p> + +<p class='c001'>The functionary who in England offers the nearest +analogy to the Praetor, an analogy which has been so +often remarked that only a few words need be spent on +it, is the Chancellor. The Chancellor of the fourteenth, +fifteenth, and sixteenth centuries was the organ of the +prerogative of the Crown on its judicial side, and as that +prerogative was then very wide, he was thus invested +with an authority half judicial, half administrative, not +unlike that of the Roman magistrate. As it belonged +to the Crown to see that justice was done throughout +the realm, and the means for doing it provided, the +<span class='pageno' id='Page_279'>279</span>Chancellor was expected and obliged to supply new +machinery if the old proved inadequate, and this he did +in virtue of an authority which, in its undefined width +and its compulsive power, resembled the Roman <span lang="la"><i>imperium</i></span>. +Accordingly when the development of the +Common Law Courts stopped in the fourteenth century +because the Common Law judges refused to go beyond +the remedies which the Courts provided, and made only +a limited and timid use even of their power of issuing +new writs <span lang="la"><i>in consimili casu</i></span>, the Chancellor went on. +From the time of Edward the Third petitions to see +right done, which had been previously addressed to +the Crown, began to be addressed to the Chancellor, +and the extraordinary range of his powers was expressed +by the phrase that he acted in matters of the +King’s grace and favour, that is to say, he acted +where the subject could not demand a remedy as of +common right from the ordinary Courts of the land. +Thenceforward the range of action of the Common Law +Courts did not so much need to be extended, though a +certain slight measure of development continued in them +even as late as the days of Lord Mansfield, whose +extension of the scope of the ‘Common Counts for +money had and received to the use of the plaintiff’ has +a faint flavour of praetorian methods. It was partly +because the Common Law judges had halted that the +Chancellor, if I may use a familiar expression, took up +the running, and exerted the powers which the sovereign +entrusted to him, and which, as keeper of the sovereign’s +conscience, he was held to be justified in exerting so as +to provide fresh and efficient remedies for wrongs that +defied either the rigid system of procedure or the feeble +<span class='pageno' id='Page_280'>280</span>executive capacity of the Common Law Courts. During +this period the Chancellor, though a judge, is also much +more than a judge, and it is as a great executive officer, +clothed with the reserved and elastic powers of the +sovereign, that he is able to accomplish so much. Yet +his action is not so free as was the Praetor’s, for he +does not directly interfere with the pre-existing Courts. +He may walk round them: he may forbid a plaintiff to +use the judgements they give; but he cannot remould +their methods nor extend their remedies. The Praetor, +on the other hand, is in a certain sense the head of all +Courts, so that his action covers the whole field of law. +After a time, however, the creative energy of the Chancellor +slackens, partly because the prerogative of the +Crown was being narrowed, partly, apparently, from +the example of the other Courts, for when Chancery +decisions also began to be reported like those of other +tribunals, he naturally felt himself more and more +fettered by the record of the decisions of his predecessors. +In the eighteenth century, precedents gather +round the Chancellor and fence him in: he cannot +break through so as to move freely forward on new +lines of reform. He is like a stream which, as it +deepens its channel, ceases to overflow its banks.</p> + +<p class='c001'>Before I note a further point of difference between +the Praetor and our English Judiciary, and a further +reason why the development of the law by the latter +was so much less bold, I must advert to one feature +which the Roman and English systems have in common. +In both law is made through the control of procedure. +The Praetor promises to give a certain action, or allow +a certain defence, in certain states of fact; <i>i.e.</i> if a plaintiff +<span class='pageno' id='Page_281'>281</span>alleges certain facts, the Praetor will allow him to sue, +and will see that judgement is given in his favour +should those facts be proved, while if a defendant +alleges certain facts, the Praetor will allow these to be +set forth in a plea, and will see that judgement is given +in his favour if the facts as stated in the plea are +proved. Similarly the English Courts are concerned +not with abstract propositions of law, but with remedies. +It is by granting a remedy, <i>i.e.</i> by entering judgement +for the plaintiff or the defendant in pursuance of certain +reasons which they deliver publicly, that the Courts +become sources of law. And though the Chancellor +goes further than the Common Law Courts, because in +the early days of his action he laid hold of a person +under circumstances to which no rule of law had +been previously declared to apply, and compelled him +to appear as defendant in a suit, yet the Chancellor +also never delivers a legal opinion except for the +purpose of explaining the decree which he issues for +adjusting the rights of the parties to a concrete dispute. +So far, therefore, the Roman and the English officials +moved on similar lines. Both were concerned with +remedies; both acted through their control of procedure.</p> + +<h3 class='c011'>V. <span class='sc'>The System of Praetorian Edicts as compared with English Case Law.</span></h3> + +<p class='c012'>Now, however, we arrive at a material difference +between the Roman and the English Magistrates. The +English judge never goes beyond the concrete case +which is before him. If he declares the law, he declares +it by deciding on the particular question which +<span class='pageno' id='Page_282'>282</span>has arisen between two individuals. He may incidentally, +if so minded, deliver a lecture on the law +bearing on the subject, and may pass in review all the +cases cited in argument. Still, his judgement is not +intended to go beyond what is absolutely necessary for +the settlement of that question, and his view of the law +is not authoritative so far as it strays into cognate but +distinct topics. It is only the <span lang="la"><i>ratio decidendi</i></span> that can +be quoted as an authority. No <span lang="la"><i>dictum</i></span> thrown out +incidentally is of binding force; and those who in the +future have to deal with his decision are often able to +narrow down the <span lang="la"><i>ratio decidendi</i></span> to a very fine point, +and show that it turned so much on the special facts +of the case as to be of little importance as a precedent. +But the Praetor speaks generally. In the Edict which +he issues at the beginning of his term of office he lays +down a rule, intended from the first to be applicable +to a large class of cases; or, to speak more exactly, +he makes a promise and announces an intention of +dealing with a large class of instances. If the class +were not a large one, he would not think it worth while +to announce such an intention. He is thus led to take +much more bold and conspicuous steps, and he may +effect at one stroke a larger reform than any single +decision of an English Court can ever cause. He is far +more distinctly aware of the fact that he is, though not +formally legislating, yet taking action which may have +the effect of changing the substance of the law.</p> + +<p class='c001'>In other respects also, the fact that the Praetor’s +changes are formally enounced in his Edict potently +and beneficially influenced his reforming action. He +was obliged to generalize and summarize. Where he +<span class='pageno' id='Page_283'>283</span>had to set aside an ancient rule which had begun to +be mischievous and deserved to be obsolete, instead +of merely nibbling away at the edges of it as our +English judges were apt to do, he dealt with it in a broad +and intelligible way, either superseding it altogether +or laying down certain marked exceptions in which he +declined to follow it. When he was establishing a new +rule he had to consider how wide a field he desired +to cover, what sets of instances were to be provided for, +what was the common principle underlying those instances, +how that principle must be expressed so as +fairly to include them without including others which +he had no wish to touch. The chief merit of a rule of +law is that it should seize a feature which a large set of +instances really have in common, and should effectually +provide for them and for them only. The Praetor was +moreover at the same time driven to be terse in the +formulation of his promises, because the Edict was by +tradition a comparatively short document, observing +that stern brevity which the famous example of the +Twelve Tables had made familiar and excellent in +Roman eyes. Thus the results of his reforming action, +the advance made at each step in the development of +the law, were always presented in a clear, a comprehensive, +and above all a concise form, so that the profession +perceived exactly what had been done, were able +to take the Edict as a subject for commentary and elucidation, +and as a starting-point for further improvements. +It was thus that the jurists treated it, seconding while +also controlling by their opinion the action of the chief +magistrate. He draws with a bold yet careful hand the +outlines of the picture. They fill in the details, and so +<span class='pageno' id='Page_284'>284</span>work round and over each of his summary statements +as to bring out more fully all that it contained and +involved, to trace his principles into their consequences +and to illustrate their application. The action of the +jurists was as essential to him as he was to them, for +while their advice often prompted him, and while their +elucidations and teachings developed the meaning and +contents of what he laid down, their criticism reprobated +any hasty or inconsequent steps into which zeal or +self-confidence might betray him. Nor did such criticism +remain fruitless. For it will be remembered as another +feature of the Roman edict-issuing system, and indeed +one of its most singular features, that each Edict was +issued by each magistrate for his one year of office +only, and had no validity thereafter. This was so +because he was not conceived to act as legislator, but +only as an administrator whose commands, though they +are not law in the strict sense, must be obeyed while +his power lasts. At the end of the year they cease +with that power, but his incoming successor may of +course repeat them and give them another year of life, +and so on from year to year and from generation to +generation.</p> + +<p class='c001'>Thus the Edict, so far as it can be called legislation, +is tentative legislation. It is an experiment continually +repeated; an experiment whose failure is a slight evil, +but its success a permanent gain. Suppose the Praetor +Sempronius to have introduced a new sentence into his +Edict, promising to give an action in a particular set +of cases. The profession doubt the merit of the +sentence, canvass it, observe how it works, and before +the end of the year come to one of three conclusions. +<span class='pageno' id='Page_285'>285</span>They may approve it, in which case it will doubtless +be repeated in next year’s Edict. They may think it +fundamentally wrong. Or thirdly, they may hold that +though its object was good, that object has been +sought in a wrong way. See then what happens if it +has been disapproved. Next year a new Praetor—Cornelius—comes +into office. In issuing his Edict he +either omits altogether the obnoxious addition which +Sempronius had made, or he so modifies it as to meet +the objection which the jurists have taken. There is +here none of the trouble, difficulty, and delay which +arise when a statute has to be passed repealing +another statute. There are not even those difficulties +which occur under our English system when a case +wrongly decided has to be overruled.</p> + +<p class='c001'>Observe how that English system works. A decision +is given, perhaps hastily, or by a weak Court, which in +a little while, especially after other similar cases have +arisen, is felt by the bar and the bench to be unsound. +There is a general wish to get rid of it, but it is hard to +do so. People have begun to act on the strength of it; it +has found its way into the text-books; inferior or possibly +even co-ordinate courts have followed it; conveyances +or agreements have been drawn on the assumption that +it is good law. The longer it stands the greater its +weight becomes, yet the plainer may its unsoundness +be. Cautious practitioners fear to rely on it, because +they think it may some day be overruled, yet as they +cannot tell when or whether that will happen, they dare +not disregard it. Thus the law becomes uncertain, +and not only uncertain, but also needlessly complex +and involved, for later judges, feeling the unsoundness +<span class='pageno' id='Page_286'>286</span>of the principle which this mischievous case has +established, endeavour to narrow it down as far as +possible, and surround it by a set of limitations and +exceptions which confuse the subject and perplex the +student. The matter may have one of three ultimate +issues. Either lapse of time and the unwilling acquiescence +of subsequent judges put its authority beyond +dispute, as Mr. J. W. Smith says of a famous old instance, +‘The profession have always wondered at Dumpor’s +case, but it is now too firmly settled to be questioned +in a Court.’ Or else, after a while, the point is carried +to a Court of higher rank which has the courage to +overrule the erroneous decision, and resettle the law +on a better basis. Or possibly—though this but rarely +occurs—a statute is passed declaring the law in an +opposite sense to that of the unlucky decision. But +it may be long before the second solution is found, +partly because judges are chary of disturbing what +they find, holding that it is better that the law should +be certain than that it should be rational, and fearing +to pull up some of the wheat of good cases with the +tares of a bad case, partly because it may be a good +while before a litigant appears willing to incur the +expense of carrying the point to the higher and more +costly tribunal. The third solution can be even less +relied upon, for the legislature is busy and cares very +little about the theoretical perfection of the law.</p> + +<p class='c001'>Even when the bad decision has been got rid of, +a certain measure of harm is found to have been done. +The authority of other cognate decisions may be +impaired; transactions entered into, or titles accepted, +on the faith of the case are shaken. One way or the +<span class='pageno' id='Page_287'>287</span>other the law is injured. But on the Roman system +these evils were, not indeed wholly, yet to a much +greater extent avoided<a id='r119'></a><a href='#f119' class='c013'><sup>[119]</sup></a>. Not only is the error of one +Praetor easily corrected by his successor, but the +occasion recurs year by year on which it must be +either corrected or reaffirmed, so that a blemish is much +less likely to be suffered to remain. If five or six +successive Praetors have each of them in their Edicts +repeated the provision introduced by one of their predecessors, +men may confidently assume that it will be +supported and perpetuated by those who come after, +either in its original form or possibly in a more general +form which will include its substance. There is no +doubt some little temporary uncertainty during the +first year or two, before the opinion of the profession +has been unequivocally expressed. Such uncertainty +can hardly be avoided in any system. But the fact that +the Edict is annual gives ample notice that the provision +is temporary and experimental, though, of course, +fully valid during the particular year for which the +Edict is issued. Thus the risk of mischief is reduced +to a minimum.</p> + +<p class='c001'>Our data are too scanty to permit us to trace either +the first beginnings of the Praetor’s action, or the +details of its working, or the changes which must +unquestionably have passed upon it during the three +centuries and a half when its importance stood highest, +say from the end of the First Punic War to the +time of the Emperor Hadrian (<span class='fss'>B.C.</span> 241 to 117 <span class='fss'>A.D.</span>). +<span class='pageno' id='Page_288'>288</span>Even of the Edict itself, in its latest and most +complete form, we have only fragments, and do not +know by what stages it was brought to the perfection +which led to its being finally settled in a form +never thenceforward altered. This took place under +Hadrian, when Salvius Julianus, a famous jurist who +was Praetor at the time, gave it the shape in which it +became permanent, an <span lang="fr"><i>Edictum Perpetuum</i></span> in a new +sense; it was then enacted by a <span lang="fr"><i>Senatus Consultum</i></span>, and +in the form so enacted it was thereafter quoted and +applied. Apparently, however, the effect of its enactment +was not to make it a part of the general statutory law, +but only to determine the form in which it was thereafter +put forth by the magistrates. After that time such Edicts +as were issued were special, containing declarations of +the imperial will, usually addressed to particular circumstances. +They were no longer Edicts in the old sense, +but mere imperial constitutions.</p> + +<p class='c001'>It need hardly be said that under the Empire the +action of the Praetor, like that of all other magistrates, +had been liable to be directed or supervised by the +Sovereign or his legal advisers. An interesting illustration +of that supervision is worth mentioning, because +it also brings into relief the fact that other magistrates, +as well as the Praetor and Aediles, enjoyed the power of +creating law by their action, which may be called either +administrative or judicial, seeing that it united the +two characters. Before the time of Augustus there had +been no such thing among the Romans as the giving +of an inheritance, or a legacy, by means of a Trust, +<i>i.e.</i> by imposing on the honour and good faith of the +person to whom property was left a legal obligation to +<span class='pageno' id='Page_289'>289</span>hand it, or a part of it, over to some one else as the real +beneficiary. The practice of asking such a person to +carry out the testator’s wish had existed, but he could +disregard the wish if he pleased. Augustus, however, +on two occasions directed the Consuls (not the Praetor) +to enforce such a request by their authority, thereby +turning the moral into a legal obligation; and at the +same time recognized an informal letter or writing +(<span lang="la"><i>codicilli</i></span>) as sufficient, where confirmed by a will, to +impose a binding obligation on the heir. We are told +that, in the latter case, having himself on one occasion +performed what a testator had asked him, by way of trust, +to do, he summoned a meeting of eminent jurists to +advise him, and accepted the advice of Trebatius that +the obligation should be held valid. These instances +became the foundation of the extremely important +changes which made the validity of Trusts, and that of +<span lang="la"><i>codicilli</i></span>, thenceforward a well-established legal doctrine<a id='r120'></a><a href='#f120' class='c013'><sup>[120]</sup></a>. +As the origin of Roman trust inheritances is due to the +action of the magistrates, so English trusts owe their +legal force to the Chancellor; and through the operation +of the practice of creating them, coupled with the +Statute of Uses (27 Henry VIII, c. 10), there grew up +the modern system of conveyancing.</p> + +<p class='c001'>The merits of our English Case Law system are very +great. It is an abiding honour to our lawyers and +judges to have worked it out with a completeness and +success unknown to any other country. They have +<span class='pageno' id='Page_290'>290</span>accumulated in the Reports an unequalled treasure of +instances, conjunctions of circumstances raising points +of law far more numerous than the most active intellects +could have imagined. These points have been argued +with the keenness which personal interest supplies, and +decided under that sense of responsibility which the +Judge feels when he knows not only that his judgement +is to determine the pecuniary claims or social position +of suitors, but also that it is to constitute a rule which +will be canvassed by the bench and the bar, and find +its place in volumes that will be studied long after +he has quitted this mortal scene. There is therefore a +practicality about English Case Law, a firm grasp of +facts and reality, as well as a richness and variety, which +cannot be looked for in legal treatises composed even +by the ablest and most conscientious private persons, +who, writing in their studies, have not been enlightened +by forensic discussion nor felt themselves surrounded +by the halo of official dignity. If the treatises of the +great Roman jurists do to a large extent possess these +same merits, it is because they too were, in a measure, +public officers, and because much of the law they +contain arose out of concrete cases<a id='r121'></a><a href='#f121' class='c013'><sup>[121]</sup></a>.</p> + +<p class='c001'>The characteristic defects of Case Law which must +be set against these merits are two. There is, first of all, +its frequent uncertainty. As has been remarked already, +one must always assume a certain percentage of ill-decided +cases which it is hard to get rid of. And it +may often happen that a particular point, which specially +needs to be determined in the interests of legal science, +<span class='pageno' id='Page_291'>291</span>remains for years, or even centuries, unsettled, because +it is never brought before the Courts in a neat form +which raises just the issue that wants settling. Sometimes +it hardly matters which way the decision goes: +the important thing is to have a decision, yet there is +no means provided of getting one, unless by invoking +the legislature, which is usually too much occupied +with political controversies or administrative problems +to care for settling such a point. And secondly there +is the utterly unsystematic character from which Case +Law necessarily suffers, and which it necessarily imparts +to the whole law of the country. This defect is too familiar +from everyday experience to need any illustration. +It is the capital defect, one might say almost the only +defect, of the law of England; and people have so long +talked in vain about remedying it by means of a Code, +that they have at last grown tired of the subject, and +seem to be settling down into despair. I refer to it for +the sake of pointing out how the institution of the +Roman Praetor met a similar danger. The Romans +had, to be sure, no great turn for scientific arrangement—their +efforts at codification and the structure +of their legal treatises show that—but the Praetor’s +Edict had the immense advantage of presenting all the +gist and pith of the newer law in a compact form, clearly +and concisely set forth. The Edict thus became a centre +round which the jurists could work, a point of departure +for all further legislation, a main line of road running +through the network of lanes, courts, and alleys that had +been built up by a multitude of statutes and treatises. +It was capable of being constantly amended and extended +so as to take in all changes in the law, while +<span class='pageno' id='Page_292'>292</span>yet retaining its own character; and it gave a unity, +a cohesion, a philosophical self-consistency to the Roman +law which it must otherwise have wanted even more +than does our own. A German writer has somewhere +remarked, in commenting on the crude and fragmentary +character of the Roman Criminal Law, with whose +development the Praetor had comparatively little to do, +that the faults of that branch of legal science show how +absurd it is to ascribe the merits of Roman jurisprudence +to any special gift for legislation bestowed by Heaven +on the Roman people. The excellence of their private +civil law is (he observes) due simply to the fact that +they had the good sense, or perhaps the good luck, to +have provided in the Praetorship an office specially +charged with the duty of constantly amending the law +so as to bring it in accord with the growing civilization +and enlarging ideas of the people. There is much +truth in this. The Romans, however, did not invent +their Praetor with any such conscious purpose. Their +merit was that, when they saw him occupied in +developing the law, they gave him free scope, and +supported him in his beneficent work. He is a unique +figure among the law-making organs of the nations. +Since he is the choice of the people, he is able to do +things which the minister of an absolute monarch might +prudently shrink from doing; and the people permit +him to retain his functions, even in days when the habit +of directly legislating had so much increased that it +might have been supposed that legislation would restrict +or supersede his action. No modern republic would +vest such power in an official, nor would any modern +monarch be permitted by public opinion so to vest it.</p> + +<p class='c001'><span class='pageno' id='Page_293'>293</span>Nevertheless, though he belongs to a world which +cannot return, the Praetor’s career may suggest to us +that every civilized nation ought, in some way or other, +to provide an organ representing its legal intelligence +which shall mould and supervise the gradual and symmetrical +development of its law. It may be suggested +that all modern States do provide such an organ in +their legislatures, whose business is largely, in some +instances almost entirely, that of making law, and which +presumably contain the most capable men whom the +nation possesses. When we have considered the conditions +under which legislatures work, as I propose +now to do, we shall be better able to judge how far +they fulfil the function which the Praetor discharged +at Rome.</p> + +<h3 class='c011'>VI. <span class='sc'>Direct Legislation at Rome.</span></h3> + +<h4 class='c021'>A. <i>The Popular Assembly.</i></h4> + +<p class='c012'>We have now compared the organs and the methods +of legislation which existed in the Roman Republic and +Empire with those of England, so far as relates to +the action of the jurists, magistrates, and judges. +Taking first the Roman jurisconsults and authors of +legal treatises, it was suggested that their English +analogues were rather to be found not so much in +text-writers as in the judges, the result of whose +labours is preserved in the vast storehouse of the +Reports; while in considering the action of the Roman +Magistrates, especially of the Praetor, in the creation of +law, stress was laid on the advantages which the peculiar +position of this great head of the whole judicial +system presented for the gradual and harmonious +<span class='pageno' id='Page_294'>294</span>development of legal rules, an advantage which the disconnexion +of the Chancellor from the Common Law +Courts did not permit in England. This led to an examination +of the English method of developing and +amending of the law by the decisions of the Courts, +a method which, if it loses something in point of +symmetry, has the advantage of providing an unrivalled +abundance of materials for the determination of every +question that can arise, and of subjecting each disputable +point to the test of close and acute scrutiny.</p> + +<p class='c001'>We may now go on to examine another mode of +creating law, that namely which proceeds immediately +from the supreme power in the State, and which +may, as contrasted with the indirect creation of law +by jurists, or magistrates, be called Direct Legislation.</p> + +<p class='c001'>The organ of such direct legislation is the supreme +authority in the State, whether such authority +be a Person or a Body, whether such body be +the council of an oligarchy or a popular assembly, +and whether such popular assembly be primary or +representative.</p> + +<p class='c001'>The method whereby Direct Legislation is enacted +is the public proclamation (usually, and now invariably, +but of course not necessarily) in writing by the +Supreme Authority, of its will as intended to bind +the citizens and guide their action. And the result is +what we call Statute Law as opposed to Common Law. +The distinction is a familiar one to both nations. The +later Romans contrast <span lang="la"><i>Ius</i></span> and <span lang="la"><i>Lex</i></span><a id='r122'></a><a href='#f122' class='c013'><sup>[122]</sup></a>: we contrast Common +Law and Statute.</p> + +<p class='c001'><span class='pageno' id='Page_295'>295</span>Let us first inquire what were, at different periods +in the long annals of the Roman State, its various +organs of direct legislation, and how each of them +worked. It is of course only in outline that so large +a subject can be treated.</p> + +<p class='c001'>The Roman State lasted 2,206 years—from the unauthenticated +‘founding of the city’ (for which I assume +the traditional date of <span class='fss'>B.C.</span> 753) down to the well +authenticated capture of Constantinople by the Turks +in <span class='fss'>A.D.</span> 1453. Some would carry it down to 1806, +and thus give it a life of 2,559 years, but the feudal +Romano-Germanic Empire is such a totally different +thing in substance from the Empire at Rome or at +Constantinople, that although its sovereigns often +claimed to legislate after the manner of Constantine +and Justinian, nothing would be gained by bringing +it and them within the scope of our inquiry. Now +during this long period of two and twenty centuries, +from Romulus to Constantine the Sixteenth, three +such organs were successively developed. The first +was the popular assembly of the citizens; the second, +the administrative council of magnates and ex-officials; +the third, the autocratic monarch. The first co-existed +for a certain time with the second, the second with the +third. The rights of the first and the second seem to +have never been formally extinguished, even when +the third had become in practice the sole source of +law. Still we may, with substantial accuracy, limit +the action of the first to the republican period, that of +<span class='pageno' id='Page_296'>296</span>the second (so far as properly legislative) to the earlier +two centuries of the imperial monarchy, while in later +ages the third alone need be regarded.</p> + +<p class='c001'>As I am not drawing a historical sketch, but merely +attempting to point out how each organ acted in producing +law, I shall not stop to discuss any constitutional +questions as to the rights or powers at various +times of these organs respectively, but shall assume +each to have been in its own day duly recognized as +competent to legislate. That is the view presented to +us by Gaius (writing in the second century <span class='fss'>A.D.</span>) and in +the <cite>Digest</cite> and <cite>Institutes</cite> of Justinian enacted in the +sixth century <span class='fss'>A.D.</span> The Emperor says, ‘The written +law consists of statutes, resolutions of the <em>plebs</em>, decrees +of the Senate, the ordinances of emperors, the edicts +of magistrates, the answers of jurisconsults<a id='r123'></a><a href='#f123' class='c013'><sup>[123]</sup></a>.’ We +have already considered the two latter, and have now +the four former kinds of legislation to examine, all of +which may be called, in a wide sense of the term, +Statutes, <i>i.e.</i> declarations of the will of the State +formally promulgated as law.</p> + +<p class='c001'>The legislative power of the Roman people was +exercised, during the Republic, through three assemblies, +those of the curies (this soon lost all practical importance), +the centuries, and the tribes. Passing by the +interesting and difficult questions as to the composition +of these bodies, their respective functions, and the time +when each may be said to have acquired or lost its +<span class='pageno' id='Page_297'>297</span>authority, we may remark several features which they +had in common, and which impressed a peculiar character +on the laws that emanated from them. The differences +between them do not affect the points to which I +am going to call attention. All these <span lang="la"><i>comitia</i></span> (literally, +meetings) are Primary assemblies, that is to say, they +are not representative bodies, but consist of the whole +body of citizens, just like a Homeric ἀγορά, an Athenian +or Syracusan ἐκκλησία, Frankish <i>mallum</i>, an Old +English Gemot, an English seventeenth-century Vestry, +a New England Town Meeting, an English Parish +Meeting under the Local Government Act of 1894, +an Icelandic Thing, a Basuto Pitso. The Roman +assemblies are, therefore, large bodies consisting of +thousands, often many thousands, of persons, and +fluctuating bodies, in which not always the same persons +will be present, and in which those who live +near the place of meeting will tend to preponderate. +Further, they are—and this is a remarkable feature +of the Roman system—bodies composed of minor +bodies, and determining their decision by a system +of double voting. Each individual votes in the group +to which he belongs, <span lang="la"><i>curia</i></span>, <span lang="la"><i>centuria</i></span>, or <span lang="la"><i>tribus</i></span>, as the +case may be; and it is by the majority of curies, +centuries, or tribes that the decision of the assembly as +a whole is given, the collective voice of each of these +groups being reckoned as one vote, and a small group +having as much weight as a large one. Thus there +may be a majority of group votes for a proposition +while the majority of votes of individuals is against it. +This mode of voting, unfamiliar to modern political +constitutions, survives in the Rectorial elections of two +<span class='pageno' id='Page_298'>298</span>(Glasgow and Aberdeen) of the four Scottish Universities, +where the students vote by ‘nations’; and it has +sometimes happened that a person is on this method +chosen to be Lord Rector against whom a majority +of the votes given by the individual electors has been +recorded<a id='r124'></a><a href='#f124' class='c013'><sup>[124]</sup></a>. So under the Constitution of the United +States, when no candidate for President has received +a majority of the votes given, the House of Representatives +chooses one of the five candidates who has +received most votes, and in doing so the House votes +by States, <i>i.e.</i> the majority of the Representatives from +each State determine the vote of that State, and the +majority of States (not of individual Representatives) +prevails. Thirdly, these assemblies can be convoked +and presided over only by a Magistrate, and their +action may be stopped by another Magistrate. Fourthly, +no discussion takes place in them. They meet only +to vote on propositions submitted by the presiding +Magistrate, who alone speaks, and who speaks only +to put the question. Fifthly, they vote once only, and +that vote is final and supreme, requiring no assent of +or confirmation by any other body, but operating directly +to create a rule binding all members or subjects of +the State.</p> + +<p class='c001'>Such a machinery seems almost as if calculated +either to check legislation by throwing obstacles in its +way, or else to make legislation hasty and imprudent. +The passing of a long measure or a complex measure +might be thought scarcely possible under it; while at +the same time it secures no opportunities for criticism +and revision, and for the reconsideration at a future +<span class='pageno' id='Page_299'>299</span>stage of decisions too hastily taken when the measure +was first submitted. Thus there would appear to be +a double danger involved in such a system, the danger +of not moving at all, and the danger, when the people +do move, of going too fast and too far. It must be +remembered, however, that not very much direct legislation +was needed. The improvement of ordinary +private law was for the most part left to the Praetor +and the jurists, while one great branch of modern legislation +lay almost untouched during the Roman Republic, +that of the regulation of powers and functions of +administrative departments. There was comparatively +little general administrative law in our modern sense +in Italy, because in Rome the magistrates and +Senate had a pretty wide discretion, and through the +rest of Italy the local communities managed their own +affairs. So too in the provinces administration was +left either to the local municipalities or to the Roman +governors, proconsuls, or propraetors.</p> + +<p class='c001'>Even if the method of legislating which these +assemblies followed be deemed ill fitted to secure +that the merits of any change in the substance of +the law should be carefully weighed, it need not +have been equally deficient in making it excellent +in point of form, <i>i.e.</i> clear, consistent, symmetrical. +In this respect the absence of means for discussion +and amendment may have worked for good. Statutes +enacted in the form in which they have been originally +proposed are more likely to be plain and simple than +those which have been cut about, pared down, and +added to by the action of some revising Committee or +of a Second Chamber, probably dissimilar in opinion +<span class='pageno' id='Page_300'>300</span>from the First Chamber, possibly disposed to differ for +the sake of differing. The volume of direct legislation +may, under a system like that of Rome, be comparatively +small. But the fewer changes in the law +are made by statute so much the better for the +harmonious development and inner consistency of the +whole body of law, which suffers far less often from +permitting the survival of an occasional anomaly or +absurdity than from frequent tinkering, that is to +say, from the introduction of exceptions to general +rules, or the multiplying of provisions for special +cases. So far, therefore, as quantity is concerned, the +small amount of legislative work which the Roman +<span lang="la"><i>comitia</i></span> turned out was a matter for satisfaction, not +for regret.</p> + +<p class='c001'>As respects the quality of that work, the character of +the Assembly produced some remarkable consequences. +That it might be understood and approved by the +ordinary citizens, the bill proposed must be comparatively +short, terse, clear. In many cases it would have +been previously discussed at public meetings, which the +magistrate could summon; but those who would attend +the meetings might be but a small proportion of those +called upon to vote in the <span lang="la"><i>comitia</i></span>. As it could not be +amended by the Assembly, and would reflect credit +or discredit on the name of the proposing Magistrate +who was responsible for it, it must be prepared with +scrupulous care. As it would become operative immediately +on its being approved by the single vote of +the Assembly, with no opportunity of correcting it at +any later stage or in any other legislative body, an error +would be serious to the community, and specially +<span class='pageno' id='Page_301'>301</span>damaging to the proposer. Moreover, as it could not be +amended in the Assembly, it escaped all risk of having +its drafting spoiled and of losing what original merits +of breadth, lucidity, logical arrangement, and conciseness +of expression it might possess. No one could +move to add or to omit a clause. No large principle +could be qualified by the insertion of limiting words. +No savings for particular cases could be suggested, +and possibly accepted in order to buy off opposition. +‘Yes’ or ‘No’ to the whole bill—these were the only +alternatives. And the simpler the bill, so much more +probable the ‘Yes’; whereas in assemblies with power +to amend, a ‘Yes’ has to be purchased by compromises +and concessions, which, whatever effect they +may have on the substance of a measure, destroy the +elegance of its form. The statutes passed by the +Roman people had, therefore, owing to these causes, +three great merits. There were few of them. They +were brief. They were clear. We possess fragments, +in some cases pretty large fragments, of a good many; +and in all the drafting is excellent. The sharp, stern, +almost grim conciseness and precision of the Twelve +Tables seem to have been always present to the mind of +the Roman draftsman as the model he ought to follow.</p> + +<p class='c001'>It is worth remarking that the earliest Roman conception +of a <span lang="la"><i>Lex</i></span> or Statute was different from that +which we find in the imperial period, as well as +from that which any modern jurist would naturally +form. The word <span lang="la"><i>lex</i></span> meant in early Latin simply a +set form of words; and when applied to an enactment +by the <span lang="la"><i>comitia</i></span>, it described, not a special kind +of legal rule, but merely the expression of the +<span class='pageno' id='Page_302'>302</span>people’s will in set terms. And the original conception +of a statutory enactment was that of a contract +made between the Citizens in the <span lang="la"><i>comitia</i></span> and the +Magistrate representing the Corporate State. Hence +the definition of <span lang="la"><i>Lex</i></span> which we find given by Papinian +(<cite>Dig.</cite> i. 3. 1), ‘the common covenant of the republic’ +(<span lang="la"><i>communis reipublicae sponsio</i></span>), probably descends from +the old practice according to which the Consul or other +presiding Magistrate asked (<span lang="la"><i>rogavit</i></span>) the <span lang="la"><i>comitia</i></span> whether +such and such was their wish, submitting to them the +form of words whereby they were to agree to bind +themselves. Just as in the Roman <span lang="la"><i>stipulatio</i></span> the +questioner asks the promiser whether he promises to +do such and such a thing, to which the latter answers, +‘I promise’ (<span lang="la"><i>spondeo</i></span>); so the Consul asks the Quirites +whether they wish and order that such and such a +thing shall be done (<span lang="la"><i>Velitis, iubeatis, Quirites?</i></span>), whereto +the citizens answer, ‘Be it as you ask’ (<span lang="la"><i>Uti rogas</i></span>). Thus +the first (or at any rate a very early) form in which the +notion of a formally enacted, as distinct from that of a +Customary, Law emerges in Rome is that of a Contract.</p> + +<p class='c001'>The Romans were like the English in this, that they +seldom did anything formally till it had for a great +while been done practically. Long after the power of +legislation had passed in substance from the king of +England to his subjects represented in his Great +Council, the forms of the Constitution continued to +suggest that the monarch was still the prime agent +in legislation. To-day the so-called Royal Veto, which +ought rather to be called the right of the Crown to +take further time to consider the resolutions of the two +Houses, subsists in theory unimpaired, though it has +<span class='pageno' id='Page_303'>303</span>not been exercised since 1707. So when actual power +passed from the <span lang="la"><i>comitia</i></span> to the Imperator in the days +after Julius Caesar and Augustus, the rights and functions +of the Assembly were not formally extinguished. +Magistrates continued to be elected by the <span lang="la"><i>comitia</i></span> till +the accession of Tiberius, and the right of legislation +remained for a great while afterwards legally vested +in them. Statutes appear to have been passed by them +as late as the time of Nerva. The <span lang="la"><i>comitia</i></span> themselves +died out by obsolescence, without being ever formally +abolished, and apparently they went on meeting occasionally +in a purely formal way long after they had +ceased to be a reality, just as the name <span lang="la"><i>Respublica +Romana</i></span> survived in documents and inscriptions when +the old associations it evoked had been forgotten<a id='r125'></a><a href='#f125' class='c013'><sup>[125]</sup></a>. +And the popular assemblies died out all the more +quietly because they had never met of themselves, by +simple operation of law. Like the English Parliament, +but unlike the American Congress and the Chambers +of some European countries, they needed to be convoked +by the Executive<a id='r126'></a><a href='#f126' class='c013'><sup>[126]</sup></a>.</p> + +<h3 class='c011'>VII. <span class='sc'>Direct Legislation at Rome.</span></h3> + +<h4 class='c021'>B. <i>The Senate.</i></h4> + +<p class='c012'>When legislation by these assemblies ceased the turn +of the Senate came. This body, a Council of Elders as +old as Rome itself, perhaps in its original form corresponding +<span class='pageno' id='Page_304'>304</span>to the Council which surrounded the Homeric +king, seems to have claimed, even during the Republic, +the right of general legislation, a right which the popular +party denied, and which was probably not well founded +in law, although its undoubted competence to issue +administrative decrees for temporary purposes made +the claim plausible, and raised many questions of +delicacy and difficulty regarding the exact limits of +its power. Moreover the Senate, whose proper function +was to advise the magistrates, came to have +a sort of ill-defined authority over them, and they often +found it prudent to shelter themselves under that authority; +so sometimes a resolution directing a magistrate +to take such and such a course might be quoted as +possessing legal validity, especially if the course was +one which lay within the scope of his official discretion. +The whole subject was full of uncertainty, and a controversy +seems to have gone on among constitutional +lawyers regarding the Senate’s powers, similar to that +which long raged in England over the so-called dispensing +power of the Crown<a id='r127'></a><a href='#f127' class='c013'><sup>[127]</sup></a>. When the <span lang="la"><i>comitia</i></span> +ceased to be convoked, except occasionally as a matter +of form to give effect to the monarch’s will, it was +natural that the legislative functions of the Senate +should win full recognition, for they furnished exactly +the method of legislation which the Emperors desired. +As the Roman State remained a republican commonwealth +<span class='pageno' id='Page_305'>305</span>in theory and in strict intendment of law +long after it had passed under the sway of a monarch, +and as it was the object of the monarch to keep up this +theory, he found it easy and safe to act through the +Senate, which (though absolutely obedient to him) +still wore the air of an independent body, rather than +in his own person, ample as was the magisterial +authority wherewith he was clothed. Thus the Senate +at the same moment acquired power and lost it. It +became recognized as entitled to make law, but it found +itself the mere instrument of the Emperor for that +purpose. From the time of Tiberius down to that of +Hadrian, many laws were passed by the Senate; and +though its action became thenceforward less frequent +and less important, its rights lasted as long as it lasted +itself, that is to say, till it died out in the disorder of +the seventh century. They are referred to by Justinian +as if still existing, but we do not hear of any practical +use made of them in his time. One of the latest +measures ascribed to the Senate is, oddly enough, a +decree for regulating the election of Popes, and preventing +tumults thereat.</p> + +<p class='c001'>The Senate was in most respects much better fitted +for legislative work than the popular assemblies had +been, indeed than most assemblies have been in any +country. It was composed of men of mature age, versed +in affairs, many of them having filled high office, others +having served as judicial referees, if we may so render +the term <span lang="la"><i>iudices</i></span>; all therefore, or nearly all, possessing +some knowledge, and many a large knowledge, of law +and of administration. It was large enough to comprise +persons of very varied experience, while small enough +<span class='pageno' id='Page_306'>306</span>(in normal times) to be business-like, and to avoid the +danger of degenerating into a mob<a id='r128'></a><a href='#f128' class='c013'><sup>[128]</sup></a>. Like the <span lang="la"><i>comitia</i></span>, +it voted only once on a proposition, and that one vote +was sufficient to pass a law. Again like the <span lang="la"><i>comitia</i></span>, +it could only deal with what the magistrate brought +before it, private members having no initiative. But, +unlike the <span lang="la"><i>comitia</i></span>, it could debate a proposition and +make amendments thereto; that is to say, when a +particular draft measure was submitted, it was able, +being thereby seized of the matter, to reject the +proposition as drafted, and to pass one containing +different provisions. There does not seem to have +been anything analogous to our English system of +going into Committee, and afterwards making a report +to the House; but, as the decrees submitted were +short and simple compared to those which the British +legislature deals with, the method of amending the +proposal submitted, or debating and passing an alternative +proposal, was doubtless sufficient for the needs +of the case. What was lacking to the Senate was +not machinery, but force. It was a tool in the +hands of the Emperor, and was used by him as a +means of formally enacting and promulgating measures +on which he had already decided. His influence soon +came to be so fully recognized that the later lawyers +sometimes cite not the <span lang="la"><i>Senatus consultum</i></span> itself, but the +speech (<span lang="la"><i>oratio</i></span>) in which the Emperor proposed it to +<span class='pageno' id='Page_307'>307</span>the Senate, although in these cases the legal validity of +the law seems to be attributed to the vote of the Senate. +After Hadrian it would appear that legislative decrees +were always passed at the instance of the monarch.</p> + +<p class='c001'>Under an indulgent Emperor, and in matters of +ordinary private law, there might of course be no great +reason why amendments should not be suggested +or even opposition made, by an active senator, to bills +proposed by the presiding magistrate, although the +magistrate himself was usually merely the mouthpiece +of the monarch. But the habit of servility grew so +fast, that even this remnant of independence seems to +have soon become rare. Nothing was so dangerous +as to give offence to a sovereign whose power was +restrained only by his good nature.</p> + +<p class='c001'>The checks which have been noted as existing in the +case of the <span lang="la"><i>comitia</i></span> on prolixity or obscurity in the terms +of a statute, were absent in the case of the Senate. Yet +the good habits formed in earlier centuries were not lost. +The <span lang="la"><i>Senatus consulta</i></span> which remain to us are favourably +distinguished by their clearness and brevity. The +ease with which they could be passed, or repealed +when passed, does not appear to have led to their +being drawn carelessly as regards either substance +or form. It may however be remarked that having +been originally not so much laws as resolutions of a +body primarily advisory, intended to express its opinion, +and to guide or strengthen the hands of an executive +magistrate, they continued to be couched in language +hardly so technical as that of the old <span lang="la"><i>leges</i></span>. They +are less imperative in form, and often express quite +as much in their preamble, which contains the motives +<span class='pageno' id='Page_308'>308</span>that have suggested the decree, as through the more +strictly enacting part. Occasionally they approach +dangerously near, as preambles are apt to do, to +becoming rhetorical declarations of policy.</p> + +<p class='c001'>The <span lang="la"><i>Senatus consulta</i></span> actually preserved, or known +to us by name, are less numerous than might have +been expected. The same may be said of the <span lang="la"><i>leges</i></span>, +or rather of such among them as were of general and +permanent effect, not mere acts of an executive nature. +If we could suppose that the legislative activity of the +Roman State had manifested itself only through <span lang="la"><i>leges</i></span> +and <span lang="la"><i>Senatus consulta</i></span>, it would be hard to understand +how that State, developing as it did, could have got +on and attained its amazing development in wealth +and population with so few legislative changes. The +explanation, of course, is that the Praetor and the +jurists were doing the main part of the work, just as +during the eighteenth century in England the judges +and text-writers were steadily developing our private +law, which was but little altered by statute through the +whole of that century. During the later Republic and +the earlier Empire direct legislation was (speaking +generally) resorted to either to abolish some deeply +rooted rule or else to establish some new departure, +which a magistrate hesitated to undertake on his own +responsibility.</p> + +<h3 class='c011'>VIII. <span class='sc'>Direct Legislation at Rome.</span></h3> + +<h4 class='c021'>C. <i>The Emperor.</i></h4> + +<p class='c012'>The third and last form of direct Roman legislation is +that of imperial ordinance. In one aspect it is the most +important form, because nearly all the law of statutory +<span class='pageno' id='Page_309'>309</span>origin which has come down to us was enacted by the +Emperors, the number of <span lang="la"><i>leges</i></span> and <span lang="la"><i>Senatus consulta</i></span> +being slight in comparison. The Emperors, moreover, +spoke the last word. It was their legislation which +gave to the Roman law the shape in which it descended +to the modern world both in the East and in the West.</p> + +<p class='c001'>The Emperor’s legislative authority grew up slowly +and almost imperceptibly out of the rights which he +enjoyed as holder of several great magistracies, or +invested with the powers which belonged to them. +Although, in later times, the imperial function of +legislation was ascribed to a formal transfer made to +him by the people of their own authority<a id='r129'></a><a href='#f129' class='c013'><sup>[129]</sup></a>, it is +important to remember that its true parent is to be +sought, not in <span lang="la"><i>leges</i></span>, nor even in <span lang="la"><i>Senatus consulta</i></span>, not +in any representation by him, as the heir of the +Assembly, of the ancient right of popular sovereignty, +but rather in the Edicts of the magistrates, whether +their formal enunciations on entering office of the +rules by which they proposed to act, or their less +public instructions to their subordinate officials.</p> + +<p class='c001'>Even the action of the jurists, and the custom of +issuing answers on points of law (<span lang="la"><i>responsa</i></span>), contributed +something to the conception of the Emperor +as a source of law, for he was, as a magistrate, an +authoritative exponent of the contents of the customary +law, and of the interpretation of the statute law; and if +an answer given under his commission by an authorized +jurist was binding on a <span lang="la"><i>iudex</i></span>, how much more weight +was due to a declaration proceeding from himself, the +fountain-head of authority? That the imperial ordinances +<span class='pageno' id='Page_310'>310</span>have not preserved the outward forms and +character of the republican statutes is a consequence +of these facts and of the conception I have described. +They are not expressed in the same strict and highly +technical language as the old statutes were. As regards +some of them, and especially some of those which belong +to the first two centuries of the Empire, it is hard to say +whether they were originally intended to have a general +application, for they may have been mere instructions +or declarations of opinion, given for the special occasion +and purpose only. In fact the Emperors found +it necessary to protest against the tendency to attach +legal weight to all their words. Trajan, for instance, +who seems to have left the character of being more +indulgent than most of his predecessors or successors—witness +the story of the widow through whom and +the prayers of Pope Gregory he obtained salvation<a id='r130'></a><a href='#f130' class='c013'><sup>[130]</sup></a>—declares +that when he makes an answer to a particular +request he by no means desires to be taken as establishing +a precedent. He felt, no doubt, that in many cases +the precedent would be of questionable value, according +to the proverb that hard cases make bad law. +However, the tendency was too strong to be resisted. +All declarations emanating from the supreme authority +in the State were taken to be binding on its subjects: +and we may imagine how often a wily advocate, +or an adulatory judge, would, with loud professions of +loyalty, insist on regarding as law what the Emperor had +intended to be merely a good-natured compliance with +the petition of some unlucky or importunate suppliant.</p> + +<p class='c001'>It is not necessary for our immediate purpose to +<span class='pageno' id='Page_311'>311</span>describe the various forms which the legislation of the +Emperors took. They are classed as Rescripts, answers +to questions or petitions, Edicts or general proclamations, +Mandates or instructions to officials, Decrees (<span lang="la"><i>decreta</i></span>), +decisions of the Emperor as being at first practically, +and at last legally also, a Supreme Court of Appeal<a id='r131'></a><a href='#f131' class='c013'><sup>[131]</sup></a>. +In later times the general name of Constitutions (<span lang="la"><i>constitutio +est quod imperator constituit</i></span>), was given to them; +and in what has to be said further, minor differences +between the above mentioned forms may be ignored, +and the various kinds of constitutions may be treated +together as being all of them enunciations by the +sovereign power of those general rules of law which it +desired to have observed by its subjects—as being +in fact on the same footing as an imperial Ukase in +Russia, or an Act of Parliament in England.</p> + +<p class='c001'>Such legislation by an irresponsible autocrat as +that with which the Roman State ended, stands at the +opposite pole from that legislation by a primary assembly +with which the Roman State began. The latter +organ was a stiff, heavy, cumbrous machine, which it +was hard to set in motion, and which could work only +under certain prescribed forms. The former was not +only immensely powerful, but so readily applicable, +playing so swiftly and so smoothly, that it was likely +to be used too often and to act too fast. The +Roman Emperor occupied, it must be remembered, a +position different from that of any absolute sovereign +in modern times. The Czars in Russia now, the +<span class='pageno' id='Page_312'>312</span>Prussian and French kings in the last century, are, +or were, the heads of their respective nations, and +therefore not only to some extent likely to participate +in national ideas and sentiments, but also largely +amenable to national public opinion. However complete +their legal sovereignty and practical control, the +misuse of their legislative powers could not escape +popular censure. A national king is naturally restrained +by the fear of displeasing his fellow countrymen. +But the monarch of the Roman world, a world where +the old Roman nationality had, before it expired, +so far crushed the other subject nationalities that +none of them could offer any resistance to the levelling +pressure of the imperial authority, found himself +unguided and uncontrolled by any influence, except the +dread of a palace conspiracy or a military rising. +Public opinion possessed then no voice, such as it +afterwards found in the church, or finds now in the +press. The various peoples who, from the second or +third century <span class='fss'>A.D.</span> onwards, called themselves Romans, +had not been sufficiently fused together to have a +common public opinion. It was not till the sixth or +seventh or eighth century that the greatly narrowed +Eastern Empire began to have a social and moral +coherence, and developed into what might be called +a National power.</p> + +<p class='c001'>This unique position of the Roman Emperor made +legislation a great deal easier for him than for any +modern monarch, easier than for the ruler of China, +because there was no vast body of ancient customs +he might fear to break through, easier than for a +Turkish Sultan, because there was no quasi-ecclesiastical +<span class='pageno' id='Page_313'>313</span>authority like the Sheik-ul-Islam or the whole +body of Muslim doctors he might fear to offend. +And the fact already noted that the powers of +the popular Assembly had not been formally vested +in him, worked in the same direction. Had there +been any legal transference of legislative functions, +some of the old forms and methods would have passed +over with the transfer. There would have been at any +rate a pretty sharp line drawn between the officially +promulgated ordinances of the Emperor and the +merely occasional and informal expressions of his +will. But (as has already been noted) the Emperor did +not legislate as the assignee of the popular power of +legislation. His function of making laws sprang from +his authority as a magistrate, and the undefined character +of that authority remained with him, and helped to +make his exercise of it infinitely various in shape +and expression. Accordingly in later days no line +was formally and technically drawn between the more +and the less solemn declarations of his sovereign will. +He was not bound by the laws. He made law as a part +of his daily administrative and juridical action. He legislated, +one might almost say, as he talked and wrote. +He exhaled law. Whenever an idea occurred to him, +or to the minister authorized to speak in his name, he +had only to sign, in the purple ink reserved (in those +later days) for the monarch, a few lines, and therewith +a law sprang at once into being.</p> + +<p class='c001'>This was the theory, and this was also to some +extent the practice. Still the exigencies of a position +which threw on one man a prodigious burden of +toil and responsibility, compelled the Emperors to +<span class='pageno' id='Page_314'>314</span>make regular provision for the discharge of their +legislative and judicial work. A Council soon grew +up, consisting at first chiefly of Senators, afterwards +largely of jurists, whose members acted as assessors +to the Emperor when he heard civil or criminal cases, +and who also advised him on projects of legal change. +At first it was a fluctuating body, composed of +persons whom the monarch summoned for each particular +occasion, though doubtless some of the ablest +and most trusted men would be invariably summoned. +But under Trajan and Hadrian it became a regularly +organized chamber of formally nominated and salaried +officials, in which, besides jurists, there sat some +Senators and Knights, and a few of the chief court +officers, together with the Praetorian Prefect, who seems +after the second century to have held the leading place. +As it was numerous, we may suppose that particular +members were summoned for particular kinds of +business, or that it often worked by committees. In +all these points it furnishes an interesting parallel +to the English Privy Council. And it was itself, under +the name of Consistorium, which it took in the time +of Diocletian, the model on which the papal Consistory +was ultimately built up by the bishop of the imperial +city. Some of its chief members were the immediate +ministers of the sovereign, journeying with him, as +Papinian accompanied Septimius Severus to York, or +directing legal and judicial business from Rome, while +he made progresses through the provinces, or warred +against the barbarians on the frontier. Among the +duties of the Emperor’s legal councillors, that of +prompting, directing, and shaping legislation must +<span class='pageno' id='Page_315'>315</span>have been an important one. Probably there was +a regular staff for the purpose, a sort of Ministry of +Justice, directed by the Praetorian Prefect, and in later +times by the Quaestor, with a body of draftsmen and +clerks. How much the Emperor himself contributed, +or how far he examined for himself what was submitted +to him, would depend on his own special knowledge +and industry. Rude soldiers like Maximin, debauchees +like Commodus, would leave everything to their +advisers, and if these had been wisely selected by +a preceding Emperor, things might go on almost as +well as under a capable administrator like Hadrian, +or a conscientious one like Severus Alexander<a id='r132'></a><a href='#f132' class='c013'><sup>[132]</sup></a>. The +number of constitutions enacted was enormous, judging +not only from what the Empire must have needed, but +from the laws, or fragments of laws, which remain to us +in the Codes of Theodosius II and Justinian; and as +the legislative action, both of the Senate and of the +Magistrates (other than the Emperor), had almost wholly +ceased after Hadrian’s time, while the local rules and +customs of the provinces tended to be more and more +superseded by the law of the ruling city, legislation +may, at least for a considerable period, have rather +increased than diminished in volume.</p> + +<p class='c001'>The good and bad points of a system which commits +the making of laws to an absolute sovereign are easily +summed up. Autocratic power is the most swift and +efficient of all instruments for effecting reforms. Used +with skill, tact, and moderation, it can confer incalculable +<span class='pageno' id='Page_316'>316</span>benefits on a country. To be able at your pleasure to +abolish obsolete institutions, to curtail the offensive +privileges of a class, to override vested interests, to +remove needless anomalies and antiquated forms of +procedure, to simplify the law by condensing a confused +mass of statutory provisions, or expressing the +result of a long series of cases in a single enactment, +and to do all this without the trouble of justifying your +enlightened purposes to the dull and the ignorant, or +of mitigating hostility by concessions and compromises +which ruin the symmetry and reduce the effectiveness +of your scheme—this is indeed a delightful prospect for +the law reformer. The power of trying experiments is +seductive to the philanthropist or the philosopher, for +there are many problems which ought to be attacked +by experimental methods, since nothing but an experiment +can test the merit of a promising plan. Yet +experiments are just the things which in popularly +governed countries it is rarely possible to try, because +the bulk of mankind, being unscientific, will seldom +permit a thing to be tried till it has been proved to be +not merely worth trying but absolutely necessary, while +when it has been tried, and has not worked well, it is +almost as hard to persuade them either to vary it or +to drop it altogether. To tell the multitude that the +scheme you propose may fail, though you think it worth +trying, is to discredit it in their eyes. To admit that it +has failed is to destroy your own credit for the future.</p> + +<p class='c001'>So again, if it is a question of improving the form and +expression of the law, an absolute monarch evidently +enjoys the finest possible opportunities of creating +a perfect system. He can command all the highest +<span class='pageno' id='Page_317'>317</span>legal ability of the State. He can bestow upon his +commission of legislators or codifiers the widest discretion. +When they have finished their work he can +subject it to any criticism he pleases before enacting it +as law. When he enacts it, he can abolish all pre-existing +law by a stroke of the pen. Even afterwards +he can readily correct any faults that may have been +discovered, can suppress old editions, can provide +means by which the law shall be regularly from time +to time amended, so that all new statutes and all interpreting +decisions shall be incorporated with it or +appended as supplements to it. Few are the philanthropic +enthusiasts, few are the theoretical codifiers, +who have not sighed for an Autocrat to carry out their +large designs.</p> + +<p class='c001'>According to that law of compensation which obtains +in all human affairs these advantages are beset by corresponding +dangers. Ease begets confidence, confidence +degenerates into laxity and recklessness. As the laws +of metre and rhyme help the versifier by forcing him +to study and polish his diction, so he who is not now +and then stopped by obstacles is apt to advance too +quickly, and may not consider whither he is going. If +an error can be readily recalled it is lightly ventured, +and the hasty legislator discovers too late that it is not +the same thing to recall an error as never to have committed +it. In the field of legislation the danger of doing +too much is a serious danger, not only because the +chances of error are manifold<a id='r133'></a><a href='#f133' class='c013'><sup>[133]</sup></a>, but because the law ought +to undergo as few bold and sudden changes as possible. +<span class='pageno' id='Page_318'>318</span>The natural process whereby the new circumstances, +new conditions, new commercial and social relations +that are always springing up become recognized in +custom and dealt with by juridical science before direct +legislation impresses a definite form upon the rules that +are to fix them—this process is the best, and indeed the +only safe way by which a nation can create a refined +and harmonious legal system. Even the certainty of +the law is apt to suffer if legislation becomes too easy, +for the impatient autocrat may well be tempted, when +some defect has been discovered, to change it forthwith, +and then to find that the change has been too +sweeping, so that steps must be taken backward, with +the result of rendering doubtful or invalid transactions +which have occurred in the meantime. If these dangers +are to be avoided, it must be by entrusting legislation to +the hands of advisers not only learned and skilful but +also of a conservative spirit. In war and politics boldness +is quite as needful as caution, but in reforming +the law of a country the risk of going too slow is less +serious than that of going too fast.</p> + +<p class='c001'>These observations are illustrated by the course of +events at Rome. At first, while the magistrates were +still hard at work in building up the law by their Edicts, +and the jurists no less active in developing it on conservative +lines by their <span lang="la"><i>responsa</i></span> and treatises, the +Emperors used their legislative power sparingly because +they were guided by accomplished lawyers. Comparatively +few constitutions are cited from the days of +Trajan and Hadrian, and even from those of the Antonines. +These constitutions are short, clear, precise, +introducing only those new rules or deciding only +<span class='pageno' id='Page_319'>319</span>those questions which it was necessary to establish +or deal with. After the time of Diocletian<a id='r134'></a><a href='#f134' class='c013'><sup>[134]</sup></a>, when +the powers of the old magistrates had withered away +and the fountain of juristic genius had dried up, +direct legislation became far more copious, and began +to range more widely over all sorts of subjects. +Serviceable it certainly was in the way of abolition, for +there was much to be abolished. But it tended to +become always more and more rash and heedless in +its dealings with the pre-existing law. Apart from the +harshness or bad economics which frequently marred +its provisions, it was often injudicious in matters of +pure legal science. If in some cases it cleared the +ground of antiquated rules and forms, in others it +merely shore away abruptly and inartistically the more +conspicuously inconvenient applications of an old doctrine, +while leaving the doctrine itself to create future +difficulty. It acted too much with reference to the +particular evil dealt with, too little with a view to the +law as a whole. It was, in a word, too unmindful of +that <span lang="la"><i>elegantia</i></span>, that inner harmony and consistency with +principle which had been always before the eyes of +the elder jurists. Legal style and diction experienced +a similar declension. From and after the days of +Diocletian, the language of imperial ordinances grows +more and more rhetorical, pompous, and turgid. The +imperial utterances had never emulated the scrupulous +exactitude and technicality of the republican <span lang="la"><i>leges</i></span>. But +they were, during the first two centuries of the Empire, +simple and concise. Afterwards, while becoming more +<span class='pageno' id='Page_320'>320</span>prolix they became also less exact. These faults are, +to be sure, not mainly due to the more palpably +despotic position of the Emperor, but rather to the +steady deterioration of juridical and literary capacity +which mark these later centuries. That the decline +was less evident in the department of law than in +most other branches of intellectual life may be ascribed, +partly to the nature of the subject, which does not +invite florid treatment, partly to the absence of Greek +rhetorical models, Greek being eminently the language +of rhetoric, partly, perhaps, also to the influence of +the two great law schools of Beyrut and Constantinople, +and to the fact that the writings by which +the lawyer’s mind was formed were still the admirable +works of the luminaries of the early Empire. Still +the fall is a great one. How much more repellent +is the extreme of over-ripe laxity than the extreme +of primitive stiffness may be felt by any one who +will compare the weak and wordy ‘New Constitutions’ +(<cite>Novels</cite> ) of Justinian with the crabbed strength of the +Twelve Tables, abrogated by Justinian himself after +a thousand years of reverence. There is, in fact, only +one fault which the later imperial legislation may appear +to have avoided when we compare it with that of modern +England or America. It goes much less into detail. +It does not seek to exhaust possible cases, and provide +for every one of them. This merit, however, is due, +not so much to skill on the part of the Roman +draftsmen, as to the range of power allowed to +Roman officials and judges, and to the faint recognition +of the rights of the individual subject. The +tedious minuteness of modern English and American +<span class='pageno' id='Page_321'>321</span>statutes, if it grieves the scientific lawyer, is after all +a laudable recognition and expression of that respect +for personal liberty and jealousy of the action of the +executive which have distinguished the English race +on both sides of the Atlantic. Thus that which might +appear to be an excellence of the later imperial legislation +in point of form is seen to be an evil in point +of substance, for it is due, not to any superiority of +legal skill, but to the existence of an autocracy which +did not care to limit the discretion of its subordinate +officers.</p> + +<h3 class='c011'>IX. <span class='sc'>Direct Legislation in England:<br>Parliament.</span></h3> + +<p class='c012'>It remains for us to consider the organ of direct +legislation in England, and the work which that organ +turns out. Here again I must turn away from the +large field of historical inquiry. The history of English +statutes, their development out of petitions addressed +to the sovereign in his Great Council, the mode in +which they were drafted, debated, and passed, the rules +of interpretation which have obtained regarding them, +their influence at different epochs upon the growth +of the Common Law, the development and value of the +functions of non-official members of Parliament in preparing +them and getting them passed, the decay of +those functions which the last few years have seen—all +these would supply interesting and instructive matter, +not merely for an essay but for a treatise. But seeing +how long we have had to wait for a philosophical +history of the law of England in general, one need +<span class='pageno' id='Page_322'>322</span>not be surprised that this particular department still +waits for its historian<a id='r135'></a><a href='#f135' class='c013'><sup>[135]</sup></a>.</p> + +<p class='c001'>In England there has been, through the long course +of our history, only one organ of Direct Legislation, +viz. the Great Council of the nation. It began as +a Primary Assembly of all freemen. It passed, between +the time of Athelstan and that of Henry III, through a +phase in which it had, owing to the growth of the +nation and to the practical limitation of its membership, +almost ceased to be Primary in fact, though its +theoretical character, as embracing the whole people, +had not been abrogated. Since the time of Edward I +it has consisted of two branches, one of which is +Primary, the other Representative; and this present +phase is evidently drawing to its end.</p> + +<p class='c001'>Thus the history of Direct Legislation in England +stands contrasted with the history of such legislation +in Rome in two points: (1) that we in England have +always had an organ which in intendment of law +was the same from beginning to end, and admittedly +supreme; and (2) that we have never had more than +one organ at the same time, whereas at Rome the +theoretically complete and unrestricted legislative power +of the popular Assembly coexisted, for a time, with the +legislative power of the Senate, and the theoretically +complete and unrestricted legislative power of the +<span class='pageno' id='Page_323'>323</span>Senate coexisted for a certain period with the legislative +power (stronger, but at first carefully disguised) +of the Emperor. It may seem absurd to speak of two +organs of direct legislation as each complete and +supreme: yet such would seem to have been the +theory of the Roman law. We in England came +near having a similar state of things in the days +when the Crown claimed, and was sometimes permitted +to exert, a power of legislating apart from Parliament +and not in virtue of any permission by Parliament. +But this power was never formally recognized by +the law.</p> + +<p class='c001'>The Parliament of the United Kingdom and that +eldest and strongest of its numerous progeny, the +Congress of the United States, seem at first sight well +composed and admirably equipped for securing legislation +which shall be excellent in point both of Substance +and of Form. As to excellence of Substance, these +assemblies ought to be able to make such laws as the +people wish and need, for they are popular in character, +giving full expression to the wishes of all classes, and +enabling any person or section aggrieved by existing +defects in the law to state his complaints and suggest +a remedy for them. The British Parliament, moreover, +consists of two Houses, one of which, while deficient in +the strength that comes from popular election, is by its +composition capable of looking at questions from a point +of view unlike that of the Lower House. It contains +many men of great ability and knowledge of affairs, so +that it could well discharge (if so disposed) the functions +of criticism and revision. So the American Congress +has also the advantage of being composed of two +<span class='pageno' id='Page_324'>324</span>branches, either of which can criticize and amend the +Bills passed by the other.</p> + +<p class='c001'>As regards excellence of Form, which is that with +which we are here specially concerned, several notable +merits may be claimed for the British Parliament. The +House of Lords, as has been just observed, contains +among the fifty or sixty persons (out of nearly six +hundred members) who habitually attend its sittings not +a few possessing intellectual power and practical experience, +with (usually) some seven or eight distinguished +lawyers, the flower of the legal profession. Being a +representative body, the House of Commons contains +persons who are presumably above the average in +knowledge of the world and its affairs, as well as in intellectual +capacity. Among these there are to be found +many men (though a smaller proportion than is found in +the American Congress or in some colonial legislatures) +who possess a technical acquaintance with the laws of +the country, and ought to be specially well fitted to +amend them, while at the same time any such tendency +as professional men might have to indulge in mere +technicalities is likely to be corrected by the presence +of a majority of laymen. They deliberate in full publicity, +and thereby can obtain from all quarters suggestions +that may direct or help them. They are +responsible to those who have sent them up, and who +can closely watch their conduct. Ample opportunities +are provided for the discussion of every measure, and +for curing any defect which may lurk in any Bill brought +forward either by the Ministers of the Crown, liable +through their position to a fire of hostile criticism, or +by a private member. Every Bill has to pass through +<span class='pageno' id='Page_325'>325</span>seven stages in the House of Commons<a id='r136'></a><a href='#f136' class='c013'><sup>[136]</sup></a>, and six in +the House of Lords, and at each of these stages it may +be debated at indefinite length<a id='r137'></a><a href='#f137' class='c013'><sup>[137]</sup></a>. That must be, one +would think, either a very trivial or a strangely hidden +blemish which escapes the notice of keen, experienced, +and often unfriendly critics on twelve successive occasions<a id='r138'></a><a href='#f138' class='c013'><sup>[138]</sup></a>. +Could any machinery be better adapted to +secure that the laws passed shall be expressed in the +most clear and precise terms, that each shall be well +arranged and self-consistent, that every new statute +shall be properly fitted into those that have gone before, +and shall, in effecting any change, repeal expressly the +parts of previous statutes which it affects, so as to +provide against possible uncertainty or discrepancy?</p> + +<p class='c001'>Why is it then that we hear so many complaints +about the condition of the laws of England as to the +number of points which remain unsettled, as to the +confusion in which some great departments of law lie, +as to the undue length of our statutes, their obscurity, +their inconsistencies, their omissions? I do not inquire +to what extent these complaints are well founded. +It is enough to note that they proceed not merely from +scientific jurists, who might be supposed to be enamoured +of an impossible ideal, but from such practical +<span class='pageno' id='Page_326'>326</span>men as compose our commercial classes, such technically +competent as well as practical men as the judges of the +land.</p> + +<p class='c001'>Somewhat similar complaints are made in the United +States. The methods of legislation used there are +generally similar to those of Britain, both in the Federal +Congress and in the forty-five State Legislatures, and +every one of these bodies consists of two Houses, +each jealous of the other. The chief difference is that +the Americans consolidate their statutes at certain intervals, +so that the statute law, both Federal and State, +is brought within a smaller compass than that of the +United Kingdom. Subject to this and to some minor +dissimilarities, the remarks which follow on the causes +why British legislation is less perfect than might be +expected from the elaborate machinery provided for +producing it apply to the United States also<a id='r139'></a><a href='#f139' class='c013'><sup>[139]</sup></a>.</p> + +<p class='c001'>The methods of British legislation, and the dangers +incident to those methods, are exactly the opposite to +those which we have noted in Rome. Both under the +Republic, when statutes were passed at the instance +of a magistrate with no possibility of amendment by +the Assembly, and under the later Empire, when the +monarch or his advisers could issue a law with as +much ease and as little personal fear of consequences +as a counsel can draw a will or the articles of a joint +stock company, no provision was made for independent +criticism, nor for discussion, nor for the interposition +of delays. The excellence of the law depended on the +<span class='pageno' id='Page_327'>327</span>person who prepared and proposed it, and on him alone<a id='r140'></a><a href='#f140' class='c013'><sup>[140]</sup></a>; +and the law could be issued to take effect as soon as +the Assembly had given its one vote or the Emperor +his one signature. The Senate could indeed debate +and might amend the forms of decrees submitted to it, +but as it was really a mere instrument in the Emperor’s +hand it exercised these powers very sparingly.</p> + +<p class='c001'>With us in England the opportunities for debate, +for resistance, and for amendment are so ample as to +prevent many things from being done which ought to +be done, and to impress an unscientific cumbrousness, +prolixity, and inelegance upon most of the work we +turn out. Too many persons are concerned, and few +of them have any care or taste for technical excellence. +The House of Commons is overloaded with work, +some of it work which it had better not attempt, but +which it does attempt in deference to the clamorous +demands of particular sections of opinion. A reform +in the substance of the law excites little interest unless +it has either some political (<i>i.e.</i> party) importance, or +has a considerable pressure of public opinion behind +it. A reform in the form and expression of the law, +having neither of these forces to back it up, excites +no interest at all. Accordingly it is neglected, for a +Ministry is disposed to think first of pleasing its own +supporters, then of winning popular favour in general, +and accordingly gives the time at its disposal to +measures deemed likely to secure for it political advantage.</p> + +<p class='c001'>Private (<i>i.e.</i> unofficial) members of Parliament might +<span class='pageno' id='Page_328'>328</span>supply what is lacking in the Ministry by bringing +forward and passing modest and useful Bills, calculated +either to remove minor defects in the substance of the +law or to improve its form. But the Ministry now +commands so large a part of the available time of the +House of Commons, and the opportunities given to +members for arresting the progress of other members’ +bills are so abundant, that hardly anything can be +accomplished by an unofficial member. In the United +States, where all members are unofficial, the despotism +of the British Ministry, which after all is a responsible +despotism, is replaced by the irresponsible despotism +of the Committees, which are as much disposed as is +a British Ministry to be swayed by sectional pressure +or by the prospect of political gain.</p> + +<p class='c001'>The British House of Commons is too large for +discussing what may be called the technical or formal +part of legislation. Its debates in Committee on points +of substance are often excellent. But it cares little +for harmony, propriety, and conciseness of language. +If an inexperienced enthusiast for legal symmetry +observes, in proposing an amendment, that his terms +will not affect the substance, though they will improve +the form, of the clause, he is impatiently rebuked for +occupying the time of the House with what ‘will make +no difference.’ On the other hand, changes in substance +are constantly made in Committee which have +the effect of rendering the form of the measure +worse than when it came from the draftsman’s hands. +Clauses are put in or struck out, exceptions are added, +references to other statutes are inserted, which make +the sense of the enactment difficult to follow and its +<span class='pageno' id='Page_329'>329</span>construction uncertain. Sometimes these faults are +corrected in that later consideration which is called +the Report stage. Sometimes they are not, either +because they have escaped notice, or because the +Ministry are in a hurry, and do not wish to risk the +further raising of questions likely to give trouble. +The House of Lords ought to correct all such +blemishes. But it seldom does so, either from indolence, +or because it does not wish to differ with the +House of Commons except where it has some class +interest, political or economic, to contend for. In +fact, that function of revision which modern theory +attributes to the House of Lords is not discharged.</p> + +<p class='c001'>The facilities which Parliamentary procedure affords +for delaying the progress of Bills in the House of +Commons are so ample, not to say profuse, that the +practice has grown up of drafting Bills, not in the form +most scientifically appropriate, but in that which makes +it easiest for them to be carried through under the fire +of debate. To lay down those broad, clear, simple +propositions of principle which conduce to the intelligibility +and symmetry of the law is to invite +opposition, and to make the process of opposing +easier for those who desire to resist, but have not +the technical knowledge needed for a minute discussion. +To bury a principle out of sight under a +mass of details; to avoid the declaration of a principle +by enacting a number of small provisions, which cover +most of the practically important points, yet do not +amount to the declaration of a new general rule; to +insert a number of exceptions, not in themselves +desirable, but calculated to avert threatened hostility; +<span class='pageno' id='Page_330'>330</span>to hide a substantial change under the cloak of a +reference to some previous Act which is to be incorporated +with the Act proposed to be passed; to deal +with some parts of a subject in one year, and postpone +some other parts to be dealt with in another measure +next year, while leaving yet other parts to the chances +of the future, though all ought to have been included +in one enactment;—these are expedients which are +repellent to the scientific conscience of the draftsman, +but which are forced on him by the wishes of the +Minister who is in charge of the Bill and who foresees +both the objections that will be taken to it and the +opportunities for obstructing it which parliamentary +procedure affords. Yet the Minister may well plead +that, with the limited time at his disposal, these expedients +are essential to the passing of his Bill. Any +one can see what complication, what obscurity, what +uncertainty in the law must needs result from this +way of amending it.</p> + +<p class='c001'>Thus it has come about that our English statute +law is more bulky and even more unscientific in its +form (whatever the excellence of its matter) than was +the statute law of the Roman Empire when Theodosius +II, and afterwards Justinian, set themselves to +call order out of chaos. No Theodosius II, no Justinian, +need be looked for in England. Yet much might be +done to reduce the existing statutes into a more manageable +mass, and something to improve the form in which +they come from the hands of the legislature. The former +work, previously in the hands of the Statute Law Commission, +has since that body came to an end been +entrusted to another body called the Statute Law +<span class='pageno' id='Page_331'>331</span>Committee, which is conducting a general revision of +the statutes. It has issued a Revised Edition coming +down to <span class='sc'>a. d.</span> 1886, and under its auspices a number +of useful Consolidation Acts have been passed, whereby +the Statute Law, and in a few instances the Common +Law also, relating to particular departments has been +brought together and enacted as an orderly whole. +The more difficult enterprise of providing better +methods for turning out new law in a clear, concise, +and scientifically ordered form, is rarely discussed, +even by lawyers, and seems to excite no public +interest. It raises many difficult questions which this +is not the place to treat of, so I will be content +with observing that the remedy for the present defects +of British statutes which seems least inconsistent with +our parliamentary methods, would be to refer each +Act, after it had passed both Houses, but before it +received the royal assent, to a small committee consisting +of skilled draftsmen and of skilled members of +both Houses, who should revise the form and language +of the Act in such wise as, without in the least +affecting its substance, to improve its arrangement +and its phraseology, the Act being formally submitted +once more to both Houses before the royal assent +was given, so as to prevent any suspicion that a change +of substance had been made. It is, however, unlikely +that Parliament will consent to any proposal of this +nature; and even if some such expedient were adopted +it would, at least in some cases, fail to remove the faults +above described, because they are necessarily incident +to legislation by large assemblies on matters which +excite popular feeling and involve political controversy.</p> + +<div> + <span class='pageno' id='Page_332'>332</span> + <h3 class='c011'>X. <span class='sc'>Some Reflections suggested by the History of Legislation.</span></h3> +</div> + +<p class='c012'>The chief reflections which a study of Roman and +English modes of law-making seem to impress upon +the inquirer’s mind are the three following.</p> + +<p class='c001'>The first is that the law of best scientific quality is that +which is produced slowly, gradually, tentatively, by +the action of the legal profession. At Rome it was +produced by the unofficial jurists under the Republic, +by the authorized jurists under the earlier Empire, by +the magistrates who framed and went on constantly +revising the Edicts from the time of the Punic Wars to +that of Hadrian. In England it has been produced by +the writers of text-books, but still more by the judges +from the time of Glanvil and Bracton down to our own +day. Our private law is as much a growth of time as +is our Constitution, or as are our ideas on such subjects +as economics or ethics. What has been true of the past +will be true of the future; and though we can foresee +no changes in the future comparable to those which +have built up the existing fabric of our law out of the +customs of the thirteenth century, we must expect the +process of change to continue as long as life itself, and +must beware lest by any attempt at finality we should +check a development which is the necessary concomitant +of health and energy.</p> + +<p class='c001'>The second is that the special point wherein the +Roman system had an advantage over our own, and +indeed over that of all modern countries, was the existence +of an organ of government specially charged with +<span class='pageno' id='Page_333'>333</span>the duty of watching, guiding, and from time to time +summing up in a concise form, the results of the natural +development of the law. The Praetor with his Edict +is the central figure in Roman legal history, and a +unique figure in the history of human progress. The +Roman statutes of the Republic were not, except perhaps +in their brevity, superior to our statutes down to the +time of George III. The imperial constitutions, especially +the later ones, are inferior in substance and +perhaps not better in form than our later English +statutes. The treatises of the Roman lawyers, if more +convenient in point of form than our volumes of +Reports, contained discussions not more acute and +subtle, nor so great a wealth of matter; and they +were not more free from discrepancies. But neither +England nor the United States has ever had or can +have any one who could conduct legal reforms in such +a way as did the Praetor.</p> + +<p class='c001'>A third reflection is that the various departments of +legislation are not equally well suited to be developed +by one and the same organ of legislation. Administrative +law can hardly be created except by the direct +action of the sovereign power in the State, whether +the monarch or the Legislative Assembly acting at the +instance of the Executive. In every country that kind +of law has been so created, and its growth belongs to +a comparatively late stage in the progress of a State. +As the need for a more elaborate civil and military +administration increases, so does the organ appropriate +for legislating on such matters become evolved. A very +large part of recent legislation in England<a id='r141'></a><a href='#f141' class='c013'><sup>[141]</sup></a> and in the +<span class='pageno' id='Page_334'>334</span>United States belongs to this category, and similarly +a large part of the Codes of Theodosius II and of +Justinian are filled by such matters.</p> + +<p class='c001'>A system of procedure, civil and criminal, with the +judicial machinery required to work it, may be created +either by the direct legislative action of the supreme +power, or by custom and the action of the Courts. +Both at Rome and in England it was through usage +and by the Courts themselves that the earlier system +was slowly moulded; both at Rome and in England it +was direct legislation that established the later system. +Functions discharged by both the Praetor and the +Chancellor are the offspring of custom and not of +statute. But the judicial system of the Roman Empire, +as well as the mode of procedure by <span lang="la"><i>formulae</i></span> (established +by the <span lang="la"><i>Lex Aebutia</i></span> probably about <span class='fss'>B.C.</span> 200) and the +criminal <span lang="la"><i>quaestiones perpetuae</i></span> of the later Republic, and +similarly all the changes made in English procedure +and the English Courts during the last two centuries, +culminating in the sweeping reconstruction effected +by the Judicature Act of 1873, were the work of direct +legislation.</p> + +<p class='c001'>Criminal law has everywhere grown out of Custom, +and has in all civilized States been largely dealt with by +direct legislation. In most European countries it has +been codified by statute, to the general satisfaction of +the people; and the conspicuous success of the Indian +Penal Code shows that English criminal law is susceptible +of being so treated. Thus we may say that all the +branches of law which I have enumerated are fit matters +for direct legislation by the sovereign power, and less +fit to be left to jurists and magistrates.</p> + +<p class='c001'><span class='pageno' id='Page_335'>335</span>As to private law in the narrower sense of the term, +the law of property, of inheritance, of contracts, of torts, +and so forth, it has already been remarked that it was at +Rome and is in England the offspring of Custom, that +is to say, of the usages of the community, and of the +reflections and discussions of lawyers, bringing these +usages into a precise shape and developing them in +points of detail, together with the decisions of judges +stamping them as recognized in those points of detail as +well as in their general principles. As time went on, +direct legislation was more and more resorted to both at +Rome and in England either to define or to change the +law which jurists, magistrates, and judges had wrought +out of materials provided by custom. It was often +necessary, because there were faults in the law which +the Courts had not the power, even if they had the +wish, to alter. Yet direct legislation has seldom been +successful except either in expunging such faults, or in +systematizing what was already well settled. Compare, +for instance, the modern law of negotiable instruments, +built up by the custom of merchants and the Courts, and +not reduced to the form of a statute till nearly every +question had been thoroughly worked out by lawyers +in the course of judicial practice, with the law of Joint +Stock Companies, which is mainly the product of direct +legislation. The former is as definite and practically +convenient as the latter is confused and unsatisfactory. +It is quite true that the latter topic is one which could +not well have been left to usage and the Courts. Yet +such a comparison indicates the difficulties which confront +a legislature when it attempts to create <span lang="la"><i>de novo</i></span>, +that is to say, on general principles and without much +<span class='pageno' id='Page_336'>336</span>help from custom. The law of Joint Stock Companies +with limited liability is one of those departments which +needs to be treated by the method of constant experiment, +varying from time to time the remedies needed +against the new forms in which fraud and trickery +appear, and meeting by fresh provisions the devices by +which crafty men evade the rules intended to protect +the unwary<a id='r142'></a><a href='#f142' class='c013'><sup>[142]</sup></a>.</p> + +<p class='c001'>A magistrate like the Roman Praetor might perhaps +deal with such a branch of law more effectively than +can either an English judge or the English Parliament—more +effectively than a judge, because his powers would +be wider; more effectively than Parliament, because he +could more promptly and easily drop a provision which +had proved inefficient, and try the working of a new +one without purporting to make it a part of the permanent +law of the land.</p> + +<p class='c001'>It follows from these considerations that some +branches of the law are much more fit than others to +be embodied in a code, and that the discussions, more +frequent and more animated thirty years ago than +they are to-day, as to the merits and drawbacks of codification, +ought to have distinguished more carefully +than they did between the adaptability to diverse departments +of law of a system of rules enacted in a form +intended to be final. We may hope to have some light +upon this subject from the working of the new German +Code. In any case, it may be suggested that a society +<span class='pageno' id='Page_337'>337</span>in which the ideas and habits that relate to any one side +of its life are changing—as for instance those relating to +the civil status of women have changed in England +during the last fifty years, or in which the methods of +business are changing, as those relating to joint stock +enterprise have changed both in England and America—does +ill to stereotype in a form difficult to amend the +particular legal rules which govern it at any given +moment, however adequately that form may for the +moment embody the substance of those rules.</p> + +<div class='chapter'> + <span class='pageno' id='Page_338'>338</span> + <h2 id='eXV' class='c005'>XV <br> <br>THE<br> HISTORY OF LEGAL DEVELOPMENT<br> AT ROME AND IN ENGLAND</h2> +</div> + +<p class='c010'>In the last preceding Essay the organs of legislation, +and the methods whereby they were worked at Rome +and in England respectively, were discussed and compared. +A consideration of the course which legal +change took, in its various phases of development, +reform or decay, may be completed by inquiring into +the general causes and forces which determined and +guided the process of change. To justify the selection +of Rome and England for comparison it is necessary +to recur to two points only in which the history of +institutions in these two States presents a remarkable +analogy. Both have been singularly independent of +outside influences in the development of their political +character and their legal institutions. The only influence +that seriously told on Rome was that of the +Greeks: yet how thoroughly Roman all the institutions +that ever had been Roman remained down till the +second century of the Empire, after Hellenic influence +had for more than two hundred years been playing +freely and fully upon literature and thought! So +English institutions have been far less affected by external +influences than have been those of any other part +of European Christendom. In France, Italy, Germany, +and Spain, the traces of Roman dominion were never +<span class='pageno' id='Page_339'>339</span>obliterated, and Roman law too, both through its traditions +and through the writings which embody it, has +always been a more potent factor than it ever was here. +These countries have, moreover, borrowed more from +each other than we have done from any one of them, +<a id='corr339.6'></a><span class='htmlonly'><ins class='correction' title='except,perhaps'>except, perhaps</ins></span><span class='epubonly'><a href='#c_339.6'><ins class='correction' title='except,perhaps'>except, perhaps</ins></a></span>, in the days when Normandy gave a Continental +tinge to the immature feudality of England. And, +secondly, both Rome and England have extended their +institutions over vast territories lying beyond their own +limits. Each has been a conquering and ruling power, +and the process by which each grew into a World State +from being, the one a City and the other a group of +small but widely scattered rural tribes, offers striking +points of resemblance as well as of contrast. I might +add that there are similarities in the character of the +two nations, similarities to which their success in conquering +and ruling is due. But, for the moment, it is +rather to law and institutions than to character that +I seek to direct the reader’s attention.</p> + +<p class='c001'>Since the law of every country is the outcome and +result of the economic and social conditions of that +country as well as the expression of its intellectual +capacity for dealing with these conditions, the causes +which modify the law are usually to be sought in +changes which have passed upon economic and social +phenomena. When new relations between men arise, +or when the old relations begin to pass into new forms, +law is called in to adjust them. The part played by +speculative theorists or by scientific reformers who +wish to see the law made more clear and rational is +a relatively small factor in legal change, and one which +operates only at rare moments. The process of development, +<span class='pageno' id='Page_340'>340</span>if not wholly unconscious, is yet spontaneous +and irregular. Alterations are made, not upon any +general plan or scheme, but as and when the need +for them becomes plain, or when it has at least become +the interest of some ruling person or class to +make them.</p> + +<p class='c001'>The relation of the general history, political, economic, +and social, to changes in laws and institutions is best +seen at certain definite epochs. It is indeed true +that in nations which have reached a certain stage +of civilization the conditions of life, and the relations +of men and classes to one another, never remain +quite the same from generation to generation. Every +mechanical discovery, every foreign war or domestic +insurrection, every accession or loss of territory, every +religious or intellectual movement leaves things somewhat +different from what it found them. Nevertheless, +though the process of change is, except in savage or +barbarous peoples, practically constant and uninterrupted, +it becomes at certain particular moments much +more swift and palpable, rushing, so to speak, through +rapids and over cataracts instead of gliding on in +a smooth and equable flow. These are the moments +when a nation, or its ruler, perceives that the economic +or social transformations which have been taking place +require to be recognized and dealt with by corresponding +changes in law and institutions, or when some +political disturbance, or shifting of power from one +class or group to another, supplies the occasion for +giving effect to views or sentiments hitherto repressed. +Accordingly it is profitable to give special attention to +these transitional epochs, because it is in them that +<span class='pageno' id='Page_341'>341</span>the relation between causes and consequences can +be studied most easily and on the largest scale. Let +us see what are the epochs in Roman and in English +history which may be selected as those marked by +conspicuous legal or institutional changes before we +examine the relations of these changes to the forces +which brought them about.</p> + +<h3 class='c011'>I. <span class='sc'>Five Chief Epochs of Legal Change at Rome.</span></h3> + +<p class='c012'>In the thousand years of Roman history that lie +between the first authentic records of the constitution +and laws of the city, say 451 <span class='fss'>B.C.</span>, when the Decemviral +Commission, which produced the laws of the Twelve +Tables, was appointed, and 565 <span class='fss'>A.D.</span>, when Justinian +died, having completed his work of codification and new +legislation<a id='r143'></a><a href='#f143' class='c013'><sup>[143]</sup></a>, we may single out five such epochs.</p> + +<p class='c001'>1. The epoch of the Decemviral Legislation, when +many of the old customs of the nation, which had been +for the most part preserved by oral tradition, were +written down, being no doubt modified in the process.</p> + +<p class='c001'>2. The days of the First and Second Punic Wars, +when the growth of population and trade, the increase +of the number of foreigners resident in Rome, and +the conquest by Rome of territories outside Italy, began +to induce the development of the Praetorship as an +office for expanding and slowly remodelling the law.</p> + +<p class='c001'>3. The end of the Republic and early days of the +<span class='pageno' id='Page_342'>342</span>Empire, when there was a brilliant development of +juridical literature, when the opinions of selected jurists +received legal authority from the Emperor’s commission, +when the Senate was substituted for the +popular assemblies as the organ of legislation, and +when the administration of the provinces was resettled +on a better basis—all these changes inducing a more +rapid progress of legal reform.</p> + +<p class='c001'>4. The reigns of Diocletian and Constantine, when +imperial legislation took a fresh and vigorous start, +and when the triumph of Christianity brought a new, +a powerful, and a widely pervasive force into the +field of politics and legislation.</p> + +<p class='c001'>5. The reign of Justinian, when the plan of codification +whose outlines Julius Caesar had conceived, and +which Theodosius II had done something to carry out, +was at last completed by the inclusion of the whole +law of Rome in two books containing the pith of the +then existing law, and when many sweeping reforms +were effected by new legislation.</p> + +<p class='c001'>It is less easy to fix upon epochs of conspicuous change +in English legal institutions and law, because English +development has been on the whole more gradual, and +because the territorial limits of the area affected by +change have not expanded to anything like the same +extent as did the territories that obeyed Rome. Rome +was a City which grew to be the civilized world: the +<span lang="la"><i>Urbs</i></span> became <span lang="la"><i>Orbis Terrarum</i></span>. The English were, +and remain, a people inhabiting the southern part of +an island, and beyond its limits they have expanded +(except as respects Ireland), not by taking in new +territories as parts of their State, but by planting +<span class='pageno' id='Page_343'>343</span>semi-dependent self-governing States which reproduce +England<a id='r144'></a><a href='#f144' class='c013'><sup>[144]</sup></a>. However, one may, for the sake of a comparison +with Rome, take the five following epochs as +those at which the process of change became the most +swift and the most effective for destruction and creation.</p> + +<h3 class='c011'>II. <span class='sc'>Five Epochs of Legal Change in England.</span></h3> + +<p class='c012'>1. The time of Henry II, when the King’s Courts became +organized, and began to evolve a Common Law for +the whole realm out of the mass of local customs.</p> + +<p class='c001'>2. The times of Edward I and Edward III, when +the solidification of the kingdom saw the creation of a +partly representative legislature, the enactment of important +statutes, and the establishment of a vigorous +organ for the development and amendment of the law +in the Chancellorship.</p> + +<p class='c001'>3. The time of Henry VIII and Edward VI, when +the progress of society and an ecclesiastical revolution +caused the passing of several sweeping legal reforms, +separated the courts and the law of England from +a system of jurisprudence which had influenced it in +common with the rest of Western Christendom, and +permanently reduced the power of the clergy and of +clerical ideas.</p> + +<p class='c001'>4. The epoch of the Great Civil War and Revolution, +when legislative authority, hitherto shared or disputed +by the Crown and the Houses of Parliament, passed +definitively to the latter, and particularly to the popular +branch of Parliament, and when (as a consequence) the +<span class='pageno' id='Page_344'>344</span>relation of the Monarch to the landholding aristocracy, +and that of the State to its subjects in religious matters, +underwent profound alterations.</p> + +<p class='c001'>5. The reigns of William IV and Victoria, when the +rapid growth of manufacturing industry, of trade, and of +population, coupled with the influence as well of new +ideas in the sphere of government as of advances +made in economic and social science, has shaken men +loose from many old traditions or prejudices, and has, +while rendering much of the old law inapplicable, +made a great deal of new legislation indispensable.</p> + +<p class='c001'>Now let us consider what are the forces, influences, +or conditions which at all times and everywhere +become the sources and determining causes of changes +in laws and institutions, these latter being that framework +which society constructs to meet its needs, +whether administrative or economic or social.</p> + +<p class='c001'>Five such determining causes may be singled out +as of special importance. They are these.</p> + +<p class='c001'>1. Political changes, whether they consist in a shifting +of power as between the classes controlling the +government of a country, or affect the structure of +the governmental machinery itself, as for instance by +the substitution of a monarch for an assembly or of an +assembly for a monarch.</p> + +<p class='c001'>2. The increase of territory, whether as added to +and incorporated in the pre-existing home of a nation +or as constituting a subject dominion.</p> + +<p class='c001'>3. Changes in religion, whether they modify the +working of the constitution of the country or involve +the abolition of old laws and the enactment of new +ones.</p> + +<p class='c001'><span class='pageno' id='Page_345'>345</span>4. Economic changes, such as the increase of industrial +production or the creation of better modes of +communication, with the result of facilitating the exchange +of commodities.</p> + +<p class='c001'>5. The progress of philosophic or scientific thought, +whether as enouncing new principles which ultimately +take shape in law, or as prompting efforts to make the +law more logical, harmonious and compendious.</p> + +<p class='c001'>The influence of other nations might be added, as a +sixth force, but as this usually acts through speculative +thought, less frequently by directly creating institutions +and laws, it may be deemed a form of No. 5.</p> + +<p class='c001'>The two last of these five sources of change, viz. +commerce and speculative or scientific thought, are +constantly, and therefore gradually at work, while the +other three usually, though not invariably, operate +suddenly and at definite moments. All have told +powerfully both on Rome and on England. But as the +relative importance of each varies from one country to +another, so we shall discover that some have counted +for more in the case of Rome, some in that of England. +The differences throw an instructive light on the annals +of the two nations.</p> + +<h3 class='c011'>III. <span class='sc'>Outline of Legal Changes at Rome.</span></h3> + +<p class='c012'>The legal history of Rome begins with the law of +the Twelve Tables. This remarkable code, which, it +need hardly be said, was neither a code in the modern +sense, nor in the main new law, but rather a concise +and precise statement of the most important among +the ancient customs of the people, dominated the whole +of the republican period, and impressed a peculiar +<span class='pageno' id='Page_346'>346</span>character upon the growth of Roman law from the +beginning till the end of the thousand years we are +regarding. It gave a sort of unity and centrality to +that growth which we miss in many other countries, +England included, for all Roman statutes bearing on +private law were passed with reference to the Twelve +Tables, nearly all commentaries grouped themselves +round it, and when a new body of law that was +neither statute nor commentary began to spring up, +that new law was built up upon lines determined by +the lines of the Twelve Tables, since the object was to +supply what they lacked or to modify their enactments +where these were too harsh or too narrow. Its language +became a model for the form which later statutes +received. It kept before the minds of jurists and +reformers that ideal of a systematic and symmetrical +structure which ultimately took shape in the work of +Theodosius II and Justinian. Now the law of the +Twelve Tables was primarily due to political discontent. +The plebeians felt the hardship of being ruled +by customs a knowledge of which was confined to the +patrician caste, and of being thereby left at the mercy of +the magistrate, himself a patrician, who could give his +decision or exert his executive power at his absolute +discretion, because when he declared himself to have +the authority of the law, no one, outside the privileged +caste he belonged to, could convict him of error. +Accordingly the plebs demanded the creation of a commission +to draft laws defining the powers of the Consuls, +and this demand prevailed, after a long struggle, in the +creation of the Decemvirs, who were appointed to draft +a body of general law for the nation. This draft was +<span class='pageno' id='Page_347'>347</span>enacted as a Statute, and became thenceforth, in the +words of Livy<a id='r145'></a><a href='#f145' class='c013'><sup>[145]</sup></a>, ‘the fountain of all public and private +law.’ Boys learnt it by heart down to the days of +Cicero, and he, despite his admiration for things Greek, +declares it to surpass the libraries of all the philosophers<a id='r146'></a><a href='#f146' class='c013'><sup>[146]</sup></a>.</p> + +<p class='c001'>For some generations there seem to have been +comparatively few large changes in private law, except +that declaration of the right of full civil intermarriage +between patricians and plebeians, which the Twelve +Tables had denied. But the knowledge of the days +on which legal proceedings could properly be taken +remained confined to the patricians for nearly a century +and a half after the Decemvirs. The plebs had, however, +been winning political equality, and three or four +years after the time when the clerk Flavius revealed +these pontifical secrets it was completed by the admission +of the plebeians to the offices of pontiff and +augur.</p> + +<p class='c001'>Meanwhile Rome was conquering Italy. The defeat +of Pyrrhus in <span class='fss'>B.C.</span> 275 marks the virtual completion of +this process. A little later, the First Punic War gave +her most of Sicily as well as Sardinia and Corsica, and +these territories became provinces, administered by +magistrates sent from Rome. She was thus launched +on a policy of unlimited territorial expansion, and one +<span class='pageno' id='Page_348'>348</span>of its first results was seen in two remarkable legal +changes. The increase in the power and commerce +of Rome, due to her conquests, had brought a large +number of persons to the city, as residents or as +sojourners, who were not citizens, and who therefore +could not sue or be sued according to the forms of +the law proper to Romans. It became necessary to provide +for the litigation to which the disputes of these +aliens (<span lang="la"><i>peregrini</i></span>) with one another or with Romans +gave rise, and accordingly a Magistrate (<span lang="la"><i>Praetor peregrinus</i></span>) +was appointed whose special function it became +to deal with such disputes. He was a principal +agent in building up by degrees a body of law and +a system of procedure outside the old law of Rome, +which received the name of <span lang="la"><i>ius gentium</i></span> (the law of the +nations) as being supposed to embody or be founded +on the maxims and rules common to the different +peoples who lived round Rome, or with whom she +came in contact<a id='r147'></a><a href='#f147' class='c013'><sup>[147]</sup></a>. Through the action of the older +Urban Praetor much of this <span lang="la"><i>ius gentium</i></span> found its +way into the law administered to the citizens, in the +way described in the last preceding Essay. Similarly +the Proconsuls and Propraetors, who held their courts +in the subject provinces, administered in those provinces, +besides the pure Roman law applicable to +citizens, a law which, though much of it consisted +of the local laws and customs of the particular province, +had, nevertheless, a Roman infusion, and was +probably in part, like the <span lang="la"><i>ius gentium</i></span>, generalized from +the customs found operative among different peoples, +and therefore deemed to represent general principles +<span class='pageno' id='Page_349'>349</span>of justice fit to be universally applied. The Edicts +which embodied the rules these magistrates applied +became a source of law for the respective provinces<a id='r148'></a><a href='#f148' class='c013'><sup>[148]</sup></a>.</p> + +<p class='c001'>These remarkable changes, which may be said to +belong to the period which begins with the outbreak of +the First Punic War (<span class='fss'>B.C.</span> 264), started Roman law on +a new course and gave birth to a new set of institutions +whereby new territories, ultimately extended to +embrace the whole civilized world, were organized +and ruled. It was through these changes that the +law and the institutions of the Italian City became +so moulded as to be capable not only of pervading and +transforming the civilizations more ancient than her +own, but of descending to and influencing the modern +world. Now these changes, like those which marked +the period of the Twelve Tables, had their origin in +political events. In the former case it was internal +discontent and unrest that were the motive forces, in +the latter the growth of dominion and of trade, trade +being the consequence, not so much of industrial +development as of dominion. But in both cases—and +this is generally true of the ancient world as compared +with the modern—political causes play a relatively +greater part than do causes either of an economic or +an intellectual and speculative order<a id='r149'></a><a href='#f149' class='c013'><sup>[149]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_350'>350</span>How much is to be set down to external influences? +The Roman writers tell us of the sending out of +a body of roving commissioners to examine the laws +of Athens and other Greek cities to collect materials +for the preparation of the Twelve Tables. So too the +contact of Rome with the Greek republics of Southern +Italy in the century before the Punic Wars must have +affected the Roman mind and contributed to the +ideas which took shape in the <span lang="la"><i>ius gentium</i></span>. Nevertheless +any one who studies the fragments of the Twelve +Tables will find in them comparatively few and slight +traces of any foreign influence; and one may say that +both the substance of the Roman law and the methods +of procedure it followed remain, down till the end of +the Republic, so eminently national and un-Hellenic in +their general character that we must assign a secondary +part to the play of foreign ideas upon them.</p> + +<p class='c001'>The next epoch of marked transition is that when the +Empire of Rome had swollen to embrace the whole +of the West except Britain and Western Mauretania, and +the whole of the known East except Parthia<a id='r150'></a><a href='#f150' class='c013'><sup>[150]</sup></a>. It was +the epoch when the Republican Constitution had broken +down, not merely from internal commotions, but under +the weight of a stupendous dominion, and it was also the +epoch when the philosophies of Greece had made the +Roman spirit cosmopolitan, and dissolved the intense +national conservatism in legal matters which distinguished +the older jurists. Here, therefore, two forces +were at work. The one was political. It laid the foundations +<span class='pageno' id='Page_351'>351</span>of new institutions, which ripened into the autocracy +of the Empire. It substituted the Senate for the +popular Assembly as the organ of legislation. It gave +the head of the State the power of practically making +law, which he exercised in the first instance partly as +a magistrate, partly through the practice of issuing to +selected jurists a commission to give answers under his +authority<a id='r151'></a><a href='#f151' class='c013'><sup>[151]</sup></a>. The other force was intellectual. It made +the amendment of the law, in a liberal and philosophical +sense, go forward with more boldness and speed than +ever before, until the application of the new principles +had removed the cumbrousness and harshness of the +old system. But it should be remembered that this +intellectual impulse drew much of its power from +political causes, because the extension of the sway of +Rome over many subject peoples had accustomed the +Romans to other legal systems than their own, and had +led them to create bodies of law in which three elements +were blent—the purely Roman, the provincial, and those +general rules and maxims of common-sense justice and +utility which were deemed universally applicable, and +formed a meeting-ground of the Roman and the provincial +notions and usages. So here too it is political +events that are the dominant and the determining factor +in the development both of private law and of the +imperial system of government, things destined to have +a great future, not only in the form of concrete +institutions adopted by the Church and by mediaeval +monarchy, but also as the source of creative ideas +which continued to rule men’s minds for many generations.</p> + +<p class='c001'><span class='pageno' id='Page_352'>352</span>Nearly three centuries later we come to another epoch, +when two forces coincide in effecting great changes in +law and in administration. The storms that shook and +seemed more than once on the point of shattering the +fabric of the Empire from the time of Severus Alexander +to that of Aurelian (<span class='fss'>A.D.</span> 235 to 270), had shown the need +for energetic measures to avert destruction; and the +rise to power of men of exceptional capacity and vigour +in the persons of Diocletian and Constantine enabled +reforms to be effected which gave the imperial government +a new lease of life, and made its character more +purely despotic. Therewith came the stopping of the +persecution of the Christians, and presently the recognition +of their religion as that which the State +favoured, and which it before long began to protect and +control. The civil power admitted and supported the +authority of the bishops, and when doctrinal controversies +distracted the Church, the monarchs, beginning +from Constantine at the Council of Nicaea, endeavoured +to compose the differences of jarring sections.</p> + +<p class='c001'>These changes told upon the law as well as upon +institutions. New authorities grew up within the +Church, and these authorities, after long struggles, +obtained coercive power. Not only was the spirit of +legislation in such subjects as slavery and the family +altered—marriage and divorce, for instance, began to be +regarded with new eyes—but a fresh field for legislation +was opened up in the regulation of various ecclesiastical +or semi-ecclesiastical matters, as well as in the encouragement +or repression of certain religious opinions. +The influence on law of Greek customs, which seemed +to have been expunged by the extension of citizenship +<span class='pageno' id='Page_353'>353</span>to all subjects a century before Constantine, makes +itself felt in his legislation.</p> + +<p class='c001'>Besides these influences belonging to the sphere of +politics and religion, economic causes, less conspicuous, +but of grave moment, had also been at work in undermining +the social basis of the State and inducing efforts +to apply new legislative remedies. Slavery and the +decline of agriculture, particularly in the Western half +of the Empire, throughout which there seems to have +been comparatively little manufacturing industry, had +reduced the population and the prosperity of the middle +classes, and had exhausted the source whence native +armies could be drawn. Thus social conditions were +changing. The growth of that species of serfdom +which the Romans called <span lang="la"><i>colonatus</i></span> belongs to this +period. The financial strain on the government became +more severe. New expedients had to be resorted to. +All these phenomena, coupled with the more autocratic +character which the central government of the Empire +took from Diocletian onwards, induced a greater and +sometimes indeed a hasty and feverish exuberance of +legislation, which was now effected solely by imperial +ordinances.</p> + +<p class='c001'>Industrial decay seems to have been more rapid in +Western than in the Eastern provinces, though palpable +enough in such regions as Thrace and Greece. But +everywhere there was an intellectual decline, which +appeared not least in the sinking of the level of juristic +ability and learning. The great race of jurists who +adorned the first two and a half centuries of the Empire +had long died out. We hear of no fertile legal minds, +no law books of merit deserving to be remembered, +<span class='pageno' id='Page_354'>354</span>during the fourth and fifth centuries of our era. The +mass of law had however increased, and the judges and +practising advocates were, except in the larger cities, +less than ever capable of dealing with it. The substitution +of Roman for provincial law effected by the Edict +of the Emperor Antoninus Caracalla had introduced +some confusion, especially in the Eastern provinces, +where Greek or Oriental customs were deeply rooted, +and did not readily give place to Roman rules. The +emperors themselves deplore the ignorance of law +among practitioners: and presently it was found necessary +to prescribe an examination for advocates on their +admission to the bar. Accordingly the necessity for +collecting that which was binding law and for putting it +into an accessible form became greater than ever. It +had in earlier days been an ideal of perfection cherished +by theorists; it was now an urgent practical need. It was +not the bloom and splendour but the decadence of legal +study and science that ushered in the era of codification. +A century after the death of Constantine, the Emperor +Theodosius II, grandson of Theodosius the Great, reigning +at Constantinople from <span class='fss'>A.D.</span> 408 to <span class='fss'>A.D.</span> 450, issued +a complete edition of the imperial constitutions in force, +beginning from the time of Constantine, those of earlier +Emperors having been already gathered into two collections +(compiled by two eminent jurists) in current use. +Shortly before a statute had been issued giving full +binding authority to all the writings (except the notes +of Paul and Ulpian upon Papinian) of five specially +famous jurists of the classical age (Papinian, Paul, +Gaius, Ulpian, Modestinus). The advisers of Theodosius +II had intended to codify the whole law, including +<span class='pageno' id='Page_355'>355</span>the ancient statutes and decrees of the Senate and +Edicts of magistrates so far as they remained in force, +as well as the writings of the jurists, but the difficulties +were too great for them, and they contented themselves +with a revised edition of the more recent imperial +constitutions.</p> + +<p class='c001'>Justinian was more energetic, and his codification +of the whole law of the Empire marks an epoch of +supreme importance in the history not merely of Rome +but of the civilized world, for it is possible that without +it very little of the jurisprudence of antiquity would +have been preserved to us, so that the new nations +which were destined to emerge from the confusion of +the Dark Ages might have lacked the foundation on +which they have built up the law of the modern world. +It is indeed an epoch which stands alone both in legal +and in political history.</p> + +<p class='c001'>Justinian’s scheme for arranging and consolidating +the law included a compilation of extracts from the +writings of the jurists of the first three centuries of +the Empire, together with a collection of such and +so many of the Constitutions of the Emperors as were +to be left in force, both collections being revised so +as to bring the contents of each into accord and to +harmonize the part of earlier date (viz. that which +contained the extracts from the old jurists) with the +later law as settled by imperial ordinances. It was +completed in the space of six years only—too short +a time for so great a work. It was followed by a good +deal of fresh legislation, for the Emperor and his legal +minister Tribonian, having had their appetite whetted, +desired to amend the law in many further points and +<span class='pageno' id='Page_356'>356</span>reduce it to a greater symmetry of form and perfection +of substance. The Emperor moreover desired, for +Tribonian was probably something of a Gallio in such +matters, to give effect to his religious sentiments both +by laying a heavy hand on heretics and by making the +law more conformable to Christian ideas. Thus the +time of Justinian is almost as significant for the changes +made in the substance of the law as for the more compendious +and convenient form into which the law was +brought.</p> + +<p class='c001'>Some thirty years before the enactment of Justinian’s +Codex and Digest (which, though intended for the whole +Empire, did not come into force in such Western provinces +as had already been lost) three collections of +law had been made by three barbarian kings for the +governance of their Roman subjects. These were +the <span lang="la"><i>Edictum</i></span> of Theodorich, King of the East Goths, +published in <span class='fss'>A.D.</span> 500, the <span lang="la"><i>Lex Romana Visigothorum</i></span>, +commonly called the <span lang="la"><i>Breviarium Alaricianum</i></span>, published +by Alarich II, King of the West Goths (settled +in Aquitaine and Spain), in <span class='fss'>A.D.</span> 506, a year before +his overthrow by Clovis, and the <span lang="la"><i>Lex Romana Burgundionum</i></span>, +published by the Burgundian King Sigismund +in the beginning of the sixth century. These +three compilations, each of which consists of a certain +number of imperial Constitutions, with extracts from +a few jurists, ought to be considered in relation to +Justinian’s work, partly because each of them did for +a part of the Roman West what he did for the East, +and, as it turned out, for Italy and Sicily also, when +Belisarius reconquered those countries for him, and +partly because they were due to the same need for +<span class='pageno' id='Page_357'>357</span>accessible abridgements of the huge mass of confused +and scattered law which prompted the action of Justinian +himself. They are parts of the same movement, though +they have far less importance than Justinian’s work, +and, unlike his, include little or no new law.</p> + +<p class='c001'>The main cause of the tendency to consolidate the +law and make it more accessible was the profusion +with which Diocletian and his successors had used their +legislative power, flooding the Empire with a mass of +ordinances which few persons could procure or master, +together with the decline of legal talent and learning, +which made judges and advocates unable to comprehend, +to appropriate and to apply the philosophical principles +and fine distinctions stored up in the treatises of the old +jurists. Here, therefore, political and intellectual conditions, +conditions rather of decline than of progress, +lay at the root of the phenomenon. But in the case of +Justinian something must also be credited to the enlightened +desire which he, or Tribonian for him, had +conceived of removing the complexities, irregularities +and discrepancies of the old law, bringing it nearer to +what they thought substantial justice, and presenting it +in concise and convenient form. Plato desired to see +philosophy in the seat of power, and in Justinian philosophic +theory had a chance such as it seldom gets of +effecting permanently important changes by a few sweeping +measures. Yet theory might have failed if it had +not been reinforced by the vanity of an autocrat who +desired to leave behind him an enduring monument.</p> + +<p class='c001'>This rapid survey has shown us that two forces +were always operative on the development of Roman +law—internal political changes and the influence of +<span class='pageno' id='Page_358'>358</span>the surrounding countries. As Rome conquered and +Romanized them, they compelled her institutions to +transform themselves, and her law to expand. Economic +conditions, speculative thought and religion had each +and all of them a share in the course which reforms +took, yet a subordinate share.</p> + +<h3 class='c011'>IV. <span class='sc'>Outline of the Progress of Legal Changes in England.</span></h3> + +<p class='c012'>Let us now turn to England and see what have been +the forces that have from time to time brought about +and guided the march of legal change, and what have +been the relations of that change to the general history +of the country.</p> + +<p class='c001'>As with Rome we began at the moment when the +ancient customs were first committed to writing and +embodied in a comprehensive statute, so in England it +is convenient to begin at the epoch when the establishment +of the King’s Courts enabled the judges to set +about creating out of the mass of local customs a body +of precedents which gave to those customs definiteness, +consistency and uniformity. Justice, fixed and unswerving +justice, was in the earlier Middle Ages the +chief need of the world, in England as in all mediaeval +countries; and the anarchy of Stephen’s reign had +disposed men to welcome a strong government, and to +acquiesce in stretches of royal power that would otherwise +have been distasteful. Henry II was a man of +great force of character and untiring energy, nor was +he wanting in the talent for selecting capable officials. +He had to struggle, not only against the disintegrating +tendencies of feudalism, but also against the pretensions +<span class='pageno' id='Page_359'>359</span>of the churchmen, who claimed exemption from his +jurisdiction, and maintained courts which were in some +directions formidable rivals to his own. He prevailed +in both contests, though it was not till long after +that the victory was seen to have remained with the +Crown. It was his fortune to live at a time when the +study of law, revived in the schools of Italy, had made +its way to England, where it was pursued with a zeal +which soon told upon the practice of the Courts, +sharpening men’s wits and providing for them an +arsenal of legal weapons. It is true that the law taught +at the Universities was the Roman law, and that the +practitioners were almost entirely ecclesiastics. Now +the barons, however jealous they might be of the Crown, +were not less jealous of ecclesiastical encroachments and +of the imperial law. They could not prevent judges from +drawing on the treasures which the jurists of ancient +Rome had accumulated, but they did prevent the Roman +law from becoming recognized as authoritative; so that +whatever it contributed to the law of England came in +an English guise, and served rather to supplement than +to supersede the old customs of the kingdom.</p> + +<p class='c001'>In this memorable epoch, which stamped upon the +common law of England a character it has never lost, the +impulse which the work of law-making received came +primarily from the political circumstances of the time, +that is, from the desire of the king to make his power +as the receiver of taxes and the fountain of justice +effective through his judges, and from the sense in all +classes that the constant activity of the Courts in reducing +the tangle of customs to order, no less than +the occasional activity of the king when he enacted +<span class='pageno' id='Page_360'>360</span>with the advice and consent of his Great Council +statutes such as the Constitutions of Clarendon, was +a beneficial activity, wholesome to the nation. But +though political causes were the main forces at work, +much must also be allowed to the influence of ideas, +and particularly to the intellectual stimulus and the +legal training which the study of Roman jurisprudence +had given to the educated men who surrounded and +worked for the king and the bishops.</p> + +<p class='c001'>The development of English institutions has been at +all times so slow and so comparatively steady that it is +not easy to fix upon particular epochs as those most +conspicuously marked by change. However I take the +epoch of Edward I and Edward III. Under Edward I, +whose reign was one of comparative domestic tranquillity, +the organ of government whose supreme legislative +authority was to become unquestioned took its final +shape in passing from a Great Council of magnates to +an Assembly consisting of two Houses, in one of which +the chief tenants of the Crown sat, while the other was +composed of representatives of the minor tenants and of +boroughs. Under his grandson the chief judicial Minister +of the Crown began to sit as a Court, granting redress +in the name of the Crown in cases or by methods which +the pre-existing Courts were unable or unwilling to deal +with. Parliament passed under Edward I some statutes +of the first magnitude, such as <span lang="la"><i>Quia Emptores</i></span> and +<span lang="la"><i>De Donis Conditionalibus</i></span>, which impressed a peculiar +character on the English land system, and introduced +some valuable improvements in the sphere of private +rights and remedies. But the legislature was, for two or +three centuries, in the main content to leave the building +<span class='pageno' id='Page_361'>361</span>up of the law to the old Common Law Courts and +(in later days) to the Chancellor. The action of this +last-named officer was, during the fifteenth, sixteenth and +seventeenth centuries, of capital importance, so that the +establishment of his jurisdiction is one of the landmarks +of our legal history. It was really a renewal, two hundred +years after Henry II’s time, of that king’s effort to secure +the due administration of justice through the realm, but +it grew up naturally and spontaneously, with less of +conscious purpose than Henry II had shown. Both +the legislature and the Chancellor were the outcome +of political causes, but it must not be forgotten that in +the methods taken by the Chancellor (hardly reduced +to a system till the seventeenth century) we find the +working of a foreign influence which thereafter disappears +from English law, that, namely, of the civil +and canon laws of Rome and of the Roman Church, +for the Chancellors of the fourteenth and fifteenth +centuries were all ecclesiastics and drew largely from +Roman sources.</p> + +<p class='c001'>The days of the Reformation bring two new and +powerful influences to bear upon laws and institutions. +One of these influences is economic, the other religious. +The growth of industry and trade had so far disintegrated +the old structure of society and brought about new +conditions that not a few new laws, among which the +most familiar and significant are the Statute of Uses +and the Statute of Wills, were now needed. The nation +was passing out of the stiffness of a society based on +landholding and recognizing serfdom into a larger and +freer life. At the same time the religious revolution +which severed it from Rome, which was accompanied +<span class='pageno' id='Page_362'>362</span>by the dissolution of the monasteries, and which ended +by securing the ascendency of a new body of theological +ideas and of simpler forms of worship, involved many +legal changes. The ecclesiastical courts were shorn of +most of their powers, and the law they administered was +cut off from the influences that had theretofore moulded +and dominated it. The position of the clergy was altered. +New provisions for the poor soon began to be called for. +New tendencies, the result of a bolder spirit of inquiry, +made themselves felt in legislation. One sees them +stirring in the mind of Sir Thomas More. It was some +time before the religious and economic changes took +their full effect upon the law. But nearly all the remarkable +developments that make the time of Henry +VIII and Elizabeth an epoch of legal change, may be +traced not so much to politics as to the joint influence +of commerce (including the growth of personal, as distinguished +from real, property) and of theology. Even +the oceanic power and territorial expansion of England, +which began with the voyages of Drake and the foundation +of the Virginia Company and of the East India +Company, did not affect either the law or the institutions +of the country. The establishment of distant settlements +was largely the result of the growing force of +commercial enterprise, in which there was at first very +little of political ambition, though it cordially lent itself +to a political antagonism first to Spain and then to +France.</p> + +<p class='c001'>With the time of the Great Civil War we return +to an era in which, though religion and commerce continue +to be potent forces, the first place must again be +assigned to political causes. The struggle which overthrew +<span class='pageno' id='Page_363'>363</span>the old monarchy effected two things. It extinguished +the claims of the Crown to a concurrent +legislative or quasi-legislative power. The two Houses +of Parliament were established as an engine for effecting +legal changes, prompt in action and irresistible in +strength<a id='r152'></a><a href='#f152' class='c013'><sup>[152]</sup></a>. Towards this England had long been slowly +tending, as during a century before Augustus Rome +slowly tended to a monarchy. The work was completed +at the Boyne and Aughrim, but the decisive blow +was struck at Naseby. And, secondly, it occasioned +the accomplishment of several broad and sweeping +reforms in institutions as well as in law proper. A Parliamentary +Union of England, Scotland and Ireland +was effected which, though annulled by the Restoration, +was a significant anticipation of what the following +century was to bring. The old system of feudal tenure +and the relics of feudal finance were abolished. New +provisions were made, and old ones confirmed and extended, +for the protection of the freedom of the subject +in person and estate. Commercial transactions were +regulated, perhaps embarrassed, by a famous enactment +(the Statute of Frauds) regarding the evidence +required to prove a contract. Such of these things +as lay outside the purely political sphere were due +partly to the development of industry and commerce, +which had gone on apace during the reign of James I, +and was resumed during the government of Cromwell +and Charles II, partly to that sense which political +revolutions bring with them, that the time has come +<span class='pageno' id='Page_364'>364</span>for using the impulse of liberated forces to effect +forthwith changes which had for a long time before +been in the air. On a still larger scale, it was the +Revolution and Empire in France that led to the +remodelling of French institutions and the enactment +of Napoleon’s Codes<a id='r153'></a><a href='#f153' class='c013'><sup>[153]</sup></a>.</p> + +<p class='c001'>As usually happens, an era of abnormal activity in +recasting institutions and in amending the law was +followed by one of comparative quiescence. It was +not till the middle of the reign of George III that the +beginnings of a new period of transition were apparent, +not till after the Reform Bill of 1832 that the largest +among the many reforms towards which men’s minds +had been ripening were effected. These reforms, which +have occupied the last sixty-seven years, have touched +every branch of law. They include a great mitigation +of the old severity of the criminal law and the introduction +of provisions for repressing those new offences +which are incident to what is called the progress of +society. They have expunged the old technicalities +of pleading by which justice was so often defeated. +They have striven to simplify legal procedure, though +they have not succeeded in cheapening it, and have +fused the ancient Courts of Common Law with those +of Equity. They have removed religious disqualifications +on the holding of offices and the exercise of +the suffrage. They have dealt with a long series of +commercial problems, and have in particular made easy +the creation of corporations for business and other +purposes, given limited liability to their members, and +<span class='pageno' id='Page_365'>365</span>laid down many regulations for their management. They +have altered the law of land, enlarging the powers of +life owners, and rendering it easier to break entails. +They have reorganized the fiscal system, simplified the +customs duties, and established a tariff levied for revenue +only. They have codified the law, mainly customary +in its origin, relating to such topics as negotiable instruments, +sale and partnership. They have created +an immense body of administrative law, extending and +regulating the powers of various branches of the +central government, and, while remodelling municipal +government, have created new systems of rural local +government. As regards the central institutions of the +country, several new departments of State have been +called into being. Ecclesiastical property has been +boldly handled, though not (except in Ireland) diverted +to secular uses; a new Court of Appeal for causes +coming from the extra-Britannic dominions of the Crown +has been set up, and the electoral franchise has been +repeatedly extended.</p> + +<p class='c001'>These immense changes have been due to three +influences. The first was the general enlightenment +of mind due to the play of speculative thought upon +practical questions which marked the end of last and +the beginning of this century, and of which the most +conspicuous apostles were Adam Smith in the sphere +of economics and Jeremy Bentham in the sphere of +legal reform. The second was the rapid extension +of manufacturing industry and commerce, itself largely +due to the progress of physical science, which has placed +new resources at the command of man both for the production +and for the transportation of commodities. The +<span class='pageno' id='Page_366'>366</span>third influence was political, and was itself in large +measure the result of the other two, for it was the combination +of industrial growth with intellectual emancipation +that produced the transfer of political power and +democratization of institutions which went on from the +Roman Catholic Emancipation Act of 1829 to the Local +Government Act of 1894. Could we imagine this +industrial and intellectual development to have failed +to work on political institutions as it in fact did work, it +would hardly the less have told upon administration and +upon private law, for the new needs would under any +form of government, even under an oligarchy like that +of George II’s time, have given birth to new measures +fitted to deal with them. The legislation relating to +Joint Stock Companies (beginning with the Winding-Up +Acts), which filled so important a place in the English +Statute-book from 1830 to 1862, and which still continues, +though in a reduced stream, would under any political +conditions have been required owing to the growth of +commerce, the making of railways, the increased need +for the provision of water, gas and drainage. And there +went on, hand and hand with it, an equally needed development +by the Courts of Equity of the law of partnership, +of agency and of trusts, as applied to commercial +undertakings. What the political changes actually did +was to provide a powerful stimulus to reform, and an +effective instrument for reform, while reducing that +general distaste for novelties which had been so strong +in the first half of the eighteenth century.</p> + +<p class='c001'>If we now review the general course of changes in +institutions and law in the two States selected for comparison +we shall be struck by two points of difference.</p> + +<div> + <span class='pageno' id='Page_367'>367</span> + <h3 class='c011'>V. <span class='sc'>Some Differences between the Development of Roman and that of English Law.</span></h3> +</div> + +<p class='c012'>The branch of private law which is most intimately +connected with the social and economic habits of a +nation, and which, through social and economic habits, +most affects its character, is that branch which touches +Property, and the connexion of property with the Family. +The particular form which the institutions relating to +property, especially immovable property, take, tells upon +the whole structure of society, especially in the earlier +stages of national growth. The rules, for instance, +which govern the power of an owner to dispose of his +property during his life or by will, and those which +determine the capacity of his wife and children to acquire +for themselves by labour or through gift, and to claim +a share in his estate at his decease if he dies intestate, +or even against his last will—these rules touch the +richer and middle classes in a community and affect +their life. So one may perhaps say that the development +of this branch of law comes nearer than any other +to being the central line of legal development, bearing in +mind that it is the needs and wishes of the richer and +middle classes which guide the course of legal change. +Here, however, we discover an interesting point of comparison +between Roman and English legal history.</p> + +<p class='c001'>At Rome it is the history of the Family, especially as +taken on its economic or pecuniary side, the most important +part of which is the Law of Inheritance, that +plays the largest part. The old rules, which held the +Family together, and vested in the father the control of +family property, were at first stringent. From the third +<span class='pageno' id='Page_368'>368</span>century <span class='fss'>B.C.</span> onwards they began to be modified, but +they were so closely bound up with the ideas and habits +of the people that they yielded very slowly, and it was +not till the bold hand of Justinian swept away nearly +all that remained of the ancient rules of succession, +and put a plain and logical system in their place, +that the process was complete.</p> + +<p class='c001'>In England, on the other hand, it is the Law of Land that +is the most salient feature in the economico-legal system +of the Middle Ages. Among the Teutons the Family +had not been, within historic times at least, a group +closely bound together as it was among the Italians, +whereas the historical and political conditions of the +eleventh and twelfth centuries had in Western Europe +made landholding the basis of nearly all social and +economic relations. Hence the land customs then +formed took a grip of the nation so tight that ages +were needed to unloose it. The process may be said +to have begun with a famous statute (<span lang="la"><i>Quia Emptores</i></span>) in +the reign of Edward I. Its slow advance was quickened +in the seventeenth century by political revolution; and +the Act of 1660 which abolished knight service recorded +a great change. The peaceful revolution of 1832 gave +birth to the series of statutes which from 1834 down to +our own day have been reshaping the ancient land system, +but reshaping it in a more piecemeal and perplexing +fashion than that in which Justinian reformed the law of +succession by the 118th and 127th Novels. Problems +connected with landholding still remain in England, as +they do in nearly all States, especially where population +is dense; but they differ from the old problems, and +though disputes relating to the taxation of land give +<span class='pageno' id='Page_369'>369</span>trouble, and may give still more trouble, questions of +tenure have lost the special importance which made +them once so prominent in our legal history.</p> + +<p class='c001'>Both Rome and England have been, far beyond +any other countries except Russia, expanding States. +Rome the City became Rome the World-State. The +Folk of the West Saxons went on growing till it +brought first the other kingdoms of South Britain, +Teutonic and Celtic, then the adjoining isles of Ireland +and Man, then a large part of North America, then +countless regions far away over the oceans under the +headship of the descendants of Cerdic and Alfred. But +in the case of Rome this expansion by conquest was +the ruling factor in political and legal evolution, the +determining influence by which institutions were transformed. +In England, on the other hand, it is the relations +of classes that have been the most active agency in +inducing political change, and the successive additions +of territory have exerted a secondary influence on institutions +and an insignificant influence on law. Not only +has English law been far less affected (save at the first +two of the five epochs above described) by foreign law +or foreign thought than Rome was, but the increase +of England by the union, first of Scotland and then +Ireland, and by the acquisition of transoceanic dominions, +has not interrupted the purely insular or national +development of English law. The conquest of Ireland, +which began in the twelfth century but was not +completed till the seventeenth, made no difference, +because Ireland, always since the twelfth century far +behind England in material progress and settled social +order, received a separate civil administration with +<span class='pageno' id='Page_370'>370</span>separate Courts. As these Courts administered English +law, they followed in the path which England had +already travelled and did not affect the progress of law +in England. Nothing speaks more of the long-continued +antagonism of the Teutonic and the Celtic elements in +Ireland, and of the dominance of the Teutonic minority +over the Celtic majority, than the practical identity of +the common law in the two countries, and the total +absence of any Celtic customs in that law. The few +and comparatively slight differences which exist to-day +between the law of England and that of Ireland are all +due to statute. One is the absence of judicial divorce in +Ireland, which an Act passed so recently as 1857 introduced +in England. The second is to be found in the +law relating to land, largely altered by statutes passed +for Ireland by the British Parliament of our own time. +The third is the existence in Ireland of what are +admitted to be exceptional and supposed to be temporary +penal provisions, the last of which is the Prevention +of Crime Act of 1887. As regards Scotland, when +her king became king of England, and when, a century +later, her Parliament was united with that of England, +she retained her own law intact. In some few respects +her law, founded on that of Rome, and her system of +judicial administration are better than those of England, +nor has she failed to contribute distinguished figures to +the English bench and bar; but, as she stands far below +England in population and wealth, she has affected the +law of the larger country as little as the attraction of the +moon affects the solid crust of the Earth.</p> + +<p class='c001'>The vaster territorial expansion of the eighteenth +and nineteenth centuries has told quite as little on the +<span class='pageno' id='Page_371'>371</span>law of England as did the unions with Scotland and +Ireland. When the English began to people what are +now the self-governing colonies, and when India came +under British sway, English law was too fully developed +to be susceptible to influences from them, not to add +that they were too distant to make any assimilation either +desirable or possible. Had India lain no further from +England than Sicily and the Greek cities lay from Rome, +had she been as near the level of English civilization +as those countries were to that of Roman civilization, +and had she been conquered in the reign of Elizabeth +instead of in the reign of George III, the history of +English institutions and English law must have been +wholly unlike what it has in fact been. These three +differences measure the gulf which separates the course +of English from that of Roman development.</p> + +<p class='c001'>Another salient point in which the two States may be +compared relates to the smaller part which purely +political as compared with economic and intellectual +changes have played in the development of English +laws and institutions. Although there is a sense in +which every political change may be described as the +result of an economic or intellectual change, or of both +taken together, still it is true that at Rome the desire +to grasp political power counted for more in the march +of events than it has done in England.</p> + +<p class='c001'>Economic changes sometimes operate on politics +by raising the material condition of the humbler class +and thereby disposing and enabling them to claim a +larger share of political power. This happened at Rome +more frequently in the earlier than in the later days of +the Republic. In England it has happened more in +<span class='pageno' id='Page_372'>372</span>later times than it did in earlier. Sometimes, however, +economic causes so depress the poor that their misery +becomes acute or their envy intense, whence it befalls +that they break out into revolt against the rich. This +was on the point of happening more than once at Rome, +but has been no serious danger in England since the +days of Richard II. Sometimes, again, the growth of +immense fortunes and the opportunities of gaining wealth +through politics threaten the working of popular institutions. +This occurred at Rome; and was one of the +causes which brought the Republic to its death. It is +a peril against which England has had, and may again +have, to take precautions.</p> + +<p class='c001'>Changes in thought and belief operate on politics +either by weakening the deferential and submissive +habits of the classes which have been excluded from +power so that they insist on having their fair share of +it, or by implanting in the minds of the middle and +upper classes new ideas which grow strong enough to +make them insist on bringing old-fashioned practice +into accord with new and more enlightened theory. It +was the concurrence of these two forms of intellectual +change that gave its specially destructive character to +the French Revolution. Ideas of course act most +quickly and powerfully when they are such as rouse +emotion, for that which remains a mere intellectual +concept or speculative opinion is not a thing to stir or +to shake established institutions. The best illustration +is to be found in religious beliefs. But the notion of +Equality—that is to say, the notion that rights vested +in every man as a man demand that every man shall be +treated alike—has also proved an energetic explosive. +<span class='pageno' id='Page_373'>373</span>Influences of this kind counted for little at Rome. +Neither have they, except in the form of religious +beliefs, or when their force coincided with that exerted +by religious convictions, become the source of strife +or constitutional change in England.</p> + +<p class='c001'>One may indeed say that the course of England’s +political development has been less interrupted by +convulsions than that of any other great State, for even +the scars made by the Civil War were before long +healed, so that hardly any of the old institutions +perished, though some of them passed into new phases. +The new buildings which popular government has +within the present century added to the old edifice +are built out of the same kind of stone, and (if one +may venture to pursue the metaphor) weather to the +same colour. So the growth of our law, both public +and private, both criminal and civil, has been a gradual +and quiet growth, due in the main to the steady +increase in the magnitude and complexity of the industrial +and commercial relations of life, which have +made the law expand and improve at the bidding of +practical needs. Where politics have affected the law, +this has been through the rise of the humbler classes, +a rise largely due to economic causes. So likewise the +influence of ideas, of new views as to what law should +be and how it should serve the community, has been +marked by few sudden crises, and has been ruled by +practical good sense rather than by aspirations after +a theoretical perfection. As regards private law, this +remark applies to the Romans also, although the constant +strain placed upon their institutions by their +territorial expansion as well as the differences between +<span class='pageno' id='Page_374'>374</span>a City State and a large rural State exposed their +political system to more frequent shocks and ultimately +to a more radical transformation.</p> + +<p class='c001'>Finally, it may be observed that the interest felt in +law, and the amount of intellectual effort given to its +development, was probably greater among the educated +class in Rome than it has ever been in any large +section of the English people. Romans of intellectual +tastes had fewer things to think about, fewer subjects +to attract or to distract them, than the English have +had. Law was closely interwoven with public life. +Country life and country sports, commerce, religion, +travel and adventure, covered less of the mental horizon +than these pursuits have covered to Englishmen of the +upper or educated class, so that more of thought and +time was left to be devoted to law. Nor were many +Romans carried off into other regions, like the Greeks, +by the love of art, or of music, or of abstract speculation.</p> + +<p class='c001'>From this reflection another arises, viz. that legal +and constitutional studies, as a subject for research and +thought, find the competition of other subjects more +severe in England to-day than they did in the eighteenth +century<a id='r154'></a><a href='#f154' class='c013'><sup>[154]</sup></a>. Historical inquiries, economic inquiries, and, +to a still larger extent, inquiries in the realm of Nature, +claim a far larger share in the interest of eager and +active minds now than in the days of Hobbes or Locke +or Bentham. They have done much to extrude law from +the place it once held among subjects of interest to unprofessional +persons. This is true all over the world; but +legal topics, whether constitutional or belonging to the +sphere of penal or administrative, or international or ordinary +<span class='pageno' id='Page_375'>375</span>private law, seem now to claim even fewer votaries +in England than they do in France or Germany, and +certainly fewer than they do in the United States.</p> + +<h3 class='c011'>VI. <span class='sc'>Observations on France and Germany.</span></h3> + +<p class='c012'>The sketch which I have sought to draw of the +relations of general history to legal history might +have been with advantage extended to include the legal +history of other States, and particularly of two such +important factors in modern civilization as France and +Germany. But, apart from the undue length to which +an essay would stretch if it tried to cover so large a field, +there is a good reason why we may deem these two +countries less well suited for the sort of comparative +treatment here essayed. Neither of them has had the +kind of independent and truly national legal development +which belonged to Rome and belongs to England. +Each of them started on its career with a body of pre=existing +law, made elsewhere, viz. the Roman law which +had come down to France and to Germany from antiquity. +In Gaul, even in the parts most settled by the Franks, +the law of the Empire held its ground, though everywhere +largely modified by feudal land usages, and in +the northern half of the country, when it had ceased to +be Gaul and had become France, in the form of customs +and not of written Roman texts. In Germany the +old Teutonic customary law was by degrees (except as +regards land rights) supplanted by the <span lang="la"><i>Corpus Iuris</i></span> +of Justinian, in conformity with the idea, fantastic +as that idea now appears to us, which regarded the +Roman Emperors from Julius Caesar down to Constantine +the Sixth as the predecessors in title of the +<span class='pageno' id='Page_376'>376</span>Saxon and Franconian Emperors. Thus neither the +French nor the Germans built up on their own national +foundation a law distinctively their own. Moreover, +both Germany and France stand contrasted with England +as well as with Rome in the fact that neither country +ever had a true central legislature or central system +of law courts comparable with the Parliament and +King’s Courts of England. The German Diet, though +enactments were occasionally made in it with its +consent by the sovereign, enactments which however +were not universally obeyed, dealt very little with law +proper, even in the days of its greatest strength. Still +less were the French States-General, even before their +long eclipse, an effective legislature. Thus the development +of the law of both Germany and France fell mainly +into the hands of the jurists, qualified to some extent in +Germany by the ordinances enacted by the electors, +landgraves, and other princes, as well as by the free +<a id='corr376.19'></a><span class='htmlonly'><ins class='correction' title='‘imper'>al’</ins></span><span class='epubonly'><a href='#c_376.19'><ins class='correction' title='‘imper'>al’</ins></a></span> cities, and (in later days) by the kings whose +dominions formed part of the decaying Empire, and +qualified in post-mediaeval France by the ordinances of +the king. In both countries it was upon the Roman +law, as modified by custom, that the jurists worked, +and hence in neither did a body of law grow up which +was truly national, in the sense either of having a distinctive +national quality or of embracing the whole nation +or of having been enacted by a national legislature. +The first complete unity given to law in France was +given by Napoleon. His Code was based on the +Roman law theretofore used, which had to a considerable +extent been already codified under Lewis XIV; +yet the creation of one Code for the whole country was +<span class='pageno' id='Page_377'>377</span>a step so bold that it could hardly have been attempted +except by an autocrat and on the morrow of a revolution. +The first modern effort to give unity to law in Germany, +itself an efflux of the aspiration for national unity, was +made by the General Bills of Exchange Law (<span lang="de"><i>Wechselordnung</i></span>) +(1848-1850), while a general Commercial Code +(<span lang="de"><cite>Gemeines Handelsgesetzbuch</cite></span>) enacted in various States +between 1862 and 1866 was re-enacted for the new +Empire in 1871. The fuller unity long desired was +attained in 1900, when the new general Code for the +whole German Empire came into force. This similarity +between the legal history of France and that of +Germany seems the more curious when one remembers +that, so far as mere political unity is concerned, France +attained that unity comparatively early, one may say at +the end of the fifteenth century, while Germany continued +down till the extinction of the old Empire in 1806 +to go on losing what political unity she had possessed. +It was not till 1866 that she began to regain it, though +the Customs Union of the German States, formed in +1829, had been a presage of what was coming.</p> + +<h3 class='c011'>VII. <span class='sc'>Private Law least affected by Political Changes or Direct Legislation.</span></h3> + +<p class='c012'>One phenomenon is common to the legal history +in all these nations. That part of the law which has +the greatest interest for the scientific student, and the +greatest importance for the ordinary citizen, the private +civil law of family and property, of contracts and torts, +has been the part least affected either by political +changes or by direct legislation. It has been evolved +quietly, slowly and almost imperceptibly, first by +<span class='pageno' id='Page_378'>378</span>popular custom, then by the labours of jurists and +the practice of the Courts. Direct legislation by the +supreme power has stepped in chiefly to settle controversies +between conflicting authorities, or to expunge +errors too firmly rooted for judges to rectify, or to +embody existing usage in a definite and permanent +form. In the sphere of private law, and even in that +of criminal law (so far as not affected by politics), +legislation scarcely ever creates any large new rule, +and seldom even any minor rule which is absolutely +new, not an enlargement of something which has gone +before. Pure legislative novelties mostly turn out ill. +Fortunately, the good sense of Englishmen, like that +of Romans, has rarely permitted them to appear.</p> + +<p class='c001'>The parallel drawn between the history of Roman +and that of English law is less instructive when we +reach the later stages of that history. It cannot be made +complete, not only because we know comparatively +little of the inner condition and practical working of +the Courts after the time of Constantine, but because +there was after his time both a political and an intellectual +decay, which few will profess to discover +in the England of this century. The expansion and +enrichment of the Roman system had stopped even +before Constantine, while that of English Law is still +proceeding<a id='r155'></a><a href='#f155' class='c013'><sup>[155]</sup></a>. In England commerce is still growing, +education is still advancing, new and complicated problems +<span class='pageno' id='Page_379'>379</span>are still emerging, so that many forces continue +to work for the development of law. Though we +cannot foresee what lines this development will follow +we may feel sure that some of the old causes of change +are disappearing. The democratization of political institutions +seems nearly complete, religious passions +have grown cold, and all classes have been so fully +admitted to a share in political power that any such +bold reforms in central and local administration, in +procedure, in penal law, and in one or two departments +of private civil law as followed the Reform Bill of +1832, seem improbable. In some departments the possibilities +of further progress appear to be exhausted, +though there are others, such as those concerned with +questions of the right of combination among employers +or among workmen, and the character which motive +imparts to acts in themselves lawful on which the last +word is far from having been said<a id='r156'></a><a href='#f156' class='c013'><sup>[156]</sup></a>. But there are +at least two real difficulties which remain to be grappled +with. One relates to the methods of legal proceedings. +Their cost is so great as to deter many persons from +the attempt to enforce just claims, to impose a heavy +and unfair burden upon successful litigants, and to +furnish opportunities for blackmail (especially in libel +cases) to men who are equally devoid of money and +of scruples. All efforts to cheapen them have so far +failed. The other problem relates to a matter of substance. +What are the general principles to be followed +in empowering the State to regulate the conduct of +individuals or groups of individuals, in permitting the +<span class='pageno' id='Page_380'>380</span>central government or a local authority to compete +with individuals in industrial enterprises, and in restricting +the power of combinations formed for commercial +or industrial objects? This group of problems are +being daily pressed to the front by political forces on +the one hand and by industrial progress on the other. +They are as urgent in the United States as in Britain. +Nor are they matters for legislation only, for cases +frequently arise which the best legislation cannot +count upon having provided for, and which it needs +not only technical skill but also a philosophic grasp +of principles on the part of the bar and bench to +conduct to a solution. The experience of the ancient +world and that of the Middle Ages throws little light +upon them. But as they have appeared simultaneously +in many modern nations, each may have something +to learn from the others. Comparative jurisprudence +has no more interesting field than this: nor is there +any task in labouring on which an enlightened mind +may find a wider scope for the devotion of learning +and thought to the service of the community.</p> + +<p class='c001'>I am tempted to venture on some other predictions +as to the influences that may be expected to work +on the legal changes of the coming century. But we +have been pursuing an historical, not a speculative, +inquiry, and it will be enough to suggest that industry +and commerce, as quickened by the progress +of physical science, are likely to be factors of increasing +power, and that the purely political element in the +development of law will count for less than that +contributed by the effort to readjust social conditions +and to give effect to social aspirations.</p> + +<div class='chapter'> + <span class='pageno' id='Page_381'>381</span> + <h2 id='eXVI' class='c005'>XVI<br> <br> MARRIAGE AND DIVORCE UNDER<br>ROMAN AND ENGLISH LAW</h2> +</div> + +<h3 class='c011'>I. <span class='sc'>Introductory.</span></h3> + +<p class='c012'>In all communities that have risen out of the savage +state, no legal institution is at once so universal, and +also so fundamental, a part of their social system as is +Marriage. None affects the inner life of a nation so +profoundly, or in so many ways, ethical, social, and +economic. None has appeared under more various +forms, or been more often modified by law, when sentiment +or religion prescribed a change. In a famous +passage which has been constantly quoted, and often +misunderstood, Ulpian takes marriage as the type of +those legal relations which are prescribed by the Law of +Nature, and extends that Law so far as to make it govern +the irrational creatures as well as mankind<a id='r157'></a><a href='#f157' class='c013'><sup>[157]</sup></a>. If then +the relation be so eminently natural, one might expect +it to be also uniform. Yet it so happens that there is +no relation with which custom and legislation have, in +different peoples and at different times, dealt so differently. +Nature must surely have spoken with a very +uncertain voice when, as the jurist says, she ‘taught +this law to all animals.’ Nor does this infinite diversity +show signs of disappearing. While in most branches +of law the progress of parallel development in various +<span class='pageno' id='Page_382'>382</span>civilized states is a progress towards uniformity, so +that the commercial law, for instance, of the chief +European countries and of the United States is, as +respects nineteen-twentieths of its substance, practically +identical, the laws of these same countries are, in what +relates to the forms of contracting marriage, the effect +of marriage upon property rights, the grounds for +dissolving and modes of dissolving marriage, extremely +different, and apparently likely to remain different. +Even within the narrow limits of the United Kingdom, +England and Scotland have each its own system. Ireland +has a different law from England in respect of the +mode of solemnization; while, as respects divorce, the +divergence goes so far that grounds are recognized as +sufficient for divorce in Scotland which are not admitted +in England, while in Ireland a divorce, except by private +Act of Parliament, cannot be obtained at all. And the +efforts to assimilate these three diverse systems made +by reformers during two or three generations have +been followed by so little practical result that they +have been of late years altogether dropped.</p> + +<p class='c001'>Out of the long and obscure and intricate history of +the subject, and out of the many still unsolved problems +it presents, I propose to select one subject for discussion, +viz. the history of the Roman law of the marriage +relation, as compared with the English law, and particularly +with some of the later developments of English +law in the United States. On the antiquities of +the matter, and in particular on the interesting and +difficult questions relating to primitive forms of marriage, +and to the polyandry which is supposed to have +marked the earlier life of many peoples, I shall not +<span class='pageno' id='Page_383'>383</span>attempt to touch. Neither can I do more than glance +at the ecclesiastical history of the institution, important +as the church has been in influencing civil enactments +and moulding social sentiment.</p> + +<p class='c001'>To elucidate the Roman system, some few technical +details must be given, but I shall confine myself to +those which are needed in order to facilitate a comparison +between it and that of England, and to show +how essentially the later Roman conception of the +relation differed from that which Christianity created +in mediaeval Europe.</p> + +<h3 class='c011'>II. <span class='sc'>Character of Marriage in Early Law.</span></h3> + +<p class='c012'>When clear light first breaks upon the ancient +world round the Mediterranean Sea we find that the +relation of the sexes exists in three forms. The most +savage tribes, such as those which Herodotus saw or +heard of in Libya and Scythia, have no regular marriage +at all. Some lived in a kind of promiscuity; some +were probably polyandrous. The Eastern peoples—Persians, +Lydians, Babylonians, and so forth—are polygamous, +as was Israel in the days of Moses and +Solomon, though in a much lesser degree after the +Captivity, and as was the Trojan Priam of the Homeric +poems. The Western peoples, and especially the +Greeks and the Italians, were, broadly speaking, monogamous, +although concubinage superadded to lawful marriage, +especially among the Greeks, was not unknown. +The contrast of the East and the West was marked; +and this particular difference was not only characteristic +but momentous, since it presaged a different course for +<span class='pageno' id='Page_384'>384</span>the social development of the two regions<a id='r158'></a><a href='#f158' class='c013'><sup>[158]</sup></a>. So when +the Teutonic and Celtic peoples came later on the stage, +they too were generally monogamous, though among +the heathen Celts the tie seems to have been somewhat +looser than among the Teutons, and a plurality of +wives may have been not uncommon in heathen times. +Tacitus, while dwelling on the sanctity of German marriages, +observes that occasionally the chieftains had +more than one wife, owing to the wish of other families +for alliance with them<a id='r159'></a><a href='#f159' class='c013'><sup>[159]</sup></a>. Polygamy slowly died out of +the East under Roman rule, though possibly never +quite extinguished, for we find prohibitions of it renewed +by the Emperors down to Diocletian, before +whose time all subjects had become citizens. It maintained +itself in the Oriental court of the Sassanid kings +of Persia, and was indeed one of the features of +Persian life which most shocked the philosophers of the +later Roman Empire. As there is no trace of it in the +Roman law<a id='r160'></a><a href='#f160' class='c013'><sup>[160]</sup></a>, it need not concern us further, since it +has never, except in the singular instance of the Mormons, +reappeared in any of the communities which +have been regulated either by Roman or by Teutonic +law<a id='r161'></a><a href='#f161' class='c013'><sup>[161]</sup></a>.</p> + +<p class='c001'>Before describing the Roman system, let us note three +general features which belong to the marriage customs, +not indeed of all, but certainly of most peoples in the +<span class='pageno' id='Page_385'>385</span>earlier stages of civilization. They are worth noting, +because they constitute the central threads of the history +of the relation during civilized times.</p> + +<p class='c001'>1. The marriage tie has more or less of a religious +or sacred character, being generally entered into with +rites or ceremonies which place it under supernatural +sanctions. This is, of course, more distinctly the case +where monogamy prevails.</p> + +<p class='c001'>2. In the marriage relation the husband has a predominant +position both as regards control over the +person and conduct of the wife, and as regards property, +whether that which was hers or that which was brought +into common stock by her and by him.</p> + +<p class='c001'>3. The tie is comparatively easy of dissolution by the +husband, less easily dissoluble by the wife. This is +a natural consequence of the inferior position which +she holds in early society.</p> + +<p class='c001'>Although these three features are generally characteristic +of the earlier stages of family law, they are not +universally present; and their presence or absence in +any given community does not necessarily coincide +with a lower or higher scale of civilization in that +community. The temptation to generalize in these +matters is natural, but it is dangerous. True as may +seem the general proposition, that the higher or +lower position of women in any society is a pretty +good index to the progress that society has made, +there are too many exceptions to the rule for us to +take it as a point of departure for inquiry. Nor can +these exceptions be always accounted for by any one +cause, such as race or religion.</p> + +<div> + <span class='pageno' id='Page_386'>386</span> + <h3 class='c011'>III. <span class='sc'>The Earlier Form of Roman Marriage Law.</span></h3> +</div> + +<p class='c012'>Now let us come to the Romans, of whom we +may say that it is they who have built up the marriage +law of the civilized world, partly by their action +as secular rulers in pagan times, partly by their action +as priests in Christian times. The other modifying +elements, and particularly the Hebrew and Teutonic +influences, which have worked upon the marriage laws +of Christendom, are of quite inferior moment.</p> + +<p class='c001'>Roman law begins with two phenomena which seem +at first sight inconsistent. One is the complete subjection +of the wife to the husband on the legal side, as +regards both person and property. The other is her +complete equality on the social and moral side, as +regards her status and the respect paid to her.</p> + +<p class='c001'>In describing the nature of this subjection, one must +make it clearly understood that, strictly speaking, it was +not by the mere fact of marriage, that is to say, by the +legal act necessary to constitute marriage, that a woman +entered that position of absolute absorption into the +legal personality of her husband which is so remarkable +a feature of the old law. Whatever may have been the +case in prehistoric times, we find that at the time when +the Twelve Tables were enacted (<span class='fss'>B.C.</span> 449) a marriage +could be contracted without any forms or ceremonies +whatever, by the sole consent of the parties; and that, +where this was the case, the husband did not acquire any +power over the wife, and the latter retained whatever +property she previously possessed. It was therefore not +marriage <span lang="la"><i>per se</i></span> that created the power of the husband, +for a woman might be legally married and not be under +<span class='pageno' id='Page_387'>387</span>the marital power. But although this ‘free marriage,’ +as we may call it (the term is not Roman, but invented +by modern jurists), was legally possible, the custom, and +in old days the almost invariable custom, of the people +was to add to the marriage a ceremony not essential to +its validity as a marriage, but one which had important +legal consequences. We may safely assume that there +was originally no true marriage without the ceremony, +but at the time of the Twelve Tables this was no longer +the case. The ceremony created a relation which the +Romans called Hand (<span lang="la"><i>manus</i></span>), and brought the wife +into her husband’s power, putting her, so far as legal +rights went, in the position of a daughter (<span lang="la"><i>filiae loco</i></span>). +It gave the husband all the property she had when she +married. It entitled him to all she might acquire afterwards, +whether by gift or by her own labour. It +enabled him to command her labour, and even to sell +her, though the sale neither extinguished the marriage +nor made her a slave, but merely enabled the purchaser +to make her work, while still requiring him +to respect her personal rights<a id='r162'></a><a href='#f162' class='c013'><sup>[162]</sup></a>. In compensation +for these disadvantages the wife became entitled to be +supported by her husband, and to receive a share of his +property at his death, as one of the ‘family heirs’ (<span lang="la"><i>sui +heredes</i></span>), whom he could disinherit only in a formal way. +She had by coming under his Hand passed out of her +original family, and lost all right by the strict civil law +to share in the inheritance of her father.</p> + +<p class='c001'>There were two forms of ceremony by which this +<span class='pageno' id='Page_388'>388</span>power of the Hand could be created. One, probably +the older, had a religious character. It took place in +the presence of the chief pontiff, and its main feature +was a sacrifice to Jupiter, with the eating by the bride +and bridegroom of a cake of a particular kind of corn +(<span lang="la"><i>far</i></span>), whence it was called <span lang="la"><i>confarreatio</i></span>. It was originally +confined to members of the patrician houses. The +other was a purely civil act, and consisted in the sale +by the bride of herself, with the approval of her +father or her guardian (as the case might be), to the +bridegroom, apparently accompanied (though there is +a controversy on this point) by a contemporaneous sale +by the bridegroom of himself to the bride. The transaction +was carried out with certain formal words and +in the presence of five witnesses (being citizens)<a id='r163'></a><a href='#f163' class='c013'><sup>[163]</sup></a>, +besides the man who held the scales with which the +money constituting the price was supposed to be +weighed. The price was of course nominal, though it +had in very early times been real.</p> + +<p class='c001'>These two forms have been frequently spoken of as +if they were indispensable forms of marriage, so that +marriage had always the Hand power as its consequence. +But this, though it may probably have been the case +in very early days, was not so in those historical times +to which I must confine myself. And the proof of this +may be found in the fact that if a woman was married +without either of the above forms, she did not pass into +the Hand of her husband unless or until she had lived +with him for a year, and not even then if she had +<span class='pageno' id='Page_389'>389</span>absented herself from his house for three continuous +nights during that year<a id='r164'></a><a href='#f164' class='c013'><sup>[164]</sup></a>. And where the Hand power +had not been created, the property rights of the wife, +whatever they were<a id='r165'></a><a href='#f165' class='c013'><sup>[165]</sup></a>, remained unaffected by the marriage. +The period of three nights is fixed in the Twelve +Tables, possibly as a precise definition of a custom +previously more uncertain.</p> + +<p class='c001'>This was the old Roman system, and a very singular +system it was, because it placed side by side the extreme +of marital control as the normal state of things and the +complete absence of that control as a possible state of +things. Doubtless the marriages with Hand were in +early days practically universal, resting upon a sentiment +and a social usage so strong that women themselves did +not desire the free marriage, which would put them in +an exceptional position, outside the legal family of the +husband. Nor can we doubt that the wide power +which the law gave to the husband was in point of fact +restrained within narrow limits, not only by affection, +but also by the vigilant public opinion of a comparatively +small community.</p> + +<h3 class='c011'>IV. <span class='sc'>Change from the Earlier to the Later<br>System at Rome.</span></h3> + +<p class='c012'>Before the close of the republican period the rite of +<span lang="la"><i>confarreatio</i></span> practically died out, or was referred to as +an old-world curiosity, much as a modern English +lawyer might refer to the power of excommunication +<span class='pageno' id='Page_390'>390</span>possessed by ecclesiastical authorities. The patrician +houses had become comparatively few, and the daughters +of those that remained evidently did not wish to come +under the Hand power<a id='r166'></a><a href='#f166' class='c013'><sup>[166]</sup></a>. The form of <span lang="la"><i>coemptio</i></span>, which +all citizens might use, lasted longer, and seems to have +been not infrequently applied in Cicero’s time. Two +centuries later it also was vanishing, and Gaius tells us +that the rule under which uninterrupted residence +created the husband’s power of Hand, and might +be stopped by the wife’s three nights’ absence, had +completely disappeared (Gai <cite>Inst.</cite> i. 111). So we may +say broadly that from the time of Julius Caesar onwards +the marriage without Hand had become the rule, while +from the time of Hadrian onwards the legal acts that +had usually accompanied marriage, which placed the +wife under the husband’s control, were almost obsolete.</p> + +<p class='c001'>This was a remarkable change. The Roman wife in +the time of the Punic Wars had, with rare exceptions, +been absolutely subject to her husband. She passed out +of her original family, losing her rights of inheritance in +it. Her husband acquired all her property. He could +control her actions. He sat as judge over her, if she +was accused of any offence, although custom required +that a sort of council of his and her relatives should be +summoned to advise him and to see fair play. He could +put her to death if found guilty. He could (apparently) +sell her into a condition practically equivalent to slavery, +<span class='pageno' id='Page_391'>391</span>and could surrender her to a plaintiff who sued him in +respect of any civil wrong she had committed, thereby +ridding himself of liability. One can hardly imagine +a more absolute subjection to one person of another +person who was nevertheless not only free but respected +and influential, as we know that the wife in old Rome +was. It would be difficult to understand how such +a system worked did we not know that manners and +public opinion restrain the exercise of legal rights.</p> + +<p class='c001'>Such was the old practice. Under the new one, +universal in the time of Domitian and Trajan, which is +also the time of Tacitus, Juvenal and Martial, the Roman +wife was absolutely independent of her husband, just +as if she had remained unmarried. He had little or +no legal power of constraint over her actions. Her +property, that which came to her by gift or bequest +as well as that which she earned, remained her own +to all intents and for all purposes. She did not enter +her husband’s family, and acquired only a very limited +right of intestate succession to his property.</p> + +<p class='c001'>This striking contrast may be explained by the fact +that the disabilities which attached to the wife under +the old system were not in legal strictness the consequence +of marriage itself, but of legal acts which +an almost universal sentiment and custom had attached +to marriage, though in themselves acts distinct from +it. A perfectly valid marriage could exist without these +legal acts, and so far back as our authorities carry us, +we find that a few, though probably originally only +a very few, marriages did take place without them. +Accordingly when sentiment changed, and custom no +longer prescribed the use of confarreation or coemption, +<span class='pageno' id='Page_392'>392</span>the power of Hand vanished of itself and vanished +utterly. Had it been an essential part of the marriage +ceremony, it would doubtless have been by degrees +weakened in force and accommodated to the ideas of +a new society. But no legislation was needed to +emancipate the wife. The mere omission to apply one +or other of the old concomitants gave the marriage +relation all the freedom the parties could desire and +perhaps more than was expedient for them.</p> + +<p class='c001'>We may now dismiss these ancient forms and +address ourselves to the position of the wife under +the normal marriage of later times—the so-called ‘free +marriage,’ since this is the form in which the Roman +institution descended to and has affected modern law<a id='r167'></a><a href='#f167' class='c013'><sup>[167]</sup></a>.</p> + +<h3 class='c011'>V. <span class='sc'>Later Marriage Law: Personal Relation<br>of the Consorts.</span></h3> + +<p class='c012'>The following points deserve to be noted as characterizing +the Roman view.</p> + +<p class='c001'>The act whereby marriage was contracted was a +purely private act. No intervention of any State +official, no registration or other public record of any +sort was required. The two parties, and the two +parties only, were deemed to be concerned<a id='r168'></a><a href='#f168' class='c013'><sup>[168]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_393'>393</span>The act was a purely civil act, to which no religious +or ecclesiastical rite was essential either in heathen or +in Christian times. There were indeed what may be +called decorative ceremonies, some of which we find +mentioned in poems like the famous Epithalamium of +Catullus, but they had no more to do with the legal +nature and effect of the matter than has the throwing +of old shoes or rice at a modern English wedding.</p> + +<p class='c001'>The act required no prescribed form. It consisted +solely in the reciprocally expressed consent of the +parties, which might be given in any words, or be +subsequently presumed from facts. ‘Marriage is contracted +by consent only’ (<span lang="la"><i>nuptiae solo consensu contrahuntur</i></span>) +is the invariable Roman maxim. Even the +conducting of the bride to the bridegroom’s house, +which has sometimes been represented as necessary<a id='r169'></a><a href='#f169' class='c013'><sup>[169]</sup></a>, +seems to have been regarded rather as evidence +needed in certain cases than as essential to the validity +of the act<a id='r170'></a><a href='#f170' class='c013'><sup>[170]</sup></a>. A generally prevalent usage made a +formal betrothal (<span lang="la"><i>sponsalia</i></span>) precede the actual wedding. +But the betrothal promise created no legal right. No +action lay upon it, such as that which English and +<span class='pageno' id='Page_394'>394</span>Anglo-American law unfortunately allows to be brought +for breach of promise of marriage. In early times +formal and binding stipulations seem to have been +often made on each side between the bridegroom and +the father (or other male relative) of the bride for the +giving and receiving of the bride; and if the promise +were broken without sufficient cause, an action lay +against the party in fault for the worth of the marriage<a id='r171'></a><a href='#f171' class='c013'><sup>[171]</sup></a>. +This, however, disappeared. Under the influence of a +more refined sentiment, not only could no promise of +marriage be enforced, but if the parties made a contract +whereby each bound him or herself to the other in a +penal sum to become payable in case of breach, such +a provision was held to be disgraceful (<span lang="la"><i>pactum turpe</i></span>) +as well as invalid. This was the law of later republican +and imperial times. Betrothal had, however, some +legal effects. It entitled either of the betrothed parties +to bring an action for an injury (of an insulting nature) +offered to the other. It rendered any one infamous +who being betrothed to one person contracted betrothal +to another. It entitled either party, if the espousal was +broken off before marriage, to reclaim whatever gifts +he or she might have bestowed upon the other.</p> + +<p class='c001'>As regards personal status, the wife acquired that of +her husband (unless either had been formerly a slave), +and his domicil became hers. In the old days of Hand +power she had taken the name of his <span lang="la"><i>gens</i></span>, but now +she retained her own, besides her personal ‘first name’ +(<span lang="la"><i>praenomen</i></span>) (<i>e.g.</i> Tertia)<a id='r172'></a><a href='#f172' class='c013'><sup>[172]</sup></a>. Each spouse being interested +<span class='pageno' id='Page_395'>395</span>in the character and reputation of the other, he could +sue for damages if any insult was offered to her, +she for insult to him. He is bound to support her in +a manner suitable to their rank, whatever her private +means may be. Though each can bring an action +against the other, the action must not be one which +affects personal credit and honour (<span lang="la"><i>actio infamans</i></span>), and +hence, though each has his and her own property, neither +can proceed against the other by a civil action of theft, +even if the property seized was seized in contemplation +of a divorce<a id='r173'></a><a href='#f173' class='c013'><sup>[173]</sup></a>. It need hardly be added that if the wife’s +father, or grandfather, were living, she would remain, +unless she had been emancipated, subject to the paternal +power, being for all legal purposes a member of her +original family and not of her husband’s. But the +person in whose power she is cannot (at least in imperial +days) take her away from her husband. Antoninus +Pius forbade a happy marriage to be disturbed by a +father; and in the third century (perhaps earlier) the +husband could proceed by way of interdict to compel +a father to restore his wife to him<a id='r174'></a><a href='#f174' class='c013'><sup>[174]</sup></a>.</p> + +<h3 class='c011'>VI. <span class='sc'>Later Law. Pecuniary Relations of the Consorts.</span></h3> + +<p class='c012'>This curiously detached position of the two consorts +expressed itself in their pecuniary relations. Each had +complete disposal of his or her property by will +<span class='pageno' id='Page_396'>396</span>as well as during life, though the wife needed, +down to a comparatively late time, the authority of +her guardian<a id='r175'></a><a href='#f175' class='c013'><sup>[175]</sup></a>. Neither had originally any right of +succession to the other in case of intestacy, nor had +the wife any right of intestate succession to her children +nor they to her, except that which the Praetor +gave them among the blood relatives (<span lang="la"><i>cognati</i></span>) generally, +after the agnates (persons related through males). A +state of things so inconsistent with natural feeling could +not however always continue, so the Praetor created a +rule of practice whereby each consort had a reciprocal +right of succession to the other. But even in doing +so, he placed this succession after that of other blood +relations, as far as the children of second cousins. This +postponement of a consort to blood relatives was +carried even further by Justinian’s legislation, for that +emperor extended the category of relatives who could +succeed in case of intestacy, and made no provision for +the wife (beyond that which the Praetor had made), +except to some small degree in case of a necessitous +widow. The relationship of mother and child received +a somewhat fuller recognition, for laws (<span lang="la"><i>Senatus Consultum +Tertullianum</i></span>, <span lang="la"><i>Sc. Orphitianum</i></span>) of the time of +Hadrian and Marcus Aurelius gave the mother and +the children reciprocal rights of inheritance<a id='r176'></a><a href='#f176' class='c013'><sup>[176]</sup></a>, which, +finding a place in the general scheme of succession +based on consanguinity which Justinian established, +have passed into modern law.</p> + +<p class='c001'><span class='pageno' id='Page_397'>397</span>Distinct as were the personalities of the two consorts +in respect of property, the practical needs of a joint +life recommended some plan under which a provision +might be made for the expenses of a joint household. +This sprang up as soon as marriages without the +concomitant creation of the Hand power had grown +common. It became usual for the wife to bring with +her land or goods, either her own, if she were independent, +or bestowed by her father or other relative. +This property, which was destined for the support of +the married pair and their children, was called the <span lang="la"><i>Dos</i></span>, +a term which, since it denotes the wife’s contribution to +the matrimonial fund, must not be translated by our +English word Dower, for that term describes the right +of a wife who survives her husband to have a share in +his landed estate. Many rules sprang up regarding +the <span lang="la"><i>Dos</i></span>, rules probably due in the first instance to +custom, for as the instruments of marriage contracts +were usually drawn on pretty uniform lines, these lines +ultimately became settled law<a id='r177'></a><a href='#f177' class='c013'><sup>[177]</sup></a>. The general principle +came to be that property given from the wife’s side, +whether by her father, or by herself, or by some of +her relatives, became subject to the husband’s right +of user while the marriage lasted, as enabling him to +fulfil his obligation to support wife and children, but at +the expiry of the marriage by the death (natural or +civil) of either party, or by divorce, reverted to the wife +or her heirs<a id='r178'></a><a href='#f178' class='c013'><sup>[178]</sup></a>. If, however, the property had been +bn 414.png +<span class='pageno' id='Page_398'>398</span>given by the wife’s father, he might, if still living, reclaim +it<a id='r179'></a><a href='#f179' class='c013'><sup>[179]</sup></a>. The <span lang="la"><i>Dos</i></span> is said by the Romans to be given +for the purpose of supporting the burden of married +housekeeping, and therefore the administration and usufruct +of it pertain to the husband, while the ultimate +ownership remains in the wife, or in the father who constituted +it, as the case may be. In the later imperial +period a sort of second form of matrimonial property was +introduced, called the gift for the sake of marriage (<span lang="la"><i>donatio +propter nuptias</i></span>). It was made by the husband, and remained +his property both during and after the marriage. +So far, as it was only theoretically separated from other +parts of the husband’s estate, it might seem to have no +importance. But if he became insolvent, it did not, +like the rest of his property, pass to his creditors, but +went over to the wife, just as the <span lang="la"><i>Dos</i></span>, although administered +by the husband, remained unaffected by his +insolvency. And just as the husband was entitled, +where a divorce was caused by the wife’s fault, to +retain a part of the <span lang="la"><i>Dos</i></span>, so if a divorce was caused by +the husband’s fault, the <span lang="la"><i>donatio propter nuptias</i></span>, or a +part of it, might be claimed by the injured wife. The +similarity of some of these arrangements to the practice +of English marriage settlements will occur to every +one’s mind, though in England settlements are always +created and governed by the provisions of the deeds +which create them, whereas in Rome, although special +provisions were frequently resorted to, there arose a +<span class='pageno' id='Page_399'>399</span>general legal doctrine whose provisions were applicable +to gifts made upon or in contemplation of marriage.</p> + +<p class='c001'>One further point needs to be mentioned. It was +a very old customary (or, as we should say, common +law) rule of Roman law that neither of the wedded +pair could during the marriage bestow gifts upon the +other, the reason assigned being the risk that one or +other might by the exercise of the influence arising +from their relation be deprived of his or her property +to his or her permanent damage (<span lang="la"><i>ne mutuato amore +invicem spoliarentur</i></span>). This principle, which protects +the wife from being either wheedled or bullied out +of her separate property, and may be compared with +the English restraint on alienation or anticipation +applied to a wife’s settled property, was also held to +be occasionally needed to protect the husband’s interests, +and those of the children, from suffering at the +hands of a grasping wife. It issues from the view which +the Roman jurists enounce that affection must not be +abused so as to obtain pecuniary gain; and one jurist +adds that if either party were permitted to make gifts +the omission to make them might lead to the dissolution +of the marriage, and so the continuance of marriages +would be purchasable<a id='r180'></a><a href='#f180' class='c013'><sup>[180]</sup></a>. Such gifts were accordingly +held null and void, the only exception being that where +property actually given had been left in the donee’s +hands until the donor’s death, the heir of the donor +could not reclaim it from the surviving donee. Needless +<span class='pageno' id='Page_400'>400</span>to say that the rule only covered serious transfers +of property, and did not apply to gifts of dress or +ornaments or such other tokens of affection as may +from time to time pass between happy consorts.</p> + +<h3 class='c011'>VII. <span class='sc'>General Character of the Roman Conception of Marriage.</span></h3> + +<p class='c010'>Reviewing the rules which regulated marriage without +the Hand Power, the sole marriage of the classical +times of Roman law, we are struck by three things.</p> + +<p class='c001'>The conception of the marriage relation is an +altogether high and worthy one. A great jurist defines +it as a partnership in the whole of life, a sharing of +rights both sacred and secular<a id='r181'></a><a href='#f181' class='c013'><sup>[181]</sup></a>. The wife is the +husband’s equal<a id='r182'></a><a href='#f182' class='c013'><sup>[182]</sup></a>. She has full control of her daily +life and her property. She is not shut up, like the +Greek wife, especially among the Ionians, in a sort +of Oriental seclusion, but moves freely about the city, +not only mistress of her home, but also claiming and +receiving public respect, though so far placed on a +different footing from men, and judged by a standard +more rigid than ours, that it was deemed unbecoming +for her to dance and shocking for her to drink wine.</p> + +<p class='c001'>The marriage relation is deemed to be wholly a +matter of private concern with which neither the State +nor (in Christian times) the Church has to concern +itself. This was so far modified under the Emperors, +that the State, from the time of Augustus, began to +<span class='pageno' id='Page_401'>401</span>try to discourage celibacy and childlessness in the +interests of the maintenance of an upper class Roman +population, as opposed to one recruited from freed men +and strangers. But these efforts were not, as we shall +see, incompatible with adherence to the general principle +that the formation and dissolution of the tie +required no State intervention, nor even any form +prescribed by State authority.</p> + +<p class='c001'>The marriage relation rests entirely on the free will +of the two parties<a id='r183'></a><a href='#f183' class='c013'><sup>[183]</sup></a>. If either having promised to enter +it refuses to do so, no liability is <a id='corr401.12'></a><span class='htmlonly'><ins class='correction' title='incurred'>incurred.</ins></span><span class='epubonly'><a href='#c_401.12'><ins class='correction' title='incurred'>incurred.</ins></a></span> If either +desires to quit it, he or she can do so. Within it, each +retains his or her absolute freedom of action, absolute +disposal of his or her property.</p> + +<p class='c001'>Compulsion in any form or guise is utterly opposed +to a connexion which springs from free choice and +is sustained by affection only.</p> + +<p class='c001'>These principles have a special interest as being +the latest word of ancient civilization before Christianity +began to influence legislation. They have in them +much that is elevated, much that is attractive. They +embody the doctrines which, after an interval of many +centuries, have again begun to be preached with the +fervour of conviction to the modern world, especially +in England and the United States, by many zealous +friends of progress, and especially by those who +think that the greatest step towards progress is to be +found in what is called the emancipation of woman.</p> + +<div> + <span class='pageno' id='Page_402'>402</span> + <h3 class='c011'>VIII. <span class='sc'>Divorce in Roman Law.</span></h3> +</div> + +<p class='c012'>Let us now see how the Roman principles aforesaid +worked out in practice as regards domestic morality +and the structure of society, that structure depending +for its health and its strength upon the purity of home +life at least as much as it does upon any other factor.</p> + +<p class='c001'>The last of the above-stated three principles is the +derivation of all the attributes of the marriage relation +from the uncontrolled free will of the parties. This +principle is applied to the continuance of the relation +itself. With us moderns the tie is a permanent tie, +which, though freely formed, cannot be freely dissolved, +whether by one of the parties or by both. Very +different was the Roman view. To them it is even +less binding than an ordinary business contract. Take +for instance a bargain made between <i>A</i> and <i>B</i> for the +sale and purchase of a house. Such a bargain creates +what the Romans call an obligation, a bond of law (<span lang="la"><i>vinculum +iuris</i></span>) which enables either of the contracting +parties to require the other to fulfil his promise, or to +pay damages in case of default. In Roman law the act +of entering into marriage creates no such bond. The +business contract can be rescinded only by the consent +of both the parties to it. The marriage relation can be +terminated by the will of one only. Each party in +forming it promised only that he, or she, would remain +united to the other so long as he, or she, desired so +to remain united. This is the logical consequence of +the principle that marriages should be free; this was +how the Romans understood that principle.</p> + +<p class='c001'>Accordingly divorce can be effected by either party +<span class='pageno' id='Page_403'>403</span>at his or her pleasure, the doctrine of equality between +the sexes being impartially applied, so that the wife may +just as freely and easily divorce her husband as the +husband may divorce his wife.</p> + +<p class='c001'>The early history of the matter is somewhat obscure, +and need not detain us. It would seem probable that +in the old days when marriage was accompanied by the +Hand power, a husband might put away his wife if +she had been convicted before the domestic council of +certain grave offences<a id='r184'></a><a href='#f184' class='c013'><sup>[184]</sup></a>; and we gather that in such +cases she was entitled to demand her emancipation, +<i>i.e.</i> the extinction of the Hand power, by the proper +legal method thereto appointed. Such cases were, +however, extremely rare. When marriage unaccompanied +by Hand power became frequent, we do not at +first hear of any divorces. Our authorities declare that +the first instance of divorce at Rome (they probably +mean the first where no crime was alleged) was furnished +by a certain Spurius Carvilius Ruga, who in <span class='fss'>B.C.</span> 231 +got rid of his wife, although warmly attached to her, on +account of her sterility. Universal displeasure fell +upon him for his conduct: and when L. Antonius +put away his wife without summoning a council of +friends and laying the matter before them, the Censors +removed him from his tribe. But before long +other husbands were found to imitate Spurius Carvilius. +In the second century <span class='fss'>B.C.</span> divorce was no +longer rare. In the days of Julius Caesar it had +<span class='pageno' id='Page_404'>404</span>become common, and continued to be so for many +generations. The fragrance of religious sentiment had +ceased to hallow marriage, and in the general decline +of morals and manners it was one of the first institutions +to suffer degradation. Not only Cn. Pompey, +but such austere moralists as Cato the younger and +the philosophic Cicero put away their wives: Cato his +after thirty years of wedded life, Cicero two in rapid +succession.</p> + +<p class='c001'>How far this decline had gone, even before the +days of Cato and Cicero, appears from the singular +speech delivered by Q. Caecilius Metellus, Censor +in <span class='fss'>B.C.</span> 131, in which he recommended a law for compelling +everybody to marry, observing that if it were +possible to have no wives at all, everybody would +gladly escape that annoyance, but since nature had +so ordained that it was not possible to live agreeably +with them, nor to live at all without them, regard must +be had rather to permanent welfare than to transitory +pleasure<a id='r185'></a><a href='#f185' class='c013'><sup>[185]</sup></a>. We are told that both men and women, +especially rich women, were constantly changing their +consorts, on the most frivolous pretexts, or perhaps not +caring to allege any pretext beyond their own caprice. +Nothing more than a declaration of the will of the +divorcing party was needed: and this was usually given +by the husband in the set form of words, ‘keep thy +<span class='pageno' id='Page_405'>405</span>property to thyself’ (<span lang="la"><i>tuas res tibi habeto</i></span>). Little or no +social stigma seems to have attached to the divorcing +partner, even to the wife, for public opinion, in older +days a rigid guardian of hearth and home, had now, +in a rich, luxurious, and corrupt society, a society +which treated amusement as the main business of +life, come to be callously tolerant. There were still +pure and happy marriages, like that of Cn. Julius Agricola +(the conqueror of Britain) and Flavia Domitilla; +nor is it necessary to suppose that conjugal infidelity +was the chief cause why unions were so lightly contracted +and dissolved, for the mere whims of self-indulgent +sybarites account for a great deal<a id='r186'></a><a href='#f186' class='c013'><sup>[186]</sup></a>. Still +the main facts—the prevalence of divorce, the absence +of social penalties, and the general profligacy of the +wealthier classes—admit of no doubt.</p> + +<p class='c001'>The Emperor Augustus, though by no means himself +a pattern of morality, was so much alarmed at a laxity +of manners which threatened the well-being of the +community, as to try to restrict divorces by requiring +the party desiring to separate to declare his or her +intent in the presence of seven witnesses, being all full +Roman citizens. This rule, enacted by the <span lang="la"><i>lex Iulia de +adulteriis</i></span>, and continued down till Justinian’s time, does +not seem to have reduced the frequency of divorces, +though it would tend to render the fact more certain in +each case by providing indubitable evidence. Martial +and Juvenal present a highly coloured yet perhaps not +greatly exaggerated picture of the license of their time; +and Seneca truly observes that when vice has become +<span class='pageno' id='Page_406'>406</span>embodied in manners, remedies avail nothing (<span lang="la"><i>Desinit +esse remedio locus ubi quae fuerant vitia mores sunt</i></span>).</p> + +<h3 class='c011'>IX. <span class='sc'>Influence of Christianity on the Roman Divorce Law.</span></h3> + +<p class='c012'>But a force had come into existence which was to +prove itself far more powerful than the legislation of +Augustus and his successors. The last thing that +these monarchs looked for was a reformation emanating +from a sect which they were persecuting, and from +doctrines which their philosophers regarded with contempt. +Christianity from the first recognized the +sanctity of marriage, and when it became dominant +(though for a long time by no means omnipotent) in +the empire a new era began. The heathen emperors +might probably have been glad to check the power of +capriciously terminating a marriage, but public opinion, +which clung to the principle of freedom, would have +been too strong for them. All they did was to impose +pecuniary penalties on the culpable party by entitling +the husband to retain one-sixth of the <span lang="la"><i>Dos</i></span> in case of +the wife’s infidelity, one-eighth if her faults had been +slighter, to which, if there were children, one-sixth was +added in respect of each child, but so as not to exceed +one-half in all. (The custody of the children belonged +to the father in respect of his paternal power.) If the +husband was the guilty party, he was obliged to restore +the <span lang="la"><i>Dos</i></span> at once, instead of being allowed a year’s grace.</p> + +<p class='c001'>Constantine and his successors had a somewhat +easier task, because the Church had during several +generations given to marriage a religious character, +surrounded its celebration with many rites, and pronounced +<span class='pageno' id='Page_407'>407</span>her benediction upon those who entered into +it. A new sentiment which looked on it as a union +permanent because hallowed was growing up, and +must have to some extent affected even heathen +society, which remained for a century after Constantine +both large and influential. Nevertheless, even the +Christian emperors did not venture to forbid divorce. +They heightened the pecuniary penalties on the party +to blame for a separation by providing that where the +misconduct of the wife gave the husband good grounds +for divorcing her, she should lose the whole of the <span lang="la"><i>Dos</i></span>, +and where it was the husband’s transgressions that +justified the wife in leaving him, he should forfeit to +her the property he had settled, the <span lang="la"><i>donatio propter +nuptias</i></span>. In both these cases the ultimate ownership +of these two pieces of marriage property was reserved +to the children, if any, the husband or wife, as the case +might be, taking the usufruct or life interest. If there +was no <span lang="la"><i>Dos</i></span> or <span lang="la"><i>Donatio</i></span>, then the culpable party forfeited +to the innocent one a fourth part of his or her +private property. The definition of misconduct included +a frivolous divorce, so that capricious dissolutions were +in this way discouraged.</p> + +<p class='c001'>If there were no fault on either side, but one or +other partner desired to put an end to the marriage for +the sake of entering a convent, or because the husband +had been for five years in foreign captivity<a id='r187'></a><a href='#f187' class='c013'><sup>[187]</sup></a>, or because +there had never been any prospect of offspring, such +a divorce was allowed, and carried no pecuniary penalty +with it. It was called <span lang="la"><i>divortium bona gratia</i></span>.</p> + +<p class='c001'><span class='pageno' id='Page_408'>408</span>Finally, if both the parties agreed of their own +free wills to separate—the <span lang="la"><i>divortium communi consensu</i></span>—they +might do so without assigning any cause +or incurring any liability. This rule, which prevailed +from first to last, and is recognized even in the +Digest and Code of Justinian, was only once broken +in upon. In an ordinance issued by Justinian in his +later years (<span lang="la"><cite>Novella Constitutio</cite></span> cxxxiv) the pious +austerity of the reformer broke out so vehemently +as to enact that where husband and wife agreed to +divorce one another without sufficient ground, both +should be incapable of remarriage and be immured for +life in a convent, two-thirds of their property going to +their children. Even then, however, the emperor did +not venture to pronounce the divorce legally invalid. +The will of the parties prevails, and they die unmarried, +though they die in prison. This violation of the established +doctrine was, however, too gross to stand. It +excited general displeasure, and was repealed by +Justin the Second, the nephew and successor of Justinian. +So the divorce by consent lasted for some +centuries longer, till in an age which had forgotten the +ancient Roman ideas and was pervaded by the conception +of the marriage relation which religion had instilled, +the Emperor Leo the Philosopher declared this form +of separation to be invalid.</p> + +<p class='c001'>Through the whole of this legislation on the subject +of divorce, which is far more minute and intricate than +the briefness of the outline here presented can convey, +it is to be noted that the Romans held fast to two +principles. One was the wholly private, the other the +wholly secular, character of wedlock. There is no +<span class='pageno' id='Page_409'>409</span>legal method prescribed for entering into a marriage, +nor any public record kept of marriages. There is +no suit for divorce, no public registration of divorce. +The State is not invoked in any way. Neither +is the Church. Powerful as she had grown before +Justinian’s time, even that sovereign does not think of +requiring her sanction to the extinction of the marriage +which in most cases she had blessed. Either party +has an absolute right to shake off the bond which has +become a fetter. He or she may suffer pecuniarily by +doing so, but the act itself is valid, valid against an +innocent no less than against a guilty partner, and +valid to the extent of permitting remarriage, except +(as observed in the last paragraph) for a few years at +the end of Justinian’s reign.</p> + +<p class='c001'>Religion had consecrated the patrician marriage with +the sacred cake in early days, and there had been +a public character in the so-called plebeian marriage +with the scales and five witnesses. But the marriage +of the Christian Empire was (so far as law went) absolutely +secular and absolutely private.</p> + +<h3 class='c011'>X. <span class='sc'>Some other Features of Roman Marriage Law.</span></h3> + +<p class='c012'>Before leaving this part of the subject, a few minor +curiosities of the Roman marriage law deserve to be +mentioned. From the time of Augustus there were in +force, during some centuries, various provisions<a id='r188'></a><a href='#f188' class='c013'><sup>[188]</sup></a> designed +to promote marriage and the bearing of children +by attaching certain burdens or disabilities to the unmarried +<span class='pageno' id='Page_410'>410</span>and childless. Most of these, being opposed +to the new sentiment which Christianity fostered, were +swept away by the Emperor Constantine and his +successors. Others fell into desuetude, so that before +Justinian’s time few and slight traces were left of +statutes that had exerted a great influence in earlier +days, though it may be doubted whether they did +much to promote morality. The tendency of Christian +teaching rather was in favour of celibacy, when adhered +to from ascetic motives; and the passion for a monastic +life which marked the end of the fourth century told +powerfully in this direction, especially in the eastern +half of the empire.</p> + +<p class='c001'>Similar sentiments worked to discourage second +marriages, which earlier legislation had favoured, though +the widow who remarried within the year of mourning +(originally of ten, ultimately of twelve months) suffered +infamy, by a very ancient custom, as did the person +who wedded her. The marriage was, however, valid. +The Christian emperors punished the consort who +married again by debarring him or her from the +full ownership of any property which came to him or +her through the first marriage (<span lang="la"><i>lucra nuptialia</i></span>), while +leaving him (or her) the usufruct in it. But this applied +only where there were children of the first marriage +living, and was mainly prompted by a desire to protect +their interests against a step-parent. The ancient world +was singularly suspicious of step-mothers.</p> + +<p class='c001'>The rules with regard to prohibited degrees of +matrimony varied widely from age to age. In early +Rome even second cousins were forbidden to intermarry. +There was in those days a usage permitting +<span class='pageno' id='Page_411'>411</span>near relatives, as far as second cousins, to kiss one +another without incurring censure (<span lang="la"><i>ius osculi</i></span>). Plutarch +oddly explains the permission as grounded upon the +right of the male relatives to satisfy themselves in +this way that the ladies of the family had not tasted +wine. But obviously the wholesome habits of a +simple society allowed a familiar intercourse among +kinsfolk just as far, and no farther, as the prohibition +of marriage between them extended<a id='r189'></a><a href='#f189' class='c013'><sup>[189]</sup></a>. Towards the +end of the republican period, however, we find that +even first cousins might marry, probably by custom, +for we hear of no specific enactments. Tacitus (<cite>Ann.</cite> +xii. 6) refers to the practice as well established. This +freedom lasted till the Emperor Theodosius the First, +who forbade their marriage under pain of death by +burning. Though the penalty was subsequently +reduced, marriages of first cousins continued to be +forbidden and punishable in the western half of the +empire, while in the eastern they were made permissible, +and remain so in the system of Justinian. The +marriage of uncle or aunt with niece or nephew had +been prohibited, though apparently by no statute, until +the Emperor Claudius, desiring to marry his brother’s +daughter Agrippina, obtained a decree of the Senate +declaring such a marriage legal<a id='r190'></a><a href='#f190' class='c013'><sup>[190]</sup></a>. So it remained for +a time, though the marriage of an uncle with a sister’s +daughter, or of an aunt with a nephew, was still deemed +incestuous. Christianity brought a change, and the law +<span class='pageno' id='Page_412'>412</span>of Claudius was annulled by the sons of the Emperor +Constantine. It was also by these sovereigns that +marriage with a deceased wife’s sister, or a deceased +husband’s brother, which had previously been lawful, +though apparently regarded with social disapproval, +was expressly forbidden<a id='r191'></a><a href='#f191' class='c013'><sup>[191]</sup></a>. This rule was adopted by +Justinian, in whose <cite>Codex</cite> it finds a place<a id='r192'></a><a href='#f192' class='c013'><sup>[192]</sup></a>.</p> + +<p class='c001'>Besides the full lawful marriage of Roman citizens, +to which alone the previous remarks have referred, there +were two other recognized relations of the sexes under +the Roman law<a id='r193'></a><a href='#f193' class='c013'><sup>[193]</sup></a>. One of these was the marriage of +a citizen, whether male or female, with a non-citizen, +<i>i.e.</i> a person who did not enjoy that part of citizenship +which covered family rights and was called <span lang="la"><i>connubium</i></span>. +This was called a natural marriage (<span lang="la"><i>matrimonium naturale</i></span>, +<span lang="la"><i>matrimonium iuris gentium</i></span>) as existing under +the Law of Nature or Law of the Nations (<span lang="la"><i>ius gentium</i></span>), +as contradistinguished from the peculiar law +of Rome (<span lang="la"><i>ius civile</i></span>)<a id='r194'></a><a href='#f194' class='c013'><sup>[194]</sup></a>. It was a perfectly legal union, +and the children were legitimate: as of course were +the children of two non-citizens who married according +to their own law. When Roman citizenship became +extended to all the subjects of the empire, the importance +of this kind of marriage vanished, for it +could thereafter have been applicable (with some few +<span class='pageno' id='Page_413'>413</span>exceptions) only to persons outside the Empire, and +marriages with such persons, who were <span lang="la"><i>prima facie</i></span> +enemies, were forbidden.</p> + +<p class='c001'>The other relation was that called concubinage (<span lang="la"><i>concubinatus</i></span>). +It was something to which we have no +precise analogue in modern law, for, so far from being +prohibited by the law, it was regulated thereby, being +treated as a lawful connexion. It is almost a sort +of unequal marriage (and is practically so described +by some of the jurists) existing between persons of +different station—the man of superior rank, the woman +of a rank so much inferior that it is not to be presumed +that his union with her was intended to be a marriage. +It leaves the woman in the same station in which it +found her, not raising her, as marriage normally does, +to the husband’s level. The children born in such +a union are not legitimate; but they may require their +father to support them, and are even allowed by Justinian, +in one of his later enactments (<cite>Novella</cite> lxxxix), +a qualified right of intestate succession to him. They +of course follow their mother’s condition, and they have +a right of inheriting her property. Even here the +monogamic principle holds good. A man who is +married cannot have a concubine, nor can any man +have more than one concubine at a time. Though +regarded with less indulgence by the Christian emperors +than it had been by their predecessors, it held its +ground in the Eastern Empire, even under Justinian, +who calls it a ‘permitted connexion’ (<span lang="la"><i>licita consuetudo</i></span>), +and was not abolished till long after his time by the +Emperor Leo the Philosopher in <span class='fss'>A.D.</span> 887. In the +West it became by degrees discredited, yet doubtless +<span class='pageno' id='Page_414'>414</span>had some influence on the practice of the clergy, the +less strict of whom continued to maintain irregular +matrimonial relations for a great while after celibacy +had begun to be enforced by ecclesiastical +authority.</p> + +<p class='c001'>Children born in concubinage may be legitimated by +the subsequent marriage of their parents, according to +a rule first introduced by Constantine, and subsequently +enlarged and made permanent by Justinian (<cite>Cod.</cite> v. 27, +5 and 6; <cite>Nov.</cite> xii. 4; <cite>Nov.</cite> lxxxix. 8); a rule of great +importance, which was long afterwards introduced into +the Canon Law by Pope Alexander III in <span class='fss'>A.D.</span> 1160, +and has held its ground in the modern Roman law of +continental Europe, as it does in the law of Scotland +to this day. The bishops, prompted by the canonists, +tried to introduce it in England, but were defeated by +the opposition of the barons, who at the great council +held at Merton in 20 Henry III (<span class='fss'>A.D.</span> 1235-6) refused +their consent in the famous words, ‘We will not change +the laws of England which hitherto have been used and +approved<a id='r195'></a><a href='#f195' class='c013'><sup>[195]</sup></a>.’ Nevertheless such power of legitimating +the children of a couple born before their legal marriage +seems to have been part of the ancient customs of +England before the Conquest. The children were at +the wedding placed under a cloak which was spread +<span class='pageno' id='Page_415'>415</span>over the parents, and were from this called in Germany, +France, and Normandy, ‘mantle children<a id='r196'></a><a href='#f196' class='c013'><sup>[196]</sup></a>.’</p> + +<p class='c001'>I have already dwelt upon the most striking feature +of the branch of legal history we have been tracing, +the comparatively sudden passage from a system of +extreme strictness—under which the wife’s personality, +with her whole right of property, became absolutely +merged in that of her husband—to a system in which +the two personalities remained quite distinct, united +only by the rights which each had in matrimonial +property, rights which were however not rights of +joint-management, but exerciseable (subject to limitations) +by the husband alone so long as the marriage +lasted, while the reversion was secured to the +wife or her relatives. It is hardly less noteworthy +that these two contrasted systems did for a considerable +time exist side by side; and for a century, or +perhaps more, must both have been in full vigour, +though the freer system was obviously gaining ground +upon the older and more stringent one.</p> + +<p class='c001'>Another fact, though more easily explicable, is also +worth noting. In its earlier stages the Roman marriage +bore a religious character, for we can hardly doubt that +in primitive times Confarreation, the old patrician form +with the sacrifice and the holy cake, was practically +universal among the original citizens, before the <span lang="la"><i>plebs</i></span> +came into a separate and legally recognized existence. +Hence perhaps it is that marriage is described, even +when that description had ceased to have the old +meaning, as a ‘sharing of all rights, both religious and +<span class='pageno' id='Page_416'>416</span>secular.’ In its middle period, which covers some +five centuries, it was a purely civil relation, not affected, +in its legal aspects, by any rules attributable to a theological +or superstitious source. But when Christianity +became the dominant faith of the Empire, the view +which the Gospel and the usages as well as the +teaching of the Church had instilled began thenceforward +to influence legislation. These usages did not +indeed, down till the eighth century, transform the +fundamental conception of marriage as a tie formed +solely by consent, and needing the intervention neither +of State nor of Church. But they worked themselves +into the doctrines of the Church in such wise that, in +later days, they succeeded in making matrimony so far +a sacred relation as to give it an indissoluble character, +and not only restricted the circle of persons between +whom it could lawfully be contracted, but abolished the +power of terminating it by the mere will of the parties.</p> + +<h3 class='c011'>XI. <span class='sc'>Marriage under the Canon Law.</span></h3> + +<p class='c012'>When direct legislation by the State came to an end +in Western Europe with the disappearance of the +effective power of the Emperors in the fifth and sixth +centuries, the control of marriage began to fall into the +hands of the Church and remained there for many +generations. To pass from the civil law of Rome to +the ecclesiastical law of the Dark and Middle Ages +is like quitting an open country, intersected by good +roads, for a tract of mountain and forest where rough +and tortuous paths furnish the only means of transit. +It would be impossible within the limits of this Essay +<span class='pageno' id='Page_417'>417</span>to describe that law, which is copious, and embarrassed +by not a few controverted points. All that it seems +necessary to say here is that the Canon Law, which +was collected and codified in the thirteenth and fourteenth +centuries, so far adhered to the established +Roman doctrine as to recognize, down till the Council +of Trent, the main principle that marriage requires +nothing more than the free consent of the parties, +expressed in any way sufficient to show that the union +which they contemplate is to be a permanent and lawful +union. Marriage no doubt became, in the view of the +mediaeval Church, as of the Roman Church to-day, +a sacrament, but it is a sacrament which the parties +can enter into without the aid of a priest. Their consent +ought, no doubt, in the view of the Church and +of Canon law, to be declared before the priest and to +receive his benediction. It is only marriages ‘in the +face of the Church’ that are deemed ‘regular’ marriages<a id='r197'></a><a href='#f197' class='c013'><sup>[197]</sup></a>, +and the Fourth Lateran Council under Innocent +the Third directed the publication of banns. But the +irregular marriage is nevertheless perfectly valid. It +is indissoluble (subject as hereinafter mentioned), and +the children born in it are legitimate. A good ground +for this indulgence may be found not only in Roman +traditions, but also in the fact that the Church was +anxious to keep people out of sin and to make children +legitimate, so that it always presumed everything it +could in favour of lawful matrimony.</p> + +<p class='c001'>This view prevailed, and may be said to have been +<span class='pageno' id='Page_418'>418</span>the common law of Christendom, as it had been of +the old Roman Empire, down till the Council of +Trent<a id='r198'></a><a href='#f198' class='c013'><sup>[198]</sup></a>. That assembly, against the strong protests +of some of its members, passed a decree (Sessio XXIV, +cap. i, <span lang="la"><cite>De Reformatione Matrimonii</cite></span>) which, after reciting +that clandestine marriages had been held valid, +though blameworthy, declared that for the future all +should be deemed invalid unless they took place in the +presence of a priest and of two or three witnesses. +Apparently it was not so much for the sake of securing +the blessing of the Church upon every marriage as in +order to prevent the scandals which had arisen from +the breach of a tie contracted in secret that the change, +a grave and memorable change, was made. This great +Council, which was intended to secure the union of +Christendom under the See of Rome, really contributed +to intensify the separatist forces then at work: and +from it onwards one can no longer speak of a general +marriage law even for Western Europe. Custom and +legislation took thenceforward different courses, not +only as between Protestant and Roman Catholic nations, +but even as between different Protestant nations, there +being no common ecclesiastical authority which Protestant +States recognized. Thus the era of the Reformation +is an era as marked in the history of marriage law as +was the era of Constantine, when Christianity began to +be dominant in the Roman Empire. And we shall see, +when we return to the subject of divorce, that this is +even more strikingly the case as regards the dissolubility +<span class='pageno' id='Page_419'>419</span>of marriage than as regards the mode of +contracting it.</p> + +<p class='c001'>Before passing on to sketch the legal history of the +institution in England—since it is impossible to find +space here for an account of its treatment in the laws +of other European States—it is well to note what had +been the general tendency of the customary law of the +Middle Ages upon the character of the marriage +relation.</p> + +<p class='c001'>One may sum up that tendency by saying that it had +virtually expunged the free and simple marriage of the +Romans under the later Republic and the Empire, and +had substituted for it a system more closely resembling +that of the religious marriage with Hand power of early +Rome. The ceremony had practically become a religious +one, though till the Council of Trent a religious +service was not absolutely essential to its validity. The +relation had become indissoluble, except by the decree +of the Pope, who in this, as in some other respects, +practically filled the place of the old Roman Pontifex, +though of course both confarreation and the pontiff had +been long forgotten<a id='r199'></a><a href='#f199' class='c013'><sup>[199]</sup></a>. It carried with it an absorption +of the personality of the English wife into that of the +husband, whereby all her property passed to him and +she became subject to his authority and control. These +conditions were the result partly of Teutonic custom, +partly of the rudeness of life and manners; and such +check as was imposed on them came from the traditions +of the Roman law, and from the favour which +<span class='pageno' id='Page_420'>420</span>the Canon law, much to its credit, showed to the +wife. Of this favour some have found a trace in the +phrase that occurs in the ‘Form for the Solemnization +of Matrimony’ in the liturgy of the Church of +England, where the bridegroom is required to say to +the bride, ‘with all my worldly goods I thee endow’; +although, in point of fact, the law of England gives to +the bride only a very limited (and now easily avoidable) +right to one-third of the husband’s real estate after his +death<a id='r200'></a><a href='#f200' class='c013'><sup>[200]</sup></a>.</p> + +<h3 class='c011'>XII. <span class='sc'>The English Law of Marriage.</span></h3> + +<p class='c012'>The influence of the Roman system was, of course, +less in England than in countries where, as in France +and Italy, the Roman law had maintained itself in force, +either as written law or as the basis of customary law. +But now that we come to consider the course which the +English law of marriage has taken, let us note that this +law has flowed in two distinct channels down till our +own time. So much of it as pertained to the marriage +relation itself, that is to say, to the capacity for contracting +marriage (including prohibited degrees), to the mode +of contracting it, and to its dissolution, complete or partial, +belonged to the canon or ecclesiastical law and was +administered in the spiritual courts. So much of it as +affected the property rights of the two parties (and +especially rights to land) belonged to the common law +<span class='pageno' id='Page_421'>421</span>and was administered in the temporal courts. This +division, to which there is nothing parallel in the +classical Roman law, was of course due to the fact +that mediaeval Christianity, regarding marriage as a +sacrament, placed it under the control of the Church +and her tribunals in those aspects which were deemed +to affect the spiritual well-being of the parties to it. +Nevertheless the line of demarcation between the two +sides was not always, and indeed could hardly be, +sharply or consistently drawn. The ecclesiastical courts +had a certain jurisdiction as regards property. The +civil courts were obliged, for the purposes of determining +the right of a woman to dower and the rights of +intestate succession, to decide whether or no a proper +and valid marriage had been contracted. Their regular +course apparently was to send the matter to the bishop’s +court, and act upon the judgement which it pronounced. +But this was not always done. They often had to +settle the question for themselves, applying, no doubt, +as a rule the principles which the bishop’s court would +have followed, and (as has been explained by the latest +and best of our English legal historians<a id='r201'></a><a href='#f201' class='c013'><sup>[201]</sup></a>) they often +evaded the question of whether there had been a canonically +valid marriage by finding that, as a matter of fact, +the parties had been generally taken to have been duly +wedded, and by proceeding to give effect to this finding.</p> + +<p class='c001'>The ecclesiastical lawyers were not successful in +their treatment of such questions as fell within their +sphere. The effort to base legal rules on moral and +religious principles leads naturally to casuistry, and +<span class='pageno' id='Page_422'>422</span>away from that common-sense view of human transactions +and recognition of practical convenience which +ought to be the basis of law. They multiplied canonical +disabilities arising whether from pre-contract, a matter +to which they gave a far greater importance than +had previously belonged to it, or from relationship, +either of consanguinity or of affinity; and they indeed +multiplied these impediments to such an extent as to +make the capacity of any two parties to enter into +matrimony matter of doubt and uncertainty, giving wide +opportunities for chicane, and an almost boundless +scope for the interposition of the Roman Curia, whose +sale of dispensations became a fertile and discreditable +source of revenue. Their treatment of divorce will be +presently examined. In their zeal to keep Christian +people out of sin they recognized many clandestine +unions as valid, though irregular, marriages, while at +the same time applying strict rules of evidence which +practically withdrew much of the liberty that had been +granted by the lax theory of what constituted a marriage. +These tangled subtleties regarding pre-contracts +and prohibited degrees were at the time of the Reformation +swept away by a statute of 1540 (32 Henry VIII, +c. 38), which declared that all marriages should be lawful +which were ‘not prohibited by Goddis lawe,’ and that +‘no reservation or prohibition, Goddis lawe except, +shall trouble or impeche any marriage without the +Levitical degrees.’</p> + +<p class='c001'>Two principles, however, remained unaffected by the +legislation of this period in England. The one was the +indissolubility of marriage, a topic to which I shall +presently return. The other was the freedom of entering +<span class='pageno' id='Page_423'>423</span>into it, consent, and consent alone, being still all that +was necessary to make a marriage valid<a id='r202'></a><a href='#f202' class='c013'><sup>[202]</sup></a>. England, +of course, did not recognize the decrees of Trent, so +the old law continued in force after that Council, +though motives like those which had guided the +Council induced the ecclesiastical courts to lean +strongly in favour of the almost universal practice of +marrying before a clergyman, and to require in all +other cases very strict evidence that a true consent, +directed to the creation of lawful matrimony, had in fact +been given. Moreover, where the marriage had been +irregular, the spiritual courts might compel its celebration +in the face of the Church. So things went on, with +much uncertainty and some confusion between the act +needed to constitute marriage and the evidence of that +act, till the middle of the eighteenth century, when a +statute was passed in <span class='fss'>A.D.</span> 1753 (26 Geo. II, c. 33) which +required all marriages to be celebrated by a clergyman +and in a church (unless by dispensation from the +Archbishop of Canterbury), and prescribed other +formalities<a id='r203'></a><a href='#f203' class='c013'><sup>[203]</sup></a>. These provisions remained in force (except +as to Jews and Quakers) until 1836, when a purely civil +marriage before a Registrar was permitted as an alternative +to the ecclesiastical ceremony<a id='r204'></a><a href='#f204' class='c013'><sup>[204]</sup></a>. During the Commonwealth +<span class='pageno' id='Page_424'>424</span>marriages had been contracted before +justices of the peace, but the Restoration legislation, +while validating the marriages so formed, abolished the +practice. The old law remained in Ireland, and that +was how the question what kind of marriage ceremony +was required by the common law came before the +House of Lords in the famous case of <i>Reg.</i> v. <i>Millis</i>, +which was an Irish appeal, and the decision in which, +declaring that by the common law the presence of +a clergyman was required to make a marriage valid, +seems to have been erroneous.</p> + +<h3 class='c011'>XIII. <span class='sc'>Property Relations of the Consorts under English Law.</span></h3> + +<p class='c012'>Now let us turn to the effect of marriage in the law +of England upon the property and the personal rights +of the wife.</p> + +<p class='c001'>That effect has generally been described as making +the two consorts one person in the law. Such they +certainly were for some purposes under the older +Common Law of England. The husband has the sole +management of all the property which the wife had +when married, or which she subsequently received or +earned by her exertions. In acquiring all her property +he becomes also liable for the debts which she owed +before marriage, but after marriage he has not to +answer for any contract of hers, because her agreements +do not bind him except for necessaries. He is, +moreover, liable for wrongs done by her. He cannot +grant anything to her, or covenant with her; and if +there was any contract between him and her before +<span class='pageno' id='Page_425'>425</span>marriage, it disappears by her absorption into his +personality. She can bring no action without joining +him as plaintiff, nor can she be sued without joining +him as defendant. She cannot give evidence for or +against him (save where the offence is against herself); +and if she commit a crime (other than treason or +murder) along with him, she goes unpunished (though +for crimes committed apart from him she may be prosecuted), +on the hypothesis that she did it under his +compulsion. So in a case, in the thirteenth century, +where husband and wife had produced a forged charter, +the husband was hanged and the wife went free, +‘because she was under the rod of her husband’ (<span lang="la"><i>quia +fuit sub virga viri sui</i></span><a id='r205'></a><a href='#f205' class='c013'><sup>[205]</sup></a>).</p> + +<p class='c001'>But this theory of unity is not so consistently +maintained as was the similar theory of the Romans +regarding the marriage with Hand power. For the +wife’s consent to legal acts may be effectively given +where she has been separately examined by the +Court to ascertain that her consent is free; and +even the fact that she must be joined in legal proceedings +taken by or against her shows that she has a +personality of her own, whereas under the Roman +<span lang="la"><i>manus</i></span> she was wholly sunk in that of her husband. +Thus it is better not to attempt to explain the wife’s +position as the result of any one principle, but rather +to regard it as a compromise between the three notions +of absorption, of a sort of guardianship, and of a kind +of partnership of property in which the husband’s +voice normally prevails.</p> + +<p class='c001'>As respects her personal safety, she was better +<span class='pageno' id='Page_426'>426</span>off than the Roman wife of early days, for the +husband could punish the latter apparently even with +death, after holding the domestic council, whereas the +English husband could do no more than administer +chastisement, and that only to a moderate extent. +The marital right of chastisement seems to have been +an incident to marriage in many rude societies. A +traveller among the native tribes of Siberia relates that +he found a leather whip usually hung to the head of the +conjugal bed, almost as a sort of sacred symbol of matrimony; +and he was told that the wife complained if her +husband did not from time to time use the implement, +regarding his neglect to do so as a sign of declining +affection. And it would seem that this notion remains +among the peasantry of European Russia to this day<a id='r206'></a><a href='#f206' class='c013'><sup>[206]</sup></a>.</p> + +<p class='c001'>Everybody has heard of the odd habit of selling a +wife which still occasionally recurs among the humbler +classes in England; and most people suppose that it +descends from a time when the Teutonic husband could +sell his consort, as the Roman one apparently could in +the days of Hand power. There is, however, no trace +at all in our law of any such right<a id='r207'></a><a href='#f207' class='c013'><sup>[207]</sup></a>, though a case is +reported to have arisen in <span class='fss'>A.D.</span> 1302, when a husband +granted his wife by deed to another man, with whom +she thereafter lived in adultery<a id='r208'></a><a href='#f208' class='c013'><sup>[208]</sup></a>.</p> + +<p class='c001'>The compensation given to the English wife for the +loss (or suspension during the marriage) of her control +<span class='pageno' id='Page_427'>427</span>over her property is to be found in her right of Dower, +that is, of taking on her husband’s death one-third of such +lands as he was seised of, not merely at his death, but +at any time during the marriage, and which any issue +of the marriage might have inherited. As this right +interfered with the husband’s power of freely disposing +of his own land, the lawyers set about to find means +of evading it, and found these partly in legal processes +by which the wife, her consent being ascertained by +the courts, parted with her right, partly by an ingenious +device whereby lands could be conveyed to a husband +without the right of dower attaching to them, partly +by giving the wife a so-called jointure which barred her +claim. The wife has also a right, which of course the +husband can by will exclude, of succeeding in case of +intestacy to one-third of his personal property, or, if +he leave no issue, to one-half.</p> + +<p class='c001'>This state of things hardly justifies the sleek +optimism of Blackstone, who closes his account of the +wife’s position by observing, ‘even the disabilities which +the wife lies under are, for the most part, intended for +her protection and benefit. So great a favourite is the +female sex of the laws of England.’ The Romans, +although they allowed to women a fuller independence, +were more candid when they said: ‘In many points +of our law the condition of the female sex is worse +than that of the male.’</p> + +<h3 class='c011'>XIV. <span class='sc'>Gradual Amendment of the English Matrimonial Law.</span></h3> + +<p class='c012'>However, the Courts of Equity ultimately set themselves +in England to improve the wife’s condition. +<span class='pageno' id='Page_428'>428</span>They recognized some contracts and grants between +husband and wife. They allowed property to be given +to trustees for the sole and separate use of a wife; and +if it was given to her with an obvious intent that it +should be for her exclusive benefit, they held the +husband, in whom by operation of the general law it +would vest, to be a trustee for the wife. When during +marriage there came to a wife by will or descent any +property of which the husband could obtain possession +only by the help of a Court of Equity, they required +him to settle a reasonable part of it upon the wife for +her separate use. And in respect of her separate property, +they furthermore permitted the wife to sue her +husband, or to be sued by him. While these changes +were in progress, there had grown up among the +wealthier classes the habit of making settlements on +marriage which secured to the wife, through the instrumentality +of trustees, separate property for her sole +use, and wherever a woman was a ward of Court, the +Court insisted, in giving its consent to the marriage, +that such a settlement should be made for her benefit.</p> + +<p class='c001'>By these steps a change had been effected in the +legal position of women as regards property similar to, +though far more gradual, and in its results falling far +short of, the change made at Rome when the marriage +without Hand power became general. But in England +a recourse to the Courts has always been the luxury +of the rich; and as the middle and poorer classes were +not wont to go to the Courts, or to make settlements, +it was only among the richer classes that the wife’s +separate estate can be said to have existed. At last, +however, the gross injustice of allowing a selfish or +<span class='pageno' id='Page_429'>429</span>wasteful husband to seize his wife’s earnings and +neglect her was so far felt that several Acts were +passed (the first in 1857), under which a woman deserted +by her husband may obtain from a magistrate a judicial +order, protecting from him any property she may acquire +after desertion. By this time an agitation had begun to +secure wider rights for married women. It had great +difficulties to overcome in the conservative sentiment of +lawyers, and of those who are led by lawyers, and more +especially of members of the House of Lords. Not till +1870 did the British Parliament take the step which the +Romans had taken long before the Christian era, and +which many American States had taken in the first half +of the nineteenth century. A statute of that <a id='corr439.14'></a><span class='htmlonly'><ins class='correction' title='‘year,amended’'>year, amended</ins></span><span class='epubonly'><a href='#c_439.14'><ins class='correction' title='‘year,amended’'>year, amended</ins></a></span> +and extended by others of 1874 and 1882, swept away +the old rule which carried all the wife’s property over +to the husband by the mere fact of marriage; so that +now whatever a woman possesses at her marriage, or +receives after it, or earns for herself, remains her own +as if she were unmarried, while of course the husband +no longer becomes liable by marriage to her ante-nuptial +debts. By these slow degrees has the English +wife risen at last to the level of the Roman. The +practice of making settlements on marriage still remains, +especially where the wife’s property is large, or where +there is any reason to distrust the bridegroom; for +though the interposition of trustees is no longer needed +to keep the property from falling by operation of law +into the husband’s grasp, he may still press or persuade +her to part with it, since she now enjoys full disposing +power, and if she does part with it, she and the children +may suffer. Thus custom sustains in England, +<span class='pageno' id='Page_430'>430</span>and perhaps will long sustain, a system resembling +that of the Roman <span lang="la"><i>Dos</i></span>. Yet the number of persons possessing +some property who marry without a settlement +increases, as does the number of women whose strength +of will and knowledge of business enables them to hold +their own against marital coaxing or coercion.</p> + +<p class='c001'>It need hardly be said that the personal liberty of the +wife was established long before her right to separate +property. Says Blackstone (writing in 1763):—</p> + +<div class='quote'> + +<p class='c001'>‘The husband by the old law might give his wife +moderate correction. For as he is to answer for her +misbehaviour, the law thought it reasonable to entrust +him with his power of restraining her, by domestic +chastisement, in the same moderation that a man is +allowed to correct his apprentices or children, for whom +the parent is also liable in some cases to answer. But +this power of correction was confined within reasonable +bounds, and the husband was prohibited from using any +violence to his wife <span lang="la"><i>aliter quam ad virum, ex causa +regiminis et castigationis uxoris suae, licite et rationabiliter +pertinet</i></span>. But in the politer reign of Charles the Second +this power of correction began to be doubted, and a wife +may now have security of the peace against her husband, +or, in return, a husband against his wife. Yet +the lower rank of people, who were always fond of the +old common law, still claim and exert their ancient +privilege; and the Courts of Law will still permit a husband +to restrain a wife of her liberty in case of any +gross misbehaviour<a id='r209'></a><a href='#f209' class='c013'><sup>[209]</sup></a>.’</p> + +</div> + +<p class='c001'>This touching attachment to their old common law +still survives among ‘the lower rank of people’ in the +form of wife beating. But among the politer classes +the right to restrain a consort’s liberty (except under +<span class='pageno' id='Page_431'>431</span>very special circumstances) may be deemed to have +become exploded since the case of <i>Reg.</i> v. <i>Jackson</i> +in 1891<a id='r210'></a><a href='#f210' class='c013'><sup>[210]</sup></a>. So that now the English wife, like the +Roman, may quit her husband’s house when she +pleases, and the suit for restitution of conjugal rights, +whereby either could compel the other to live in the +common household, is falling into disuse, if indeed it +can still be described as in any sense effective since the +Act, passed in 1884, which took away the remedy by +attachment.</p> + +<p class='c001'>The interest which belongs to these changes in the +law, changes generally similar in their result in the English +and in the Roman systems, though far more gradually +made in the former than in the latter, is the interest +of observing the methods whereby custom and legislation +have sought to work out different possible theories +of the marriage relation. There are usually said to be +two theories, that of Mastery, and that of Equality. On +the former the husband is lord of the wife’s property as +well as of her person. The law puts her at his mercy, +trusting that affection, public opinion, and a regard for +domestic comfort will restrain the exercise of his rights. +On the other theory, each consort is a law to him- or +herself, each can dispose of his or her property, time, and +local presence without the assent of the other. The law +<span class='pageno' id='Page_432'>432</span>allows this freedom in the hope that affection, respect, +and the opinion of society will prevent its abuse. Yet +these two theories, that with which both Rome and +England began, that with which both Rome and England +have ended, do not exhaust the possibilities of the +relation. For there is a third theory which, more or +less consciously felt to be present, has influenced both +the one and the other, creating a sort of compromise +between them. It is the theory of a partnership in social +life and in property similar to the partnership which +necessarily exists as regards the children of a marriage. +This idea is expressed by the form which the Mastery +theory took when it declared husband and wife to be +‘one person in the law,’ and in the Anglican marriage +service where the wife’s promise to obey<a id='r211'></a><a href='#f211' class='c013'><sup>[211]</sup></a> is met by the +husband’s declaration that he endows her with all his +worldly goods. It also qualifies the theory of Equality +and Independence by the practice of creating a settlement +in England, and a <span lang="la"><i>Dos</i></span> (and <span lang="la"><i>Donatio propter +nuptias</i></span>) at Rome, in which each of the married pair +has an interest.</p> + +<p class='c001'>Any one can see that the Mastery theory, against +which modern sentiment revolts, was more defensible in +a time of violence, when protection for life and property +had to be secured by physical force as well as by +recourse to the law, than it is to-day. Any one can +also see that there are even to-day households for which +the Mastery theory may be well suited, as there also are, +and always have been, even in days of rudeness and in +Musulman countries, other households where the wife +<span class='pageno' id='Page_433'>433</span>was, and rightly was, the real head of the family. Those +moreover who, judging of other times by their own, +think that the position of the wife and of women +generally must have been, under the Mastery theory, +an intolerable one, need to be reminded not only that +the practical working of family life depends very largely +on the respective characters of the persons within the +family, and on the amount of affection they entertain for +one another, but also that it is profoundly modified by +the conception of their relations which rules the minds +of these persons. Law, itself the product and the index +of public opinion, moulds and solidifies that conception, +and the wife of the old stern days of marital tyranny +saw no indignity or hardship in that position of humble +obedience which the independent spirit of our own time +resents.</p> + +<h3 class='c011'>XV. <span class='sc'>Divorce under the Canon Law.</span></h3> + +<p class='c012'>There is one more point in which opposite theories +of marriage have to be contrasted, and in which the +contrast appears most strikingly. This is the point +which touches the permanence of the relation.</p> + +<p class='c001'>We have already seen what were the provisions of +the Roman law upon the subject of Divorce. Those +provisions continued to prevail in Western Europe +after the fall of the Empire, until, apparently in the +eighth, ninth, and tenth centuries, new rules enforced +by the Church superseded them in the regions where +the imperial law had been observed. A similar change +occurred later in other countries such as England and +Germany, where the ancient customs of the barbarian +tribes had allowed the husband, and apparently in some +<span class='pageno' id='Page_434'>434</span>cases the wife also, to dissolve the marriage and depart. +From the twelfth century onwards the ecclesiastical +rules and courts had undoubted control of this branch +of law all over Christian Europe. Now the Church +held marriage to be a sacrament and to be indissoluble. +Divorce, therefore, in the proper sense of the term, +as a complete severance of a duly constituted matrimonial +tie, was held by the Church inadmissible. This +view was based on the teaching of our Lord as given +in the Gospels<a id='r212'></a><a href='#f212' class='c013'><sup>[212]</sup></a>, and was enforced on every bridal pair +in the liturgical form employed at marriage, as indeed +it is in the English liturgy to-day. Nevertheless, the +Church recognized two legal processes which were +popularly, though incorrectly, called divorces.</p> + +<p class='c001'>One of these, called the divorce from the bond of +marriage (<span lang="la"><i>a vinculo matrimonii</i></span>), was in reality a declaration +by ecclesiastical authority—that of the Pope, or a +deputy acting under him—that the marriage had been +null from the beginning on the ground of some canonical +impediment, such as relationship or pre-contract. As +already observed, the rules regarding impediments were +so numerous and so intricate that it was easy, given +a sufficient motive, whether political or pecuniary, to +discover some ground for declaring almost any marriage +invalid. The practice of granting divorces of this class, +which was constantly made a means of obliging the +great ones of the earth and augmenting papal revenues, +may sometimes have been really useful for the purpose +of dissolving the ill-assorted unions of those who could +secure a decree from the ecclesiastical authorities. +<span class='pageno' id='Page_435'>435</span>Technically, however, it was not a dissolution of marriage, +but a declaration that no marriage had ever +existed, and therefore it rendered children born in the +relation illegitimate<a id='r213'></a><a href='#f213' class='c013'><sup>[213]</sup></a>.</p> + +<p class='c001'>The other kind of divorce was that called ‘from board +and bed’ (<span lang="la"><i>a mensa et thoro</i></span>). It was a regular part of the +jurisdiction of the Church Courts, and effected a legal +separation of the two parties from their joint life in one +household, while leaving them still man and wife, and +therefore unable to marry any other person. The +status of the children was of course not affected.</p> + +<h3 class='c011'>XVI. <span class='sc'>The Later Law of Divorce in England and Scotland.</span></h3> + +<p class='c012'>This law prevailed over all Europe till the Reformation, +and continued to prevail in all Roman Catholic +countries till a very recent time. In some it still prevails, +at least so far as Roman Catholics are concerned. +But in most Protestant countries it received a fatal +shock from the denial, in which all Protestants agreed, +of the sacramental character of marriage, and from the +revival, in some of such countries, of the view of marriage +as a purely civil contract. Thus in Scotland the +courts began, very soon after the Roman connexion +had been repudiated, to grant divorces; and in <span class='fss'>A.D.</span> 1573 +a statute added desertion to adultery as a ground for +divorce. In England, however, where the revulsion +against the doctrines of mediaeval Christianity was less +pronounced, and where the Ecclesiastical Courts retained +their jurisdiction in matrimonial causes, the old +<span class='pageno' id='Page_436'>436</span>law went on unchanged, save that after the abolition of +many of the canonical impediments, mentioned above, +divorces <span lang="la"><i>a vinculo</i></span>, declaring marriages to have been +originally invalid, became far more rare. Nevertheless, +attempts had been made by some of the more energetic +English Reformers to assert the dissolubility +of marriage. A draft ecclesiastical code (called the +<span lang="la"><i>Reformatio legum ecclesiasticarum</i></span>) was prepared, but +never enacted; and Milton argued strongly on the +same side in his well-known but little read book. +About his time cases begin to occur in which marriages +were dissolved by Acts of Parliament; a practice which +became more frequent under the Whig régime of the +early Hanoverian kings, and ultimately ripened into +a regular procedure by which those who could afford +the expense might secure divorces. The party seeking +divorce was required to first obtain from the Ecclesiastical +Court a divorce <span lang="la"><i>a mensa et thoro</i></span>, which +obtained, he introduced his private Bill for a complete +divorce. It was heard by the House of Lords as a +practically judicial matter, in which evidence was +given, and counsel argued the case for and (if the other +party resisted) against the divorce. It was usually by +the husband that these divorce Bills were promoted, and +indeed no wife so obtained a divorce till <span class='fss'>A.D.</span> 1801<a id='r214'></a><a href='#f214' class='c013'><sup>[214]</sup></a>.</p> + +<p class='c001'>This characteristically English evasion of that principle +of indissolubility for which such immense respect was +professed lasted till 1857, long before which time the +existence of a law which gave to the rich what it refused +<span class='pageno' id='Page_437'>437</span>to the poor had become a scandal<a id='r215'></a><a href='#f215' class='c013'><sup>[215]</sup></a>. In that year an Act +was passed, not without strenuous opposition from those +who clung to the older ecclesiastical theory, which established +a new Court for Divorce and Matrimonial causes, +empowered to grant either a complete dissolution of +marriage (divorce <span lang="la"><i>a vinculo matrimonii</i></span>) or a ‘judicial +separation’ (divorce <span lang="la"><i>a mensa et thoro</i></span>). This statute +adhered to the rule which the practice of the House +of Lords had established, and under it a husband may +obtain a divorce on proof of the wife’s infidelity, whereas +the wife can obtain it only by proving, in addition to the +fact of infidelity on the husband’s part, either that it +was aggravated by bigamy or incest, or that it was +accompanied by cruelty or by two years’ desertion. To +prevent collusion a public functionary called the Queen’s +Proctor is permitted to intervene where he sees grounds +for doing so. Misconduct by the husband operates as +a bar to his obtaining a divorce. Thus the law of +England stands to-day. Attempts have been made to +alter it on the basis of equality, so that whatever +misconduct on the wife’s part entitles a husband to +divorce shall, if committed by the husband, entitle her +likewise to have the marriage dissolved. But these +attempts have not so far succeeded<a id='r216'></a><a href='#f216' class='c013'><sup>[216]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_438'>438</span>The law of Scotland is more indulgent, and not only +permits a wife to obtain divorce for a husband’s infidelity +alone, but also recognizes wilful desertion for +four years as a ground for divorce. In other respects +its provisions are generally similar to those of the +English law. Ireland, however, remains under the old +pre-Reformation system. There is no Divorce Court, +and no marriage can be dissolved save by Act of Parliament. +The bulk of the people are Roman Catholics, +and among Protestants as well as Roman Catholics the +level of public sentiment and of conjugal morality has +apparently been higher than in England, nor have +attempts been made, at any rate in recent years, to +obtain the freedom which England and Scotland +possess. The United Kingdom thus shows within +its narrow limits the curious phenomenon of three +dissimilar systems of law regulating a matter on +which it is eminently desirable that the law should be +uniform. England has a comparatively strict rule, and +one which is unequal as between the two parties. +Scotland is somewhat laxer, but treats both parties +alike. Ireland has no divorce at all. So little do +theoretical considerations prevail against the attachment +of a nation to its own sentiments and usages.</p> + +<p class='c001'>I reserve comments on these systems till we have +followed out the history of the English matrimonial +law in the widest and most remarkable field of its +development, the United States of America.</p> + +<div> + <span class='pageno' id='Page_439'>439</span> + <h3 class='c011'>XVII. <span class='sc'>The Divorce Laws of the United States.</span></h3> +</div> + +<p class='c012'>When the thirteen Colonies proclaimed their separation +from Great Britain in 1776, they started with the +Common Law and all such statute law as had in fact +been in force at the date of the separation. Accordingly +they had no provision for dissolving marriages, nor any +Ecclesiastical Courts to grant dissolutions, seeing that +such tribunals had never existed in America, where +there had been no bishops. Presently, however, they +began to legislate on the subject, and the legislation +which they, and the newer States added to the Union +since 1789, have produced presents the largest and the +strangest, and perhaps the saddest, body of legislative +experiments in the sphere of family law which free, +self-governing communities have ever tried. Both +marriage and divorce belong, under the American +Constitution, to the several States, Congress having +no right to pass any laws upon the subject, except of +course for the District of Columbia and the Territories. +Thus every one of the (now) forty-five States has been +free to deal with this incomparably difficult and delicate +matter at its own sweet will, and the variety of provisions +is endless. As it would require a great deal +of space to present these in detail, I shall touch on +only some salient points.</p> + +<p class='c001'>Originally, the few divorces that were granted were +obtained, following the example of England, by means +of Acts of the State legislature. The evils of this +plan were perceived, and now nearly all the States +have by their Constitutions forbidden the legislature +to pass such Acts, since Courts have been provided to +<span class='pageno' id='Page_440'>440</span>which application may be made. These are usually +either the ordinary inferior Courts of the State, or the +Chancery Courts (where such survive). No State +seems to have, like England, erected a special Court +for the purpose. One State only, South Carolina, does +not recognize divorce at all. In 1872, under the so-called +‘carpet-bagger government,’ set up after the +War of Secession, a statute was passed in that State +authorizing divorces for infidelity or desertion, but in +1878, when the native whites had regained control, this +statute was repealed, so that now, if a divorce is obtained +at all, it must be obtained from the legislature outside +the regular law. South Carolina has the distinction +of being to-day probably the only Protestant community +in the world which continues to hold marriage +indissoluble. No State has fewer Roman Catholic citizens: +Presbyterians and Methodists are the strongest +religious bodies.</p> + +<p class='c001'>The causes for which divorce may be granted range +downwards from the strictness of such a conservative +State as New York, where conjugal infidelity is the +sole cause recognized for an absolute dissolution of +the marriage, to the laxity of Washington, where the +Court may grant divorce ‘for any cause deemed by +it sufficient, and when it shall be satisfied that the +parties can no longer live together.’ Desertion is in +nearly all States recognized as a ground for dissolution. +So is cruelty by either party, or the reasonable +apprehension of it by either. So in many States +the neglect of the husband to provide for the wife, +habitual intemperance, indignities or insulting treatment, +violent temper, and (in a smaller number) the +<span class='pageno' id='Page_441'>441</span>persistent neglect of her domestic duties by the wife, +grave misconduct before marriage unknown to the +other party, insanity, an indictment for felony followed +by flight, vagrancy, are, or have been, prescribed as +among the sufficient grounds for divorce. In some States +a sentence of imprisonment for life <span lang="la"><i>ipso iure</i></span> annuls the +marriage of the prisoner, permitting the other partner +to remarry, and, in most, conviction for felony or infamous +crime is a ground on which the Court may decree, +and presumably will decree, the extinction of the marriage. +Moreover, there are still a few States where +over and above the judicial process open to a discontented +consort, the State legislature continues to +grant divorces by special statutes. Delaware is, or +very recently was, such a State; and in the twenty +years preceding 1887 it would seem that four-fifths of +its divorces, not indeed very numerous (289 for twenty +years), were so obtained. The laws of most States +also provide for what the Americans call a ‘limited +divorce,’ and the English a ‘judicial separation,’ equivalent +to the old divorce <span lang="la"><i>a mensa et thoro</i></span>. It leaves +the marriage still valid, but relieves the parties from +any obligation to live together; and in some States +the Court in pronouncing a decree of divorce may +change the name of the wife (in Texas and Arizona the +name of either party), while in Vermont it may also +change the names of the children who are minors.</p> + +<p class='c001'>Not less remarkable than the multiplication of grounds +for divorce in the American States is the extreme laxity +of procedure which has grown up. The Courts having +jurisdiction are usually the Courts of the county, tribunals +of no great weight, whose ill-paid judges are +<span class='pageno' id='Page_442'>442</span>seldom men of professional eminence. The terms of +residence within a State which are required before a +petitioner can apply for a divorce are generally very short. +The provisions for serving notice on the respondent or +defendant to the divorce suit are loose and seem to be +carelessly enforced. Some States allow service to be +effected by publication in the newspapers, if the other +party be not found within the State, and this of course +often happens when the applicant has recently come to +the State, most likely a distant one, from that in which +he or she lived with the other consort. Frequently he +comes for the express purpose of getting his marriage +dissolved. Although most States declare collusion or +connivance by the other party to be a bar to the granting +of a divorce, and some few States provide that a public +official shall appear to defend in undefended petitions, the +provisions made for detecting these devices are inadequate; +and in not a few cases the proceedings do little +more than set a judicial seal upon that voluntary dissolution +by the agreement of the two consorts, which +was so common at Rome. It is doubtless a point of +difference between the Roman law and that of modern +American States that in the former the parties could +by their own will and act terminate the marriage: in +the latter the Courts must be invoked to do so. But +where the Courts out of good-nature or carelessness +make a practice of complying with the application of one +party, unresisted or feebly resisted by the other, this +difference almost disappears. The facilities which some +of the more lax States hold out to those who come to +live in them for the requisite period, and who then procure +from the complaisant Court a divorce without the +<span class='pageno' id='Page_443'>443</span>knowledge of the other consort, constitute a grave blot +on the administration of justice in the Union generally, +for a marriage dissolved in one State (where jurisdiction +over the parties has been duly created) is <span lang="la"><i>prima facie</i></span> +dissolved everywhere<a id='r217'></a><a href='#f217' class='c013'><sup>[217]</sup></a>; and although the decree might +conceivably be reversed if evidence could be given that +it had been improperly obtained, it is usually so difficult +to obtain that evidence that the injured party, +especially an injured wife, must perforce submit.</p> + +<h3 class='c011'>XVIII. <span class='sc'>Statistics of Divorce in America.</span></h3> + +<p class='c012'>Under these lax laws, and the not less lax administration +of them, the number of divorces has in the +United States risen with formidable rapidity. In 1867 +there were 9,937 granted, in 1886, 25,535, an increase +of nearly 157 per cent. in twenty years. The total +number recorded to have been granted in those twenty +years (and the record is probably not quite complete) +is 328,716, a ghastly total, exceeding all the divorces +granted in the same years in all other Christian +countries<a id='r218'></a><a href='#f218' class='c013'><sup>[218]</sup></a>. The population of the Republic increased +about 60 per cent. within the same twenty years. +Taking the two census years 1870 and 1880, the percentage +of increase was, for the population, 30·1, for +divorce, 79·4, or more than twice as great; and while +in many States the percentage of divorce increase is +<span class='pageno' id='Page_444'>444</span>far larger than 79·4, there are only five in which divorce +has not grown faster than population.</p> + +<p class='c001'>The increase is most rapid in the south-western +States, in several New England States, and especially +in the States of the far West, less marked in the north +Atlantic States generally, and in those between the +Atlantic and the Mississippi. It is greater in cities than +in rural districts<a id='r219'></a><a href='#f219' class='c013'><sup>[219]</sup></a>.</p> + +<p class='c001'>It is, in the South, apparently somewhat greater +among the coloured people than among the whites<a id='r220'></a><a href='#f220' class='c013'><sup>[220]</sup></a>. +It is greater among native-born Americans than among +immigrants from Europe. And it need hardly be said +that it is far larger among Protestants than among +Roman Catholics. These points deserve to be remembered, +because they throw some light on the causes +which have produced the increase.</p> + +<p class='c001'>Some other facts to be noted before we pass on to +consider those causes are the following.</p> + +<p class='c001'>The grounds on which divorces have been granted +are often trivial, even frivolous. I select a few from +a long list given in the American Official Report dealing +with the subject<a id='r221'></a><a href='#f221' class='c013'><sup>[221]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_445'>445</span>A wife alleges that her husband has accused her +sister of stealing, thereby sorely wounding her feelings.</p> + +<p class='c001'>Another says, ‘During our whole married life my +husband has never offered to take me out riding +(= driving). This has been a source of great mental +suffering and injury.’</p> + +<p class='c001'>Another complains that her husband does not wash +himself, ‘thereby inflicting on plaintiff great mental +anguish.’</p> + +<p class='c001'>Another says that her husband ‘quotes verses from +the New Testament about wives obeying their husbands. +He has even threatened to mash the plaintiff, and has +drawn back his hand to do it.’ The decree which +awarded a divorce to this wife contains the following: +‘I find that when plaintiff was sick and unable to work +defendant told her the Lord commanded her to work, +and that he was in the habit of frequently quoting +Scriptural passages in order to show her she was to be +obedient to her husband.’</p> + +<p class='c001'>A wife alleges that her husband does not come home +till ten o’clock at night, and when he does return he +keeps plaintiff awake talking. He also keeps a saloon, +which sorely grieves mind of plaintiff. He replies, +saying, ‘Plaintiff should not be ashamed of him because +temporarily in the liquor business: that he may do +better some day: his father was a high State Officer +in Germany.’ This wife gets a divorce on the ground +of ‘mental cruelty.’</p> + +<p class='c001'>In all these cases, and in many others enumerated in +<span class='pageno' id='Page_446'>446</span>the Report where the grounds are equally slight, the +divorce is granted. And similar cases are given in which +the husband obtains divorce on the ground of the wife’s +cruelty.</p> + +<p class='c001'>‘Mental cruelty’ is of course a term hard to define, +as may be seen by examining the views that have been +expressed by English judges on cruelty, and it is not +wonderful that the easy-going courts of most American +States should give a wide extension to such an elastic +conception.</p> + +<p class='c001'>Of the causes recorded as those for which marriages +are dissolved, the most frequent are Desertion, which +represents 38·5 of the whole number of divorces; then +Infidelity; then Cruelty; then Intoxication. Of the +total number of divorces granted during the twenty +years 1867-1886, 65·8 per cent., very nearly two-thirds, +were granted to wives and 34·2 per cent. to husbands. +Of the total number granted for infidelity 56·4 per cent. +were granted to husbands and 43·6 to wives. But in +the other chief causes wives are more frequently the +successful applicants. In cruelty they obtain seven times +as many decrees; in desertion one and a-half times as +many; in intoxication eight times as many. The Report, +however, shows that intemperance is either directly or +indirectly responsible for a larger proportion of the +total cases than its place in the table represents.</p> + +<p class='c001'>I take from a valuable paper by an Ohio lawyer +(Mr. Newton D. Baker)<a id='r222'></a><a href='#f222' class='c013'><sup>[222]</sup></a> some facts which illustrate +the state of things in one of the so-called ‘Western +Reserve’ counties in that great State. In Cuyahoga +county the total yearly number of marriages is about +<span class='pageno' id='Page_447'>447</span>3,400, and the number of divorce suits annually brought +is about 500. In the year 1898-1899, the whole number +of divorce suits brought in the Court of Common Pleas +was 562 out of a total number of 3,848 suits for all +causes, <i>i.e.</i> about 12 per cent. In the State of Ohio +the annual number of marriages is from 33,000 to +40,000; the total number of divorce suits brought from +3,700 to 4,200; and the total number of divorces granted +annually about 3,000 in a population of about 4,000,000. +Mr. Baker observes that ‘five of the causes on which +the law allows divorce, viz. wilful absence of either party +from the other for three years, extreme cruelty, fraudulent +contract, any gross neglect of duty, and habitual +drunkenness for three years, are all so vague and elastic +as to amount to unrestricted licence in the matter of +divorce.’ Out of 366 divorces granted in the year 1898-1899, +wilful absence and gross neglect of duty accounted +for 150, extreme cruelty for 109, habitual drunkenness +for 88, and infidelity for 14 only (five being unaccounted +for). He adds, ‘The personal temper and disposition +of individual judges (there are more than eighty in +the State entrusted with power to dissolve marriages) +have come to be so well recognized as the limits of the +jurisdiction of the Common Pleas Court in granting +divorces, that now it is the practice of many lawyers to +continue and delay the hearing of divorce causes until +some judge, known to be lenient in this matter, rotates +to the bench of the Court in which such cases are set +for hearing.... Many of the judges appear to be +oblivious to the fact that one of the most important +interests of society is at stake in every divorce proceeding, +and either out of unscientific ideas upon the +<span class='pageno' id='Page_448'>448</span>subject, or out of mere complaisancy towards attorneys +and litigants, they have lent themselves to a looseness +of practice which is in some degree responsible for the +deplorable results.’</p> + +<p class='c001'>In the United States applications for divorce are +mostly made after a marriage of short duration. In +one-half of the cases divorce was granted within six +years from the date of marriage. Oddly enough, the +average duration of a marriage terminated by divorce +varies much between State and State. It is shortest in +the southern States, falling to 6·48 years in Arkansas, +and 6·91 in Tennessee, highest in the north-east, rising +to 11·69 in New Jersey, and 12·12 in Massachusetts. +This may be partly due to the fact that the more conservative +States require a longer period of desertion +to be proved. The duration of marriage is somewhat +longer in cases where the wife applies, which may +indicate either that she is more patient under her lot +than the husband, or that her comparative ignorance +of the world makes her less able to resort to the Courts. +The fact that desertion is the cause most frequently +assigned by wives may also have its effect.</p> + +<p class='c001'>It would be important to know what proportion the +desire to marry some one else bears to the other causes +which induce persons to seek to escape from their +existing wedlock. Unfortunately American statistics +of marriage, which are in many States loosely kept, +do not enable us to answer this question<a id='r223'></a><a href='#f223' class='c013'><sup>[223]</sup></a>. Practising +<span class='pageno' id='Page_449'>449</span>lawyers say that nothing is commoner. It would +appear, however, from some European<a id='r224'></a><a href='#f224' class='c013'><sup>[224]</sup></a> figures that +there is in reality no greater tendency for divorced men, +and scarcely any greater tendency for divorced women, +to remarry within a few years of the dissolution of their +marriage than there is for widowers and widows to do +so after the death of a consort; and it has often been +observed that persons who have been most happily +married are among those most likely to marry again.</p> + +<p class='c001'>The rapid growth of divorce under the hasty legislation +which marked the first half of the present century +began about thirty years ago to create some alarm in +the United States. The subject was much discussed, +an association was formed to grapple with the evil, and +in several States laws were passed restricting a little +the causes entitling persons to be divorced<a id='r225'></a><a href='#f225' class='c013'><sup>[225]</sup></a>. In those +States there has accordingly been some slight diminution +in the number of divorces granted, but elsewhere +the rate has gone on increasing, though apparently +(for there are no very recent statistics) a little more +slowly than it was doing down to 1886. In some States +it seems, after increasing, to have now reached a stable +average to the population. This would appear to be the +case in Switzerland also.</p> + +<div> + <span class='pageno' id='Page_450'>450</span> + <h3 class='c011'>XIX. <span class='sc'>Divorce in Modern European Countries.</span></h3> +</div> + +<p class='c012'>It is not only in America that the evil grows. In all +modern countries where divorce is permitted, that is to +say in all Protestant and some Roman Catholic States, +the same tendency is perceptible. Among the Protestant +nations the impulse of the Reformation caused +sooner or later a rejection of the old canonical doctrine +of indissolubility; so we may say, speaking broadly, +that in Germany, Switzerland, Holland, Denmark, +Sweden and Norway, a marriage may be dissolved not +only for the infidelity of either party (since in all these +countries husband and wife are treated alike), but also +for desertion and imprisonment for crime. Some laws +go even further, allowing mutual consent to be a cause. +Among Roman Catholic countries, France retained the +canonical rule till the Revolution. The legislation of +1792 granted extreme freedom, which was so largely +used that we are told that in 1797 there were more +divorces than marriages. In 1816 the principles of +Catholicism regained control, and held it till 1884, when +a law was passed permitting marriages to be dissolved +for the infidelity of either party, or for the condemnation +of either to an infamous punishment, and authorizing +the transmutation into an absolute divorce of +a judicial separation which has lasted for three years. +The law of Belgium is similar, but goes a little further +in allowing mutual consent to be a ground, though one +surrounded by many restrictions. Austria and Hungary +allow divorce (under rules similar to those of Protestant +countries, <i>i.e.</i> on the grounds of infidelity, grave crime, +desertion, cruelty, &c.) to non-Catholic citizens, while +<span class='pageno' id='Page_451'>451</span>Italy, Portugal, and Spain adhere to the Tridentine +system which recognizes only a judicial separation (<span lang="la"><i>a +mensa et thoro</i></span>) and not a dissolution of the tie. Russia +still leaves matrimonial causes to the ecclesiastical courts, +but allows them to dissolve marriages on the ground of +infidelity, a heavy criminal sentence, or disappearance +of one consort for five years<a id='r226'></a><a href='#f226' class='c013'><sup>[226]</sup></a>.</p> + +<p class='c001'>In nearly all these countries such statistics as are +available show an increase in the number of divorces +during recent years. For instance in Belgium, a predominantly +Roman Catholic country, divorces rose +between 1884 and 1893 from 221 to 497. In France +the suits for divorce rose from 1773 in 1884 to 7445 +in 1891. The number of divorces compared with +the number of marriages almost doubled in those +seven years. In the German Empire there were +5342 divorces granted in 1882 and 6178 in 1891. In +Holland they were, in 1883, 189, in 1892, 354. +A like period saw them rise in Sweden from 218 +to 316, in Norway from 7 to 82(!), in Greece from +251 to 788. The rise is slighter in Austria. Switzerland +alone, though its law is comparatively lax, +shows no increase<a id='r227'></a><a href='#f227' class='c013'><sup>[227]</sup></a>. In England divorces rose from +127 in 1860 to 390 in 1887, an increase much more +rapid than that of population or of marriages<a id='r228'></a><a href='#f228' class='c013'><sup>[228]</sup></a>. Judicial +separations rose between the same years from +11 to 50. In Scotland divorces which in 1867 numbered +32 had, in 1886, grown to 96, a still more rapid +<span class='pageno' id='Page_452'>452</span>rise, as it covers only twenty instead of twenty-seven +years. It is worth noting that in England it is usually +the husband who petitions for a divorce, and almost +always the wife who seeks a judicial separation.</p> + +<p class='c001'>The growth in so many otherwise dissimilar countries +of this disposition to shake off the marriage tie is a +remarkable phenomenon, which deserves more attention +than it seems to have yet received in England. Though +strongest in Protestant countries, it is not confined to +them, as appears from the instances of Belgium, Bavaria +and Greece. Though there is no divorce <span lang="la"><i>a vinculo</i></span> in +Italy or Spain, the same causes which make it frequent +elsewhere may be at work, though less conspicuously, +in countries where the State aids the Church in +checking their outward manifestation. Divorce is an +obtrusive symptom of the disease, not the disease itself.</p> + +<p class='c001'>What is the disease? or, lest we should seem to prejudge +the merits of the matter, what is the source of +this disposition to look upon the marriage tie with +eyes different from those of a century ago, and to yield +more easily to the temptation to dissolve it? The +cause, whatever it is, must lie deep, for it manifests +itself under many different conditions; and it may +possibly be not any single cause, but a combination of +several concurrent social or moral changes, independent +springs whose confluence swells the stream of +tendency.</p> + +<p class='c001'>A similar phenomenon happened once before in history. +At Rome also, as we have already seen, a very +strict theory of marriage and a corresponding strictness +in practice gave way to great laxity of the law and, +after a short interval, to unbounded licence in practice. +<span class='pageno' id='Page_453'>453</span>Let us see whether we can, by examining the phenomena +which brought about this change in the greatest +of ancient States, hit upon any clue that may serve to +explain the facts of our own time.</p> + +<h3 class='c011'>XX. <span class='sc'>Comparison of the Process of Change at Rome and in the Modern World.</span></h3> + +<p class='c012'>The Romans began with a doctrine of marriage +which had four salient characteristics<a id='r229'></a><a href='#f229' class='c013'><sup>[229]</sup></a>:</p> + +<div class='lg-container-l c022'> + <div class='linegroup'> + <div class='group'> + <div class='line'>A formal legal act almost invariably accompanying marriage.</div> + <div class='line'>A religious element in the oldest form of this act.</div> + <div class='line'>A subjection of the wife to the husband’s power.</div> + <div class='line'>A complete absorption of the wife’s property rights into the legal personality of the husband.</div> + </div> + </div> +</div> + +<p class='c001'>These characteristics all vanished; and under the +newer law and custom of the city, and ultimately of the +Empire—</p> + +<div class='lg-container-l c022'> + <div class='linegroup'> + <div class='group'> + <div class='line'>The act of marriage required no formalities, and was entirely a private affair.</div> + <div class='line'>It was also a purely civil, not a religious, affair.</div> + <div class='line'>The wife became absolutely independent of her husband, remaining (unless she had been emancipated) in the legal family of her father.</div> + <div class='line'>The wife’s property remained her own, though it was usual for the consorts to have some joint property.</div> + </div> + </div> +</div> + +<p class='c016'>Concurrently with and following on these changes +<span class='pageno' id='Page_454'>454</span>there had come about in Rome a general decline of +faith in the old deities, a faith partially, but not beneficially, +replaced by Oriental superstitions. There had +also come habits of luxury, a thirst for material enjoyment, +a passion for amusements, a general relaxation +of the moral restraints which public opinion had +formerly imposed. Marriage had begun to be regarded +mainly from the point of view of pecuniary interest or +social advancement. There was comparatively little +sentiment attaching to it, and not much sense of duty. +Men grew less and less willing to marry; women as +well as men less and less faithful. Fewer children +were born. As neither religious nor moral associations +sanctified the relation, and as it could be terminated at +pleasure, it was lightly entered on, and this very heedlessness, +making it frequently a failure, caused it to be no +less lightly dissolved. Thus social habits and a standard +of opinion were formed, against which the reforming +efforts of Augustus and his successors could do little, +and which resisted even the far more powerful efforts +of Christianity, until Roman society itself went to pieces +in the West, and passed into new forms in the East.</p> + +<p class='c001'>This decadence of the matrimonial relation was +doubtless facilitated by three peculiarities of the law, +viz. the absence of all prescribed forms for marriage +and divorce, which set caprice free from legal restraints +or delays, the extinction of any necessary +connexion as regards property between the two +spouses<a id='r230'></a><a href='#f230' class='c013'><sup>[230]</sup></a>, and the fact that the legal family did not +<span class='pageno' id='Page_455'>455</span>coincide with the natural family, for legally the wife +remained in her father’s family and did not enter her +husband’s. Nevertheless the underlying causes of +that decadence were social and moral rather than legal +causes.</p> + +<p class='c001'>In the modern world the change from the old state +of things to the new has been slower and less complete. +Still it offers a kind of parallel to the phenomena we +have been considering.</p> + +<p class='c001'>Before the Reformation what were the features of +the marriage relation in Europe?</p> + +<p class='c001'>It had a strongly religious character. Its formation +was blessed by the Church. It was deemed a Sacrament. +It was treated, for doctrinal reasons, as indissoluble. +There were, to be sure, plenty of marriages +essentially unhallowed, plenty of marriages contracted +for the most sordid reasons, plenty of marriages with +little affection; and there were also marriages tainted +by sin. The standard of conjugal fidelity was in the +fifteenth century a low one. Nevertheless the tie was +deemed to be one which religion sanctified, and religious +sentiment must have had a restraining effect upon +tender consciences, and particularly upon the wife, +women being usually more susceptible to religious +emotion than men are.</p> + +<p class='c001'>It gave the husband, in most countries, and notably +in England, an almost complete control over the property +rights of the two spouses, and in this way held +them together.</p> + +<p class='c001'>It gave the husband, and notably in England, almost +complete control over the person and conduct of the +wife, impressing upon her mind her dependence on +<span class='pageno' id='Page_456'>456</span>him, and her duty to obey him. No doubt where the +wife’s intellect or will was the stronger of the two her +intellect guided or her will prevailed. Nevertheless +her normal attitude was that of a submissive identification +of her wishes and interests with his.</p> + +<p class='c001'>Whether these things made for affection, and for +happiness, the outcome of affection, is another question. +What we have to remark is that at any rate they drew +the bond very tight, and formed a solid basis for family +life. Bride and bridegroom took one another for richer +for poorer, for better for worse, in sickness and in +health, till death should them part.</p> + +<p class='c001'>What has been the course of things since the +Reformation?</p> + +<p class='c001'>In Protestant countries the religious character of +marriage has been sensibly weakened. Although the +ceremony, in most of such countries, and notably in +England, still usually receives ecclesiastical benediction, +the tie is not to men’s or even to women’s minds +primarily a religious tie. To most Protestants, the +wedding service in church, or before a minister of religion, +is rather an ornamental ceremony than essentially +a sacred vow. The duties of the spouses are conceived +of by them in a more or less worthy way, according +to their respective religious and moral standards, but +not generally, or at least seldom vividly, as a part of +their duties towards God.</p> + +<p class='c001'>This is perhaps part of that general decline in the +intensity of the feeling of sin which marks the Protestantism +of our own time as compared with that of +earlier centuries. I do not mean that people are any +more sinful than they were—probably they are not. +<span class='pageno' id='Page_457'>457</span>They were sinful enough in the seventeenth century. +But wrong-doing presents itself more frequently to all +but the most pious minds rather as something unworthy, +something below their standard of honour, something +disapproved by public opinion, than as something which +deserves the wrath of God, and affects their true relation +to Him as their Father. Thus the element of sin in +any breach, be it slight or be it grave, of conjugal duty, +would seem to be less present to the conscience of the +average husband or wife now than it was formerly, at +least if we are to take the literature (including the +theological literature) of former times, when set beside +that of our own, to be any guide.</p> + +<p class='c001'>The inquiry how far any similar change has passed +upon sentiment in Roman Catholic peoples would lead +us far, nor am I competent to pursue it. The conception +of sin itself is not quite the same thing to pious Catholics +as it is, or was, to pious Protestants. But, broadly +speaking, marriage doubtless retains to Roman Catholics, +and to the Orthodox church of the East, more of +a sacred character than it does to Protestants, and the +change in this respect from the sixteenth to the nineteenth +century is doubtless greater among Protestants.</p> + +<h3 class='c011'>XXI. <span class='sc'>Tendencies affecting the Permanence of the Marriage Tie.</span></h3> + +<p class='c012'>In most countries, and notably in England and the +United States, married women have obtained power +over their own property, including their earnings, and +are now less dependent upon their husbands for support +than they were formerly.</p> + +<p class='c001'><span class='pageno' id='Page_458'>458</span>In most countries married women have far greater +personal independence than in earlier days. They can +dispose of their lives as they please, and are permitted +both by law and by usage an always increasing freedom +of going where and doing what they will. For social +purposes, they are in England (at least those who +belong to the upper and middle classes are), and still +more in the United States, though somewhat less in +such countries as Germany and Sweden, entirely the +equals of men, so that the retention of the promise to +obey in the marriage service of the English Church +excites amusement by its discrepancy from the facts.</p> + +<p class='c001'>Over and above these changes directly affecting the +matrimonial relation, there are other changes which +have modified life and thought. The old deference to +custom and tradition, and therewith the stability of the +social structure as a whole, have been weakened. Men +move much more from place to place, so their minds have +grown less settled. The habit of reading, and in particular +the excessive reading of newspapers, may have +produced a quickness of apprehension, but it has been +accompanied by a measure of volatility and inconstancy +in opinion. These in their turn have bred a liking for +novelty and excitement, and have confirmed the disposition +to question old-established doctrines. There is +an increase, especially among women, of the things +called ‘self-consciousness’ and ‘nervous tension.’ Both +men and women are more excitable, and women in +particular are more fastidious. Pleasures other than +material are probably more appreciated, but the desire for +pleasure, and the belief that every one has a right to it, +seem to be stronger and more widely diffused than ever +<span class='pageno' id='Page_459'>459</span>before. Some will perhaps add that, in an age when the +belief in a future state of rewards and punishments is +less deep and less general than it once was, the desire +to have out of this life all the pleasure it can be made to +yield is naturally stronger; yet I doubt whether beliefs +regarding a future life have ever influenced men’s +conduct so much as the whilom universality of those +beliefs might lead us to assume.</p> + +<p class='c001'>All these tendencies are partly due to, and are certainly +much increased by, that aggregation of population into +great cities which makes one of the most striking contrasts +between our time and the ages which formed +English and American character. It is in industrial +and progressive communities, such as those of Germany, +Belgium, France, and England, that these tendencies are +most pervasive and effective. They are even more +pervasive and multiform in the United States than in +Europe. It would be strange indeed if they did not +affect the theory and the practice of domestic relations +and the conception of the family. And their influence +will evidently be greatest in the country where the +ideas of democratic equality, and the notion that every +human being may claim certain indefeasible ‘human +rights,’ have struck deepest root.</p> + +<p class='c001'>The idea that men and women are entitled to happiness, +and therefore to have barriers to their happiness +removed, is strong in the United States, and has gone +far to prompt both the indulgence of the laws and the +over-indulgence shown in administering them. This idea +has its good side. The fuller recognition of the right of +women to develop their individuality and be more than +mere appendages to men is one of the conspicuous gains +<span class='pageno' id='Page_460'>460</span>which the last two or three generations have brought. +It has helped to raise the conception of what marriage +should be, so we must expect to find that it has made +women less tolerant of an unsympathetic or unworthy +partner than they were in the eighteenth century.</p> + +<p class='c001'>It would not therefore be wonderful if, even apart +from such facilities as legislation has allowed, and +assuming that there was one and the same divorce +law over all civilized countries, the United States +should show, as Switzerland shows in Europe, an +exceptionally high percentage of divorces to marriages. +Newspapers are more read there than in any other +country; and newspapers contain a great deal about +matrimonial troubles which would be better left unpublished. +The life of the middle class is more full +of stir and change and excitement than it is in Europe. +Both the process described as the emancipation of +women, and the admission of women to various professions +and employments formerly confined to men, +have gone further there than in Europe. So has the +carrying on of industries in factories instead of at home. +So has the habit of living in hotels or boarding-houses.</p> + +<p class='c001'>All these conditions are less favourable than were the +conditions of a century ago to the maintenance of +domestic life on the old lines. And over and above +these, there has come that extreme laxity of the law and +of judicial procedure which has been already described. +Thus we can easily account for the comparative frequency +of divorce in the United States, while yet noting, +for this is the point of real importance, that the phenomena +of the United States are not isolated, but merely +the most conspicuous instance of a tendency which is +<span class='pageno' id='Page_461'>461</span>at work everywhere, and which springs from some +widely diffused features of modern life.</p> + +<p class='c001'>The points of similarity between the history of +divorce at Rome and its history in recent times need +not be further insisted on. There is, however, one +to which I have not yet adverted. At Rome the increase +of conjugal infidelity and that of divorce would +seem, from such data as law and literature give us, to +have gone on together, each fostering the other. Is +there any like connexion discoverable now?</p> + +<p class='c001'>This is a question which it appears impossible to +answer either generally or for any particular country. +There are no statistics available, except for matrimonial +causes coming into the Courts, and we can never tell +what proportion the offences that are disclosed bear to +those which remain hidden. There have been countries +where the level of sexual morality was extremely low, +at least among the wealthier classes, though no divorce +was permitted. There may be countries where the very +fact that the level is low keeps down the number of +applications to the Court, because the injured party +acquiesces and takes his or her revenge in like offences. +Common talk, and literature which as regards the past +may sometimes represent nothing more than common +talk<a id='r231'></a><a href='#f231' class='c013'><sup>[231]</sup></a>, are unsafe guides, as any one will see who asks +himself how much he knows about the moral state of his +own country in his own time. He can form some +sort of guess about the character of the ‘social set’ +<span class='pageno' id='Page_462'>462</span>he moves in, but how little after all does he know +about the classes above or below his own! Thus +there can be very few persons in England whose +means of information entitle them to say that the +undoubted increase of divorce cases in our Courts +since 1860 represents any decline in the average conjugal +morality of the people. As regards the United +States, I have heard the most opposite views expressed +with equal confidence by persons who ought to have +been equally well-informed. Judicial statistics do not +prove that infidelity has become more common there, +for the largest proportion of divorces granted is for +desertion, 38.5 per cent. of the whole, those for infidelity +being little more than half of that percentage, or about +one-fifth of the whole. At the same time the smallness +of this percentage may count for less than might +appear, for it is probable that in States where divorce +can be obtained for other grounds, less serious and +easier to prove than infidelity is, petitioners will, where +they have a choice of several charges to make, put +forward a less grave charge provided it is sufficient +to secure their object. So far as my own information +goes, the practical level of sexual morality is at least +as high in the United States as in any part of northern +or western Europe (except possibly among the Roman +Catholic peasantry of Ireland), and experienced judges +in America have told me that, odious as they find the +divorce work of their courts, the thing which strikes +them in the cases they deal with is more frequently the +caprice and fickleness, the irritability and querulous discontent +of couples who have married on some passing +fancy, than a proclivity to breaches of wedded troth.</p> + +<p class='c001'><span class='pageno' id='Page_463'>463</span>Indeed, so far from holding that marriages are more +frequently unhappy in the United States than in western +Europe, most persons who know both countries hold +the opposite to be the case. On the whole, therefore, +there seems no ground for concluding that the increase +of divorce in America necessarily points to a decline +in the standard of domestic morality, except perhaps +in a small section of the wealthy class, though it must +be admitted that if this increase should continue, it may +tend to induce such a decline.</p> + +<p class='c001'>The same conclusion may well be true regarding the +greater frequency of divorce all over the world. There +is no reason to think that sexual passion leading to conjugal +infidelity is any commoner than formerly among +mankind. More probably passion is tending to grow +rather weaker than it was formerly. But that which we +call Individualism, viz. the desire of each person to do +what he or she pleases, to gratify his or her tastes, likings, +caprices, to lead a life which shall be uncontrolled by +another’s will—this grows stronger. So, too, whatever +stimulates the susceptibility and sensitiveness of the +nervous system tends to make tempers more irritable, +and to produce causes of friction between those who +are in constant contact. Here is a source of trouble +that is likely to grow with the growing strain of life, and +with the larger proportion which other interests bear in +modern life to those home interests which formerly +absorbed nearly the whole of a woman’s thoughts. It +is temper rather than unlawful passion that may prove +in future the most dangerous enemy to the stability of +the marriage relation.</p> + +<div> + <span class='pageno' id='Page_464'>464</span> + <h3 class='c011'>XXII. <span class='sc'>Influence of the Church and the Law.</span></h3> +</div> + +<p class='c012'>The view of marriage as a tie which the parties +intend to enter into for their lives, and which the law +holds indissoluble, has hitherto rested not so much on +any abstract theory or sentiment which men and women +have entertained regarding it as upon the three +authorities which have formed both sentiment and +opinion. These three are the Church, the State, and +Tradition, that is to say the beliefs which people adopt +because they have come down from the past. The +attitude of the Church has in Protestant nations sensibly +altered. In some countries it altered in the sixteenth +century. It has everywhere altered in the nineteenth. +So, too, the support given to the old view by the State +has in like manner become in those same countries +much weaker, and in some countries, as for example in +Switzerland and many American States, has almost disappeared. +Public opinion has itself been largely formed +by the Church and the Law, and may, when they have +ceased to form it, be no longer an effective guardian +of the permanence and dignity of marriage. In such +democracies as those of the United States, the wish of +an active minority to procure changes in the law easily +prevails, because no one cares to resist, and because +abstract principles suggest that the more everybody is +permitted to do as he pleases, the happier everybody will +be. When the law has been changed, public opinion, +that is to say the opinion of the majority who do not think +seriously about the matter, soon adjusts itself to the new +law, and little social blame attaches to those who use +<span class='pageno' id='Page_465'>465</span>the licence which the law has granted. Seeing then +how largely the law, whether of the Church or of the +State, moulds the sentiment of the people on such a +subject as this, and seeing that the Church no longer +makes or administers law in Protestant countries, one +may say that the civil law is practically left to keep +their conscience. This tendency of the Church to +abnegate its old functions makes the question of +the way in which the Law should deal with divorce +a question of critical importance<a id='r232'></a><a href='#f232' class='c013'><sup>[232]</sup></a>.</p> + +<p class='c001'>As regards America, the opinion of the wisest and +best informed people, though far from unanimous in +points of detail, agrees in thinking that many States +have gone too far in the way of laxity.</p> + +<h3 class='c011'>XXIII. <span class='sc'>Does the English Law of Divorce need Amendment?</span></h3> + +<p class='c012'>In England the topic has been less discussed; yet +there are some who hold that women ought to be +placed on the same footing as men, and allowed to +obtain a divorce from an unfaithful husband, even if he +has not been guilty of cruelty. Others would go even +further and admit other grounds as entitling either +party to a dissolution of the marriage. The late Lord +Hannen, whose opinion was entitled to exceptional +weight, for he had presided over the English Divorce +Court for many years with singular ability and fairness, +told me that he thought the English law might with +advantage be somewhat relaxed, so numerous were the +<span class='pageno' id='Page_466'>466</span>cases in which it was obviously best that a miserable +marriage should be extinguished altogether. Yet the +example of the United States (not to speak of Rome) +suggests the danger of any but a very slow and cautious +advance in that direction. Great as is the hardship of +chaining an innocent to a vicious or drunken or brutal +consort, the evil of permitting people to get rid of one +another merely because they are tired of one another +is no less evident. When the question is asked, ‘What +is the best divorce law?’ the only answer can be, ‘There +is no good divorce law.’ There are some faults in +human nature which always have existed and apparently +always will exist; and there is no satisfactory +method of dealing with them. All that can be done +is to choose between different evils.</p> + +<p class='c001'>Upon the whole, after weighing the considerations +on both sides, the balance seems to incline to a change +in the law which should not only equalize the position +of the wife and the husband, by giving the former +the same right to dissolution as the latter, but should +also allow dissolution in cases of hopeless lunacy and +of long-continued desertion.</p> + +<p class='c001'>Throughout this discussion it has been assumed that +marriages ought to be permanent, and that obstacles +should be thrown in the way of those who seek to +dissolve them. It may be asked whether this assumption +is justified. There is a school of thought, small +perhaps, but of long standing and supported by a few +eminent names, which insists that marriage should last +no longer than love does; and therefore that the pair +should, as in Rome, be permitted to separate with +freedom of re-marriage, whenever they are no longer +<span class='pageno' id='Page_467'>467</span>held together by inclination. There is also a larger +school, which feels so keenly the misery caused by +ill-assorted unions as to think that the parties should +be allowed to dissolve them, when certain terms for +reflection and repentance prescribed by law have been +completed.</p> + +<p class='c001'>I do not propose to argue afresh this question, for +it has been often and copiously argued. Yet it is not +a question to be dismissed without argument, for in +our day no moral or religious dogma, however long +established or widely held, is permitted to rest upon +authority alone. But to argue it fully would draw us +far from the historical inquiry we have been engaged +on. It is enough to indicate in a word or two the +main grounds which have in fact led the vast majority +of thoughtful men to the assumption aforesaid. The +first of these is the interest of children. Few things +can be more harmful to the moral well-being of the +offspring of a marriage than the divorce of their parents, +which destroys one or other of the two best influences +that work on childhood and may poison even the +influence that is left. The next is the fact that, though +it is professedly in the interest of suffering wives that +facility of divorce is usually advocated, such facility +tends to the injury of wives even more than of husbands, +because men are, it would seem, more fickle and more +prone to seek the dissolution of marriage when they +are tired of their partner, or have formed some illicit +connexion, or seek to marry some other woman. The +third is that whatever weakens the conception of the +marriage tie as a permanent one strikes at the whole +character and essence of the marriage relation. It is +<span class='pageno' id='Page_468'>468</span>often said that when people know they have got to live +together, they are forced to exercise the self-control +necessary to enable them to live together. But the +moral effect of the sense of permanence in wedded +union goes deeper than this. It is in the complete +identification of the two beings and the two lives that +the true happiness of a happy marriage lies. The +sense that each has absolutely committed himself or +herself to the other—each taking charge of the joys and +sorrows and hopes of the other, each trusting to the +other his or her joys and sorrows and hopes—gives to +the relation an incomparable sanctity, and makes the +strongest possible appeal to the best feelings of each. +If selfishness and falsehood can be overcome by anything, +it is by calling into action the sense of obligation +to fulfil this trust which the enduring nature of the +union is calculated to inspire. Were the union to cease +to be thought of as enduring, were it to be in the minds +of the parties, as their minds are moulded by the +practice and the prevailing notions of society, merely +the result and expression of a possibly transient passion, +or of the willingness to try the experiment of a joint +household, the sanctity and the sense of obligation +would receive an irreparable blow.</p> + +<p class='c001'>Thus we are driven to the conclusion that numerous +as the cases may be in which, if one looked only at the +wretchedness of the parties to an ill-assorted union, one +might desire to see that union dissolved, more harm +than good may on the whole result from permitting the +parties to dissolve their union at their pleasure, as the +later Romans did, as the French did during the Revolution, +and as some American States practically do to-day; +<span class='pageno' id='Page_469'>469</span>and more harm than good may result even from extending +in large measure the opportunities for divorce +which the law of England or that of Scotland at this +moment affords.</p> + +<p class='c001'>How vital to the future of humanity are the interests +involved is admitted on all hands by those who would +change, as well as by those who would uphold, the conception +of marriage as a permanent relation. Great as +is the contrast between that sensual and unworthy view +which finds its expression in the polygamy of the East +and the view which Christianity has formed among +Western peoples, it is hardly greater than that which +exists between the view of marriage as a life-union, +dissoluble only when infidelity has shattered its basis, +and the view which puts it at the mercy of the caprice +of a volatile nature or the temper of an irritable one. +Polygamy has been and remains a blighting influence +on Musulman society, and on the character of individual +Musulmans. So if marriage were to become +a transitory relation, as it practically was among the +upper classes in the Roman Empire, the effects upon +family life and on the character of men and women +would in the long run be momentous.</p> + +<h3 class='c011'>XXIV. <span class='sc'>Some General Reflections: Changes in Theory and in Sentiment regarding Marriage.</span></h3> + +<p class='c012'>A few words more to sum up the general result of +our survey. We have seen that the relations of the +wife to the husband have been regulated sometimes by +one, sometimes by the other of two systems, which have +<span class='pageno' id='Page_470'>470</span>been called those of Subordination and Equality<a id='r233'></a><a href='#f233' class='c013'><sup>[233]</sup></a>. In +all countries custom and law begin with the system of +Subordination. In some, the wife is little better than +a slave. Even at Rome, though she was not only free +but respected, her legal capacity was merged in her +husband’s.</p> + +<p class='c001'>This system vanishes from Rome during the last +two centuries of the Republic, and when the law of +Rome comes to prevail over the whole civilized world, +the system of Equality (except so far as varied by local +custom) prevails over that world till the Empire itself +perishes.</p> + +<p class='c001'>In the Dark Ages the principle of the subordination of +the wife is again the rule everywhere, though the forms +it takes vary, and it is more complete in some countries +than in others. It was the rule among the Celtic and +Teutonic peoples before they were Christianized. It +finds its way, through customs conformable to the +rudeness of the times, into the law of those countries +which, like Italy, Spain, and France, were only partially +Teutonized, and retained forms of Latin speech. +It holds its ground in England till our own time, +though latterly much modified by the process which +we call the emancipation of women, a process which, +under the influence of democratic ideas, has moved +most swiftly and has gone furthest among the English +<span class='pageno' id='Page_471'>471</span>race in North America. But in our own time the +principle of equality has, in most civilized countries, +triumphed all along the line, and so far as we can +foresee, has definitely triumphed. One must imagine +a complete revolution in ideas and in social habits in +order to imagine a return to the system of Subordination +as it stood two centuries ago.</p> + +<p class='c001'>As there have been two systems determining the +relations of husband and wife in respect of property +and of personal control, so also have there been +throughout all history two aspects of the institution of +marriage, one in which the sensual and material element +has predominated, the other in which the spiritual and +religious element has come in to give a higher and refining +character to the relation. In this case, however, +it is not possible to make the relative importance of +these two aspects synchronize with the general progress +of civilization, nor even with the elevation of the +position of women. It is true that among barbarous +and some semi-civilized races the physical side of the +institution is almost solely regarded, and that we may +suppose a remote age when primitive man was in this +respect not much above the level of other animals. But +there have been epochs when civilization was advancing +while the moral conception of marriage, or at any rate +the popular view of marriage as a social relation, was +declining. The tie between husband and wife in the +earlier days of Rome was not only closer but more +worthy and wholesome in its influence on the lives of +both than it had become in the age of Augustus. +Christianity not only restored to the tie its religious +colour, but in dignifying the individual soul by proclaiming +<span class='pageno' id='Page_472'>472</span>its immortality and its possibility of union with God +through Christ gave a new and higher significance to +life as a whole, and to the duties which spring from +marriage. The greatest advance which the Christian +world made upon the pagan world was in the view +of personal purity for both sexes which the New +Testament inculcated, a view absent from the Greek +and Italian religions and from Greek and Latin +literature, though there had been germs of it in the +East, where habits of sensual indulgence more degrading +than those of the West were opposed by +theories of asceticism, which passed into and tinged +primitive and mediaeval Christianity.</p> + +<p class='c001'>The more ennobling view of love and of the marriage +relation held its ground through the Middle Ages. +There was plenty of profligacy—as indeed the ideal +and the actual have never been more disjoined than in +the Middle Ages. But in spite of profligacy on the +one hand, and the glorification of celibacy on the other, +and notwithstanding the subjection of women in the +matter of property and even of personal freedom, the +conception of wedded life as recognized by the law of +the Church and enshrined in poetry remained pure and +lofty. That the Reformation took away part of the +religious halo which had surrounded matrimony may +be admitted. Whether this involved a practical loss is +a difficult question. It may be that, in their anxiety to +be rid of what they deemed superstition, and in their +disgust at the tricky and mercenary way in which +ecclesiastical lawyers had played fast and loose with +the intricate rules of canonical impediment, the Reformers +of Germany, Scandinavia, and Scotland forgot +<span class='pageno' id='Page_473'>473</span>to dwell sufficiently on the fact that though marriage +is a civil relation in point of form and legal effect, +it ought to be, to Christians, essentially also a religious +relation, the true consecration of which lies not in the +ceremonial blessing of the Church, but in the solemnity +of the responsibilities it involves. Yet it is not clear +that, in point of domestic happiness or domestic purity, +the nations which have clung to the mediaeval doctrine +stood a century ago, or stand now, above those which +had renounced it. General theories regarding the influence +of particular forms of religion, like theories +regarding the influence of race, are apt to be misleading, +because many other conditions have to be +regarded as well as those on which the theorist is +inclined to dwell.</p> + +<p class='c001'>Whoever regards the doctrines of the Roman Catholic +Church respecting marriage and realizes her power +over her members will expect to find a higher level of +sexual morality in Roman Catholic countries than he +will in fact find. So on the other hand will he be +disappointed who accepts that view of the superiority +in social virtues of peoples of Teutonic stock which +finds so much favour among those peoples, for dissolutions +of the marriage tie have latterly grown +more frequent than they formerly were among Protestant +and Teutonic nations, and are apparently less +condemned by public opinion than was the case in +older days.</p> + +<p class='c001'>The material progress of the world, the mastery of +man over nature through a knowledge of her laws, +the diffusion of knowledge and of the opportunities +for acquiring it, are themes which ceaselessly employ +<span class='pageno' id='Page_474'>474</span>the tongues of speakers and the pens of journalists, +while they swell with pride the heart of the ordinary +citizen. But they are not the things upon which the +moral advancement of mankind or the happiness of +individuals chiefly turns. They co-exist, as the statistics +of recent years show, with an increase over all, or +nearly all, civilized countries of lunacy, of suicide, and +of divorce.</p> + +<div class='chapter'> + <span class='pageno' id='Page_475'>475</span> + <h2 class='c005'>XVII <br> <i>INAUGURAL LECTURE</i><a id='r234'></a><a href='#f234' class='c013'><sup>[234]</sup></a><br> <br>THE ACADEMICAL STUDY OF THE<br>CIVIL LAW</h2> +</div> + +<p class='c010'>Narrow as is the sea that parts England from the continent +of Europe, it has cut her off as effectually from many continental +influences as if she lay far out in mid-Atlantic. When +it is considered how close are our affinities of blood with +the Low-German races, and how intimate during the Middle +Ages were our relations, intellectual as well as political, with +the whole of Western Europe, the individuality of the English +people and its institutions appears singularly well-marked; +and one is surprised to see in how many points the great +nations of the continent resemble one another and understand +one another, while all alike differ from us, and are comparatively +incomprehensible to us. This strangeness of England +is what most strikes the foreigner who comes among us; be +he Frenchman, German, Spaniard, or Italian, he seems less +at home in England than anywhere else in Christendom. +As in the woodland wealth of our country, as in the architecture +of our towns and the structure of our houses, so also +in the social usages and mental habits of Englishmen one +discovers something peculiar, something bearing witness to +a prolonged isolation, to an exemption from those influences, +speculative as well as practical, which have operated on all +<span class='pageno' id='Page_476'>476</span>or nearly all the other members of the European commonwealth.</p> + +<p class='c001'>Such isolation has been in no respect more marked or +more fruitful in results than in the case of our law. In +spite of the immense power of the mediaeval church, in spite +of the influence of the universities, and of the strangers +who flocked to them from all quarters, the Roman jurisprudence +exerted a comparatively slight influence upon the +technical development of our law and the formation of our +habits of legal thought. Here, where the language, and +to a great extent the customs of the people, were of Teutonic +origin, it found a less congenial soil than in Italy +or France, while there were no such political associations +with the Roman name as those which gave the Corpus +Juris its authority in Germany. Whatever be the cause, it +is clear that Roman law was never thoroughly domesticated +in England. True it is that one of the first notices we have +of the existence of our University is that which mentions the +Lombard Vacarius as lecturing on law (doubtless on the +Digest of Justinian) at Oxford, under the patronage of Archbishop +Theobald, in the days of King Stephen<a id='r235'></a><a href='#f235' class='c013'><sup>[235]</sup></a>; and there +is abundant evidence that the study was regularly pursued +there down till and in the sixteenth century. The statutes of +the older colleges make provision for some of the fellows proceeding +to degrees in law; and indeed the only law degrees +Oxford has given, since those in canon law were abolished +by King Henry the Eighth, have been degrees in civil law. +But the customary or common law, unrecognized in the universities, +gained exclusive possession of the seats of legal study +in London. That hostility to the pretensions of the foreign +laws which had been so forcibly expressed by the barons at +<span class='pageno' id='Page_477'>477</span>Merton in Henry the Third’s time, and again by the Parliament +of Richard the Second, maintained ever after a watchful +and jealous attitude. Persons who had mastered Roman law +at Oxford were obliged, when they practised in the courts at +Westminster, to disguise or disclaim any appeal to its authority; +and when the Reformation finally broke the link between +England and Rome, and in doing so loosened the ties that +bound English men of letters to the general movement of +European learning and thought, the study of the canon law +virtually expired among us, while that of the Civil Law maintained +only a feeble and flickering life<a id='r236'></a><a href='#f236' class='c013'><sup>[236]</sup></a>. Its practical utility +(except to practitioners in the ecclesiastical courts) was apparently +at an end; and in the cloud of dullness and sluggishness +that settled down upon Oxford and Cambridge at the end of +the seventeenth century, it only shared the fate of other +studies which had as much to commend them to an active and +curious intellect. A few distinguished publicists and lawyers, +such as Arthur Duck, Selden, Hale, Holt, and those two +brightest ornaments of the English bench, Lord Hardwicke +and Lord Mansfield, were well versed in its rules, but the +great mass of English lawyers regarded it with suspicion and +dislike, and the very praise which Hale bestows testifies to +the slight interest felt in it. ‘He set himself much,’ says +Bishop Burnet his biographer, ‘to the study of the Romane +law, and though he liked the way of judicature in England by +juries much better than that of the civil law, where so much +was trusted to the judge, yet he often said that the true +grounds and reasons of law were so well delivered in the +Digests, that a man could never understand law as a science +so well as by seeking it there, and lamented much that it was +so little studied in England.’</p> + +<p class='c001'>The ancient rivalry of the Civil and the Common law proved +eventually the cause of mischief to both. Having reigned +bn 494.png +<span class='pageno' id='Page_478'>478</span>supreme in the universities, the civil law had never taken +root in the Inns of Court, and when it fell in the universities +it fell utterly. On the other hand, the common lawyers, +whose study was originally not recognized in Oxford or +Cambridge, were well enough content with the position they +had obtained for it in London, and do not seem to have seen +how much was to be gained by introducing it into the ancient +seats of learning. Thus both systems, to the loss as well of +the profession as of the universities, came to be neglected in +the very places where they might best have been cultivated +in a philosophical spirit; and it was not until Mr. Viner +founded his Chair in <span class='fss'>A.D.</span> 1756 that English law was recognized +in Oxford as an academic study, while in Cambridge +no provision was made for the teaching of it until the beginning +of the present century.</p> + +<p class='c001'>That isolation of England to which the neglect of the Civil +Law may be ascribed has of late years perceptibly diminished. +Owing partly to the more frequent and easy intercourse which +improved means of communication have produced, partly to +the removal of old national prejudices, partly to that increased +recognition of the power of ideas which is commonly associated +with the growth of democracy, civilized Europe has +within the last eighty or ninety years become much more of +a single intellectual commonwealth than it has been at any +time since the Reformation, perhaps, indeed, since the fall of +the Roman Empire. The long-standing jealousy of the Civil +Law as a foreign system, associated with the overweening +pretensions of emperors and popes, has at last vanished. +A century ago this feeling was still so active, that Lord +Mansfield’s enemies found it worth while to charge him with +having, as a Scotsman, an undue partiality for the Roman +law, and designing, by means of its despotic principles, to +sap the liberties of Englishmen—‘corrupting by treacherous +arts the noble simplicity and free spirit of our Saxon laws;’ +though as a matter of fact, Lord Mansfield left Scotland at +the age of three, and the use which he made of his knowledge +<span class='pageno' id='Page_479'>479</span>of Roman jurisprudence was made by applying its rational +principles to the elucidation of the civil, and indeed chiefly of +the commercial parts of the English system. Such prejudices +seem now to lie far behind. We live in the midst of a general +unsettling of respect for whatever exists, which does not spare +the laws or even the constitution of England, and welcomes +new ideas from every quarter. Thus the influence of the +great German civilians begins to tell upon English students, +while the rise of a vigorous historical school in England has +quickened our curiosity in whatever helps to explain the +ancient and the mediaeval world. The feeling so awakened +has happily coincided with an interest in the scientific amendment +of the form of English law, different from that desire +to improve and correct its substance of which Bentham was +the first exponent, and which inspired the labours of Romilly +and Brougham.</p> + +<p class='c001'>The efforts of these great men were chiefly directed to the +removal of harsh enactments, of rules due to economic errors, +and of technicalities which defeated the ends of justice. +Their modern successors, finding the law purged of its +grosser faults, are rather concerned with its reduction into +a more orderly and systematic shape. The three leading +questions of reform at this moment are questions of form, +relating not so much to substance as to the shape and form +which the law ought to take. What are the best means +of fusing legal and equitable procedure<a id='r237'></a><a href='#f237' class='c013'><sup>[237]</sup></a>? How may Acts of +Parliament be drawn more concisely and symmetrically? +How are we to frame, out of the vast and chaotic mass of +our reported cases and statutes, an organized body of rules, +a Digest or a Code? Finding themselves thus brought face +to face with the problem which Justinian partially solved, +and which several modern states, as notably France, Austria, +Prussia, and Italy have again had to solve<a id='r238'></a><a href='#f238' class='c013'><sup>[238]</sup></a>, English lawyers +<span class='pageno' id='Page_480'>480</span>are being driven to examine the means whereby codification +was accomplished, and the results that followed it. They +feel that for the execution of so great a work men are needed +who have had something more than an empirical training, +and are disposed to believe that in any systematic course of +legal history and philosophy which might be devised to form +the mind of the jurist as preliminary to his purely professional +studies, a chief place should be assigned to the study of the +Roman law. Thus, what with our own actual needs, what with +the influence of the scientific spirit of the Continent, there +has been awakened in England an interest in the Civil Law +and an estimate of its worth which, although still matter +rather of faith than of sight, is yet strong enough to give +the University of Oxford not merely a motive for endeavouring +to revive the study, but a reasonable hope that it may be +revived with success, to the substantial benefit as well of the +universities themselves as of the legal profession.</p> + +<p class='c001'>To prove that Roman law does deserve in England, and +especially from the University, more attention than it now +receives may well be thought, at least in Oxford, a spot +which was long its home, a superfluous labour. That it fills +so large a place in the world’s history, that it is the fruit of so +great an expenditure of human genius and industry, is of +itself a sufficient reason why it should engage the labours +of a learned body which has, in Bacon’s words, taken all +knowledge to be its province. I may therefore content +myself with touching upon some of the purposes which the +study may be made to serve, and indicating some of the +directions in which it may most usefully be pursued; premising +always that academical study has two objects, the +furtherance of learning and discovery, and the preparation +of young men to be, not merely useful and active in their +future occupations, but also, in the widest sense of the word, +good citizens. These two objects have been sometimes, +<span class='pageno' id='Page_481'>481</span>under the names of Research and Education, opposed to +one another, and no small controversy has been maintained +touching their respective claims. Are they not in truth +closely intertwined? since the greater the zeal wherewith +a study is pursued, so much the greater is the teacher’s +influence on the taught; and since experience shows that +when the work of education has been neglected by schools +and universities, such neglect has not been caused by any +absorption in abstract studies, but by mere dullness and +self-indulgence, as fatal to study as they can be to education.</p> + +<p class='c001'>The various utilities of a knowledge of the Roman law fall +into two classes: those which connect it with the liberal +studies of a university, and specially with classical philology, +with history, and with ethics; and those which belong rather +to the faculty of law, and entitle it to a place in a strictly +professional curriculum.</p> + +<p class='c001'>Taking the former of these heads first, there is no more +obvious reason for pursuing the study than the light which it +throws upon Roman history, which is, it can hardly be too +often repeated, substantially the foundation of all modern +European history. No people was ever so thoroughly permeated +by legal ideas as were the Romans; none rated the +dignity of the profession so high, spent so much pains in +the elaboration of legal rules, and formed, let it be added, +so worthy a conception of what law ought to be. Hence +the whole political history of the Roman people and state +is so involved with its legal institutions, that it can be understood +only when regarded as derived from and conditioned +by them. This is signally true not only of the regal and +earlier republican period—in all early states of society, legal +customs do for a people what a political constitution does +in later times, or, in other words, public and private law are +closely intertwined—it is true also of the republic in the days +of Sulla and Julius Caesar, and of the long period of the +Empire. Most of the constitutional arrangements of the +Roman state depended upon those of private law, and many +<span class='pageno' id='Page_482'>482</span>of the gravest political questions turned upon legal doctrines. +The subject of the Agrarian laws, for instance, is intimately +involved with the legal conception of possession, as distinct +from ownership, and can hardly be mastered without a knowledge +of technical theory. The structure of the <span lang="la"><i>gens</i></span>, the nature +of the agnatic tie and of the <span lang="la"><i>patria potestas</i></span>, the judicial character +of the chief administrative magistrates, the doctrine of adoption—all +and each of them exerted a powerful influence on +the political fortunes of Rome. Adoption, for instance, became +from time to time under the Empire the means of working +a system of appointment to the sovereign power, which could +show the merits without the evils of hereditary succession. +I forbear to dwell on the number of historical incidents, like +that of Virginia and Appius Claudius, or of allusions in +poetical and philosophical writers, such as those which every +scholar remembers in Horace, Ovid, Juvenal, and most of +all in Cicero, which only a knowledge of the civil law can +elucidate. A student of the classics need not read the +Corpus Juris merely for the sake of understanding these, +any more than one is bound to read Coke or Hale for the +sake of better seeing the point of the numerous legal phrases +in Shakespeare. Few would go so far as the enthusiastic +civilian who maintained that every divine ought to learn +Roman law, because there are passages in the New Testament +which a knowledge of it serves to explain. But, though every +scholar need not, some scholars certainly ought; for there is +much in the literature, and, indeed, in the literary spirit +and feeling of the Romans, which is due to legal influences, +and which can be fully apprehended and expounded by those +only who have made themselves familiar with these influences +in their source. In particular, such study is necessary in +order to appreciate the character of the Empire in its relation +to the peoples of the Mediterranean whom it embraced. +Rome’s great gift to the world was her jurisprudence; and +the most interesting chapter in her history is that which +traces, coincidently with the gradual extension of Roman +<span class='pageno' id='Page_483'>483</span>citizenship and Roman law to the subject races, the steady +amelioration in its positive rules, and its development from +a harsh and highly technical system into one grounded on +principles of reason and justice, principles which are indeed +common to all civilized peoples, but which the Roman jurists +were the first to expound and apply. To this great work +was devoted, from the time of Augustus onwards, nearly all +the genius and labour, not of Rome merely but of the Roman +world, which was not expended on abstract speculation; and +it is more than an accident that long after the language of +Virgil and Cicero had become debased in the hands of +florid rhetoricians and soulless versifiers, its purity and its +nervous precision were preserved in the hands of men like +Papinian and Modestinus.</p> + +<p class='c001'>A second utility which may be claimed for our study, is its +bearing upon the history of mediaeval and modern thought. +When the Western Empire perished amidst the storms of +the fifth century, its law did not perish with it, but remained +a chief factor in European history, more widely, although less +directly, influential. The barbarian conquerors, who brought +with them only the rude customs by which they had lived in +their native forests, soon felt the need of a regular legal +system, and were glad to recognize that which they found +subsisting. They allowed their subjects, the Latin-speaking +provincials, to use it; in some countries they came to use it +themselves; parts of it were collected and published in such +compilations as the Breviarium of the West Gothic Alarich the +Second and the Lex Romana Burgundionum. At the close +of the Dark Ages, the study of the original texts revived, first +in Italy, then in France, England, and Spain. Schools of +law arose all over Europe. Immense pains were spent on +the interpretation of the Digest, and it became thenceforth, +for many generations, the foundation of the education and a +principal part of the knowledge of every lawyer and publicist. +As the mighty fabric of ecclesiastical power grew +up, it created with the help of Roman materials its own +<span class='pageno' id='Page_484'>484</span>body of laws, varied of course by the nature of the subjects, +and coloured by religious ideas, but substantially Roman +after all. In this, as in so much else, the Papacy was, to use +the forcible expression of Hobbes, ‘the ghost of the old +Empire, sitting on its tomb and ruling in its name.’ And +thus, in the hands of the very ecclesiastics who forbade its +study, as hostile to their own pretensions and favourable to +those of their antagonist, the Emperor, the doctrines of the +Civil Law obtained a wider range than ever before. As its +continued existence was one chief cause of the fantastic belief +in the continued life of the Roman Empire, so that very belief +became in turn the cause of its ultimate reception, in Germany, +where it had not prevailed, no less than in Italy, where +it had prevailed continuously, as effective and binding law. +Being studied by all the educated men, the poets, the philosophers, +the administrators of the Middle Ages, it worked +itself by degrees into the thought of Christendom, losing +the traces of its origin, as it became part of the common +property of the world. A knowledge, therefore, of what it +was, and of how it influenced mankind, helps to explain +much which might otherwise have remained obscure in +the literature of the Middle Ages and the Renaissance—much +whose bearing a modern finds it hard to grasp, just +because law holds a different place in his conceptions, +and because he does not realize the power it exerted over +untrained and uncritical minds. Theology is an instance, +but by no means the only instance, of a branch of inquiry +over which legal notions once exercised a sway they have +now lost.</p> + +<p class='c001'>The Middle Ages had received from antiquity, besides the +Scriptures, only three bodies of literature containing systematized +thought—the Church Fathers, the philosophy of +Aristotle, known through translations, and the Roman law. +The last counted for less than the two former in moulding +ideas. But it counted for a great deal.</p> + +<p class='c001'>The history of law and of the evolution of legal conceptions, +<span class='pageno' id='Page_485'>485</span>although in one aspect a professional subject, may also +claim to be regarded as a branch of general academical study. +Within the last few years, the application to it of the comparative +method of inquiry has given it a new significance +and interest, has enabled it to teach us much respecting the +structure of primitive society, and has made it the means of +illustrating many curious phenomena in the philosophy and +politics of more recent times. Now to the student of legal +history a knowledge of Roman Law is indispensable: first, +because it was an independent system, uninfluenced by +any preceding one, save to some slight extent by the +customs of Greek cities, whereas all subsequent European +systems have been influenced by it; and secondly, +because it alone presents an uninterrupted continuity of +development, stretching over ten centuries from the Twelve +Tables to Justinian, and later still through the dynasties of +Constantinople. No sudden intrusion of a new element, like +that caused in England by the Norman Conquest, nor even +the internal strife which altered the form of the Roman +state, disturbed that equable and self-consistent expansion +and amendment of the laws of Rome, which the widening +relations of the city, as a commercial, a conquering, a world-embracing +community, made necessary. Legislative power +passed from the patrician curies to the popular Assemblies of +the nation, from the Assemblies to the Senate and the Emperor, +but the conduct of legislation remained in the hands of an +educated profession, and the harmonious evolution of principles +was not interrupted. Nearly all the phenomena which +the history of law in other countries presents, find their +parallel and explanation in the history of its growth at Rome: +nor is the study without a practical value for the modern +legislator. The nature and limits of the jurisdiction of our +own Court of Chancery are better understood when compared +and contrasted with the functions exercised by the +Praetor as exponent of the <span lang="la"><i>ius gentium</i></span>. The codification +of Justinian has been constantly cited, and occasionally +<span class='pageno' id='Page_486'>486</span>examined, in recent discussions respecting the propriety and +the methods of digesting and codifying English law.</p> + +<p class='c001'>Assuming, without further argument, the claims of the +Civil Law to be recognized among the general liberal studies +of the University, I may proceed to consider its special utility +to the lawyer, and the reasons for giving it a place among +the studies of the legal faculty. Some zeal has of late been +shown for the revival of such studies in England and in +Oxford; and it will be generally admitted that young lawyers +ought to be more regularly instructed in the science and art +of their profession than they are now; that much of this +instruction may be, and ought to be, given at the University; +and that, apart altogether from the service to be rendered by +teaching, it would be a gain to the country if law were +cultivated and written upon at the Universities, in the same +philosophical spirit, and with the same systematic fullness, as +in the schools of Germany. There a great writer is often also +a great teacher. Such were Savigny and Thibaut; such was +that illustrious man whom Heidelberg lost five months ago<a id='r239'></a><a href='#f239' class='c013'><sup>[239]</sup></a>—a +man whose learning was so vast and well-digested, whose +expositions of law were so penetrating and luminous, so +philosophical in method, so eloquent in language, so animated +in delivery, that to have listened to him was to have gained a +new conception of the power of oral teaching.</p> + +<p class='c001'>An obvious ground for cultivating it, and one likely to have +weight with the practising lawyer, is the immense influence it +has exerted on the jurisprudence of modern Europe. As +respects England, this influence is matter rather of antiquarian +interest than of practical utility. Much of our law, +especially of our mercantile law, and of that which is administered +in courts of equity, may indeed be traced to a Roman +origin; while the Court of Admiralty, and even to some +extent, the probate and matrimonial Courts which have now +replaced the ancient ecclesiastical tribunals, owe a more +direct allegiance to the imperial jurisprudence. In the words +<span class='pageno' id='Page_487'>487</span>of Lord Chief Justice Holt, ‘Inasmuch as the laws of all +nations are doubtless raised out of the ruins of the Civil Law, +as all governments are sprung out of the Roman Empire, it +must be owned that the principles of our law are borrowed +from the Civil Law, and therefore grounded upon the same +reason in many things<a id='r240'></a><a href='#f240' class='c013'><sup>[240]</sup></a>.’ But the bulk of English law is so +vast, requiring so much labour to master it, and that which +it has borrowed from other systems is now so thoroughly +transformed and Anglicized, that one cannot honestly advise +the student, on the mere ground that in some departments +it has drawn freely from Roman sources, to spend time in +examining those sources, instead of going straight to English +text-books. It is not so much because English law is like +Roman, but because it is unlike, that the study is really to be +recommended. Similarities, whatever their historical origin, +are usually found to rest on that wish to follow reason and to +secure what is practically convenient, which have moulded +the rules of all highly finished systems. They need no +further explanation. But dissimilarities suggest difficulties. +Inquiry is provoked; reflection is stimulated; ideas emerge +which may prove fruitful.</p> + +<p class='c001'>A lawyer who loves and appreciates his subject will hardly +be content without knowing something of the rules and +doctrines which prevail in other nations; and a man in brisk +practice will find many occasions in which a knowledge of +foreign or colonial law is of great value to him. Now in the +acquisition of almost any foreign system of law, a knowledge of +the outlines of the Civil Law renders the same kind of service +which a knowledge of Latin renders in the acquisition of one +of the Romance languages; and just as one would advise +a man who desired to learn French Spanish and Italian to +begin by learning Latin, so the shortest way to know something +of German Dutch and French law is to study the +principles of the Civil Law, which are a master-key to that of +all these countries. The House of Lords in Scotch appeal +<span class='pageno' id='Page_488'>488</span>cases, the Privy Council in appeals from many of our colonies, +as, for instance, from Lower Canada, British Guiana, the +Cape, and Mauritius, administer a modified Roman law. +And as the doctrines of international law are in their source +Roman, they can be best understood and applied by one who +is familiar with them in their original form as drawn from +that imperial law which, when they first sprang up, was still +dimly conceived of as extending its authority over all the +states of Christendom.</p> + +<p class='c001'>I have placed last what I venture to believe to be the +weightiest practical reason for pursuing this study, although, +at the same time, that reason which it is most difficult to +expound and establish—its educational and scientific worth +as forming and strengthening those habits of mind in the +possession of which a lawyer’s excellence consists. In proof +of this worth it is not sufficient to cite the examples of +Germany, France, and Scotland, where the education of +a legal practitioner is based upon the civil law; for the +Corpus Juris is in all these countries the foundation of their +municipal systems, while in Scotland and some parts of +Germany, it is to some extent actually still in force. The +reason which we in England have for urging that the study +of Roman law should precede and accompany that of the law +of our own country, must be sought in a perception of the +defects, certainly obvious enough, of modern English jurisprudence. +Here it is necessary to distinguish what laymen, +and even lawyers, have often confounded—defects of substance +and defects of form. Now, in point of substance, the English +law is, with the exception of certain provisions of the law of +real property, and of the law relating to married women—provisions +which the progress of political change seems likely +to remove—no whit inferior to any other body of law; almost +always fair and reasonable, conformed to the dictates of good +sense, reflecting worthily the free and flexible spirit of our +political institutions, and offering as few opportunities as may +be to fraud and oppression. Its processes are of course +<span class='pageno' id='Page_489'>489</span>technical, perhaps still too technical, and they are sometimes +needlessly circuitous<a id='r241'></a><a href='#f241' class='c013'><sup>[241]</sup></a>; but, as a technical hardship may usually +be met by a technical remedy, substantial justice seldom fails +to be attained. With some cumbrousness, our procedure +has the merit of variety and flexibility; and it is our especial +honour to have worked out the method of trial by jury with a +completeness unrivalled elsewhere, and to have alone (for in +this, as in many other respects, Americans may practically be +reckoned as Englishmen) succeeded in applying it to large +classes of civil causes. But when English law is regarded in its +formal and scientific aspect, as a system, the opinion formed of +it must be very different. It is, in fact, not so much a system +as a huge mass of isolated positive rules; some laid down, +with little statement of a reason, for the sake of meeting +a particular case; some deduced by the judges, though in +a rather occasional and fragmentary way, from principles +which were at first dimly and incompletely apprehended; +some, again, created by statutes which have, especially of +late years, cut across these pre-existing principles and rules +in an irregular and reckless way. Just as lines of railway +have been driven through modern London without regard to +the old arrangement of the thoroughfares, and have crossed +and recrossed streets and squares, effacing parts of them till +perhaps only a house or two is left standing, so Acts of +Parliament, drawn up to meet the exigency of the moment, +have paid no respect to the symmetry, such as it was, of the +common law, and, instead of attempting to mould and +reconstruct it, have laid down new positive rules which +infringe upon, or almost wholly destroy, its ancient principles, +by removing from their operation large and heterogeneous +classes of cases. The effect of this has been to +make the old principle no longer really a principle, but +a positive rule in the cases not affected by the statute; and +thus, as the number of enactments and positive rules increases, +the value of principles declines, and the confusion grows +<span class='pageno' id='Page_490'>490</span>every year worse confounded. So it comes, owing partly to +the way they have been produced, and partly to the way they +have been amended, that the rules of our law are an aggregate +of dicta on points of detail—dicta which with difficulty can be +reduced to a reasonable number of leading doctrines. For +not only do the exceptions to a rule frequently outnumber +the cases which it governs, but it often happens that judicial +decisions, or the words of an Act, have provided for many +cases which naturally fall under and suggest a general principle, +but have never ventured to enunciate the principle +itself, which cannot therefore be laid down as being part +of the binding law. Hence the tendency of an English +practitioner is by no means towards a search for principles: +indeed, he becomes absolutely averse to them; and the +characteristic type of excellence which the profession has +delighted to honour is the so-called ‘case lawyer,’ who bears +in his memory a great stock of particular decisions, from +which he can, as occasions arise, select that one whose facts +most nearly approach the individual case upon which he is +required to argue or advise. Such a practitioner may acquire +a sort of instinct which will usually keep him right, but may +be unable to state the general doctrines on which the solution +of a class of cases depends.</p> + +<p class='c001'>The strain thus imposed on the memory is such that many +persons succeed in mastering only some special department of +the law; and even our most eminent counsel, men of the +greatest powers of mind, may be heard to confess that they +do not pretend to know our law as a whole, but must rest +content with knowing where to find what they want as they +may happen to want it. For the same reason our text-books +are, with few exceptions, not systematic expositions of law, +but mere heaps of cases from which, by the aid of an index, +the practitioner must try to pick out a few resembling, or, as +lawyers say, ‘on all-fours with,’ that set of circumstances +whose legal character he is called upon to determine. They +are, therefore, unfit to be put into the hands of a beginner.</p> + +<p class='c001'><span class='pageno' id='Page_491'>491</span>The result of all this is to make the process of learning +English law very slow and somewhat distasteful. Certain +persons indeed there are who, having no feeling for symmetry, +are willing to pick up their knowledge by scraps and +morsels, and who, so to speak, roll themselves about in cases +in the hope that bits of legal knowledge will stick. But +minds of finer temper, minds trained by their University +studies to ask for a reason, seek out a principle, group things +together under their natural relations, are disheartened by +this chaotic state of matters, make slow progress in the +study, find themselves required to unlearn their best mental +habits, and sometimes abandon the profession in disgust. +I remember having been told by a very distinguished and able +member of this University<a id='r242'></a><a href='#f242' class='c013'><sup>[242]</sup></a>, that when he began to read in +a conveyancer’s chambers he found his previous classical +and philosophical training, so far from helping him, prove +a positive hindrance and stumbling-block. This was seen to +be an evil so long ago as Sir William Blackstone’s time. +In his introductory lecture as Vinerian Professor, delivered +here in <span class='fss'>A.D.</span> 1758, he says:—</p> + +<div class='quote'> + +<p class='c001'>‘We may appeal to the experience of every sensible lawyer +whether anything can be more hazardous or discouraging than the +usual entrance on the study of the law. A raw and unexperienced +youth, in the most dangerous season of life, is transplanted on a +sudden into the midst of allurements to pleasure, without any +restraint or check but what his own prudence can suggest; with +no public direction in what course to pursue his inquiries; no +private assistance to remove the distresses and difficulties which +will always embarrass a beginner. In this situation he is expected +to sequester himself from the world, and by a tedious lonely process +to extract the theory of law from a mass of undigested learning; +or else, by an assiduous attendance on the courts, to pick up +theory and practice together, sufficient to qualify him for the +ordinary run of business. How little, therefore, is it to be wondered +at, when we hear of so frequent miscarriages; that so many gentlemen +of bright imaginations grow weary of so unpromising a +search, and addict themselves wholly to amusements, or other less +<span class='pageno' id='Page_492'>492</span>innocent pursuits; and that so many persons of moderate capacity +confuse themselves at first setting out, and continue ever dark and +puzzled during the remainder of their lives.</p> + +<p class='c001'>‘The evident want of some assistance in the rudiments of legal +knowledge has given birth to a practice which, if ever it had grown +to be general, must have proved of extremely pernicious consequence. +I mean the custom, by some so very warmly recommended, +of dropping all liberal education, as of no use to students +in the law, and placing them in its stead at the desk of some skilful +attorney, in order to initiate them early in all the depths of practice, +and render them more dexterous in the mechanical part of business. +A lawyer thus educated to the bar will find that he has +begun at the wrong end. If practice be the whole he is taught, +practice must also be the whole he will ever know; if he be +uninstructed in the elements and first principles upon which the +rule of practice is founded, the least variation from established +precedents will totally distract and bewilder him: <span lang="la"><i>ita lex scripta est</i></span> +is the utmost his knowledge will arrive at; he must never aspire +to prove, and seldom expect to comprehend, any arguments drawn +<span lang="la"><i>a priori</i></span> from the spirit of the laws and the natural foundations of +justice<a id='r243'></a><a href='#f243' class='c013'><sup>[243]</sup></a>.’</p> + +</div> + +<p class='c001'>Blackstone is here founding, on the unfortunate results of the +usage of his own time, an argument for making the future barrister +begin with a systematic theoretical study of English law. +His reasoning will be generally felt to be sound, but it does +not exclude the further improvement of giving the learner +some knowledge of the principles of Roman law before he +addresses himself to English. I shall state some grounds +for thinking that what might appear the longest way round, +through Roman law, may really be the shortest way to the +scientific mastery of our own.</p> + +<p class='c001'>It is clear that no knowledge of the Roman system can be +a substitute for a knowledge of the English; but the difficulties +which the English presents to a beginner are such +<span class='pageno' id='Page_493'>493</span>as to suggest the utility of a preliminary legal training which +may render it more comprehensible and less distasteful. +Now, the conspicuous merit of Roman law is, that it is clear +and intelligible. It is a system instead of a mere congeries +of rules and dicta, a system which, although it cannot be +exhausted by the labour of a powerful intellect during a long +life, may be mastered in its outline and leading principles +in six or eight months of properly-directed industry. A philosophical +mind is attracted by its symmetry; the taste is +pleased by the graceful propriety of its diction; the learner’s +interest is kept awake by watching the skill and subtlety +wherewith its technical rules are manipulated and kept in +harmony with the dictates of equity and common sense. The +number of dominant conceptions which it is necessary to +acquire is so small, and these conceptions themselves so +rational and, so to speak, natural, that it does not take long +to obtain a general view of the whole, and discern the harmonious +relation of its parts. The student finds the ethical +and historical knowledge he has already acquired serviceable +in this new field. He learns to regard law as a science, +closely related to ethics, and to be dealt with in a philosophical +spirit. And thus, when he passes on to the study +of our English law, he finds himself the better able to grapple +with its bulk and its want of arrangement, since he has +already mastered the leading conceptions of jurisprudence +in their concrete (which is, after all, their only serviceable) +form, and knows how to arrange under appropriate heads +the positive rules which it will be his business to remember +and apply. So valuable is this experience, that I dare affirm +that a youth who spends some eight months in the study of +the Civil Law, and then proceeds to that of English law, will, +when at the end of three years he is measured against his +contemporary who has given exactly the same amount of +time and pains to English law alone, prove to be not only +a better jurist, but as good an English lawyer. This is the +rather so, as that part of English law which the Roman law +<span class='pageno' id='Page_494'>494</span>least helps to elucidate is now of much slighter importance +than formerly—I mean the feudal law of land. A change has +passed upon us, somewhat similar to that which Cicero saw +passing at Rome. In his youth, he tells us, he like other +pupils of the great <span lang="la"><i>prudentes</i></span> was required to learn by heart +the contents of the Twelve Tables, whereas in his later days +it was the Praetor’s edict that formed the basis of legal +training. So Coke upon Littleton, which thirty years ago +was held forth as a sort of Bible to the unfledged lawyer, is +now seldom in his hands; his time is given rather to commercial +law and to the doctrine of trusts and powers, and the +principles governing incorporated companies and the relations +of directors to intending investors and to shareholders—subjects +to which the leading principles of the Roman law +are more capable of being profitably applied.</p> + +<p class='c001'>It is not, however, merely as an introduction to his professional +studies that the English lawyer will find the study +of Roman law profitable: if rightly used it will be a guide +and a help throughout his whole career. More than anything +else, it will deliver him from the tendency to deal with +law in a desultory method and an empirical spirit, by displaying +to him fixed and general principles underlying the +multitude of details. It will do for him what the knowledge +of some foreign language does for the grammarian and the +logician, in the way of freeing him from that bondage of +words to which most men are all their lives subject. Setting +him to compare the terms and conceptions of another law +with those of his own, it will enable him to criticize the latter +from an independent point of view, and so deliver him from +the danger, common in all professions and to all systems, +of mistaking the accidental for the essential, of exalting mere +technical rules and phrases into necessary and permanent +distinctions. Further, it may do much to supply, from its +choice and abundant stores, the defects in English legal +terminology. We are especially ill provided with terms fitted +to convey the main conceptions of universal jurisprudence; +<span class='pageno' id='Page_495'>495</span>and we find the want a serious impediment, not only to legal +exposition and the conduct of legal argument, but also, as +has been remarked by a distinguished jurist, now one of the +ornaments of this University<a id='r244'></a><a href='#f244' class='c013'><sup>[244]</sup></a>, in the work of practical legislation. +The terminology of the Romans was exact as well as +copious; and it has been greatly amplified and improved by +the labours of modern civilians. As it is, we often draw +upon the Roman vocabulary, but what we borrow we are apt +to use loosely, and in a sense different from that of the old +Romans or of their modern commentators; whence further +confusion.</p> + +<p class='c001'>There are two capacities or mental habits in which the distinctive +excellence of a legal intellect chiefly consists—the +power of applying general principles to concrete cases, and the +power of enunciating a legal proposition with clearness and +precision. Towards the formation of both of these the +writings of the Roman jurists supply more aid than do +those of their modern English rivals. The conspicuous +merit of the Roman lawyer was his command of principles, +and the skill with which he manipulated the rules of an +originally very technical system, so as, without any loss of +consistency or ‘elegance’ to avoid the inconveniences which +an adherence to technical strictness must often produce. +As Savigny puts it, ‘In our science, all results depend on +the possession of leading principles, and it is precisely upon +this possession that the greatness of the Roman jurists is +based. The conceptions and maxims of their science appear +to them not as if created by their own will; they are actual +beings, with whose existence and genealogy they have +become acquainted from long and familiar intercourse. +Hence their whole course of proceeding has a certainty +which is found nowhere else out of mathematics, and it is +no exaggeration to say that they calculate with their ideas. +This method is nowise the exclusive property of one or +a few great authors: rather is it the common inheritance of +<span class='pageno' id='Page_496'>496</span>all; and although the power of applying it is divided among +them in very unequal measure, still the method itself is in all +of them the same.... If they have a case to decide upon, +they set out from the most vivid perception of it, and we see +before our eyes the origin and development of the whole +affair in all its phases. It is as if this particular case was +the starting-point whence the whole science was to be explored. +Hence with them theory and practice are really +not distinct; their theory is so thoroughly worked out as to +be fit for immediate application, and their practice is uniformly +ennobled by scientific treatment. In every principle +they see an instance of its application; in every case, the rule +whereby it is determined: and in the facility with which they +pass from the universal to the particular, and the particular +to the universal, their mastery is incontestable<a id='r245'></a><a href='#f245' class='c013'><sup>[245]</sup></a>.’</p> + +<p class='c001'>Now every legal opinion, argument, and judgment chiefly +turns on the application of known principles or rules of law +to facts; and this either by way of fitting the law to the +facts—that is, of expounding the nature, meaning, and limits +of a principle in such wise as to make it appear to cover the +facts proved; or conversely by way of fitting the facts to the +law, that is to say, of setting forth the rule or principle, as +admitted, and then of so stating the substantial result of the +facts taken as a whole, as to make it appear that the case falls +under this rule as already given. In this process the Roman +jurists shone preeminent. English judges, certainly from no +want of learning or acumen, but rather from a sort of caution, +or from a traditional reluctance to deliver an opinion going +any further than may be necessary, have generally been +unwilling to formulate principles, preferring, where they +could, to dilate on the special circumstances of the case, and +base their decision thereon; and the consequence is to be seen +in the prolixity of our Reports, and the uncertainty of much of +the law contained in them. The labour of reading English +cases is great in proportion to the quantity of positive law +<span class='pageno' id='Page_497'>497</span>they embody; and their philosophical worth not commensurate +with the genius and industry bestowed upon them by +both bar and bench. The cases, if one may so call them, +which we find in the Roman jurists give more law +and more real intellectual training in a much smaller +compass. They are often imaginary, invented to show the +application of a rule, and are therefore short and clear, +enforcing their principle with a directness which makes it +easily apprehended and remembered. In reading them we +seem to learn better than anywhere else how principles +should be dealt with.</p> + +<p class='c001'>In the matter of legal expression the superiority of the +Romans is scarcely less marked. The power of stating a +proposition of law in comprehensive and exact terms, wide +enough to cover all cases contemplated and yet precise +enough to exclude cases more or less similar to which the +rule is not intended to apply, is valuable to the text-writer +and quite indispensable to the framer of statutes. Unfortunately +it is one of which our statute-book bears few traces. +Now the legal language of the Romans is a model of terseness, +perspicuity, and precision, and from a study of it, even allowing +for the difference between the structure of the two languages, +the English draftsman may derive many valuable +suggestions.</p> + +<p class='c001'>Over and above the specific benefits enumerated, it must be +added that a study of the Roman law would not merely tend +to produce, but must necessarily precede, any extended +healthy intercourse between our jurists and those of the rest +of Europe, any participation by us in the general advancement +of juridical science. ‘England,’ said an eminent continental +jurist, surveying the progress made in his department, ‘England +sleeps for ever’: and she sleeps because her lawyers +have allowed themselves to become as completely isolated as +though we were living in and legislating for a planet of our +own. Certainly, when one remembers how in other branches +of inquiry each country depends upon its neighbours, how +<span class='pageno' id='Page_498'>498</span>meagre would be our scholarship, our ethics, our history, our +criticism—never to speak of medicine and the whole circle of +the sciences of nature—if in each of these subjects we trusted +to our own efforts only—it does seem strange that in the +matter of law we should be content to draw nothing from the +labours of other nations. As the facts law deals with are in +the main the same in all civilized countries, and the substance +of its leading conceptions virtually identical, there +must clearly be much for us to learn from other highly +cultivated systems, and it is only our ignorance of the +common legal vocabulary of Europe that keeps us from so +learning. The habit, however, has grown so strong that we +do not even care to profit by the experience of a country +which speaks our own legal language—the United States—where +many problems have been handled by the Courts +and many experiments have been tried by the legislatures +which are full of instruction for us<a id='r246'></a><a href='#f246' class='c013'><sup>[246]</sup></a>.</p> + +<p class='c001'>This argument, being directed to show that the study of +the Civil Law will help to make English law more of a system +and a science than it is now, and to train the individual +lawyer in more philosophical habits of mind, proceeds upon the +assumption that law ought to be a science and lawyers philosophical. +To prove the truth of this assumption would involve +a discussion of the relations of theory and practice generally; +and in a University, at least, no such proof will be demanded. +Science, like wisdom, is justified of all her children; and +those who, in the teeth of what we have seen during the last +eight months<a id='r247'></a><a href='#f247' class='c013'><sup>[247]</sup></a>, persist in holding theory to be a hindrance to +practice, would, quite consistently, refuse to be convinced by +any such general considerations as those which determine +academical opinion. Without entering, however, on this +higher ground, I may be permitted to mention two practical +<span class='pageno' id='Page_499'>499</span>reasons for desiring to see our law treated as an organic and +harmonized system of rules. One of these is the direct gain +which the whole community would derive from a simplification +of its form. Owing to the way in which English statutes are +drawn, nearly every amendment of the law makes it more +complicated and obscure than it was before. A new Act +seldom repeals a preceding Act or Acts on the same subject +as a whole: it abolishes some of their provisions, incorporates +others, and modifies the rest. In dealing with a rule of the +common law, instead of expunging the rule altogether, or +laying down a new principle by which it is to be controlled, +it usually establishes a series of exceptions in a manner so +seemingly arbitrary as to make it very difficult to determine, +when a new case arises, whether or no it was within the +contemplation of the Act. The Married Women’s Property +Act of last session is an instance in point<a id='r248'></a><a href='#f248' class='c013'><sup>[248]</sup></a>. Similarly, vast +branches of our law, such as that which relates to public +health and to the regulation of mines and manufactures, are +suffered to remain in a state of hopeless confusion—Acts +fringed with decisions piled upon other Acts and their decisions, +till it becomes impossible, without a long and painful +research, to say what is law and what is not<a id='r249'></a><a href='#f249' class='c013'><sup>[249]</sup></a>. This wretched +state of things, which makes a resort to the Courts far more +costly, and its issue far more uncertain than it need be, though +partly due to existing parliamentary arrangements, is also in +great measure due to the want of that feeling for the symmetry +and simplicity of the law which a scientific conception of it +would be certain to produce in the profession. The public, +which feels the evil, is powerless to remedy it; while those +<span class='pageno' id='Page_500'>500</span>members of the profession who have the power are deterred +from the necessary efforts, not, as is commonly supposed, by +the mean notion that it is their interest to keep their art +a mystery, but partly by long habit, which has made them +indifferent to the beauty of order, partly by the want of that +scientific training on which the success of amending legislation +depends.</p> + +<p class='c001'>The second benefit is the reflex effect upon the legal profession +of a higher conception of the studies to which it +devotes its labours. The complaint is often heard that men +of literary culture and polished taste rise more seldom than +formerly to the highest places at the bar and on the bench; +that it is now private connexions rather than the finer gifts +of intellect and character which open the path to professional +success. If this be so, it is surely in great measure because +our system of legal education gives too little scope to these +nobler qualities, and turns them to no account in directing +the studies of the aspirant. The life of a lawyer, tedious and +distasteful in some of its details, would be more enjoyable if +his occupation called out, as it ought to do, the highest faculties +of his mind; and the tone of the profession, which will +sooner or later be threatened here by the temptations which +have begun to threaten it elsewhere<a id='r250'></a><a href='#f250' class='c013'><sup>[250]</sup></a>, will be best maintained +in purity by a sense of the dignity of the subject it deals with +as a department of philosophical inquiry. It is scarcely +possible that a corrupt administration of justice can coexist +with an enthusiasm for the abstract propriety and elegance +of law as a science, such as existed among the great jurists +of Rome.</p> + +<p class='c001'>I am sensible that in this enumeration of the advantages +of the study we have been considering, I may probably be +falling into the common error of those who having a +theme allotted them, try to bring more out of it than +<span class='pageno' id='Page_501'>501</span>there is in it. To correct such a mistake, let it be frankly +admitted that Roman law, though indispensable to the philosophical +jurist, is not so to the practitioner; and that no +knowledge of it can make up to him for the neglect of his own +law. Let it also be conceded that it is not a subject ever +likely to hold a front rank among those which awaken the +ardour of our academic youth. It wants that charm of incompleteness, +of unexhausted possibilities of discovery, which +fascinates us in the sciences of nature. It does not, like +metaphysics, set us face to face with the most stimulating +problems of thought and life; nor can it, like history, dazzle +the imagination and stir the emotions, by leading us through +a long gallery of striking scenes and characters. Yet the +study is one which pleases and satisfies as well as instructs; +for it is at once, and that in the healthiest way, theoretical +and practical, excellently philosophical in its methods, yet +never quitting the firm ground of reality. Its materials are +contained in the writings of men, the purity and loftiness of +whose ethical tone were scarcely surpassed by the brilliance +of their constructive genius. It is perhaps the most perfect +example which the range of human effort presents of the +application of a body of abstract principles to the complex +facts of life and society. To quote once more from the most +famous of modern jurists:—‘The study of Law,’ says Savigny, +‘is of its very nature exposed to a double danger: that of +soaring through theory unto the empty abstractions of a +fancied law of nature, and that of sinking through practice +into a soulless unsatisfying handicraft. Roman law, if we +use it aright, provides a certain remedy against both dangers. +It holds us fast upon the ground of a living reality; it binds +our juristic thought on the one side to a magnificent past, on +the other, to the legal life of existing foreign nations, with +whom we are thereby brought into a connexion wholesome +both for them and for ourselves<a id='r251'></a><a href='#f251' class='c013'><sup>[251]</sup></a>.’</p> + +<p class='c001'><span class='pageno' id='Page_502'>502</span>Standing midway between those classical and historical +studies which belong to a general liberal education, and those +purely professional studies which form the first stage of +active life, it is especially fitted to lead men from the one to +the other, and show them how to turn to account in the +latter the ideas and capacities which the former has given +them. But although this is a strong reason why the University +of Oxford should undertake to recognize and promote +the study, it is not the only or the chief reason. Even +more important than the function of an University in education, +is the scarcely separable function of dealing with every +department of human activity in the abstract, investigating +its principles and developing its rules in their philosophical +coherence. We are all too apt, in the hurry of life and the +pressure of its trivial necessities, to lose sight of that which +is universal and permanent—to forget that what we are +pursuing as a trade is the subject of a science, and has, as +such, its greatness and its perfectibility. The ideal is not +far from us, but we catch only transient glimpses of it; and +of those who continue in maturer life to cherish the belief in +its worth, the most conceive of it in relation to their inner +life only, and look on their action in the world without as +something which belongs to another and a meaner sphere. +The University is appointed to correct this failing—to link +the present, in which things seem petty, to the past which +clothes them with a mellower light—to ennoble practice by +a constant recurrence to theory—to show that intellectually +as well as ethically there is nothing common or vulgar, +nothing which may not and ought not to be considered as +within the domain of Philosophy, who, the more perfect she +becomes, sees more clearly that which is great in that which +is the least. In undertaking, therefore, not only to educate in +the ordinary liberal studies, but also to deal in a broad and +lofty spirit with such large practical topics as this of law, the +English Universities will in a new way justify their possession +of that wealth and external splendour which they +<span class='pageno' id='Page_503'>503</span>alone out of the great mediaeval sisterhood have been +privileged to retain. They will associate themselves more +closely with the life of the nation, and confirm the reverence +with which it still regards them; nor is it idle to add that in +thus enlarging the scope of their activity, they will be closely +following and worthily maintaining the traditions of their +glorious past.</p> + +<div class='chapter'> + <span class='pageno' id='Page_504'>504</span> + <h2 id='eXVIII' class='c005'>XVIII<br> <i>VALEDICTORY LECTURE</i><a id='r252'></a><a href='#f252' class='c013'><sup>[252]</sup></a> <br> <br>LEGAL STUDIES IN<br>THE UNIVERSITY OF OXFORD</h2> +</div> + +<p class='c010'>Twenty-three years have passed since I entered on the +duties of the Chair of Civil Law in this University: and +to-day, in obedience to precedents of high authority, I come +to say some parting words suggested by the experience of +those years. They have been years full of experience for us +all: and it may be not unprofitable that I should note the +changes they have brought and endeavour to estimate the +position which legal studies, and especially the study of +the Civil Law, have now reached in the University and in +the country.</p> + +<p class='c001'>Those changes have been many and momentous. Since +1870 the University has nearly doubled the number of its +undergraduates and has greatly increased the number of +its teachers. It draws students much more largely from the +less wealthy classes of the people. A new college has been +founded, and risen to prosperity: an old one has been +refounded and enlarged. Two colleges for women have +sprung up and taken firm root. Theological tests have been +abolished: persons not belonging to the Church of England +as by law established have begun to resort freely to Oxford: +<span class='pageno' id='Page_505'>505</span>two theological faculties belonging to unestablished religious +bodies have come to dwell in her midst, and have received +a courteous welcome. Nor have any of the unfortunate +consequences predicted as likely to follow from the admission +of Nonconformists been actually experienced, for there has +been a diminution of theological controversy, a growing +sense of friendliness and sympathy among Christians, a more +assured peace in the minds of our students.</p> + +<p class='c001'>The examination system has been remodelled, with a regrettable +but perhaps inevitable increase of complexity, as +well as enlarged by the inclusion of new studies. The +University and the Colleges have been dealt with by Parliament +and by an Executive Commission: and the serious +consequent evils have been not wholly uncompensated by +gains. Oxford has undertaken many new kinds of work. +She provides University Examinations for Women, and +sends zealous young lecturers everywhere through England +to bring teaching of an academic type within the reach of the +people.</p> + +<p class='c001'>As regards Law, while the degree of Doctor of Civil Law +has become a true distinction by the requirement of a thesis +of substantial merit instead of the former purely formal +exercise, the B.C.L. examination (theretofore scarcely serious) +was made by a statute of 1872 a reality: the standard both +of honours and of the pass degree has steadily risen, and +this rise has been accompanied by an increase of candidates. +That examination is probably now, I do not say the most +severe test of legal attainments, but the best arranged and +most practically useful law examination in England. In the +years preceding 1870 there were seldom more than two or +three entrants for this examination, almost absurdly easy as +it then was. There are now usually upwards of twenty and +sometimes twenty-five. Similarly the number of candidates +in the School of Jurisprudence, by which candidates can +obtain the degree of B.A., has grown and the quality of the +work has improved.</p> + +<p class='c001'><span class='pageno' id='Page_506'>506</span>In 1868 there were only three Chairs in the Faculty of +Law: those of Civil Law, Common Law, and International +Law, besides the temporary Vinerian Readership; and of +these that of Common Law was virtually in abeyance. In +1870 the work of the Corpus Professorship of Jurisprudence +began with the lectures of an illustrious writer whose fame +two Universities dispute, for if Cambridge reared him, +Oxford gave him the occasion for teaching, Sir Henry +Maine. In 1878 the Readership in Indian Law, and in +1881 that in Roman Law, was founded and the opportunity +taken of placing in it the zeal and learning of a German +civilian—Dr. Erwin Grueber—whose lectures have proved +most helpful. In 1882 the Vinerian Chair of Common Law +became (as we trust it will ever continue) a working chair by +the choice of another distinguished man whose powers, +always admired by his friends, are now recognized over the +English-speaking world, and to whom belongs the rare +honour of having devoted those powers to the service of his +political allies in a great and burning controversy without +impairing the respect which all parties feel for the depth and +soundness of his constitutional lore.</p> + +<p class='c001'>Thus there are now seven working professorships: and +to these we must add, in estimating the teaching force +which the University possesses, the lectures of another +distinguished writer who may be reckoned as virtually a law +professor—the Warden of All Souls: and of more than ten +College lecturers, who serve the University as well as their +respective Colleges, with recognized efficiency.</p> + +<p class='c001'>Thus, upon a review of recent years, we may say that as +the whole University has grown and expanded, so has also +this side of her activity, and that which was once a dry riverbed, +or presented, like a South African river, only a few +scattered pools of stagnant water, has now become a wide +and fertilizing stream.</p> + +<p class='c001'>That serious deficiencies exist I am well aware: I shall +presently advert to them and to the steps that may be taken +<span class='pageno' id='Page_507'>507</span>to remove them. For the moment, however, I am noting +progress actually made and gains actually secured. Among +these may be reckoned the assured position which the study +of the Roman Law now enjoys.</p> + +<p class='c001'>Though this was the first subject recorded to have been +taught in Oxford, for one of the earliest notices of the +University is to be found in the sentence ‘Magister Vacarius +in Oxenefordia legem (<i>sc.</i> Romanam) docuit,’ and though +from his time (the reign of King Stephen) down till the seventeenth +century it held a rank second only to that of theology, +it had within the last hundred years virtually died out of the +University, and this chair, founded by King Henry VIII in +1546, and occupied in the time of King James I by Alberico +Gentili, had become a sinecure. A few law degrees no doubt +continued to be given, but they carried no evidence of knowledge. +The revival begins with the substitution in 1852 of an +examination (albeit a very slight one) for the old formal +exercises for the degree of B.C.L., and the creation in 1853 +of the Law and Modern History School (in which the +Institutes of Justinian were made a subject of examination). +That School was in 1872 divided into the present two Schools +of Modern History and of Law, in the latter of which Roman +Law received a more important place. Till 1870, however, +there was scarcely any teaching, and what little did exist in +the colleges was confined to commenting upon the solitary +book required for the examination. No one had lectured +on the Digest; no one had treated the history of the subject. +This was part of that remarkable isolation of England from +the general current of European legal thought and practice +which was due partly to the resistance to the encroachments +of the Canon Law, first of the barons in the thirteenth +century, and again of the Parliament under Richard II, +partly to the great religious breach of the sixteenth century, +an isolation once politically fortunate, for it helped to +develop the free spirit of the common law, but in our days, +when the old dangers have vanished, a circumstance to be +<span class='pageno' id='Page_508'>508</span>regretted and removed. Among the modes of removing it, +the study of the Civil Law is not the least important. That +study may now be deemed to have struck here in Oxford +deep and tenacious roots. Both in our examinations and in +our teaching it holds a place equal in dignity to English Law, +though doubtless of narrower compass. It attracts in fully as +large a measure the interest of the more intelligent among +our students, and it can hardly be doubted that the excellence +of the Law School in the future will largely depend upon +its maintenance as a main element in both teaching and +examination.</p> + +<p class='c001'>Its practical utility to the English lawyer is one of the +points on which you may expect the results of my experience +to be stated; for it is a point upon which attention must be +constantly fixed, and I have had opportunities of studying it +amid the din and dust of forensic practice in London no less +than in the cloistered seclusion of Oxford.</p> + +<p class='c001'>In the Inaugural Lecture which I delivered here in 1871, +an attempt was made to treat this subject. It was there +pointed out that the utilities of the Civil Law to Englishmen +might be reduced to three heads. One was its connexion +with the main stream of the world’s history from the time of +Pyrrhus, the first formidable antagonist from non-Italian soil +whom Rome overthrew, to that of Muhamad, by whose +first successors the East was torn from her grasp; and its +influence, less conspicuous, but still considerable, upon the +growth of opinion and the development of institutions ever +since. This is an aspect of the subject which, since it +belongs rather to the historian than the lawyer, I shall not +pursue further to-day, though subsequent reflection leads me +to believe that its importance can hardly be overrated. The +second utility was to be found in the fact that Roman Law is +the substratum of some branches of English Law, directly of +the law administered in the Probate and Admiralty Division +of the High Court of Justice, and indirectly of a good deal +administered in the Chancery Division, in the further fact +<span class='pageno' id='Page_509'>509</span>that it is the actual law of some of our colonies from which +appeals come to the Privy Council, as well as the foundation +of the law of Scotland whence appeals come to the House of +Lords, and in the command which it gives of the law of +modern continental Europe, since it is the basis of the +systems that prevail in all those countries, and its knowledge +is a sort of master-key to each and every of them. These +circumstances—so I then argued—make it practically serviceable +to the practitioner, and justify a man bent on professional +success in devoting some time to its study. The third utility +was to be found in its educational value, as forming the mind +and training the aptitudes of the student devoting himself +either to the theory or the practice of English Law. On +these latter two of the above-mentioned three points it is +proper to say a few words.</p> + +<p class='c001'>An observation extending over twenty-two years leads me +to lay less weight than I laid in 1871 on the direct professional +gain, in the way of securing practice at the bar, to +be expected from a knowledge of Roman Law. Sometimes +no doubt a man may find such knowledge directly +helpful in writing opinions (especially if points of Scotch +or French or German or Roman Dutch law arise), or in +arguing before a Court. Once in addressing the House of +Lords in a Scotch Appeal I discovered a pretext for quoting +the Digest, which that august body received with grave +approval, as not unbefitting the large survey they are wont to +take of every matter that comes before them. But instances +of this kind are rare in ordinary practice. It would be unbecoming +to dilate upon this aspect of the question, for +a University is the last place in which the worth of knowledge +ought to be measured by its merely gainful utility, or +where our studious youth ought to be led to set their hearts +upon immediate practical success. Still, if one is asked to deal +with the point upon a hard utilitarian basis, I cannot allege +that the advantage to be expected from the possession of +this acquirement does much more than counterbalance the +<span class='pageno' id='Page_510'>510</span>impression which still prevails in the ‘other branch of the +profession,’ that it is a little uncanny for a barrister to be +known for anything except his knowledge of the English +Law. Things might fall out differently for the young civilian +to whom a judicious firm of solicitors vouchsafed a chance of +getting into Canadian Appeal business or Admiralty business. +But in such a world as the present, and more particularly at +the bar, one cannot await chances or shape one’s course with +a view to them; one must seize those that come and float +onwards with the tide. The ambitious junior may desire to +be employed in subtle questions of insurance or company law, +but if briefs are offered him at the Old Bailey or even in the +Divorce Court, he will probably deem it wise to accept them, +and to wait till his position is assured before he begins to +pick and choose among the business which clients send. In +the long run, no doubt, a man who knows Roman Law will +find many cases in which, when he has attained a front +rank in the profession, he can profit by that knowledge. But +the main thing for the practitioner is to get a start; and it +is not certain that any one will get this start sooner by being +as good a civilian as Oxford can make him.</p> + +<p class='c001'>This may be deemed a somewhat sordid aspect of the +matter; so let me hasten to correct any possible misapprehension +by adding that as respects the third head of utility—that +of the benefit to a student’s mind which training +in Roman Law gives, I can dwell upon it with a confidence +deepened by the experience of every year. Far be it from +me to disparage the law of England as it was disparaged by +the eager reformers of seventy or even of fifty years ago, +impatient of the defects, many of them removed since their +days, which then marred its noble proportions. It is a system +worthy of all admiration for its humane spirit, for the sense +of civic equality and personal freedom which pervades it, for +its elastic power of adapting its provisions to the needs of the +great communities that live by it, not here only but beyond +the Atlantic and beneath the Southern Cross. Its faults lie +<span class='pageno' id='Page_511'>511</span>not in its substance but in the form which the historical +conditions of its growth have given to it. It is a system +extremely hard to expound and hard to master. So vast +is it and so complicated, so much are its leading principles +obscured by the way in which they have been stated, scattered +here and there through cases reported in a chronological +order, which is the perfection of disorder, so much have +many of its main doctrines been cut across and (so to speak) +dislocated by modern Statutes, that it presents itself to the +learner as a most arduous study, a study indeed which only +a few carry so far as to make themselves masters of the whole +body of our working rules. Roman Law, on the other hand, +is not only simpler, since it wants those differences between +real and personal property, and between legal and equitable +rights to which so much of our English complexity is due, +but more limited in its range, large modern departments, like +those of company law and insurance law and negotiable +instruments, being absent. It is therefore a subject the whole +of which the student can more easily bring under his eye, +seeing the various parts in their relation to one another. +What is of still higher import, the Roman Law is symmetrical +and coherent. Each part not only has, but displays, its +organic relation with every other part. The original sources +in which we possess it are of moderate bulk, not larger than +the English Law Reports of the last four or five years, and +not a two-hundredth part of the total volume of our Reports.</p> + +<p class='c001'>Less than one-fourth of these writings is now of practical +consequence, for the remainder, though interesting historically, +deal with matters not significant to the modern lawyer. But +the fraction which still concerns us is of the highest possible +merit. In it one may find something of value upon almost +every principle and general legal doctrine with which a jurist +has to deal. The legal conceptions set forth are those upon +which all subsequent law has been based; and nearly all +of them find their place in our own system, which they have +largely contributed to mould. Two of the Roman text-books +<span class='pageno' id='Page_512'>512</span>deserve special mention. The Institutes of Gaius is a model +of vigorous precision and lucidity, an elementary treatise to +which we have nothing comparable. The Digest of the +Emperor Justinian, containing short extracts from a number +of the most eminent legal writers of earlier times, has excited +the admiration of all succeeding generations by the concise, +delicate, and philosophical way in which principles are set +forth and points of detail investigated. Its contents are +philosophical, not in the sense of being abstract, but in the +firm grasp of principles, and the refined exactitude with +which every principle is applied. No rules could better +conform to the three canons of good law, that it should be +definite, self consistent, and delicately adapted to the practical +needs of society. No study can be better fitted to put a fine +edge upon the mind, or to form in it the habit of clear +logical thinking.</p> + +<p class='c001'>In England we have nothing similar, and although the +study of case law may be made, and has sometimes been +made in the hands of a skilful teacher (such as Mr. C. C. +Langdell, of the Harvard University Law School), as good +a training in subtlety and exactness as the Roman Law or +indeed as the scholastic logic of the Middle Ages, the immense +bulk of our cases makes it difficult to pursue such a method +over the whole field which a learner ought to cover.</p> + +<p class='c001'>‘Nevertheless,’ some one may say, ‘even if the merits +claimed for the Roman system be admitted, it is not our +English system, and you are doubling the learner’s labour. +Why should he add to the time and toil that the study of +English Law needs, the time and toil, less though it be, +needed for mastering the Roman? Why attempt both, when +one alone is, on your own showing, so arduous?’</p> + +<p class='c001'>The answer is that the learner will make quite as rapid +progress with English Law if he has begun with Roman +as if he proceeds to break his teeth from the first upon +the hard nuts of our own system. Twenty-one years ago +I ventured to say this here and I venture now to repeat +<span class='pageno' id='Page_513'>513</span>it with fuller confidence. Two men of equal ability and +diligence start together after taking their B.A. degree. One +gives a year to Roman Law and the two next to English. +The other devotes to English the whole three years. At the +end of the three years the first will know as much English +Law as the second. He may not have covered so much +ground or got on his tongue the names of so many cases, +but he will know what he does know—nor will it be much +less in quantity—more thoroughly and rationally. The explanation +is twofold. In learning Roman Law, one learns the +elements of law in general, and therefore of English Law also, +these elements being more easily learnt from Roman sources, +than they could be in the form they have taken among +ourselves. And, secondly, in learning Roman Law one +obtains a means of testing one’s comprehension of the real +meaning of English terms and the nature and compass of +English rules, which deepens and strengthens the learner’s +hold upon his knowledge. The main difficulty which besets +students till they have had a good deal of actual practice +is to turn into the concrete the rules they have learnt in +the abstract, or as a Roman lawyer says, <span lang="la"><i>Leges scire non +est verba earum tenere sed vim atque potestatem</i></span>. The study +of reported cases is a valuable aid in grasping the practical +application of rules, but cases are complicated by many +details extraneous to the principle. When, however, a man +has so mastered the main outlines of Roman Law as to be +familiar with its conceptions and understand the application +of its leading rules, he is naturally and almost necessarily led +in his study of English Law to compare the conceptions and +rules he finds there. His text-book tells him, for instance, +that the English rule regarding the passing of the ownership +of an object sold, is such and such. What is the Roman +rule? If the two rules agree, he remembers the English +better. If they vary, he is led to ask why; and he obtains +a juster view of the origin, bearings, and range of the English +rule from perceiving wherein it differs from the Roman. If +<span class='pageno' id='Page_514'>514</span>any one thinks there is a risk of his confounding the two, +and becoming muddled between them, I can only say that +I have never known this happen, partly, perhaps, because in +dealing with Roman Law one thinks in Latin—a good thing +to do—and expresses in its technical terms the result one +arrives at. On the contrary, the student gets a clearer and +sharper view of the grounds of every doctrine, and of its +precise compass, than he could get from studying either +system by itself. It is as when in studying a foreign language +one translates constantly backwards and forwards into one’s +own, and obtains thereby both a finer perception of the idioms +of both, and a more exact comprehension of the substantial +meaning of every sentence that is so translated.</p> + +<p class='c001'>I may be reminded that the advantage here claimed does +not apply to all departments of Roman Law alike, but to +those only which cover the same field as our own Law. +The remark is true, and draws with it a practical lesson. +The subject has two aspects. Besides its intrinsic scientific +interest as a vast and harmonious system, it has a historical +aspect for the scholar and the student of institutions: it has +a practical or professional aspect for the lawyer. Different +parts of it are especially interesting to one or other of these +classes. Much of the law of persons, of crimes, and of procedure, +while it engages the curiosity of the scholar or +historian, is too remote from modern conditions of life to +attract, or to profit, the jurist of to-day. What he will +chiefly value are the parts that deal with the law of Property, +including Inheritance (though even in this there is a good +deal whose interest is now merely historical) and of Obligations, +together with some parts of the law of persons, such as +marriage and guardianship. These are the parts on which +the teacher should here in England expend his efforts, for it +is in these that the comparison with English Law is chiefly +instructive. He should lead the student along a path from +which the parallel territories of English Law are in full view, +and carry him constantly to and fro across the border. So if +<span class='pageno' id='Page_515'>515</span>I may, at the risk of seeming to transgress a Roman rule, +give a legacy to an uncertain person, I will bequeath to +my successor, whoever he may be, this maxim as the best +practical result of my experience—that Roman Law must +always be so taught as to be brought into the closest and +most constant relation with English Law, since it will thereby +become not only more helpful but more enjoyable to both +learner and teacher. It ought to be treated as a practical +working system, full of life, not only because it is preserved +to us in lifelike detail, but also because it is still actually +in force as the operative law of some countries, full therefore +of direct instruction and suggestion for ourselves, capable of +being used to enlarge English conceptions or indicate useful +modifications of English rules.</p> + +<p class='c001'>In discoursing on it, if I may in this expiring swan +song refer to my own experience, I have usually passed by +what may be called its antiquarian aspects, not from any +want of interest in them, but because the object of quickening +the interest and training the intellect of the <span lang="la"><i>cupida +legum iuventus</i></span> seemed more urgent. It has been rather in +the public lectures delivered from time to time before the +University, that I have endeavoured to develop and illustrate +the wider historical relations of the law of Rome, and to +connect it, sometimes in the letter, sometimes in the spirit, +not only with the history of the Empire and the Church, +but also with the problems of abstract jurisprudence, with +political ideas and constitutional forms, with the legal institutions +of peoples remote in time, like the primitive Icelanders, +or dissimilar in race and habits, like the Musulmans of the +contemporary East, with current questions on which Roman +experience sheds light, such as the law of Marriage and +Divorce, with the enterprises of modern law-makers, like the +Legislatures of the States of North America or the rulers +of British India. Sometimes these lectures may seem to +have strayed beyond the strict limits of the Chair. I have +then fallen back on the ancient adage <span lang="la"><i>Roma caput mundi +<span class='pageno' id='Page_516'>516</span>regit orbis frena rotundi</i></span>, and have feigned for the Imperial +law a continuance of its oecumenical authority. The Roman +law is indeed still worldwide, for it represents the whilom +unity of civilized mankind. There is not a problem of +jurisprudence which it does not touch: there is scarcely +a corner of political science on which its light has not +fallen.</p> + +<p class='c001'>In the opportunities for such placing the two systems side +by side lies the one great advantage which English and Anglo-American +civilians enjoy as compared with their continental +brethren. To the latter the Roman Law is the basis—in +some countries it may almost be called the modified substance—of +the current law. To us it is a parallel system +with which comparisons can be made. These comparisons +are eminently fertile in elucidation of the past condition of +both systems, and in criticism of their present condition. To +no scholars ought the early history of the Roman Law to be +at once so easily comprehensible and so instructive as to us +in England, because the history of our own law is full of +beautiful analogies therewith. So no jurists are better able +to estimate the value of Roman doctrines on many principles +of contractual law, because our system has developed independently, +and illustrates the Roman equally where it differs +and where it agrees. We in England cannot pretend to rival +the work which the great Germans of this century, men +like Savigny and Vangerow, Ihering and Windscheid and +Mommsen, have done for the investigation and exposition of +Roman jurisprudence and legal history. But our detached +position ought to give us a perspective and a freshness of +critical insight, perhaps even a means of comprehending things +by reading our own experience into them, which continental +scholars sometimes lack; and of that experience, we may +trust, due use will some day be made. For I cannot doubt, +looking not only to the progress of the study in England, but +to its rapid and solid growth in the Universities of America, +that the study of the Roman Law, once so nearly extinct +<span class='pageno' id='Page_517'>517</span>among us, is now destined to shine with a steady light for +generations to come.</p> + +<p class='c001'>I had intended to review, in connexion with the progress +of our own law school, the changes which have passed on +the aspects of legal science in England within the last +thirty years. Two among them give cause for regret, the +decline of interest in projects for simplifying and consolidating +the law, and the growing despondency wherewith +attempts to amend our legal procedure are now regarded, +a despondency probably due to the imperfect success which +has attended those Judicature Acts from which so much +was hoped twenty years ago. There are few countries +in which so small a proportion of the men engaged in +professional work show an active interest in legal reforms. +Against these grounds of disheartenment I should have set +the increasing zest wherewith the comparative method is +being historically applied to the investigation of the origin +of law and of political institutions, and should have dwelt +on the revived study of primitive custom as the foundation +of those institutions, as well as on the more active discussion +of constitutional questions generally, whether foreign, +or American, or domestic, and the vigour which so many +of our younger writers show in examining the ethical and +economic bases and grounds of law, with views wider and +more sympathetic, if also more suffused by the moist light +of emotion, than were those which some among us drew +from the Utilitarians of the last generation. But these +topics would lead me too far afield; it is for the present +enough to observe two happy changes which we have ourselves +seen—one, the warmer interest which the two ancient +Universities display in the problems that engage the attention +of social reformers and the willingness they show to +aid practically in their solution; the other the much larger +share which the jurists and constitutional students, as well +as the economists, of America and the British colonies have +come to take in all these discussions. As our books are +<span class='pageno' id='Page_518'>518</span>known and conned beyond the ocean, so here we read and +prize the most eminent colonial writers; and we find in +an American magazine, the <cite>Political Science Quarterly</cite>, an +excellently conducted organ, such as Britain has not yet +been able to provide, for the discussion in a scientific spirit +of a whole class of constitutional and quasi-political questions. +As the isolation of England from Continental Europe is +less marked than it was half a century ago, so still more +conspicuously does the intellectual and moral unity of the +English race dispersed throughout the world stand forth +to-day in a clearer and fuller light.</p> + +<p class='c001'>Let us turn back to consider what still remains to be +done to give this law school, now firmly established in the +University, its due hold upon the legal profession and its +due opportunities of promoting the progress of legal science. +None of us can be blind to its present deficiencies. We +have accomplished less than we hoped in raising up a band +of young lawyers who would maintain, even in the midst +of London practice, an interest in legal history and juristic +speculation. The number of persons in England who care +for either subject is undeniably small, probably smaller, in +proportion to the size and influence of the profession, than +in any other civilized country; and it increases so slowly as +to seem to discredit the efforts of the Universities. Of those +who have undergone our law examinations comparatively +few have either enriched these subjects by their writings, or +have become teachers among us, or have taken any part in +promoting legal studies elsewhere<a id='r253'></a><a href='#f253' class='c013'><sup>[253]</sup></a>.</p> + +<p class='c001'>How is this deficiency, which ought to be candidly +confessed, to be explained? No one will lay it at the +door of the University and College teachers, whose eminent +services have been already referred to. To me it seems +chiefly due to the following causes, causes which I mention +because they may all be removed. One of them is the +<span class='pageno' id='Page_519'>519</span>short-sighted and perhaps somewhat perverse unwillingness +of the authorities who control admission to practice +in both branches of the profession in London, to give full +recognition to our Oxford Law Examinations and Degree. +Were the tests we apply so recognized as to relieve one +who had passed them from all examinations for admission +either to the bar or to practice as a solicitor, except such +examinations as turn upon those purely practical matters +which can only be learnt in a barrister’s chambers or a +solicitor’s office, a strong motive would be supplied to men +destined for the profession to pursue their legal studies and +take their legal examinations here, where we may without +vanity say that both teaching and examining are understood +much better than by the professional authorities in London. +Needless to add that the University would be perfectly +ready to allow those authorities every means of satisfying +themselves of the character of her examinations, as the +General Medical Council is accustomed to supervise the +medical examinations of the various medical bodies.</p> + +<p class='c001'>A second cause lies with Oxford herself in her own examinations. +Not only do they cramp the teacher, practically +debarring him from some topics; but they are so arranged +as to prevent the Law School from receiving, with some +few exceptions, men of the first intellectual rank. The +ablest and best prepared of the students naturally, and +rightly, enter the classical school, and find themselves +obliged, when they have obtained their degree in it at the +age of twenty-three, to quit the University for the work of +life. Do not suppose that I for a moment desire to draw +such men away from the classical school. No one who has +himself passed through the training of that school will doubt +its superior value to even the best-arranged Law School, +as a part of the education needed to make a good scholar, +a good citizen, and a good Christian. What we want is +such a revision of our arrangements as will bring men to +the University somewhat younger, and will enable those who +<span class='pageno' id='Page_520'>520</span>have obtained honours in the school of Literae Humaniores, +and intend to follow the legal profession, to pass into the +Law School when they have taken their B.A. classical +honours, and devote at least a year (though in the Law +Schools of America two years at least are thought needful) +to professional studies. At present Oxford is in the +absurd position of practically excluding from the legal instruction +which the University provides the most promising +of her students, the very men who are best fitted to turn +it to account in their subsequent career. They spend at +school a year which they ought to spend at college, and +they spin out their general studies so long that they are +unable to obtain that scientific training in the future work +of their life which the University has been at such pains +to set before them. To find time and make provision in +our curriculum for professional as well as general literary +studies was one of the chief problems which the Commissioners +of 1878-81 ought to have dealt with. Their failure +throws back upon the University herself the duty of reform. +Other, though less material, causes may be found in the +undue prominence which examinations have been suffered +to take in the system, and in the very unsatisfactory relations +between the teaching provided by the University and +that which the Colleges supply, relations which involve much +overlapping and a serious waste of teaching power.</p> + +<p class='c001'>I need not pursue this topic into its details. Let it suffice +to remark that it is not merely for the sake of the University +that one would desire to see her influence upon legal studies +extended. Over and above that general liberal education +which it is her main business to give, and on which neither +law nor any other special study must be suffered to infringe, +it is her duty to handle professional studies in a wide and +philosophic spirit, to raise them above mere gainful arts into +the domain of science, to draw to herself the ablest of those +who are entering these professions, the men from whom each +profession receives its tone and temper. You all know how +<span class='pageno' id='Page_521'>521</span>much the practical sciences, such as medicine, chemistry, and +engineering, have gained by being closely associated with the +pursuit of abstract science. No less true is it that men who +follow these occupations, and those who devote themselves +to the bar or to the church, profit by their association with +literary and scientific culture and its central home here, +feeling themselves members of a great learned corporation, +and carrying away with them the influence of the ideals it has +taught them to cherish. It is upon the clergy that this +influence has hitherto told most; nor has anything done +more to keep the clergy of the Church of England from +becoming a caste and to stimulate their activity in those +fields of philosophic and historical research wherein they +have won so much distinction. One would like to see the +University lay the same hold on the other great professions +likewise.</p> + +<p class='c001'>This, however, is only one of the points in which observers +who have watched and studied Oxford from without as well +as from within are disposed to think that she does not fully +comprehend, does not at any rate fully use, her unrivalled +opportunities. I touch upon a delicate point. Yet as +Homer occasionally invests a dying warrior with prophetic +gifts, one who is on the eve of departure may be permitted +to give expression to some of the aspirations that have long +filled his mind when he has thought of what Oxford might +achieve. She seems at present to be too exclusively occupied +not only with the giving of a general liberal education (to the +disparagement of professional studies), but also with her +regular curriculum and those who follow it, to the neglect +of those others, now comparatively few, but capable of almost +indefinite increase, who desire not so much to follow +a regular course or secure a degree as to obtain special +training in some department of learning. Have we not, +in our English love of competition and our tendency to +reduce everything to a palpable concrete result, allowed the +examination system to grow too powerful, till it has become +<span class='pageno' id='Page_522'>522</span>the master instead of the servant of teaching and has distracted +our attention from the primary duty of a University? +It is not any revolutionary change one would desire to see. +Such changes are seldom either easy or salutary; while +as regards the college system, I find something to regret +in those inroads upon the social life and corporate character +of the colleges for which the last Commission is responsible. +The reform chiefly needed is a reform that would neither +injure the Colleges nor affect the character of the University +as a seat of general liberal education. Rather let us return +to the older conception of a University as a place to which +every one who desired instruction might come, knowing that +as Oxford took all knowledge for her province she would +provide him with whatever instruction he required. The +abundance and the cheapness of literature have not diminished, +perhaps they have even stimulated, the demand for +the best oral teaching, while the recent establishment of so +many prosperous colleges in the great towns, the spread +of University Extension lectures, the growth of Science +schools, have immensely increased the number of young men +who would come hither for a year or more to obtain such +teaching were they sure of finding it. What is the present +position? There are professors, many of whom, eminent +as they are, cannot secure proper classes, because the undergraduates +are occupied, under the guidance of the college +teachers, in preparing for degree examinations. For the +teaching of some important branches, especially in natural +and in economic science, no adequate staff is provided. +England has been outstripped not only by Germany but +also by the United States, in the provision of what the +Americans call Post-Graduate courses, a provision which +even the present poverty of the University need not hinder +her from making, were but a reasonable system of fees introduced +and revenues husbanded that are now unprofitably +spent. Both the new University teachers who might be +created and the present professors to whom the existing +<span class='pageno' id='Page_523'>523</span>system refuses hearers would be only too happy to give +those courses, if the students could be found and the requisite +arrangements made. The men who would attend the courses +are to be found, some of them within, many more without +the University. Those without do not come because the +courses have not been offered: and to provide for both +sets, existing arrangements must be remodelled, for these +contemplate only the normal undergraduate who arrives at +nineteen, is examined, and departs at twenty-two or twenty-three, +and take no account of those who desire neither examinations +nor degrees, but simply to perfect themselves in +some department of science or learning. Were such courses +offered, and were those antiquated arrangements altered, +you might soon expect a sensible afflux of students, not from +England only, but from far beyond the bounds of England.</p> + +<p class='c001'>Perhaps those who dwell in Oxford have scarcely yet +realized the magnificent position this University holds, as +not only the oldest and the most externally beautiful and +sumptuous place of education in the English-speaking world, +but as a spot whose name and fame exert a wonderful power +over the imagination of the English peoples beyond the +sea, many of whose youth would gladly flock hither were +they encouraged to do so by arrangements suited to their +needs. For those among the studious youth of the United +States and Canada who desire to follow out their special +studies, I can safely say from what I have seen of Canada +and the United States that did Oxford and Cambridge +provide what the Universities of Germany provide, and +were it as easy to enter here and choose the subject one +seeks to study as it is in the Universities of Germany, it +is to Oxford and Cambridge rather than to Germany that +most of them would resort: nor could the value be overestimated +of such a tie as their membership here would +create between the ancient mother and the scattered children, +soon to be stronger than their mother, but still looking to her +as the hallowed well-spring of their life.</p> + +<p class='c001'><span class='pageno' id='Page_524'>524</span>It is always sad to part from work with which the best +years of one’s life have been largely occupied: and to me +this common regret is deepened by the associations, full of +antique dignity, of the office I am resigning and by the nature +of the work which has been a source of unfailing pleasure. +And my regret at parting is the keener because I part from +the place where I have known so many of those brilliant +figures whom the last twenty years have taken from us, one +of them happily still in the world, though long since lost to +the University which his splendid powers adorned,—I mean +Mr. Goldwin Smith,—the rest now living only in our recollection. +Vividly there come back to me as I stand by the +open gate, the kindly wisdom of the late President of Corpus +Christi<a id='r254'></a><a href='#f254' class='c013'><sup>[254]</sup></a>, most loveable of men; the luminous and fertile intellect +of Sir Henry Maine<a id='r255'></a><a href='#f255' class='c013'><sup>[255]</sup></a>; the masculine force and high sense +of public duty of Thomas Green<a id='r256'></a><a href='#f256' class='c013'><sup>[256]</sup></a>; the penetration and learning, +not more wide than exact, of Mark Pattison<a id='r257'></a><a href='#f257' class='c013'><sup>[257]</sup></a>; the fine +taste and golden lips of Henry Liddon; the warm heart +and vehement discourse and noble love of truth of Edward +Freeman<a id='r258'></a><a href='#f258' class='c013'><sup>[258]</sup></a>; the fire, the courage, the eagerness, the zeal in +all good causes of one whose university lectures and sermons +were so powerful a stimulus to many of us in our undergraduate +days, Arthur Stanley<a id='r259'></a><a href='#f259' class='c013'><sup>[259]</sup></a>. These men had some +sharp contests in their lives, but they are all alike enshrined +in our memory as men of whom the Oxford of those days +may well be proud.</p> + +<p class='c001'>Nor must a word of grateful farewell be omitted to those +colleagues in the Faculty of Law—among whom I will venture +to reckon the Warden of All Souls—whose thoughts and +plans it has been a constant pleasure to share, and with +<span class='pageno' id='Page_525'>525</span>whom I have lived these many years in a friendship which +no cloud of personal disagreement, nor any divergence of +political opinions, has ever for a moment darkened. With +the regret of parting I carry away the delightful recollection +of those years, and a sense which time will not diminish of +the honour it has been to be permitted so long to serve this +great University, the oldest and most venerated of the dwellings +of learning in Britain, dear to us not only because our +brightest years were spent among her towers and groves, +but still more because in her, as now in maturer life we scan +a sometimes troubled horizon to watch for signs of storm, +we see an institution which has stood unshaken while dynasties +have fallen and constitutions have been changed, and which +still and always, placed above the shock of party conflicts +and renewing her youth in fresh activities from age to age, +embodies in visible and stately form the unbroken continuity +of the intellectual life of our country, and still commands, +as fully as ever in the past, the loving devotion of her +children. +<span class='pageno' id='Page_526'>526</span>[Blank Page]</p> + +<div class='chapter'> + <span class='pageno' id='Page_527'>527</span> + <h2 class='c005'>INDEX</h2> +</div> + +<ul class='index c020'> + <li class='c023'>Abolitionists, in America, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_414'>414</a>.</li> + <li class='c023'>Aborigines, in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_549'>549</a>.</li> + <li class='c023'>Achaean League, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_204'>204</a>.</li> + <li class='c023'>Adoption, by Indian princes, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a>; + <ul> + <li>in Indian law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_124'>124</a>;</li> + <li>by Roman emperors, ii. <a href='#Page_482'>482</a>.</li> + </ul> + </li> + <li class='c023'>Adultery, a crime in Indian Penal Code, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_126'>126</a>; + <ul> + <li>in Roman law, ii. <a href='#Page_403'>403</a>.</li> + </ul> + </li> + <li class='c023'>Aeschylus, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_167'>167</a>.</li> + <li class='c023'>Afghanistan, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_20'>20</a>.</li> + <li class='c023'>Agricola, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_15'>15</a>; ii. <a href='#Page_405'>405</a>.</li> + <li class='c023'>Alabama case, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_416'>416</a>.</li> + <li class='c023'>Alarich II, laws of, ii. <a href='#Page_356'>356</a>, <a href='#Page_483'>483</a>.</li> + <li class='c023'>Algeria, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_293'>293</a>.</li> + <li class='c023'>Alsace, annexation of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_305'>305</a>.</li> + <li class='c023'>Althing, or general assembly, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_322'>322-332</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_347'>347</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_354'>354</a>.</li> + <li class='c023'>Althusius, on sovereignty, ii. <a href='#Page_85'>85</a>.</li> + <li class='c023'>Amendment of constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_151'>151</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_205'>205-217</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_523'>523-525</a>.</li> + </ul> + </li> + <li class='c023'>America. <i>See</i> <a href='#UNITEDSTATES'>United States</a>.</li> + <li class='c023'><i>American Commonwealth</i>, referred to, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_201'>201</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_377'>377</a>; ii. <a href='#Page_41'>41</a>.</li> + <li class='c023'>Analytic school of jurisprudence, ii. <a href='#Page_178'>178-184</a>.</li> + <li class='c023'>Anarchism, ii. <a href='#Page_28'>28</a>, <a href='#Page_170'>170</a>.</li> + <li class='c023'>Areopagus, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_92'>92</a>.</li> + <li class='c023'>Argentina, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_212'>212</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_253'>253</a>.</li> + <li class='c023'>Aristocracy and flexible constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_178'>178-185</a>.</li> + <li class='c023'>Aristotle, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430</a>; ii. <a href='#Page_2'>2</a>, <a href='#Page_125'>125</a>, <a href='#Page_317'>317</a>, <a href='#Page_484'>484</a>.</li> + <li class='c023'>Armenia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_20'>20</a>.</li> + <li class='c023'><span class='pageno' id='Page_528'>528</span>Army of Rome and India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_17'>17</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_18'>18</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_45'>45</a>.</li> + <li class='c023'>Asiatic peoples, ii. <a href='#Page_16'>16-18</a>.</li> + <li class='c023'>Augustus, ii. <a href='#Page_26'>26</a>, <a href='#Page_61'>61</a>, <a href='#Page_67'>67</a>, <a href='#Page_68'>68</a>, <a href='#Page_257'>257</a>, <a href='#Page_289'>289</a>, <a href='#Page_404'>404</a>, <a href='#Page_405'>405</a>.</li> + <li class='c023'>Austin criticized, ii. <a href='#Page_89'>89-97</a>, <a href='#Page_127'>127</a>, <a href='#Page_180'>180-184</a>.</li> + <li class='c023'><a id='AUSTRALIA'></a>Australia: constitution of the Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_468'>468-553</a>; + <ul> + <li>movement for federation, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_471'>471-482</a>;</li> + <li>conditions favouring federation, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_483'>483-489</a>;</li> + <li>character of federation, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_489'>489-491</a>;</li> + <li>distribution of powers between Commonwealth and States, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_491'>491-494</a>;</li> + <li>position of States under constitution, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_494'>494-498</a>;</li> + <li>differences from United States and Canada, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_498'>498-501</a>;</li> + <li>few restrictions on powers of Commonwealth, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_501'>501-504</a>;</li> + <li>the legislature, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_504'>504-507</a>;</li> + <li>the executive, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508</a>;</li> + <li>the judiciary, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508-512</a>;</li> + <li>dependence of executive upon legislature, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_513'>513-516</a>;</li> + <li>provisions against deadlocks, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_516'>516-518</a>;</li> + <li>relations of the two Houses, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_518'>518-521</a>;</li> + <li>miscellaneous provisions, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_521'>521-523</a>;</li> + <li>amendment of constitution, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_523'>523-525</a>;</li> + <li>relations of Commonwealth to British crown, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_525'>525</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_526'>526</a>;</li> + <li>comparison with United States and Canada, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_527'>527-530</a>;</li> + <li>general observations, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_531'>531-535</a>;</li> + <li>democratic character, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_535'>535-539</a>;</li> + <li>political parties, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_539'>539-541</a>;</li> + <li>future political issues, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_542'>542-546</a>;</li> + <li>possible entrance of new States, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_547'>547-551</a>;</li> + <li><span class='pageno' id='Page_529'>529</span>future relations to Britain, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_551'>551-553</a>.</li> + </ul> + </li> + <li class='c023'>Austro-Hungary, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_203'>203</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_284'>284</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_470'>470</a>; ii. <a href='#Page_91'>91</a>, <a href='#Page_92'>92</a>; + <ul> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Bacon, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_261'>261</a>; ii. <a href='#Page_96'>96</a>, <a href='#Page_480'>480</a>.</li> + <li class='c023'>Baker, Newton D., ii. <a href='#Page_446'>446</a>.</li> + <li class='c023'>Banns, publication of, ii. <a href='#Page_417'>417</a>.</li> + <li class='c023'><i>Basilica</i>, of Leo, ii. <a href='#Page_341'>341</a>, <a href='#Page_378'>378</a>.</li> + <li class='c023'>Belgium, divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + <li class='c023'>Bentham, criticized, ii. <a href='#Page_3'>3</a>, <a href='#Page_44'>44-48</a>, <a href='#Page_88'>88-97</a>, <a href='#Page_127'>127</a>, <a href='#Page_179'>179-184</a>.</li> + <li class='c023'>Bernier, on Mogul empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_10'>10</a>.</li> + <li class='c023'>Betrothal, in Roman law, ii. <a href='#Page_393'>393</a>.</li> + <li class='c023'>Beyrut, law school of, ii. <a href='#Page_264'>264</a>, <a href='#Page_320'>320</a>.</li> + <li class='c023'>Bills, in House of Commons, ii. <a href='#Page_325'>325</a>, <a href='#Page_499'>499</a>.</li> + <li class='c023'>Bishops, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327</a>.</li> + <li class='c023'>Bismarck, ii. <a href='#Page_25'>25</a>.</li> + <li class='c023'>Blackstone, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_118'>118</a>; ii. <a href='#Page_77'>77</a>, <a href='#Page_166'>166</a>, <a href='#Page_181'>181</a>, <a href='#Page_265'>265</a>, <a href='#Page_427'>427</a>, <a href='#Page_430'>430</a>, <a href='#Page_491'>491</a>.</li> + <li class='c023'>Blood feuds, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_321'>321</a>; ii. <a href='#Page_212'>212</a>.</li> + <li class='c023'>Bodin, on sovereignty, ii. <a href='#Page_84'>84</a>, <a href='#Page_85'>85</a>.</li> + <li class='c023'>Bologna, law school of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_105'>105</a>; ii. <a href='#Page_219'>219</a>, <a href='#Page_231'>231</a>.</li> + <li class='c023'>Bosnia, ii. <a href='#Page_102'>102</a>.</li> + <li class='c023'>Boss system in America, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>; ii. <a href='#Page_30'>30</a>.</li> + <li class='c023'>Bowen, Lord, ii. <a href='#Page_199'>199</a>, <a href='#Page_266'>266</a>.</li> + <li class='c023'>Bracton, ii. <a href='#Page_261'>261</a>, <a href='#Page_332'>332</a>.</li> + <li class='c023'>Brand, President, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_463'>463</a>.</li> + <li class='c023'>Breach of promise, action for, ii. <a href='#Page_394'>394</a>.</li> + <li class='c023'>Brehon law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_111'>111</a>; ii. <a href='#Page_188'>188</a>.</li> + <li class='c023'>Bulgaria, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_210'>210</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>; ii. <a href='#Page_102'>102</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Cabinet government, in England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_177'>177</a>; + <ul> + <li>under the Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_513'>513-516</a>.</li> + </ul> + </li> + <li class='c023'>Cairns, Lord, ii. <a href='#Page_199'>199</a>, <a href='#Page_266'>266</a>.</li> + <li class='c023'>Cairo, university of, ii. <a href='#Page_219'>219-231</a>.</li> + <li class='c023'>Calhoun, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_395'>395</a>; ii. <a href='#Page_105'>105</a>.</li> + <li class='c023'>Canada, constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_197'>197</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_198'>198</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_203'>203</a>; + <ul> + <li><span class='pageno' id='Page_530'>530</span>compared with Australian, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_470'>470</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_478'>478</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_488'>488</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_492'>492</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_495'>495</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_497'>497</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_498'>498-501</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_527'>527-530</a>;</li> + <li>law of divorce, ii. <a href='#Page_443'>443</a>.</li> + </ul> + </li> + <li class='c023'>Canning, Lord, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a>.</li> + <li class='c023'>Canon Law, growth of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_105'>105</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_106'>106</a>; ii. <a href='#Page_245'>245</a>; + <ul> + <li>regulation of marriage and divorce by, ii. <a href='#Page_414'>414</a>, <a href='#Page_416'>416-420</a>, <a href='#Page_433'>433-435</a>.</li> + </ul> + </li> + <li class='c023'>Cape Colony, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_432'>432</a>.</li> + <li class='c023'>Capital, of United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_406'>406</a>; + <ul> + <li>of Australian Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_523'>523</a>.</li> + </ul> + </li> + <li class='c023'>Caracalla, edict of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_48'>48</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_99'>99</a>; ii. <a href='#Page_147'>147</a>, <a href='#Page_354'>354</a>.</li> + <li class='c023'>Case law, compared with praetorian edict, ii. <a href='#Page_281'>281-293</a>.</li> + <li class='c023'>Caste, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_68'>68</a>.</li> + <li class='c023'>Catullus, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_27'>27</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_53'>53</a>; ii. <a href='#Page_393'>393</a>.</li> + <li class='c023'>Caucus, the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_177'>177</a>.</li> + <li class='c023'>Celibacy, discouragement of, at Rome, ii. <a href='#Page_401'>401</a>, <a href='#Page_409'>409</a>; + <ul> + <li>of clergy, ii. <a href='#Page_414'>414</a>.</li> + </ul> + </li> + <li class='c023'>Centripetal and centrifugal forces, their action on political constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_255'>255-311</a>; + <ul> + <li>interest and sympathy, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_263'>263-265</a>;</li> + <li>race and religion, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_265'>265-267</a>;</li> + <li>how constitutions may utilize centripetal forces, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_271'>271-281</a>;</li> + <li>and how modify centrifugal forces, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_281'>281-295</a>;</li> + <li>illustrations from United States, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_295'>295-298</a>;</li> + <li>probable results in the future, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_300'>300-311</a>;</li> + <li>effect of conquest and family succession, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_303'>303-307</a>.</li> + </ul> + </li> + <li class='c023'>Chancellor, the Lord, as builder of equity, ii. <a href='#Page_164'>164-166</a>; + <ul> + <li>as law-maker, ii. <a href='#Page_271'>271</a>, <a href='#Page_279'>279-281</a>.</li> + </ul> + </li> + <li class='c023'>Character, of conquering races, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_59'>59-61</a>.</li> + <li class='c023'>Chartism, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_175'>175</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_238'>238</a>.</li> + <li class='c023'>Chastisement of wife by husband, ii. <a href='#Page_426'>426</a>.</li> + <li class='c023'>Christianity, unifying influence of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_3'>3</a>; + <ul> + <li>persecution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_53'>53</a>;</li> + <li>in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_69'>69</a>;</li> + <li>introduction into Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_350'>350</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_351'>351</a>;</li> + <li><span class='pageno' id='Page_531'>531</span>as affecting growth of law, ii. <a href='#Page_242'>242-246</a>, <a href='#Page_352'>352</a>;</li> + <li>influence on Roman law of divorce, ii. <a href='#Page_406'>406-409</a>.</li> + </ul> + </li> + <li class='c023'>Church, identified with State, ii. <a href='#Page_240'>240</a>.</li> + <li class='c023'>Cicero, against Verres, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_27'>27</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_89'>89</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_94'>94</a>; ii. <a href='#Page_275'>275</a>; + <ul> + <li>on the Law of Nature, ii. <a href='#Page_133'>133-138</a>, <a href='#Page_173'>173</a>;</li> + <li>on the Twelve Tables, ii. <a href='#Page_347'>347</a>, <a href='#Page_494'>494</a>;</li> + <li>divorced his wife, ii. <a href='#Page_404'>404</a>.</li> + </ul> + </li> + <li class='c023'>Citizenship under Roman empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_48'>48</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_90'>90</a>.</li> + <li class='c023'>Clarendon, Constitutions of, ii. <a href='#Page_360'>360</a>.</li> + <li class='c023'>Claudian, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_75'>75</a>.</li> + <li class='c023'>Claudius, Emperor, ii. <a href='#Page_411'>411</a>.</li> + <li class='c023'>Climate, effect of, on Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_63'>63</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_64'>64</a>.</li> + <li class='c023'>Clive, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_9'>9</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_13'>13</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_28'>28</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_60'>60</a>.</li> + <li class='c023'><span lang="la"><i>Codicilli</i></span>, ii. <a href='#Page_289'>289</a>.</li> + <li class='c023'>Codification, of Roman law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_104'>104</a>; + <ul> + <li>of French law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_107'>107</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_388'>388</a>; ii. <a href='#Page_376'>376</a>;</li> + <li>of German law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_108'>108</a>; ii. <a href='#Page_377'>377</a>, <a href='#Page_479'>479</a>;</li> + <li>of Indian law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_121'>121-133</a>;</li> + <li>of Icelandic law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341-343</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Coemptio</i></span>, Roman marriage by, ii. <a href='#Page_388'>388-390</a>.</li> + <li class='c023'>Coke, Lord, ii. <a href='#Page_199'>199</a>, <a href='#Page_260'>260</a>.</li> + <li class='c023'>Collectivism, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_309'>309</a>.</li> + <li class='c023'>Colonies, of England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_4'>4</a>.</li> + <li class='c023'>Colour of Race, effect of, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_64'>64-67</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_291'>291-294</a>.</li> + <li class='c023'><span lang="la"><i>Comitia</i></span>, ii. <a href='#Page_297'>297-303</a>.</li> + <li class='c023'>Commands, laws as, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_334'>334</a>; ii. <a href='#Page_3'>3</a>, <a href='#Page_44'>44-48</a>, <a href='#Page_194'>194</a>.</li> + <li class='c023'>Committee stage, in English legislation, ii. <a href='#Page_328'>328</a>.</li> + <li class='c023'>Commonwealth. <i>See</i> <a href='#AUSTRALIA'>Australia</a>.</li> + <li class='c023'>Comparative method of jurisprudence, ii. <a href='#Page_170'>170</a>, <a href='#Page_186'>186-190</a>.</li> + <li class='c023'>Concubinage, ii. <a href='#Page_413'>413</a>.</li> + <li class='c023'><span lang="la"><i>Confarreatio</i></span>, Roman marriage by, ii. <a href='#Page_388'>388-390</a>.</li> + <li class='c023'><span class='pageno' id='Page_532'>532</span>Congress, as a legislative body, ii. <a href='#Page_323'>323-326</a>.</li> + <li class='c023'>Conquest, formation of empire by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8-16</a>; + <ul> + <li>extension of Roman law by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_88'>88</a>; ii. <a href='#Page_78'>78</a>;</li> + <li>effect of, as a centripetal force, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_303'>303-307</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Consistorium</i></span>, ii. <a href='#Page_314'>314</a>.</li> + <li class='c023'>Consolidation: of law in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_131'>131</a>; + <ul> + <li>of law in America, ii. <a href='#Page_326'>326</a>;</li> + <li>of English law, ii. <a href='#Page_331'>331</a>, <a href='#Page_499'>499</a>.</li> + </ul> + </li> + <li class='c023'>Constantinople, law school of, ii. <a href='#Page_264'>264</a>, <a href='#Page_320'>320</a>.</li> + <li class='c023'><span lang="la"><i>Constituta</i></span>, of Roman emperors, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_99'>99</a>; ii. <a href='#Page_311'>311</a>.</li> + <li class='c023'>Constitutions: of Rome and England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145-150</a>; + <ul> + <li>proposed new classification, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_150'>150-159</a>;</li> + <li>origin of flexible, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_159'>159-162</a>;</li> + <li>strength and weakness of flexible, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_162'>162-178</a>;</li> + <li>aristocracies, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_178'>178-185</a>;</li> + <li>influence on the mind of a nation, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_185'>185-193</a>;</li> + <li>capacity for territorial expansion, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_193'>193-196</a>;</li> + <li>origin of rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_196'>196-205</a>;</li> + <li>enactment and amendment of rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_205'>205-217</a>;</li> + <li>definiteness of rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_217'>217-221</a>;</li> + <li>stability of rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_221'>221-228</a>;</li> + <li>interpretation of rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_228'>228-234</a>;</li> + <li>democracies, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_234'>234-242</a>;</li> + <li>future of flexible and rigid, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_242'>242-249</a>;</li> + <li>possibility of new types, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_249'>249-252</a>;</li> + <li>classes of governments, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_253'>253</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_254'>254</a>.</li> + </ul> + </li> + <li class='c023'>Contract code, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_128'>128-130</a>.</li> + <li class='c023'>Contractualists, the, ii. <a href='#Page_1'>1-5</a>, <a href='#Page_163'>163</a>.</li> + <li class='c023'>Convention, for amendment of constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_213'>213</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_216'>216</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_476'>476</a>.</li> + <li class='c023'>Cousins, intermarriage of, ii. <a href='#Page_411'>411</a>.</li> + <li class='c023'>Criminal law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_92'>92</a>; ii. <a href='#Page_334'>334</a>.</li> + <li class='c023'>Croatia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_268'>268</a>.</li> + <li class='c023'>Cromwell, Oliver, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_200'>200</a>; ii. <a href='#Page_60'>60</a>, <a href='#Page_68'>68</a>.</li> + <li class='c023'><span class='pageno' id='Page_533'>533</span>Crown colonies, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_5'>5</a>.</li> + <li class='c023'>Custom: source of Icelandic law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_334'>334-337</a>; + <ul> + <li>of law generally, ii. <a href='#Page_211'>211</a>, <a href='#Page_251'>251</a>, <a href='#Page_268'>268</a>, <a href='#Page_334'>334</a>.</li> + </ul> + </li> + <li class='c023'>Customs duties, in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Dacoity, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_25'>25</a>.</li> + <li class='c023'>Dante, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_379'>379</a>; + <ul> + <li>quoted, ii. <a href='#Page_80'>80</a>, <a href='#Page_158'>158</a>, <a href='#Page_310'>310</a>.</li> + </ul> + </li> + <li class='c023'>Dartmouth college case, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_496'>496</a>.</li> + <li class='c023'>Darwin, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366</a>; ii. <a href='#Page_150'>150</a>.</li> + <li class='c023'>Deadlocks, provisions against, in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_516'>516-521</a>.</li> + <li class='c023'>Deceased wife’s sister, marriage with, under Roman law, ii. <a href='#Page_412'>412</a>.</li> + <li class='c023'>Decemviral legislation, at Rome, ii. <a href='#Page_341'>341</a>.</li> + <li class='c023'>Declaration of Independence, ii. <a href='#Page_35'>35</a>, <a href='#Page_139'>139</a>, <a href='#Page_163'>163</a>.</li> + <li class='c023'>Deference, as ground of political obedience, ii. <a href='#Page_9'>9</a>, <a href='#Page_14'>14</a>.</li> + <li class='c023'>Delegations, in Austro-Hungary, ii. <a href='#Page_92'>92</a>.</li> + <li class='c023'>Democracy and rigid constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_234'>234-242</a>.</li> + <li class='c023'>Democratic character of Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_535'>535-539</a>.</li> + <li class='c023'>Demosthenes, quoted, ii. <a href='#Page_126'>126</a>, <a href='#Page_158'>158</a>.</li> + <li class='c023'>Denmark, acquisition of Iceland by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_357'>357</a>; + <ul> + <li>constitution of, ii. <a href='#Page_61'>61</a>, <a href='#Page_63'>63</a>;</li> + <li>divorce in, ii. <a href='#Page_450'>450</a>.</li> + </ul> + </li> + <li class='c023'>Dicey, Prof. E., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_157'>157</a>; ii. <a href='#Page_267'>267</a>, <a href='#Page_506'>506</a>.</li> + <li class='c023'>Dictator, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_170'>170</a>; ii. <a href='#Page_55'>55</a>.</li> + <li class='c023'>Diet, of empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_323'>323</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_355'>355</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_376'>376</a>.</li> + <li class='c023'>Diocletian, ii. <a href='#Page_319'>319</a>, <a href='#Page_342'>342</a>, <a href='#Page_352'>352</a>.</li> + <li class='c023'>Divorce: in Ireland, ii. <a href='#Page_370'>370</a>, <a href='#Page_382'>382</a>, <a href='#Page_438'>438</a>; + <ul> + <li>in Scotland, <a href='#Page_382'>382</a>, <a href='#Page_435'>435-438</a>;</li> + <li>in Roman law, <a href='#Page_402'>402-406</a>;</li> + <li>influence of Christianity on Roman law, <a href='#Page_406'>406-408</a>;</li> + <li>under canon law, <a href='#Page_433'>433-435</a>;</li> + <li>later law in England and Scotland, 435-438;</li> + <li><span class='pageno' id='Page_534'>534</span>laws in United States, <a href='#Page_439'>439-443</a>;</li> + <li>American statistics, <a href='#Page_443'>443-449</a>;</li> + <li>in modern European countries, <a href='#Page_450'>450-453</a>;</li> + <li>connexion with conjugal infidelity, <a href='#Page_461'>461-463</a>;</li> + <li>does English law need amendment? 465-469.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Donatio propter nuptias</i></span>, ii. <a href='#Page_398'>398</a>, <a href='#Page_407'>407</a>, <a href='#Page_432'>432</a>.</li> + <li class='c023'><span lang="la"><i>Dos</i></span>, in Roman law, ii. <a href='#Page_397'>397</a>, <a href='#Page_406'>406</a>, <a href='#Page_432'>432</a>.</li> + <li class='c023'>Dower, ii. <a href='#Page_420'>420</a>, <a href='#Page_427'>427</a>, <a href='#Page_432'>432</a>.</li> + <li class='c023'>Drayton, quoted, ii. <a href='#Page_150'>150</a>.</li> + <li class='c023'><span lang="fr"><i>Droit Naturel</i></span>, ii. <a href='#Page_169'>169</a>, <a href='#Page_173'>173-178</a>.</li> + <li class='c023'>Duck, Arthur, ii. <a href='#Page_160'>160</a>, <a href='#Page_477'>477</a>.</li> + <li class='c023'>Dutch law, in South Africa, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_86'>86</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_109'>109</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_439'>439</a>.</li> + <li class='c023'>Dutch republics, in South Africa, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430-467</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Ecclesia, of Greek cities, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_183'>183</a>; ii. <a href='#Page_297'>297</a>.</li> + <li class='c023'>Ecclesiastical courts, ii. <a href='#Page_420'>420</a>, <a href='#Page_421'>421</a>, <a href='#Page_435'>435</a>.</li> + <li class='c023'>Edict of the praetor, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_91'>91</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_92'>92</a>; ii. <a href='#Page_275'>275</a>, <a href='#Page_282'>282-285</a>, <a href='#Page_291'>291</a>.</li> + <li class='c023'><span lang="la"><i>Edictum perpetuum</i></span>, ii. <a href='#Page_288'>288</a>.</li> + <li class='c023'>Education, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_57'>57</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_73'>73</a>.</li> + <li class='c023'>Edward I, legislation of, ii. <a href='#Page_360'>360</a>.</li> + <li class='c023'>Egypt, political position of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_35'>35</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_70'>70</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_102'>102</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_267'>267</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_282'>282</a>; ii. <a href='#Page_61'>61</a>, <a href='#Page_103'>103</a>.</li> + <li class='c023'>El Azhar, mosque and university, ii. <a href='#Page_219'>219-231</a>.</li> + <li class='c023'>Elegance, in Roman law, ii. <a href='#Page_198'>198</a>, <a href='#Page_495'>495</a>.</li> + <li class='c023'>Emancipation of women, ii. <a href='#Page_401'>401</a>, <a href='#Page_458'>458-460</a>, <a href='#Page_470'>470</a>.</li> + <li class='c023'>Empedocles, quoted, ii. <a href='#Page_126'>126</a>.</li> + <li class='c023'>Emperor: as sovereign in middle ages, ii. <a href='#Page_80'>80</a>; + <ul> + <li>as source of law at Rome, ii. <a href='#Page_308'>308-321</a>.</li> + </ul> + </li> + <li class='c023'>England: Roman empire compared with British empire in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_1'>1-84</a>; + <ul> + <li>extension of English law throughout the world, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_85'>85-144</a>;</li> + <li><span class='pageno' id='Page_535'>535</span>the constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145-147</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155-158</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_165'>165</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_168'>168</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_171'>171</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_172'>172</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_174'>174</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_183'>183</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_191'>191</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_192'>192</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_194'>194</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_206'>206</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_230'>230</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_244'>244-249</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_272'>272</a>;</li> + <li>sovereignty of Parliament, ii. <a href='#Page_57'>57</a>, <a href='#Page_61'>61</a>, <a href='#Page_68'>68</a>, <a href='#Page_90'>90</a>, <a href='#Page_109'>109</a>;</li> + <li>conception of equity as affected by law of nature, ii. <a href='#Page_164'>164-167</a>;</li> + <li>analytic school of jurisprudence, ii. <a href='#Page_178'>178-184</a>;</li> + <li>want of elegance in English law, ii. <a href='#Page_199'>199</a>;</li> + <li>legal writers as sources of law, ii. <a href='#Page_260'>260-269</a>;</li> + <li>judges as sources of law, ii. <a href='#Page_270'>270-272</a>, <a href='#Page_278'>278-281</a>;</li> + <li>case law, ii. <a href='#Page_281'>281-291</a>;</li> + <li>legislation by Parliament, ii. <a href='#Page_321'>321-331</a>;</li> + <li>five epochs of legal change, ii. <a href='#Page_343'>343</a>;</li> + <li>outline of progress of legal changes, ii. <a href='#Page_358'>358-366</a>;</li> + <li>comparison with Roman law, ii. <a href='#Page_367'>367-375</a>;</li> + <li>private law least affected, ii. <a href='#Page_377'>377-380</a>;</li> + <li>law of marriage, ii. <a href='#Page_419'>419-424</a>;</li> + <li>property relations of consorts, <a href='#Page_424'>424-427</a>;</li> + <li>gradual amendment of law, <a href='#Page_423'>423-427</a>, <a href='#Page_468'>468</a>, <a href='#Page_499'>499</a>;</li> + <li>law of divorce, <a href='#Page_433'>433-438</a>;</li> + <li>does law of divorce need amendment? <a href='#Page_465'>465-469</a>.</li> + </ul> + </li> + <li class='c023'>English language in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_74'>74</a>.</li> + <li class='c023'>Ennius, quoted, ii. <a href='#Page_181'>181</a>.</li> + <li class='c023'>Epicurus, ii. <a href='#Page_127'>127</a>.</li> + <li class='c023'>Equality theory of marriage, ii. <a href='#Page_431'>431-433</a>, <a href='#Page_470'>470</a>.</li> + <li class='c023'>Equity, in Roman law, ii. <a href='#Page_143'>143</a>; + <ul> + <li>in English law, ii. <a href='#Page_164'>164</a>;</li> + <li>in Indian law, ii. <a href='#Page_166'>166</a>;</li> + <li>as amending law of wife’s property, ii. <a href='#Page_427'>427</a>, <a href='#Page_428'>428</a>.</li> + </ul> + </li> + <li class='c023'>Erastianism, ii. <a href='#Page_210'>210</a>.</li> + <li class='c023'>Eurasians, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_66'>66</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_69'>69</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_136'>136</a>.</li> + <li class='c023'>Euripides, quoted, ii. <a href='#Page_384'>384</a>.</li> + <li class='c023'>European influence over rest of world, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_1'>1</a>.</li> + <li class='c023'>Evidence Code, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_128'>128</a>.</li> + <li class='c023'><span class='pageno' id='Page_536'>536</span>Executive, the: at Rome, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_191'>191</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_192'>192</a>; + <ul> + <li>in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_513'>513</a>.</li> + </ul> + </li> + <li class='c023'>Executive Council, the: in the Orange Free State, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_438'>438</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_457'>457</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_459'>459</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_464'>464</a>; + <ul> + <li>in the South African Republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_445'>445</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_457'>457</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_459'>459</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Family, its influence on Roman law, ii. <a href='#Page_367'>367</a>; + <ul> + <li>as religious organism, ii. <a href='#Page_211'>211</a>.</li> + </ul> + </li> + <li class='c023'>Family succession: effect of, as a centripetal force, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_303'>303-307</a>.</li> + <li class='c023'>Fathers of the Church, ii. <a href='#Page_244'>244</a>, <a href='#Page_484'>484</a>.</li> + <li class='c023'>Fathers of the Republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_381'>381</a>.</li> + <li class='c023'>Fear, as ground of political obedience, ii. <a href='#Page_1'>1-5</a>, <a href='#Page_12'>12-14</a>, <a href='#Page_20'>20</a>.</li> + <li class='c023'>Federal courts: in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_399'>399</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_419'>419</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_420'>420</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508-512</a>.</li> + </ul> + </li> + <li class='c023'><i>Federalist, The</i>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_360'>360</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366-374</a>.</li> + <li class='c023'>Federation: types of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_469'>469</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_470'>470</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_489'>489-492</a>; + <ul> + <li>sovereignty in, ii. <a href='#Page_104'>104-108</a>;</li> + <li>of British empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_245'>245-249</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_553'>553</a>.</li> + </ul> + </li> + <li class='c023'>Fetwa, ii. <a href='#Page_241'>241</a>.</li> + <li class='c023'>Finance: in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37-42</a>; + <ul> + <li>in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_478'>478</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a>.</li> + </ul> + </li> + <li class='c023'>Finland, autonomy of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_288'>288</a>.</li> + <li class='c023'>Flag, the, in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_298'>298</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_418'>418</a>.</li> + <li class='c023'>Flexible and rigid constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145-252</a>; + <ul> + <li>is the Transvaal constitution flexible? i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_449'>449-451</a>.</li> + </ul> + </li> + <li class='c023'>Folk Mot, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_161'>161</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_162'>162</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_353'>353</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_434'>434</a>; ii. <a href='#Page_297'>297</a>.</li> + <li class='c023'><span lang="fr"><i>Formulae</i></span>, ii. <a href='#Page_334'>334</a>.</li> + <li class='c023'>France: constitution of the republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_202'>202</a>; + <ul> + <li>legal history, ii. <a href='#Page_375'>375-377</a>;</li> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'>Franks, the, ii. <a href='#Page_22'>22</a>.</li> + <li class='c023'><span class='pageno' id='Page_537'>537</span>Free State. <i>See</i> <a href='#ORANGE'>Orange Free State</a>.</li> + <li class='c023'>Free Trade, ii. <a href='#Page_26'>26</a>.</li> + <li class='c023'>French law, codification of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_107'>107</a>.</li> + <li class='c023'>French Republic, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_214'>214</a>.</li> + <li class='c023'>Frontiers, of Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_14'>14-20</a>.</li> + <li class='c023'>Fundamental statutes, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_206'>206</a>.</li> + <li class='c023'>Fusion: of races in Roman empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_62'>62</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_74'>74</a>; + <ul> + <li>of Roman and provincial law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_96'>96-98</a>.</li> + </ul> + </li> + <li class='c023'>Future life, belief in, ii. <a href='#Page_459'>459</a>.</li> + <li class='c023'>Fylki, in Norway, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_353'>353</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Gaius, ii. <a href='#Page_142'>142</a>, <a href='#Page_145'>145</a>, <a href='#Page_153'>153</a>, <a href='#Page_260'>260</a>, <a href='#Page_264'>264</a>, <a href='#Page_296'>296</a>, <a href='#Page_304'>304</a>, <a href='#Page_354'>354</a>, <a href='#Page_390'>390</a>, <a href='#Page_392'>392</a>, <a href='#Page_512'>512</a>.</li> + <li class='c023'>Gardiner, S. R., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_200'>200</a>.</li> + <li class='c023'><span lang="la"><i>Gens</i></span>, meaning of, ii. <a href='#Page_131'>131</a>.</li> + <li class='c023'>Gentili, Alberico, ii. <a href='#Page_167'>167</a>, <a href='#Page_507'>507</a>.</li> + <li class='c023'>German empire, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_196'>196</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_204'>204</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_215'>215</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_470'>470</a>; + <ul> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'>German law, codification of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_108'>108</a>; + <ul> + <li>history of, ii. <a href='#Page_375'>375-377</a>.</li> + </ul> + </li> + <li class='c023'>Ghosts, legal ejectment of, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_345'>345</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_346'>346</a>.</li> + <li class='c023'>Gierke, Prof. Otto, ii. <a href='#Page_85'>85</a>, <a href='#Page_159'>159</a>.</li> + <li class='c023'>Gilman, President, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_382'>382</a>.</li> + <li class='c023'>Glanvill, ii. <a href='#Page_261'>261</a>, <a href='#Page_332'>332</a>.</li> + <li class='c023'>Goethe, quoted, ii. <a href='#Page_160'>160</a>.</li> + <li class='c023'>Goði, or priest-chieftain, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_317'>317-322</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_325'>325</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_326'>326</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_332'>332</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_344'>344</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_352'>352-354</a>.</li> + <li class='c023'>Gortyn, laws of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_89'>89</a>.</li> + <li class='c023'>Grace, opposed to law, ii. <a href='#Page_209'>209</a>.</li> + <li class='c023'>Graduation, at El Azhar, ii. <a href='#Page_225'>225</a>.</li> + <li class='c023'>Grammar, in Musulman university, ii. <a href='#Page_224'>224</a>, <a href='#Page_225'>225</a>.</li> + <li class='c023'>Gratian, ii. <a href='#Page_157'>157</a>.</li> + <li class='c023'>Greece, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_209'>209</a>.</li> + <li class='c023'>Greek Civilization, spread of, in ancient world, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_2'>2</a>.</li> + <li class='c023'>Greek law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_89'>89</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_102'>102</a>; ii. <a href='#Page_145'>145</a>, <a href='#Page_202'>202</a>.</li> + <li class='c023'>Greenland, colonized from Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_333'>333</a>.</li> + <li class='c023'><span class='pageno' id='Page_538'>538</span>Grondwet, the: of the South African Republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_442'>442-447</a>; + <ul> + <li>was it a rigid constitution? i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_449'>449-455</a>.</li> + </ul> + </li> + <li class='c023'>Grotius, ii. <a href='#Page_167'>167</a>, <a href='#Page_168'>168</a>.</li> + <li class='c023'>Group, defined, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_257'>257</a>; + <ul> + <li>parliamentary, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_541'>541</a>.</li> + </ul> + </li> + <li class='c023'>Growth, phenomena of, ii. <a href='#Page_114'>114</a>.</li> + <li class='c023'>Grueber, Dr. E., ii. <a href='#Page_506'>506</a>.</li> + <li class='c023'>Gunnlaug’s Saga, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_348'>348</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_349'>349</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Habit, as governing action, ii. <a href='#Page_14'>14</a>, <a href='#Page_45'>45</a>, <a href='#Page_65'>65</a>.</li> + <li class='c023'>Haiti, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>.</li> + <li class='c023'>Hamilton, Alexander, chief writer in <cite>The Federalist</cite>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_360'>360</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_369'>369-381</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_427'>427</a>; ii. <a href='#Page_105'>105</a>.</li> + <li class='c023'>Hand power, in Roman marriage law, ii. <a href='#Page_387'>387-391</a>.</li> + <li class='c023'>Hannen, Lord, ii. <a href='#Page_465'>465</a>.</li> + <li class='c023'>Harrison, Frederic, on Austin, ii. <a href='#Page_111'>111</a>.</li> + <li class='c023'>Harvard University, ii. <a href='#Page_230'>230</a>.</li> + <li class='c023'>Hastings, Warren, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_29'>29</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_77'>77</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_459'>459</a>.</li> + <li class='c023'>Hatts, promulgated by the Sultan, ii. <a href='#Page_253'>253</a>.</li> + <li class='c023'>Hawaiian Islands, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_2'>2</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_292'>292</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>.</li> + <li class='c023'>Hegel, ii. <a href='#Page_108'>108</a>, <a href='#Page_177'>177</a>.</li> + <li class='c023'>Henry II, influence on English law, ii. <a href='#Page_358'>358-360</a>.</li> + <li class='c023'>Heraclitus, ii. <a href='#Page_124'>124</a>.</li> + <li class='c023'>Herodotus, ii. <a href='#Page_120'>120</a>.</li> + <li class='c023'>High Court: in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_46'>46</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508-512</a>.</li> + </ul> + </li> + <li class='c023'>Hindu Law, administered in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113-119</a>.</li> + <li class='c023'>Hindustani language, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_72'>72</a>.</li> + <li class='c023'>Historical school of jurisprudence, ii. <a href='#Page_184'>184-186</a>.</li> + <li class='c023'>Hobbes, criticized, ii. <a href='#Page_85'>85-88</a>, <a href='#Page_106'>106</a>, <a href='#Page_162'>162</a>.</li> + <li class='c023'>Holland, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_210'>210</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_214'>214</a>; + <ul> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'>Holland, Dr., ii. <a href='#Page_173'>173</a>.</li> + <li class='c023'>Holmes, Chief Justice, ii. <a href='#Page_192'>192</a>, <a href='#Page_264'>264</a>.</li> + <li class='c023'>Home Rule, for Ireland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_207'>207</a>.</li> + <li class='c023'><span class='pageno' id='Page_539'>539</span>Homer, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_160'>160</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_318'>318</a>; ii. <a href='#Page_47'>47</a>, <a href='#Page_124'>124</a>, <a href='#Page_212'>212</a>, <a href='#Page_521'>521</a>.</li> + <li class='c023'>Homicide, penalty for, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_321'>321</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_344'>344</a>.</li> + <li class='c023'>Horace, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_66'>66</a>; + <ul> + <li>quoted, ii. <a href='#Page_350'>350</a>.</li> + </ul> + </li> + <li class='c023'>House of Representatives, the: its position in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_368'>368</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_371'>371</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_375'>375</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_377'>377</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_401'>401</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_421'>421</a>; + <ul> + <li>in the Australian Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_504'>504-507</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_514'>514-521</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_537'>537</a>.</li> + </ul> + </li> + <li class='c023'>Hungary, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155</a>.</li> + <li class='c023'>Husband and wife, identity of, in English law, ii. <a href='#Page_424'>424</a>, <a href='#Page_425'>425</a>. + <ul> + <li><i>See also</i> <a href='#MARRIAGE'>Marriage</a>.</li> + </ul> + </li> + <li class='c023'>Hustings, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_312'>312-358</a>; + <ul> + <li>discovery and settlement, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_312'>312-316</a>;</li> + <li>beginnings of a polity, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>;</li> + <li>the priest-chieftain, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_317'>317-320</a>;</li> + <li>first political constitution, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_320'>320-322</a>;</li> + <li>organization and powers of the Althing, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_322'>322-327</a>;</li> + <li>the speaker of the law, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327</a>;</li> + <li>Thingvellir, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_329'>329-332</a>;</li> + <li>character of the republic, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_332'>332</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_333'>333</a>;</li> + <li>character and growth of the law, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_334'>334-341</a>;</li> + <li>sources of our knowledge of the law, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341-343</a>;</li> + <li>illustrations of the law, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_343'>343-349</a>;</li> + <li>introduction of Christianity, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_349'>349-351</a>;</li> + <li>reflections on early history, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_353'>353-356</a>;</li> + <li>fall of the republic, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_356'>356</a>;</li> + <li>union with Denmark, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_357'>357</a>;</li> + <li>independence, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_284'>284</a>; ii. <a href='#Page_26'>26</a>.</li> + </ul> + </li> + <li class='c023'>Ihering, Rudolf von, ii. <a href='#Page_186'>186</a>, <a href='#Page_516'>516</a>.</li> + <li class='c023'>Ilbert, Sir C. P., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_29'>29</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_67'>67</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_86'>86</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_118'>118</a>; ii. <a href='#Page_167'>167</a>, <a href='#Page_322'>322</a>, <a href='#Page_326'>326</a>.</li> + <li class='c023'><span lang="la"><i>Imperium</i></span>, of praetor, ii. <a href='#Page_277'>277</a>.</li> + <li class='c023'>Inaugural lecture, ii. <a href='#Page_475'>475-503</a>.</li> + <li class='c023'>India: British conquest, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_5'>5-8</a>; + <ul> + <li>military character of empire, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_13'>13</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_14'>14</a>;</li> + <li>natural frontiers, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_16'>16-18</a>;</li> + <li>roads and railways, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_21'>21</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_22'>22</a>;</li> + <li><span class='pageno' id='Page_540'>540</span>internal peace, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_24'>24</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_25'>25</a>;</li> + <li>character of administration, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_28'>28-34</a>;</li> + <li>protected states, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a>;</li> + <li>fiscal system, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37-42</a>;</li> + <li>native army, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_45'>45</a>;</li> + <li>native civil service, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_46'>46</a>;</li> + <li>private civil rights, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_50'>50</a>;</li> + <li>legislative councils, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_51'>51</a>;</li> + <li>religious usages, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_56'>56</a>;</li> + <li>education, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_57'>57</a>;</li> + <li>influence of climate, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_63'>63</a>;</li> + <li>influence of colour, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_64'>64-67</a>;</li> + <li>influence of religion, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_67'>67-69</a>;</li> + <li>influence of language and literature, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_72'>72-74</a>;</li> + <li>no fusion of races, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_75'>75</a>;</li> + <li>little influence on England, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_76'>76-78</a>;</li> + <li>probable future of British power, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_82'>82-84</a>;</li> + <li>legal systems found by the English, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113-116</a>;</li> + <li>English continued existing systems of law, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_116'>116-120</a>; ii. <a href='#Page_133'>133</a>;</li> + <li>codification, i. <a href='#Page_121'>121-124</a>;</li> + <li>merits and working of the codes, <a href='#Page_127'>127-131</a>;</li> + <li>probable future of legal development, <a href='#Page_138'>138-141</a>;</li> + <li>as governed by Englishmen, ii. <a href='#Page_16'>16</a>.</li> + </ul> + </li> + <li class='c023'>Indian tribes, in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_377'>377</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_408'>408</a>; ii. <a href='#Page_16'>16</a>.</li> + <li class='c023'>Individualism, ii. <a href='#Page_36'>36</a>, <a href='#Page_463'>463</a>.</li> + <li class='c023'>Indolence, as ground of political obedience, ii. <a href='#Page_6'>6-9</a>, <a href='#Page_14'>14</a>.</li> + <li class='c023'>International law: sovereignty in, ii. <a href='#Page_101'>101-104</a>; + <ul> + <li>natural law in, ii. <a href='#Page_167'>167-169</a>.</li> + </ul> + </li> + <li class='c023'>Interpretation of rigid constitutions, i. <a href='#Page_228'>228-234</a>.</li> + <li class='c023'>Inter-state commission, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_509'>509</a>.</li> + <li class='c023'>Ireland, law of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_111'>111</a>; + <ul> + <li>political forces in, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_264'>264</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_285'>285</a>;</li> + <li>little influence on English law, ii. <a href='#Page_369'>369</a>;</li> + <li>no divorce in, ii. <a href='#Page_438'>438</a>.</li> + </ul> + </li> + <li class='c023'>Irish, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_313'>313</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>.</li> + <li class='c023'>Irrigation, in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_474'>474</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_478'>478</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_545'>545</a>.</li> + <li class='c023'>Isidore of Seville, ii. <a href='#Page_157'>157</a>.</li> + <li class='c023'>Islam, law of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_85'>85</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_87'>87</a>; + <ul> + <li>administered in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113-119</a>;</li> + <li><span class='pageno' id='Page_541'>541</span>characteristics of, ii. <a href='#Page_218'>218</a>, <a href='#Page_233'>233-241</a>.</li> + </ul> + </li> + <li class='c023'>Italy, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_196'>196</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_202'>202</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_208'>208</a>.</li> + <li class='c023'><span lang="la"><i>Iudex</i></span>, in Roman law, ii. <a href='#Page_257'>257</a>.</li> + <li class='c023'><span lang="la"><i>Ius</i></span>, contrasted with <span lang="la"><i>lex</i></span>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_149'>149</a>; ii. <a href='#Page_294'>294</a>.</li> + <li class='c023'><span lang="la"><i>Ius gentium</i></span>, in Roman law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_97'>97</a>; ii. <a href='#Page_128'>128-135</a>, <a href='#Page_144'>144-148</a>, <a href='#Page_348'>348</a>.</li> + <li class='c023'><span lang="la"><i>Ius honorarium</i></span>, ii. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_133'>133</a>.</li> + <li class='c023'><span lang="la"><i>Ius non scriptum</i></span>, i. <a href='#Page_148'>148</a>.</li> + <li class='c023'><span lang="la"><i>Ius respondendi</i></span>, in Roman law, ii. <a href='#Page_257'>257-260</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Jackson, President, i. <a href='#Page_395'>395</a>, <a href='#Page_406'>406</a>, <a href='#Page_411'>411</a>.</li> + <li class='c023'>Japan, constitution of, i. <a href='#Page_197'>197</a>, <a href='#Page_253'>253</a>; ii. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_70'>70</a>; + <ul> + <li>divorce in, ii. <a href='#Page_444'>444</a>.</li> + </ul> + </li> + <li class='c023'>Jay, Chief Justice, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_360'>360</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>.</li> + <li class='c023'>Jefferson, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_363'>363</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_373'>373</a>; ii. <a href='#Page_98'>98</a>.</li> + <li class='c023'>Jewish law, ii. <a href='#Page_214'>214</a>, <a href='#Page_242'>242</a>; + <ul> + <li>of divorce, ii. <a href='#Page_437'>437</a>.</li> + </ul> + </li> + <li class='c023'>Joint stock companies, law of, ii. <a href='#Page_336'>336</a>, <a href='#Page_366'>366</a>, <a href='#Page_494'>494</a>.</li> + <li class='c023'>Jointure, in lieu of dower, ii. <a href='#Page_427'>427</a>.</li> + <li class='c023'>Judges, the, as makers of law, ii. <a href='#Page_269'>269-281</a>.</li> + <li class='c023'>Judicature Act, ii. <a href='#Page_479'>479</a>, <a href='#Page_489'>489</a>, <a href='#Page_517'>517</a>.</li> + <li class='c023'>Judiciary, the: its position in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_399'>399</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_419'>419</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_420'>420</a>; + <ul> + <li>in the Orange Free State, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_439'>439</a>;</li> + <li>in the South African Republic, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_446'>446</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_453'>453</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_462'>462</a>;</li> + <li>in the Australian Commonwealth, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_508'>508-512</a>;</li> + <li>as makers of law, ii. <a href='#Page_269'>269-281</a>.</li> + </ul> + </li> + <li class='c023'>Julian, jurist, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_219'>219</a>; ii. <a href='#Page_76'>76</a>, <a href='#Page_205'>205</a>, <a href='#Page_249'>249</a>, <a href='#Page_288'>288</a>.</li> + <li class='c023'>Julius Caesar, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_176'>176</a>.</li> + <li class='c023'>Jurists, as makers of law, ii. <a href='#Page_155'>155</a>, <a href='#Page_255'>255-261</a>; + <ul> + <li>difference between the action of Roman and English, <a href='#Page_261'>261-269</a>, <a href='#Page_496'>496</a>.</li> + </ul> + </li> + <li class='c023'>Justinian, his codification of Roman law, ii. <a href='#Page_355'>355-357</a>; + <ul> + <li><span class='pageno' id='Page_542'>542</span>change in law of divorce, ii. <a href='#Page_408'>408</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Kadi, Muhammadan judge, ii. <a href='#Page_226'>226</a>, <a href='#Page_239'>239</a>, <a href='#Page_253'>253</a>.</li> + <li class='c023'>Kant, ii. <a href='#Page_108'>108</a>, <a href='#Page_177'>177</a>.</li> + <li class='c023'>Kent, Chancellor, ii. <a href='#Page_265'>265</a>.</li> + <li class='c023'>Khalifs, the, ii. <a href='#Page_62'>62</a>, <a href='#Page_240'>240</a>, <a href='#Page_241'>241</a>.</li> + <li class='c023'>King’s Proctor, ii. <a href='#Page_437'>437</a>.</li> + <li class='c023'>Kissing, as test of prohibited degrees, ii. <a href='#Page_411'>411</a>.</li> + <li class='c023'>Koran, the, ii. <a href='#Page_59'>59</a>, <a href='#Page_223'>223</a>, <a href='#Page_226'>226</a>, <a href='#Page_231'>231</a>, <a href='#Page_235'>235</a>, <a href='#Page_237'>237</a>, <a href='#Page_253'>253</a>.</li> + <li class='c023'>Kotzé, J. G., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_441'>441</a>.</li> + <li class='c023'>Kovalevsky, ii. <a href='#Page_426'>426</a>.</li> + <li class='c023'>Kruger, President, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_465'>465</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Labeo, ii. <a href='#Page_138'>138</a>, <a href='#Page_260'>260</a>, <a href='#Page_264'>264</a>.</li> + <li class='c023'>Labour Party, in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_418'>418</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_541'>541</a>.</li> + </ul> + </li> + <li class='c023'><span lang="fr"><i>Laissez-faire</i></span>, ii. <a href='#Page_28'>28</a>, <a href='#Page_36'>36</a>.</li> + <li class='c023'>Land, its influence on English law, ii. <a href='#Page_368'>368</a>.</li> + <li class='c023'>Land Revenue, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37-39</a>.</li> + <li class='c023'>Landesgemeinde, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_160'>160</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_434'>434</a>.</li> + <li class='c023'>Langdell, Prof. C. C., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_112'>112</a>; ii. <a href='#Page_512'>512</a>.</li> + <li class='c023'>Language, effect of, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_70'>70-74</a>.</li> + <li class='c023'>Laos States, in Siam, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_276'>276</a>.</li> + <li class='c023'>Law Reports, compared with Roman treatises, ii. <a href='#Page_266'>266-269</a>.</li> + <li class='c023'>Law Speaker, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327-329</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_330'>330</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_332'>332</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_337'>337</a>.</li> + <li class='c023'>Lawyers, power of, in America, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_405'>405</a>.</li> + <li class='c023'>Legal development at Rome and in England, ii. <a href='#Page_338'>338-380</a>: + <ul> + <li>five chief epochs of legal change at Rome, <a href='#Page_341'>341-343</a>;</li> + <li>five epochs of legal change in England, <a href='#Page_343'>343-345</a>;</li> + <li>outline of legal changes at Rome, <a href='#Page_345'>345-358</a>;</li> + <li>outline of legal changes in England, <a href='#Page_358'>358-366</a>;</li> + <li>differences between development of Roman and English law, <a href='#Page_367'>367-375</a>;</li> + <li><span class='pageno' id='Page_543'>543</span>observations on France and Germany, <a href='#Page_375'>375-377</a>;</li> + <li>private law least affected, <a href='#Page_377'>377-380</a>.</li> + </ul> + </li> + <li class='c023'>Legal profession, as a maker of law, ii. <a href='#Page_269'>269-281</a>.</li> + <li class='c023'>Legislation. <i>See</i> <a href='#METHODS'>Methods of law-making</a>.</li> + <li class='c023'>Legislative Councils, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_51'>51</a>.</li> + <li class='c023'>Legitimation, of children born before marriage, ii. <a href='#Page_414'>414</a>.</li> + <li class='c023'>Leibnitz, on Mogul empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_10'>10</a>.</li> + <li class='c023'>Leo, Emperor-Philosopher: <cite>Basilica</cite> of, ii. <a href='#Page_341'>341</a>, <a href='#Page_378'>378</a>; + <ul> + <li>abolishes divorce by consent, ii. <a href='#Page_408'>408</a>, <a href='#Page_413'>413</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Lex</i></span>, meaning of, ii. <a href='#Page_294'>294-296</a>, <a href='#Page_301'>301</a>, <a href='#Page_302'>302</a>.</li> + <li class='c023'>Libel, punishment for, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_345'>345</a>.</li> + <li class='c023'>Liberty, love of, ii. <a href='#Page_24'>24-26</a>.</li> + <li class='c023'>Liberty of the press, in South African republics, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_440'>440</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_443'>443</a>.</li> + <li class='c023'>Limitation of sovereignty, ii. <a href='#Page_71'>71</a>.</li> + <li class='c023'>Literature, effect of, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_70'>70-73</a>.</li> + <li class='c023'>Lithuania, Roman law in, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_110'>110</a>.</li> + <li class='c023'>Littleton, ii. <a href='#Page_261'>261</a>.</li> + <li class='c023'>Livy, quoted, ii. <a href='#Page_131'>131</a>, <a href='#Page_255'>255</a>, <a href='#Page_347'>347</a>.</li> + <li class='c023'>Liwan, or hall of prayer, ii. <a href='#Page_223'>223</a>.</li> + <li class='c023'>Locke, ii. <a href='#Page_163'>163</a>.</li> + <li class='c023'>Lögberg, or Hill of Laws, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_330'>330</a>.</li> + <li class='c023'>Lögsögumaðr, or Law Speaker, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_327'>327-329</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_330'>330</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_332'>332</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_337'>337</a>.</li> + <li class='c023'>Lords, House of, ii. <a href='#Page_322'>322-325</a>, <a href='#Page_329'>329</a>.</li> + <li class='c023'>Louis Napoleon, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_213'>213</a>; ii. <a href='#Page_26'>26</a>, <a href='#Page_65'>65</a>.</li> + <li class='c023'>Lyall, Sir A. C., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_55'>55</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Macaulay, codification of Indian law by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_121'>121</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_127'>127</a>; ii. <a href='#Page_290'>290</a>.</li> + <li class='c023'><span class='pageno' id='Page_544'>544</span>Madison, President, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_360'>360</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_375'>375</a>; ii. <a href='#Page_105'>105</a>.</li> + <li class='c023'>Magistrates, as makers of law, ii. <a href='#Page_269'>269-281</a>.</li> + <li class='c023'>Maine, Sir H. S., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_167'>167</a>; ii. <a href='#Page_111'>111</a>, <a href='#Page_140'>140</a>, <a href='#Page_146'>146</a>, <a href='#Page_215'>215</a>, <a href='#Page_495'>495</a>, <a href='#Page_506'>506</a>, <a href='#Page_524'>524</a>.</li> + <li class='c023'>Maitland, Prof., ii. <a href='#Page_322'>322</a>, <a href='#Page_420'>420</a>, <a href='#Page_421'>421</a>, <a href='#Page_425'>425</a>, <a href='#Page_426'>426</a>, <a href='#Page_434'>434</a>.</li> + <li class='c023'>Manipur, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_25'>25</a>.</li> + <li class='c023'>Mansfield, Lord, ii. <a href='#Page_133'>133</a>, <a href='#Page_181'>181</a>, <a href='#Page_199'>199</a>, <a href='#Page_266'>266</a>, <a href='#Page_276'>276</a>, <a href='#Page_279'>279</a>, <a href='#Page_477'>477</a>, <a href='#Page_478'>478</a>.</li> + <li class='c023'>Mantle children, ii. <a href='#Page_415'>415</a>.</li> + <li class='c023'><span lang="la"><i>Manus</i></span>, in Roman marriage, ii. <a href='#Page_387'>387-390</a>.</li> + <li class='c023'>Maoris, the, in New Zealand, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_293'>293</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_550'>550</a>.</li> + <li class='c023'>Marcian, ii. <a href='#Page_120'>120</a>, <a href='#Page_142'>142</a>, <a href='#Page_158'>158</a>.</li> + <li class='c023'>Marquardt, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_32'>32</a>.</li> + <li class='c023'><a id='MARRIAGE'></a>Marriage and divorce under Roman and English law, ii. <a href='#Page_381'>381-474</a>: + <ul> + <li>diversity of law of marriage in different countries, <a href='#Page_381'>381-383</a>;</li> + <li>character of marriage in early law, <a href='#Page_383'>383-385</a>;</li> + <li>early form of Roman marriage law, <a href='#Page_386'>386-389</a>;</li> + <li>change to later system, <a href='#Page_389'>389-392</a>;</li> + <li>personal relations of consorts, <a href='#Page_392'>392-395</a>;</li> + <li>pecuniary relations of consorts, <a href='#Page_395'>395-400</a>;</li> + <li>Roman conception of marriage, <a href='#Page_400'>400</a>, <a href='#Page_401'>401</a>;</li> + <li>divorce in Roman law, <a href='#Page_402'>402-406</a>;</li> + <li>influence of Christianity on divorce, <a href='#Page_406'>406-409</a>;</li> + <li>encouragement of marriage, <a href='#Page_409'>409</a>;</li> + <li>discouragement of second marriage, <a href='#Page_410'>410</a>;</li> + <li>prohibited degrees, <a href='#Page_410'>410-412</a>;</li> + <li>natural marriage, <a href='#Page_412'>412</a>;</li> + <li>concubinage, <a href='#Page_413'>413-415</a>;</li> + <li>marriage under canon law, <a href='#Page_416'>416-420</a>;</li> + <li>English law of marriage, <a href='#Page_420'>420-424</a>;</li> + <li>property relations of consorts, <a href='#Page_424'>424-427</a>;</li> + <li>gradual amendment of English matrimonial law, <a href='#Page_427'>427-433</a>;</li> + <li>divorce under canon law, <a href='#Page_433'>433-435</a>;</li> + <li>later law of divorce in England and Scotland, <a href='#Page_435'>435-438</a>;</li> + <li><span class='pageno' id='Page_545'>545</span>divorce laws of United States, <a href='#Page_439'>439-443</a>;</li> + <li>statistics of divorce in America, <a href='#Page_443'>443</a>;</li> + <li>divorce in modern European countries, <a href='#Page_450'>450-453</a>;</li> + <li>comparison of change at Rome with modern world, <a href='#Page_453'>453-457</a>;</li> + <li>tendencies affecting permanence of marriage tie, <a href='#Page_457'>457-464</a>;</li> + <li>influence of church and law, <a href='#Page_464'>464</a>;</li> + <li>does English law need amendment? 465-469;</li> + <li>changes in theory and sentiment regarding marriage, <a href='#Page_469'>469-474</a>.</li> + </ul> + </li> + <li class='c023'>Martial, quoted, ii. <a href='#Page_405'>405</a>.</li> + <li class='c023'>Martyrs, the Christian, ii. <a href='#Page_24'>24</a>.</li> + <li class='c023'>Mastery theory of marriage, ii. <a href='#Page_431'>431-433</a>.</li> + <li class='c023'>Maurer, Konrad, writer on Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_319'>319</a>.</li> + <li class='c023'>Mellish, Lord Justice, ii. <a href='#Page_199'>199</a>.</li> + <li class='c023'><span lang="la"><i>Mensa et torus</i></span>, divorce from, ii. <a href='#Page_435'>435</a>, <a href='#Page_436'>436</a>.</li> + <li class='c023'>Merriam, C. E., jun., ii. <a href='#Page_111'>111</a>.</li> + <li class='c023'>Merwing kings, ii. <a href='#Page_22'>22</a>.</li> + <li class='c023'>Metaphysical basis of law, ii. <a href='#Page_169'>169</a>, <a href='#Page_174'>174-178</a>.</li> + <li class='c023'><a id='METHODS'></a>Methods of law-making in Rome and in England, ii. <a href='#Page_247'>247-337</a>: + <ul> + <li>law-making authorities in general, <a href='#Page_248'>248-255</a>;</li> + <li>jurists as makers of law, <a href='#Page_255'>255-261</a>;</li> + <li>difference between action of Roman and English jurists, <a href='#Page_261'>261-269</a>;</li> + <li>magistrates and judges as makers of law, <a href='#Page_269'>269-281</a>;</li> + <li>praetorian edicts compared with English case law, <a href='#Page_281'>281-293</a>;</li> + <li>direct legislation at Rome (<i>a</i>) the popular assembly, <a href='#Page_293'>293-303</a>; + <ul> + <li>(<i>b</i>) the senate, <a href='#Page_303'>303-308</a>;</li> + <li>(<i>c</i>) the emperor, <a href='#Page_308'>308-321</a>;</li> + </ul> + </li> + <li>direct legislation in England—Parliament, <a href='#Page_321'>321-331</a>;</li> + <li>reflections suggested by the history of legislation, <a href='#Page_331'>331-337</a>.</li> + </ul> + </li> + <li class='c023'><span class='pageno' id='Page_546'>546</span>Methods of legal science, ii. <a href='#Page_172'>172-208</a>: + <ul> + <li>metaphysical or <span lang="la"><i>a priori</i></span>, <a href='#Page_174'>174-178</a>;</li> + <li>analytic, <a href='#Page_178'>178-184</a>;</li> + <li>historical, <a href='#Page_184'>184-186</a>;</li> + <li>comparative, <a href='#Page_186'>186-190</a>;</li> + <li>value of each, <a href='#Page_190'>190-192</a>;</li> + <li>utility for legal study, <a href='#Page_192'>192-197</a>.</li> + </ul> + </li> + <li class='c023'>Mexico, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_198'>198</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_204'>204</a>.</li> + <li class='c023'>Military Character of Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_13'>13</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_14'>14</a>.</li> + <li class='c023'>Milton, quoted, ii. <a href='#Page_36'>36</a>, <a href='#Page_363'>363</a>; + <ul> + <li>on divorce, ii. <a href='#Page_436'>436</a>.</li> + </ul> + </li> + <li class='c023'>Mitteis, Dr. L., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_100'>100</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_102'>102</a>; ii. <a href='#Page_147'>147</a>.</li> + <li class='c023'>Modestinus, ii. <a href='#Page_258'>258</a>, <a href='#Page_354'>354</a>, <a href='#Page_400'>400</a>, <a href='#Page_483'>483</a>.</li> + <li class='c023'>Mogul emperors, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_6'>6</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_10'>10</a>; ii. <a href='#Page_17'>17</a>, <a href='#Page_62'>62</a>.</li> + <li class='c023'>Mommsen, ii. <a href='#Page_395'>395</a>, <a href='#Page_516'>516</a>.</li> + <li class='c023'>Money bills, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_158'>158</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_173'>173</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_518'>518</a>.</li> + <li class='c023'>Monroe Doctrine, the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_414'>414</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_481'>481</a>.</li> + <li class='c023'>Montenegro, an autocracy, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_251'>251</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_253'>253</a>.</li> + <li class='c023'>Montesquieu, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_379'>379</a>.</li> + <li class='c023'>Mormons, ii. <a href='#Page_384'>384</a>.</li> + <li class='c023'>Mosaic law, ii. <a href='#Page_217'>217</a>, <a href='#Page_242'>242</a>.</li> + <li class='c023'>Mosque of El Azhar, ii. <a href='#Page_219'>219-231</a>.</li> + <li class='c023'>Mufti, ii. <a href='#Page_226'>226</a>, <a href='#Page_253'>253</a>.</li> + <li class='c023'>Muhammadan law, administered in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113-119</a>; + <ul> + <li>characteristics of, ii. <a href='#Page_218'>218</a>, <a href='#Page_233'>233-241</a>.</li> + </ul> + </li> + <li class='c023'>Muirhead, ii. <a href='#Page_147'>147</a>, <a href='#Page_257'>257</a>.</li> + <li class='c023'>Municipalities, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_33'>33</a>.</li> + <li class='c023'>Musulman law, administered in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113-119</a>; + <ul> + <li>characteristics of, ii. <a href='#Page_218'>218</a>, <a href='#Page_233'>233-241</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Napoleon, codes of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_107'>107</a>.</li> + <li class='c023'>Natal, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_433'>433</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_434'>434</a>.</li> + <li class='c023'>National sentiment, as a political force, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_282'>282-286</a>; ii. <a href='#Page_34'>34</a>.</li> + <li class='c023'>Nations, in academical usage, ii. <a href='#Page_227'>227</a>, <a href='#Page_298'>298</a>.</li> + <li class='c023'>Natural marriage, ii. <a href='#Page_412'>412</a>, <a href='#Page_417'>417</a>.</li> + <li class='c023'><span class='pageno' id='Page_547'>547</span>Nature, Law of, ii. <a href='#Page_112'>112-171</a>: + <ul> + <li>origin of idea of Nature as a ruling force, <a href='#Page_112'>112-120</a>;</li> + <li>origin of conception of Natural Law, <a href='#Page_120'>120-128</a>;</li> + <li>Roman <span lang="la"><i>ius gentium</i></span> or Law of the Nations, <a href='#Page_128'>128-135</a>;</li> + <li>connexion of Law of Nature with Law of the Nations, <a href='#Page_135'>135-144</a>;</li> + <li>relation of Law of Nature to general customary law, <a href='#Page_144'>144-148</a>;</li> + <li>meaning attached by Roman jurists to Nature, <a href='#Page_148'>148-157</a>;</li> + <li>Law of Nature in middle ages, <a href='#Page_157'>157-161</a>;</li> + <li>in modern times, <a href='#Page_161'>161-171</a>.</li> + </ul> + </li> + <li class='c023'><span lang="de"><i>Naturrecht</i></span>, ii. <a href='#Page_169'>169</a>, <a href='#Page_173'>173-178</a>.</li> + <li class='c023'>Negotiable instruments, law of, ii. <a href='#Page_335'>335</a>, <a href='#Page_365'>365</a>; + <ul> + <li>in Germany, ii. <a href='#Page_377'>377</a>.</li> + </ul> + </li> + <li class='c023'>Negro question in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_293'>293</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_363'>363</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_393'>393</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_408'>408</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_416'>416</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_426'>426</a>.</li> + <li class='c023'>Nettleship, Prof. H., ii. <a href='#Page_131'>131</a>.</li> + <li class='c023'>Newman, W. L., ii. <a href='#Page_144'>144</a>.</li> + <li class='c023'>New Testament, law in, ii. <a href='#Page_79'>79</a>, <a href='#Page_209'>209</a>, <a href='#Page_216'>216</a>, <a href='#Page_243'>243</a>, <a href='#Page_434'>434</a>, <a href='#Page_482'>482</a>.</li> + <li class='c023'>New Zealand, outside Australian Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_548'>548-550</a>.</li> + <li class='c023'>Non-regulation provinces, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_35'>35</a>.</li> + <li class='c023'>Norman feudalism, influence on British constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_192'>192</a>.</li> + <li class='c023'>Norway, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_209'>209</a>; + <ul> + <li>relations with Sweden, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_284'>284</a>;</li> + <li>settlement of Iceland from, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_314'>314-316</a>;</li> + <li>subjection of Iceland to, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_356'>356</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_357'>357</a>;</li> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'><cite>Novels</cite> of Justinian, ii. <a href='#Page_320'>320</a>.</li> + <li class='c023'>Nuncomar, execution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_120'>120</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Obedience, political, ii. <a href='#Page_1'>1-48</a>: + <ul> + <li>theories regarding, <a href='#Page_1'>1-6</a>;</li> + <li>grounds of, <a href='#Page_6'>6-26</a>;</li> + <li>future of, <a href='#Page_26'>26-45</a>;</li> + <li>theory of, applied to jurisprudence, <a href='#Page_44'>44-48</a>.</li> + </ul> + </li> + <li class='c023'><span class='pageno' id='Page_548'>548</span><span lang="la"><i>Obiter dicta</i></span>, ii. <a href='#Page_268'>268</a>, <a href='#Page_282'>282</a>.</li> + <li class='c023'>Ohio, divorce in, ii. <a href='#Page_446'>446</a>.</li> + <li class='c023'>Old Age Pensions, specifically mentioned in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_478'>478</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_479'>479</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_494'>494</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_536'>536</a>.</li> + <li class='c023'>Olympian games, as unifying influence, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_280'>280</a>.</li> + <li class='c023'>Oppressed nationalities, ii. <a href='#Page_34'>34</a>.</li> + <li class='c023'><a id='ORANGE'></a>Orange Free State, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430-467</a>: + <ul> + <li>early history, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_432'>432-436</a>;</li> + <li>constitution of the republic, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_436'>436-441</a>;</li> + <li>observations on its working, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_455'>455-463</a>;</li> + <li>recent history, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_463'>463</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_466'>466</a>.</li> + </ul> + </li> + <li class='c023'>Orders in Council, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_172'>172</a>; ii. <a href='#Page_270'>270</a>.</li> + <li class='c023'>Organs of law-making, ii. <a href='#Page_249'>249-254</a>.</li> + <li class='c023'>Orthodox Church, in Russia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_279'>279</a>.</li> + <li class='c023'>Outlawry, ii. <a href='#Page_213'>213</a>.</li> + <li class='c023'>Oxford, ii. <a href='#Page_219'>219</a>, <a href='#Page_227'>227</a>, <a href='#Page_230'>230</a>, <a href='#Page_231'>231</a>, <a href='#Page_523'>523-525</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Papinian, ii. <a href='#Page_205'>205</a>, <a href='#Page_266'>266</a>, <a href='#Page_275'>275</a>, <a href='#Page_302'>302</a>, <a href='#Page_314'>314</a>, <a href='#Page_354'>354</a>, <a href='#Page_483'>483</a>.</li> + <li class='c023'>Parke, Baron, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_340'>340</a>.</li> + <li class='c023'>Parliament, as source of law in England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>; ii. <a href='#Page_321'>321-331</a>; + <ul> + <li>sovereignty of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>; ii. <a href='#Page_57'>57</a>, <a href='#Page_90'>90</a>;</li> + <li>marriages dissolved by, ii. <a href='#Page_436'>436</a>.</li> + </ul> + </li> + <li class='c023'>Parsis, in Parliament, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_50'>50</a>.</li> + <li class='c023'>Partnership theory of marriage, ii. <a href='#Page_432'>432</a>.</li> + <li class='c023'>Party organization, in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_370'>370</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_393'>393</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_396'>396</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_413'>413</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_420'>420</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_541'>541</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_539'>539-541</a>.</li> + </ul> + </li> + <li class='c023'>Patagonia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_249'>249</a>.</li> + <li class='c023'><span lang="la"><i>Patria Potestas</i></span>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_101'>101</a>; ii. <a href='#Page_198'>198</a>, <a href='#Page_215'>215</a>, <a href='#Page_482'>482</a>.</li> + <li class='c023'>Paul, jurist, ii. <a href='#Page_354'>354</a>, <a href='#Page_393'>393</a>.</li> + <li class='c023'>Penal Code, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_121'>121</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_127'>127</a>; ii. <a href='#Page_290'>290</a>, <a href='#Page_334'>334</a>.</li> + <li class='c023'>Pension system, in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_376'>376</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_422'>422</a>.</li> + <li class='c023'><span class='pageno' id='Page_549'>549</span>People, the, as a source of law, ii. <a href='#Page_249'>249-251</a>; + <ul> + <li>at Rome, <a href='#Page_293'>293-303</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Peregrini</i></span>, aliens, in Roman law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_90'>90</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_93'>93</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_134'>134</a>; ii. <a href='#Page_129'>129</a>, <a href='#Page_348'>348</a>.</li> + <li class='c023'>Persia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_12'>12</a>; ii. <a href='#Page_104'>104</a>, <a href='#Page_234'>234</a>, <a href='#Page_236'>236</a>.</li> + <li class='c023'>Philippine Islands, occupation of, by United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_2'>2</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_34'>34</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_79'>79</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>; ii. <a href='#Page_35'>35</a>.</li> + <li class='c023'>Philosophy of law, ii. <a href='#Page_169'>169</a>, <a href='#Page_173'>173-178</a>, <a href='#Page_193'>193-196</a>.</li> + <li class='c023'><cite>Pilgrim’s Progress, The</cite>, ii. <a href='#Page_210'>210</a>.</li> + <li class='c023'>Pitso, of Kafirs, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_160'>160</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>; ii. <a href='#Page_297'>297</a>.</li> + <li class='c023'>Plato, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_384'>384</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_396'>396</a>; ii. <a href='#Page_1'>1</a>, <a href='#Page_125'>125</a>.</li> + <li class='c023'>Plebiscite, amendment of constitution by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_153'>153</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_213'>213</a>.</li> + <li class='c023'>Pliny, the elder, ii. <a href='#Page_150'>150</a>.</li> + <li class='c023'>Plutarch, ii. <a href='#Page_411'>411</a>.</li> + <li class='c023'>Poland, partition of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_284'>284</a>; + <ul> + <li>Roman law in, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_109'>109</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_110'>110</a>.</li> + </ul> + </li> + <li class='c023'><cite>Political Science Quarterly, The</cite>, ii. <a href='#Page_518'>518</a>.</li> + <li class='c023'>Pollock, Sir F., ii. <a href='#Page_109'>109</a>, <a href='#Page_111'>111</a>, <a href='#Page_128'>128</a>, <a href='#Page_166'>166</a>, <a href='#Page_322'>322</a>, <a href='#Page_415'>415</a>, <a href='#Page_420'>420</a>, <a href='#Page_421'>421</a>, <a href='#Page_425'>425</a>, <a href='#Page_426'>426</a>, <a href='#Page_434'>434</a>.</li> + <li class='c023'>Polyandry, in ancient times, ii. <a href='#Page_383'>383</a>.</li> + <li class='c023'>Polybius, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_9'>9</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145</a>.</li> + <li class='c023'>Polygamy, among Eastern peoples, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_140'>140</a>; ii. <a href='#Page_383'>383</a>, <a href='#Page_384'>384</a>, <a href='#Page_469'>469</a>.</li> + <li class='c023'><span lang="la"><i>Pontifices</i></span>, oversight over marriage, ii. <a href='#Page_419'>419</a>.</li> + <li class='c023'>Pope, the, as sovereign, ii. <a href='#Page_80'>80</a>; + <ul> + <li>jurisdiction over marriage, ii. <a href='#Page_419'>419</a>, <a href='#Page_434'>434</a>.</li> + </ul> + </li> + <li class='c023'>Popular assembly, as source of law at Rome, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>; ii. <a href='#Page_293'>293-303</a>.</li> + <li class='c023'>Population, growth of, ii. <a href='#Page_38'>38</a>.</li> + <li class='c023'>Portuguese empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_55'>55</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_294'>294</a>.</li> + <li class='c023'>Possession, in Roman and English law, ii. <a href='#Page_192'>192</a>, <a href='#Page_195'>195</a>, <a href='#Page_482'>482</a>.</li> + <li class='c023'>Post-graduate studies, ii. <a href='#Page_522'>522</a>.</li> + <li class='c023'>Praetorian edict compared with case law, ii. <a href='#Page_281'>281-293</a>.</li> + <li class='c023'><span class='pageno' id='Page_550'>550</span>Praetorian prefect, ii. <a href='#Page_314'>314</a>, <a href='#Page_315'>315</a>.</li> + <li class='c023'>Praetors, the, ii. <a href='#Page_133'>133</a>, <a href='#Page_187'>187</a>, <a href='#Page_201'>201</a>, <a href='#Page_274'>274-278</a>, <a href='#Page_282'>282-285</a>, <a href='#Page_291'>291-293</a>, <a href='#Page_348'>348</a>.</li> + <li class='c023'>Pre-contract, impediment to marriage, ii. <a href='#Page_422'>422</a>, <a href='#Page_435'>435</a>.</li> + <li class='c023'>President, the: his position in the constitution of the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_367'>367</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_372'>372</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_373'>373</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_377'>377</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_399'>399</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_412'>412</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_419'>419</a>; ii. <a href='#Page_55'>55</a>; + <ul> + <li>in the Orange Free State, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_438'>438</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_440'>440</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_457'>457</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_460'>460</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_463'>463</a>;</li> + <li>in the South African Republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_444'>444</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_445'>445</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_457'>457</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_460'>460</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_465'>465</a>.</li> + </ul> + </li> + <li class='c023'>Press, influence of the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_184'>184</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_400'>400</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_418'>418</a>; ii. <a href='#Page_37'>37</a>.</li> + <li class='c023'>Priests, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_317'>317</a>.</li> + <li class='c023'>Primary assemblies, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_160'>160</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_434'>434</a>; ii. <a href='#Page_297'>297</a>.</li> + <li class='c023'>Privy Council, appeal to, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_117'>117</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_125'>125</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_172'>172</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_276'>276</a>; ii. <a href='#Page_365'>365</a>; + <ul> + <li>under Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_510'>510-512</a>.</li> + </ul> + </li> + <li class='c023'>Procedure Codes, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_122'>122</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_127'>127</a>.</li> + <li class='c023'>Procedure, law made through, ii. <a href='#Page_280'>280</a>.</li> + <li class='c023'>Procopius, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_60'>60</a>.</li> + <li class='c023'>Profession of law, at Rome and in England, ii. <a href='#Page_263'>263</a>.</li> + <li class='c023'>Prohibited degrees of marriage, ii. <a href='#Page_410'>410-412</a>, <a href='#Page_420'>420</a>.</li> + <li class='c023'>Protected states, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_5'>5</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_36'>36</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_37'>37</a>; ii. <a href='#Page_102'>102</a>.</li> + <li class='c023'>Protective tariff, in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_393'>393</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_411'>411</a>; + <ul> + <li>in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_539'>539</a>.</li> + </ul> + </li> + <li class='c023'>Protectorate, the, in England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_163'>163</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_176'>176</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_200'>200</a>; ii. <a href='#Page_60'>60</a>, <a href='#Page_68'>68</a>.</li> + <li class='c023'>Protestantism, ii. <a href='#Page_15'>15</a>, <a href='#Page_32'>32</a>.</li> + <li class='c023'>Province, meaning of the word, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_36'>36</a>; + <ul> + <li>in Canada, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_492'>492</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_493'>493</a>.</li> + </ul> + </li> + <li class='c023'>Provincial government, under Roman empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_27'>27</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_30'>30</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_32'>32</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_91'>91</a>.</li> + <li class='c023'><span class='pageno' id='Page_551'>551</span>Prussia, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_202'>202</a>; ii. <a href='#Page_25'>25</a>.</li> + <li class='c023'>Public schools, ii. <a href='#Page_21'>21</a>.</li> + <li class='c023'>Puerto Rico, acquisition of, by United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_233'>233</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>.</li> + <li class='c023'>Puritanism of New England, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_363'>363</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_393'>393</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'><span lang="la"><i>Quaestiones perpetuae</i></span>, ii. <a href='#Page_334'>334</a>.</li> + <li class='c023'>Queensland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_265'>265</a>.</li> + <li class='c023'>Quorum, for amendment of constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_210'>210</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Rabbis, the, ii. <a href='#Page_217'>217</a>.</li> + <li class='c023'>Racial feeling, as political force, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_265'>265</a>.</li> + <li class='c023'>Railways, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_14'>14</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_21'>21</a>; + <ul> + <li>in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_416'>416</a>;</li> + <li>in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_548'>548</a>.</li> + </ul> + </li> + <li class='c023'>Rajputs, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_64'>64</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_65'>65</a>.</li> + <li class='c023'><span lang="la"><i>Ratio decidendi</i></span>, ii. <a href='#Page_282'>282</a>.</li> + <li class='c023'>Reason, as ground of political obedience, ii. <a href='#Page_1'>1-5</a>, <a href='#Page_12'>12-14</a>; + <ul> + <li>of the Stoics, ii. <a href='#Page_126'>126</a>.</li> + </ul> + </li> + <li class='c023'>Referendum, the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_212'>212</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_475'>475</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_524'>524</a>; ii. <a href='#Page_71'>71</a>.</li> + <li class='c023'>Reformation, influence on law, ii. <a href='#Page_361'>361</a>; + <ul> + <li>on marriage law, ii. <a href='#Page_418'>418</a>, <a href='#Page_435'>435</a>, <a href='#Page_450'>450</a>.</li> + </ul> + </li> + <li class='c023'>Regular marriage, ii. <a href='#Page_417'>417</a>.</li> + <li class='c023'>Religion, relations of law to, ii. <a href='#Page_209'>209-246</a>: + <ul> + <li>apparent antagonism, <a href='#Page_209'>209</a>, <a href='#Page_210'>210</a>;</li> + <li>close connexion in early times, <a href='#Page_210'>210-215</a>;</li> + <li>differences between different peoples, <a href='#Page_215'>215</a>;</li> + <li>Jews in Roman times, <a href='#Page_216'>216</a>;</li> + <li>primitive Christianity, <a href='#Page_217'>217</a>;</li> + <li>illustrations from El Azhar, <a href='#Page_219'>219-229</a>;</li> + <li>mediaeval universities, <a href='#Page_229'>229-233</a>;</li> + <li>arrested development of Musulman universities, <a href='#Page_233'>233-242</a>;</li> + <li>differences in Christianity, <a href='#Page_242'>242-246</a>.</li> + </ul> + </li> + <li class='c023'>Religious feeling: in ancient and modern world, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_52'>52-57</a>; + <ul> + <li>effect of, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_67'>67-70</a>;</li> + <li><span class='pageno' id='Page_552'>552</span>no obstacle to spread of Roman law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_103'>103</a>;</li> + <li>as political force, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_266'>266</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_277'>277-279</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_283'>283</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_406'>406</a>.</li> + </ul> + </li> + <li class='c023'>Reports, in English law, ii. <a href='#Page_266'>266-268</a>.</li> + <li class='c023'>Representative Government: no place in the ancient world, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_32'>32</a>; + <ul> + <li>or in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_50'>50</a>.</li> + </ul> + </li> + <li class='c023'>Rescripts of Roman emperors, ii. <a href='#Page_311'>311</a>.</li> + <li class='c023'>Resolutions (<span lang="de"><i>besluite</i></span>) of Transvaal Volksraad, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_451'>451-455</a>.</li> + <li class='c023'><span lang="la"><i>Responsa</i></span>, in Roman law, ii. <a href='#Page_257'>257</a>, <a href='#Page_262'>262</a>.</li> + <li class='c023'>Restitution of conjugal rights, ii. <a href='#Page_431'>431</a>.</li> + <li class='c023'>Rhodesia, Southern, ii. <a href='#Page_171'>171</a>.</li> + <li class='c023'>Rights of Man, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_287'>287</a>; ii. <a href='#Page_163'>163</a>.</li> + <li class='c023'>Rigid and flexible constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145-252</a>.</li> + <li class='c023'>Ritchie, D. G., ii. <a href='#Page_111'>111</a>, <a href='#Page_128'>128</a>.</li> + <li class='c023'>Rivers, importance of, in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_478'>478</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_522'>522</a>.</li> + <li class='c023'><i>Riwaks</i>, at El Azhar, ii. <a href='#Page_227'>227</a>, <a href='#Page_228'>228</a>.</li> + <li class='c023'>Road builders, Roman and English, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_21'>21-23</a>.</li> + <li class='c023'>Romano-Germanic empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_106'>106</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_196'>196</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_267'>267</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_283'>283</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_301'>301</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_530'>530</a>; ii. <a href='#Page_57'>57</a>, <a href='#Page_80'>80-82</a>, <a href='#Page_162'>162</a>, <a href='#Page_375'>375</a>.</li> + <li class='c023'>Rome: Roman empire compared with Indian empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_6'>6-77</a>; + <ul> + <li>diffusion of Roman law by conquest, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_88'>88-99</a>;</li> + <li>establishment of one law for the empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_99'>99-104</a>;</li> + <li>extension of Roman law after fall of western empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_104'>104-110</a>;</li> + <li>Roman law compared with Indian law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_133'>133-138</a>;</li> + <li>present position of Roman and English law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_142'>142-144</a>;</li> + <li>constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_145'>145</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_146'>146</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155-158</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_164'>164</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_169'>169-171</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_174'>174</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_181'>181</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_189'>189-191</a>;</li> + <li>political religion, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_277'>277</a>; ii. <a href='#Page_23'>23</a>;</li> + <li>few national revolts, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_282'>282</a>;</li> + <li>no race prejudices, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_291'>291</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_294'>294</a>;</li> + <li><span class='pageno' id='Page_553'>553</span>empire established by conquest, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_306'>306</a>;</li> + <li>succession of emperors, ii. <a href='#Page_67'>67</a>;</li> + <li>Roman views of sovereignty, ii. <a href='#Page_74'>74-79</a>;</li> + <li>Roman conception of <span lang="la"><i>ius gentium</i></span>, ii. <a href='#Page_128'>128-148</a>;</li> + <li>meaning of Nature in Roman jurists, ii. <a href='#Page_148'>148-157</a>;</li> + <li>philosophical treatment of Roman law, ii. <a href='#Page_197'>197-208</a>;</li> + <li>jurists as makers of law, ii. <a href='#Page_255'>255-268</a>;</li> + <li>magistrates as makers of law, ii. <a href='#Page_269'>269-293</a>;</li> + <li>legislation by popular assembly, ii. <a href='#Page_293'>293-303</a>;</li> + <li>legislation by senate, ii. <a href='#Page_303'>303-308</a>;</li> + <li>legislation by emperor, ii. <a href='#Page_308'>308-321</a>;</li> + <li>chief epochs of legal change, ii. <a href='#Page_341'>341-343</a>;</li> + <li>outline of legal changes, ii. <a href='#Page_345'>345-358</a>;</li> + <li>legal development compared with England, ii. <a href='#Page_367'>367-374</a>;</li> + <li>early form of marriage law, ii. <a href='#Page_386'>386-389</a>;</li> + <li>change from earlier to later system, ii. <a href='#Page_389'>389-392</a>;</li> + <li>later marriage law, ii. <a href='#Page_392'>392</a>.</li> + </ul> + </li> + <li class='c023'>Romilly, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_121'>121</a>; ii. <a href='#Page_479'>479</a>.</li> + <li class='c023'>Rousseau, criticized, ii. <a href='#Page_2'>2-5</a>, <a href='#Page_163'>163</a>.</li> + <li class='c023'>Rules, by delegated authority, ii. <a href='#Page_269'>269</a>.</li> + <li class='c023'>Russia: extension of dominion by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_2'>2</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_58'>58</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_79'>79</a>; + <ul> + <li>adoption of Roman law by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_86'>86</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_109'>109</a>;</li> + <li>fundamental laws of the empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_160'>160</a>;</li> + <li>influence of Orthodox Church, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_279'>279</a>;</li> + <li>sovereignty in, ii. <a href='#Page_52'>52</a>, <a href='#Page_253'>253</a>;</li> + <li>marital right of chastisement, ii. <a href='#Page_426'>426</a>;</li> + <li>divorce, ii. <a href='#Page_451'>451</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Sacrament of marriage, ii. <a href='#Page_413'>413</a>, <a href='#Page_417'>417</a>, <a href='#Page_434'>434</a>.</li> + <li class='c023'>Sagas, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_351'>351</a>.</li> + <li class='c023'>Sale of wife by husband, ii. <a href='#Page_387'>387</a>, <a href='#Page_426'>426</a>.</li> + <li class='c023'>Sallust, ii. <a href='#Page_131'>131</a>.</li> + <li class='c023'><span class='pageno' id='Page_554'>554</span>Salt tax, in Roman and Indian empires, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_40'>40</a>.</li> + <li class='c023'>Sand River Convention, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_433'>433</a>.</li> + <li class='c023'>Sassanid kings of Persia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_12'>12</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_20'>20</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_53'>53</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_283'>283</a>; ii. <a href='#Page_384'>384</a>.</li> + <li class='c023'>Savigny, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_132'>132</a>; ii. <a href='#Page_203'>203</a>, <a href='#Page_204'>204</a>, <a href='#Page_495'>495</a>, <a href='#Page_501'>501</a>, <a href='#Page_516'>516</a>.</li> + <li class='c023'>Scaevola, Q. Mucius, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341</a>; ii. <a href='#Page_136'>136</a>, <a href='#Page_264'>264</a>.</li> + <li class='c023'>Scandinavia, extension of Roman law to, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_110'>110</a>.</li> + <li class='c023'>Scientific frontiers, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_18'>18-20</a>.</li> + <li class='c023'>Scotland: has adopted Roman law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_86'>86</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_107'>107</a>; + <ul> + <li>national life, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_288'>288</a>;</li> + <li>little influence on English law, ii. <a href='#Page_370'>370</a>;</li> + <li>marriage law, ii. <a href='#Page_423'>423</a>;</li> + <li>law of divorce, ii. <a href='#Page_435'>435</a>, <a href='#Page_438'>438</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'>Scribes, the, ii. <a href='#Page_216'>216</a>.</li> + <li class='c023'>Second marriage, discouraged by early Christianity, ii. <a href='#Page_410'>410</a>.</li> + <li class='c023'>Second Volksraad, in Transvaal, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_447'>447</a>.</li> + <li class='c023'>Self-help, ii. <a href='#Page_36'>36</a>.</li> + <li class='c023'>Senate, the: its position in Rome, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_181'>181</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_182'>182</a>; ii. <a href='#Page_75'>75</a>; + <ul> + <li>in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_368'>368</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_375'>375</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_401'>401</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_421'>421</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_504'>504</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_518'>518</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_521'>521</a>;</li> + <li>in Australian Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_504'>504-507</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_514'>514-521</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_537'>537</a>;</li> + <li>as source of law at Rome, ii. <a href='#Page_303'>303-308</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Senatus consulta</i></span>, ii. <a href='#Page_306'>306-309</a>.</li> + <li class='c023'>Seneca, quoted, ii. <a href='#Page_405'>405</a>.</li> + <li class='c023'>Separate property, of wife, ii. <a href='#Page_428'>428-430</a>.</li> + <li class='c023'>Separation of husband and wife, ii. <a href='#Page_436'>436</a>.</li> + <li class='c023'>Septennial Act, ii. <a href='#Page_91'>91</a>.</li> + <li class='c023'>Servia, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_210'>210</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>.</li> + <li class='c023'>Settlement, prenuptial, ii. <a href='#Page_428'>428</a>.</li> + <li class='c023'>Sheik ul Islam, the, ii. <a href='#Page_58'>58</a>, <a href='#Page_221'>221</a>, <a href='#Page_241'>241</a>, <a href='#Page_313'>313</a>.</li> + <li class='c023'>Siam, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_19'>19</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_276'>276</a>.</li> + <li class='c023'>Sidgwick, H., ii. <a href='#Page_111'>111</a>.</li> + <li class='c023'>Sigismund, laws of, ii. <a href='#Page_356'>356</a>.</li> + <li class='c023'><span class='pageno' id='Page_555'>555</span>Signore, of Italian city, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_170'>170</a>; ii. <a href='#Page_47'>47</a>.</li> + <li class='c023'>Sikkim, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_25'>25</a>.</li> + <li class='c023'>Slavery: in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_343'>343</a>; + <ul> + <li>in the United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_224'>224</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_363'>363</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_393'>393</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_409'>409</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_416'>416</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_426'>426</a>;</li> + <li>forbidden by Transvaal constitution, ii. <a href='#Page_443'>443</a>;</li> + <li>in Roman law, ii. <a href='#Page_145'>145</a>, <a href='#Page_198'>198</a>.</li> + </ul> + </li> + <li class='c023'>Slavonic law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_109'>109</a>.</li> + <li class='c023'>Smith, Goldwin, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_200'>200</a>; ii. <a href='#Page_524'>524</a>.</li> + <li class='c023'>Smith, John William, ii. <a href='#Page_200'>200</a>, <a href='#Page_267'>267</a>, <a href='#Page_288'>288</a>.</li> + <li class='c023'>Smith, Sir Thomas, ii. <a href='#Page_109'>109</a>.</li> + <li class='c023'>Social contract, ii. <a href='#Page_2'>2-5</a>, <a href='#Page_163'>163</a>.</li> + <li class='c023'>Social Democrats, ii. <a href='#Page_170'>170</a>.</li> + <li class='c023'>Socrates, ii. <a href='#Page_124'>124</a>.</li> + <li class='c023'>Sonderbund, war of the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_283'>283</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_477'>477</a>.</li> + <li class='c023'>Sophocles, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_252'>252</a>; ii. <a href='#Page_123'>123</a>.</li> + <li class='c023'>South Africa, constitution of the two Dutch Republics, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_155'>155</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_198'>198</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430-467</a>; ii. <a href='#Page_103'>103</a>.</li> + <li class='c023'>South American republics, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_198'>198</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_249'>249</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_253'>253</a>; ii. <a href='#Page_48'>48</a>, <a href='#Page_60'>60</a>, <a href='#Page_66'>66-68</a>.</li> + <li class='c023'>South Carolina, no divorce, ii. <a href='#Page_440'>440</a>.</li> + <li class='c023'>Sovereignty, ii. <a href='#Page_49'>49-111</a>: + <ul> + <li>confusions regarding the term, <a href='#Page_49'>49-51</a>;</li> + <li>legal or <span lang="la"><i>de iure</i></span> sovereignty, <a href='#Page_51'>51-59</a>;</li> + <li>practical or <span lang="la"><i>de facto</i></span> sovereignty, <a href='#Page_59'>59-64</a>;</li> + <li>relations of legal to practical sovereignty, <a href='#Page_64'>64-73</a>;</li> + <li>Roman and mediaeval views, <a href='#Page_73'>73-82</a>;</li> + <li>modern theories, <a href='#Page_82'>82-94</a>;</li> + <li>questions liable to be confounded, <a href='#Page_94'>94-101</a>;</li> + <li>in international relations, <a href='#Page_101'>101-104</a>;</li> + <li>in a federation, <a href='#Page_104'>104-108</a>;</li> + <li>recent discussions, <a href='#Page_110'>110</a>, <a href='#Page_111'>111</a>.</li> + </ul> + </li> + <li class='c023'>Spain, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_208'>208</a>; ii. <a href='#Page_58'>58</a>.</li> + <li class='c023'>Spanish Empire, in America, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_6'>6</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_8'>8</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_41'>41</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_55'>55</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_58'>58</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_294'>294</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_426'>426</a>.</li> + <li class='c023'>Spinoza, ii. <a href='#Page_162'>162</a>.</li> + <li class='c023'><span class='pageno' id='Page_556'>556</span>Spoils system, in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_378'>378</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>.</li> + <li class='c023'><span lang="la"><i>Sponsalia</i></span>, ii. <a href='#Page_393'>393</a>.</li> + <li class='c023'>St. Augustine, ii. <a href='#Page_159'>159</a>.</li> + <li class='c023'>St. Chrysostom, quoted, ii. <a href='#Page_158'>158</a>.</li> + <li class='c023'>St. German, Christopher, ii. <a href='#Page_165'>165</a>.</li> + <li class='c023'>St. Leonards, Lord, ii. <a href='#Page_136'>136</a>, <a href='#Page_199'>199</a>, <a href='#Page_260'>260</a>.</li> + <li class='c023'>St. Paul, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_69'>69</a>; ii. <a href='#Page_79'>79</a>, <a href='#Page_158'>158</a>, <a href='#Page_209'>209</a>.</li> + <li class='c023'>St. Peter, quoted, ii. <a href='#Page_79'>79</a>.</li> + <li class='c023'>St. Thomas Aquinas, ii. <a href='#Page_80'>80</a>, <a href='#Page_158'>158</a>.</li> + <li class='c023'>Statistics of divorce in America, ii. <a href='#Page_443'>443-449</a>.</li> + <li class='c023'>Statute <span lang="la"><i>de donis</i></span>, ii. <a href='#Page_360'>360</a>.</li> + <li class='c023'>Statute of Frauds, ii. <a href='#Page_363'>363</a>.</li> + <li class='c023'>Statute of Uses, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113</a>; ii. <a href='#Page_289'>289</a>, <a href='#Page_361'>361</a>.</li> + <li class='c023'>Statute of Wills, ii. <a href='#Page_361'>361</a>.</li> + <li class='c023'>Statute <span lang="la"><i>quia emptores</i></span>, ii. <a href='#Page_360'>360</a>, <a href='#Page_368'>368</a>.</li> + <li class='c023'>Stephen, Sir J. F., codification of Indian law by, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_129'>129</a>.</li> + <li class='c023'>Stephen, Leslie, ii. <a href='#Page_182'>182</a>.</li> + <li class='c023'>Stoics, the, ii. <a href='#Page_126'>126</a>.</li> + <li class='c023'>Story, Justice, ii. <a href='#Page_265'>265</a>.</li> + <li class='c023'>Stowell, Lord, ii. <a href='#Page_266'>266</a>, <a href='#Page_417'>417</a>, <a href='#Page_423'>423</a>.</li> + <li class='c023'>Stubbs, Bishop, ii. <a href='#Page_43'>43</a>.</li> + <li class='c023'>Suetonius, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_53'>53</a>; ii. <a href='#Page_304'>304</a>, <a href='#Page_306'>306</a>, <a href='#Page_384'>384</a>, <a href='#Page_404'>404</a>.</li> + <li class='c023'>Sulla, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_163'>163</a>.</li> + <li class='c023'>Sultan of Turkey, ii. <a href='#Page_58'>58</a>, <a href='#Page_62'>62</a>.</li> + <li class='c023'>Suzerainty of England over Transvaal, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_464'>464</a>.</li> + <li class='c023'>Swiss Confederation, constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_152'>152</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_231'>231</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_298'>298</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_470'>470</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_501'>501</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_503'>503</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_525'>525</a>; + <ul> + <li>divorce in, ii. <a href='#Page_450'>450</a>, <a href='#Page_451'>451</a>.</li> + </ul> + </li> + <li class='c023'>Sympathy, as ground of political obedience, ii. <a href='#Page_10'>10</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Tacitus, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_313'>313</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_318'>318</a>; ii. <a href='#Page_384'>384</a>, <a href='#Page_411'>411</a>.</li> + <li class='c023'>Tacking of bills, prohibited in Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_519'>519</a>.</li> + <li class='c023'>Teaching of law: at Rome, ii. <a href='#Page_264'>264</a>; + <ul> + <li>at Oxford, ii. <a href='#Page_473'>473-525</a>.</li> + </ul> + </li> + <li class='c023'><span class='pageno' id='Page_557'>557</span>Ten Commandments, ii. <a href='#Page_46'>46</a>.</li> + <li class='c023'>Territorial expansion, capacity of constitutions for, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_193'>193-196</a>.</li> + <li class='c023'>Teutonic law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_110'>110</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_342'>342</a>; ii. <a href='#Page_189'>189</a>, <a href='#Page_375'>375</a>, <a href='#Page_419'>419</a>.</li> + <li class='c023'>Theal, Dr., i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_432'>432</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_435'>435</a>.</li> + <li class='c023'>Theodorich, <span lang="la"><i>edictum</i></span> of, ii. <a href='#Page_356'>356</a>.</li> + <li class='c023'>Theodosius II, code of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_104'>104</a>; ii. <a href='#Page_148'>148</a>, <a href='#Page_354'>354</a>.</li> + <li class='c023'>Theology, identified with law, ii. <a href='#Page_211'>211-219</a>, <a href='#Page_236'>236</a>.</li> + <li class='c023'>Thing, or assembly, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_316'>316-322</a>; ii. <a href='#Page_297'>297</a>.</li> + <li class='c023'>Thingvellir, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_322'>322</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_329'>329-331</a>.</li> + <li class='c023'>Thucydides, ii. <a href='#Page_60'>60</a>.</li> + <li class='c023'>Thuggi, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_25'>25</a>.</li> + <li class='c023'>Thule, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_313'>313</a>.</li> + <li class='c023'>Tocqueville, Alexis de: his <cite>Democracy in America</cite>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_381'>381-429</a>; + <ul> + <li>his insufficient knowledge of England, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_385'>385</a>;</li> + <li>his preoccupation with France, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_387'>387</a>;</li> + <li>his description of the United States, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_397'>397-415</a>;</li> + <li>examination of his views, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_415'>415-425</a>.</li> + </ul> + </li> + <li class='c023'>Torts, law of, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_116'>116</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_118'>118</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_123'>123</a>.</li> + <li class='c023'>Trade, as a consolidating influence, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_263'>263</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_413'>413</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_479'>479</a>.</li> + <li class='c023'>Trade Unions, in America, ii. <a href='#Page_30'>30</a>, <a href='#Page_36'>36</a>.</li> + <li class='c023'>Trajan, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_10'>10</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_30'>30</a>; ii. <a href='#Page_311'>311</a>.</li> + <li class='c023'>Transvaal, the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_198'>198</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_430'>430-467</a>: + <ul> + <li>constitution of the South African Republic, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_441'>441-448</a>;</li> + <li>observations, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_449'>449</a>;</li> + <li>is it a rigid or a flexible constitution? 449-455;</li> + <li>observations on its working, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_455'>455-464</a>;</li> + <li>recent history, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_464'>464-467</a>.</li> + </ul> + </li> + <li class='c023'>Transylvania, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_291'>291</a>.</li> + <li class='c023'>Trebatius, ii. <a href='#Page_289'>289</a>.</li> + <li class='c023'>Trent, Council of, ii. <a href='#Page_418'>418</a>.</li> + <li class='c023'>Tribonian, ii. <a href='#Page_76'>76</a>, <a href='#Page_265'>265</a>, <a href='#Page_355'>355-357</a>.</li> + <li class='c023'>Tribute, in Roman, but not in Indian empire, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_41'>41</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_42'>42</a>.</li> + <li class='c023'><span class='pageno' id='Page_558'>558</span>Trusts, commercial, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_240'>240</a>; ii. <a href='#Page_30'>30</a>.</li> + <li class='c023'>Trusts, in law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_124'>124</a>; ii. <a href='#Page_289'>289</a>.</li> + <li class='c023'>Tunis, ii. <a href='#Page_103'>103</a>.</li> + <li class='c023'>Twelve Tables, the, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_181'>181</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_338'>338</a>; ii. <a href='#Page_301'>301</a>, <a href='#Page_341'>341</a>, <a href='#Page_345'>345-347</a>, <a href='#Page_350'>350</a>.</li> + <li class='c023'>Tyrant, in Greece, ii. <a href='#Page_47'>47</a>, <a href='#Page_90'>90</a>, <a href='#Page_98'>98</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Ukase, ii. <a href='#Page_311'>311</a>.</li> + <li class='c023'>Ulfljot, founder of the Althing in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_322'>322</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_341'>341</a>.</li> + <li class='c023'>Ulpian, quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_158'>158</a>; ii. <a href='#Page_143'>143</a>, <a href='#Page_144'>144</a>, <a href='#Page_150'>150</a>, <a href='#Page_153'>153</a>, <a href='#Page_205'>205</a>, <a href='#Page_275'>275</a>, <a href='#Page_354'>354</a>, <a href='#Page_381'>381</a>.</li> + <li class='c023'>Ulster custom, ii. <a href='#Page_253'>253</a>.</li> + <li class='c023'><a id='UNITEDSTATES'></a>United States: law of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_113'>113</a>; + <ul> + <li>constitution of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_147'>147</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_197'>197</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_203'>203</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_209'>209</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_211'>211</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_212'>212</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_214'>214</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_216'>216</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_220'>220</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_222'>222</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_224'>224</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_226'>226</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_231'>231</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_235'>235</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_239'>239</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_274'>274</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_285'>285</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_289'>289</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_293'>293</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_295'>295-298</a>;</li> + <li>constitution as seen in the past, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_359'>359-429</a>;</li> + <li>constitution as seen in <cite>The Federalist</cite>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_361'>361-366</a>;</li> + <li>predictions of the opponents of the constitution, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_366'>366-369</a>;</li> + <li>views of the supporters of the constitution, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_369'>369-374</a>;</li> + <li>criticism of both opinions, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_374'>374-381</a>;</li> + <li>the <cite>Democracy in America</cite> of Tocqueville 381-392;</li> + <li>his views and impressions, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_392'>392-415</a>;</li> + <li>examination of them, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_415'>415-425</a>;</li> + <li>subsequent history, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_427'>427</a>;</li> + <li>constitution compared with South African republics, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_441'>441</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_459'>459</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_460'>460</a>;</li> + <li>compared with Australian Commonwealth, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_476'>476</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_477'>477</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_487'>487</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_492'>492</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_495'>495</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_496'>496</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_499'>499</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_502'>502</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_504'>504-507</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_512'>512</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_516'>516</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_518'>518</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_527'>527-530</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_533'>533</a>;</li> + <li>boss system, trade unions, trusts, ii. <a href='#Page_30'>30</a>;</li> + <li>growth of population and wealth, <a href='#Page_38'>38</a>;</li> + <li>divided sovereignty, <a href='#Page_53'>53</a>, <a href='#Page_55'>55</a>, <a href='#Page_58'>58</a>, <a href='#Page_93'>93</a>, <a href='#Page_104'>104-108</a>;</li> + <li>legislation by Congress, <a href='#Page_323'>323-326</a>;</li> + <li>marriage law, <a href='#Page_382'>382</a>;</li> + <li><span class='pageno' id='Page_559'>559</span>varying laws of divorce, ii. <a href='#Page_439'>439-443</a>;</li> + <li>statistics of divorce, <a href='#Page_443'>443-449</a>.</li> + </ul> + </li> + <li class='c023'>Universities, Musulman and mediaeval, ii. <a href='#Page_229'>229-233</a>; + <ul> + <li>in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_57'>57</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_73'>73</a>;</li> + <li>in Germany, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_280'>280</a>; ii. <a href='#Page_219'>219</a>;</li> + <li>in America, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_417'>417</a>.</li> + </ul> + </li> + <li class='c023'><span lang="la"><i>Urbs</i></span> became <span lang="la"><i>orbis</i></span>, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_133'>133</a>; ii. <a href='#Page_342'>342</a>.</li> + <li class='c023'>Utility, ii. <a href='#Page_127'>127</a>, <a href='#Page_179'>179</a>, <a href='#Page_180'>180</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Vacarius, at Oxford, ii. <a href='#Page_476'>476</a>, <a href='#Page_507'>507</a>.</li> + <li class='c023'>Valedictory lecture, ii. <a href='#Page_504'>504-525</a>.</li> + <li class='c023'>Vangerow, Dr. K. A. von, ii. <a href='#Page_204'>204</a>, <a href='#Page_486'>486</a>, <a href='#Page_516'>516</a>.</li> + <li class='c023'>Verres, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_27'>27</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_29'>29</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_94'>94</a>.</li> + <li class='c023'>Veto: none in South African republics, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_440'>440</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_456'>456</a>; + <ul> + <li>under Australian constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_526'>526</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_537'>537</a>;</li> + <li>of crown in parliament, ii. <a href='#Page_77'>77</a>, <a href='#Page_302'>302</a>.</li> + </ul> + </li> + <li class='c023'>Vigfússon, Guðbrand, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_330'>330</a>.</li> + <li class='c023'>Vikingry, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_321'>321</a>.</li> + <li class='c023'>Village Councils, in India, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_33'>33</a>.</li> + <li class='c023'>Villiers, Melius de, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_436'>436</a>.</li> + <li class='c023'>Vinerian professorship at Oxford, ii. <a href='#Page_265'>265</a>, <a href='#Page_478'>478</a>, <a href='#Page_491'>491</a>, <a href='#Page_506'>506</a>.</li> + <li class='c023'><span lang="la"><i>Vinculum matrimonii</i></span>, divorce from, ii. <a href='#Page_434'>434</a>, <a href='#Page_436'>436</a>.</li> + <li class='c023'>Virgil, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_72'>72</a>; + <ul> + <li>quoted, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_315'>315</a>; ii. <a href='#Page_78'>78</a>, <a href='#Page_146'>146</a>.</li> + </ul> + </li> + <li class='c023'>Voigt, Moriz, ii. <a href='#Page_128'>128</a>.</li> + <li class='c023'>Volksraad, the: of the original Dutch emigrants, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_434'>434</a>; + <ul> + <li>of the Orange Free State, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_436'>436-438</a>;</li> + <li><span class='pageno' id='Page_560'>560</span>of the South African Republic, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_443'>443-445</a>;</li> + <li>the Second Volksraad, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_447'>447</a>;</li> + <li>predominance of the Volksraad in the constitution, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_456'>456</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_461'>461</a>.</li> + </ul> + </li> +</ul> +<ul class='index c000'> + <li class='c023'>Wages, rise of, ii. <a href='#Page_38'>38</a>.</li> + <li class='c023'><i>Wakf</i> (= endowments), at El Azhar, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_114'>114</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_229'>229</a>.</li> + <li class='c023'>Wapentake, in Iceland, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_347'>347</a>.</li> + <li class='c023'>Washington city, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_411'>411</a>.</li> + <li class='c023'>Washington, George, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_361'>361</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_362'>362</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_365'>365</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_539'>539</a>.</li> + <li class='c023'>West Indies, under English law, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_86'>86</a>.</li> + <li class='c023'>Whig party, in United States, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_414'>414</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_420'>420</a>.</li> + <li class='c023'>Wife. <i>See</i> <a href='#MARRIAGE'>Marriage</a>.</li> + <li class='c023'>Will, as a political force, ii. <a href='#Page_15'>15</a>.</li> + <li class='c023'>Willcox, W. F., ii. <a href='#Page_444'>444</a>, <a href='#Page_449'>449</a>.</li> + <li class='c023'>Wills, in Musulman law, ii. <a href='#Page_221'>221</a>; + <ul> + <li>Hindu law of, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_125'>125</a>.</li> + </ul> + </li> + <li class='c023'>Women’s suffrage, in Australia, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_507'>507</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_536'>536</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_544'>544</a>.</li> + <li class='c023'>Wordsworth, quoted, ii. <a href='#Page_119'>119</a>.</li> + <li class='c023'>Written constitutions, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_148'>148</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Xenophon, quoted, ii. <a href='#Page_125'>125</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Yelverton, ii. <a href='#Page_165'>165</a>.</li> +</ul> +<ul class='index c000'> + <li class='c023'>Zollverein, i. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_263'>263</a>, <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_275'>275</a>.</li> +</ul> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div>THE END</div> + </div> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div><span class='pageno' id='Page_561'>561</span>OXFORD</div> + <div>PRINTED AT THE CLARENDON PRESS</div> + <div>BY HORACE HART, M.A.</div> + <div>PRINTER TO THE UNIVERSITY</div> + </div> +</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> + +<hr class='c024'> +<div class='footnote' id='f1'> +<p class='c001'><a href='#r1'>1</a>. See as to the doctrine of Hobbes, the Essay on Sovereignty which +follows this Essay.</p> +</div> +<div class='footnote' id='f2'> +<p class='c001'><a href='#r2'>2</a>. Some of these succeeded to thrones already established, but their careers +illustrate none the less the results effected by brilliant gifts appearing +in the midst of a comparatively inert people.</p> +</div> +<div class='footnote' id='f3'> +<p class='c001'><a href='#r3'>3</a>. This pessimist omits to notice that interference by the State or by such +quasi-despotic combinations of workmen may have been deemed the only +means of escaping from submission to organizations of capitalists capable of +exercising a tyranny through the forms of the law. He would however reply +that this fact did not tell against his thesis that, one way or another, people +are not becoming more fully masters of their own lives and fates.</p> +</div> +<div class='footnote' id='f4'> +<p class='c001'><a href='#r4'>4</a>. Some remarks upon this feature of the United States may be found in +the author’s <cite>American Commonwealth</cite>, vol. ii. chap. lxxxv, ‘The Fatalism +of the Multitude.’</p> +</div> +<div class='footnote' id='f5'> +<p class='c001'><a href='#r5'>5</a>. The heads of monasteries seem to have been sometimes familiarly described +as Sovereigns in the Middle Ages. The name Sovereign was down till very +recent times used to describe the head of a municipality in several Irish +boroughs. Probably other similar instances might be collected.</p> +</div> +<div class='footnote' id='f6'> +<p class='c001'><a href='#r6'>6</a>. This seems to be the case in Spain. Some of the republics of antiquity +professed to have unchangeable laws, but few, if any, of these fully +answered to the conception of a Rigid Constitution as we understand it. +See Essay III, vol. i. p. 145.</p> +</div> +<div class='footnote' id='f7'> +<p class='c001'><a href='#r7'>7</a>. I pass by the sense in which it is applied to the person of a monarch, +whether limited or absolute, as the king is in any country called the Sovereign, +because that sense is not liable to be confused with the purely legal +sense. A Nominal Sovereign need not be, and often is not, either a Legal +or a Practical Sovereign.</p> +</div> +<div class='footnote' id='f8'> +<p class='c001'><a href='#r8'>8</a>. During part of Lewis the Fifteenth’s reign Madame Du Barry might +almost have been, and probably was, described as sovereign <span lang="la"><i>de facto</i></span> of +France.</p> +</div> +<div class='footnote' id='f9'> +<p class='c001'><a href='#r9'>9</a>. 11 Henry VII, cap. 1.</p> +</div> +<div class='footnote' id='f10'> +<p class='c001'><a href='#r10'>10</a>. Thus the Constitution of Guatemala directs: ‘Esta Constitucion no +perderá su fuerza y vigor auncuando por alguna rebelion se interrumpa su +observancia.’ I take this instance from the book of M. Ch. Borgeaud, +<span lang="fr"><cite>Établissement et Révision des Constitutions</cite></span>, p. 236.</p> +</div> +<div class='footnote' id='f11'> +<p class='c001'><a href='#r11'>11</a>. As to the Senate’s right of legislation, see Essay XIV, p. <a href='#Page_304'>304</a>.</p> +</div> +<div class='footnote' id='f12'> +<p class='c001'><a href='#r12'>12</a>. At one moment, after the death of Caligula, it was proposed in the +Senate to set to work anew the republican constitution, which had never +been formally superseded.</p> +</div> +<div class='footnote' id='f13'> +<p class='c001'><a href='#r13'>13</a>. <i>Dig.</i> i. 3. 32, § 1 (cf. <i>Inst.</i> i. 2. 11). In the <cite>Institutes</cite> of Justinian the +Emperor’s legislative power, though complete, is still grounded on a delegation +formerly made by the people.</p> +</div> +<div class='footnote' id='f14'> +<p class='c001'><a href='#r14'>14</a>. They frequently altered the language of the old jurists to make it suit +their own time, so it is the more noteworthy that the ancient terms have in +this instance not been altered.</p> +</div> +<div class='footnote' id='f15'> +<p class='c001'><a href='#r15'>15</a>. See as to the distinction between that part of the Law of God which is +also the Law of Nature and other parts thereof, Essay XI, p. 158.</p> +</div> +<div class='footnote' id='f16'> +<p class='c001'><a href='#r16'>16</a>. Nevertheless the followers of Arnold of Brescia in Rome attempted to +claim for the Roman people the right of choosing the Emperor; while there +were others who argued that the true representatives of the old Roman +people were to be found in the whole Christian community of the Empire.</p> +</div> +<div class='footnote' id='f17'> +<p class='c001'><a href='#r17'>17</a>. A full and instructive account of this writer’s theories is contained in +the admirable book of Professor Otto Gierke, <span lang="de"><cite>Johannes Althusius und die +Entwickelung der naturrechtlichen Staatstheorien</cite></span>, which is a repertory of +information regarding mediaeval and post-mediaeval doctrines of the State.</p> +</div> +<div class='footnote' id='f18'> +<p class='c001'><a href='#r18'>18</a>. Hobbes goes so far as to wish to extinguish the right of private judgement, +and deems it part of the duty of the Sovereign to prescribe opinions to +his subjects, and in particular to inculcate the true doctrine of Sovereignty.</p> +</div> +<div class='footnote' id='f19'> +<p class='c001'><a href='#r19'>19</a>. Austin so far feels the difficulty of fitting his theory to the case of +tyrannies as to imply that it is to be applied in settled States only. But +this is to admit <span lang="la"><i>pro tanto</i></span> the inadequacy of the theory.</p> +</div> +<div class='footnote' id='f20'> +<p class='c001'><a href='#r20'>20</a>. An Austinian might perhaps say that the Austro-Hungarian monarchy +consists of two separate States, with no single Sovereign. But it is unquestionably +one State in the eye of international law, and the Delegations +have some powers incompatible with the existence of an Austinian sovereign +in either half of the monarchy.</p> +</div> +<div class='footnote' id='f21'> +<p class='c001'><a href='#r21'>21</a>. The position of Bosnia, occupied by Austria but not yet formally +severed from the Ottoman Empire, is somewhat different. It may be compared +with that of Lothian in the hands of the king of Scots about the end +of the tenth century, though in that case there may have been a quasi-feudal +relation.</p> +</div> +<div class='footnote' id='f22'> +<p class='c001'><a href='#r22'>22</a>. Indeed the recognition of the Great Council of the nation as the chief +power in the State is still older: though its exclusive supremacy, <i>i.e.</i> its +right to interfere with certain branches of the prerogative of one part of it, +the Crown, remained long contested.</p> +</div> +<div class='footnote' id='f23'> +<p class='c001'><a href='#r23'>23</a>. In his <cite>Commonwealth of England</cite> (published in 1583): ‘All that ever the +people of Rome might do, either <span lang="la"><i>Centuriatis comitiis</i></span> or <span lang="la"><i>Tributis</i></span>, the same +may be done by the Parliament of England, which representeth and hath +the whole power of the realm, both the head and body. For every +Englishman is intended to be there present, either in person or by procuration +and attorney, of what pre-eminence, state, dignity, or quality soever he +be, from the prince (be he King or Queen) to the lowest person of England, +and the consent of the Parliament is taken to be every man’s consent.’ See +an article by Sir F. Pollock in <cite>Harvard Law Review</cite> for January, 1895, and +his <cite>First Book of Jurisprudence</cite>, p. 247.</p> +</div> +<div class='footnote' id='f24'> +<p class='c001'><a href='#r24'>24</a>. The term has been extended from material phenomena to those dealt +with by other sciences, such as economics and philology (<i>e.g.</i> laws of +supply and demand, ‘Grimm’s law’).</p> +</div> +<div class='footnote' id='f25'> +<p class='c001'><a href='#r25'>25</a>. He who steals, breaks the law and may or may not be discovered or +punished: he who puts his finger in the fire finds in the pain he suffers the +operation of the regular sequence of physical phenomena.</p> +</div> +<div class='footnote' id='f26'> +<p class='c001'><a href='#r26'>26</a>. There is a passage in a Constitution of the Emperors Theodosius, +Arcadius, and Honorius (<cite>Cod. Theod.</cite> Bk. xvi, Tit. x. 12) in which the term +‘laws of Nature’ is used in a sense which seems to come near the modern +one. Forbidding any one to sacrifice victims or consult the ‘spirantia exta,’ +the Emperors, after threatening punishment as in the case of treason, proceed +to say, ‘Sufficit ad criminis molem naturae ipsius leges velle rescindere, +inlicita perscrutari, occulta recludere, interdicta temptare.’ The expression +may however mean nothing more than that it is impious to tamper with +the principles which keep the secrets of nature from men’s eyes. But in +any case it is used in a sense different from that of the moral law which +the ancients conceived to have been set by nature.</p> +</div> +<div class='footnote' id='f27'> +<p class='c001'><a href='#r27'>27</a>. The famous dictum which Herodotus quotes from Pindar, ‘Custom +is the king of all mortals and immortals,’ is quoted to show how usage makes +a thing seem right to one people and wrong to another, but it was +afterwards often taken in the sense of an assertion of the supremacy of +Law over all things. Cf. Herod. iii. 38, and Chrysippus, <span lang="la"><i>apud</i></span> Marcian in +Justinian’s <i>Digest</i>, i. 3. 2.</p> +</div> +<div class='footnote' id='f28'> +<p class='c001'><a href='#r28'>28</a>. Soph. <i>Antig.</i> l. 450; <i>Oed. Tyr.</i> l. 865.</p> +</div> +<div class='footnote' id='f29'> +<p class='c001'><a href='#r29'>29</a>. Rom. ii. 14, 15, where ‘hearts’ is probably to be taken in the ancient +sense, which regards the heart and not the brain as the seat of the intellect. +Cf. also Rom. i. 20, ‘For the invisible things of God from the creation of +the world are clearly seen, being understood by the things that are made, +even his eternal power and Godhead, so that they are without excuse.’</p> +</div> +<div class='footnote' id='f30'> +<p class='c001'><a href='#r30'>30</a>. Xen. <cite>Memor.</cite> iv. 4, 19 sqq. θεοὺς οἶμαι τοὺς νόμους τούτους τοῖς ἀνθρώποις +θεῖναι. These words are put into the mouth of Hippias, but are part of the +argument which Socrates conducts.</p> +</div> +<div class='footnote' id='f31'> +<p class='c001'><a href='#r31'>31</a>. <cite>Eth. Nicom.</cite> v. 7.</p> +</div> +<div class='footnote' id='f32'> +<p class='c001'><a href='#r32'>32</a>. <cite>Rhet.</cite> i. 10 and 13: Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν, ἴδιον μὲν τὸν +ἑκάστοις ὡρισμένον πρὸς αὑτούς, καὶ τοῦτον τὸν μὲν ἄγραφον τὸν δὲ γεγραμμένον, +κοινὸν δὲ τὸν κατὰ φύσιν. Ἔστι γὰρ, ὃ μαντεύονταί τι πάντες, φύσει κοινὸν +δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς ἀλλήλους ᾖ μηδὲ συνθήκη.</p> + +<p class='c001'>The lines of Empedocles refer to what it seems strange to call a part +of Universal Law, the abstention from killing a living thing—τὸ μὴ κτείνειν +τὸ ἔμψυχον· τοῦτο γὰρ οὐ τισὶ μὲν δίκαιον τισὶ δ’ οὐ δίκαιον</p> +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>ἀλλὰ τὸ μὲν πάντων νόμιμον διά τ’ εὐρυμέδοντος</div> + <div class='line'>αἰθέρος ἠνεκέως τέταται διά τ’ ἀπλέτου αὐγῆς. (<cite>Rhet.</cite> i. 13.)</div> + </div> + </div> +</div> + +</div> +<div class='footnote' id='f33'> +<p class='c001'><a href='#r33'>33</a>. <cite>Against Aristocrates</cite>, 639.</p> +</div> +<div class='footnote' id='f34'> +<p class='c001'><a href='#r34'>34</a>. Epicurus described Natural Justice as an agreement made for the sake +of common advantage: τὸ τῆς φύσεως δίκαιον ἔστι σύμβολον τοῦ συμφέροντος +εἰς τὸ μὴ βλάπτειν ἀλλήλους μηδὲ βλάπτεσθαι (Diog. Laert. x. 150).</p> +</div> +<div class='footnote' id='f35'> +<p class='c001'><a href='#r35'>35</a>. Since this Essay was in type I have seen the article <cite>On the History of the +Law of Nature</cite>, by Sir F. Pollock, published in the <cite>Journal</cite> of the Society of +Comparative Legislation for Dec. 1900, and simultaneously in the <cite>Columbia +Law Review</cite>, Jan. 1901; and am happy to find myself in substantial agreement +with him upon all points of importance connected with the subject. +Some branches of it, especially the Greek and mediaeval parts of the history +of the idea, are treated of more fully by him, and the whole article is full +of interest. Judicious remarks and useful quotations will also be found in +Prof. D. G. Ritchie’s <cite>Natural Rights</cite> (published in 1895), Part i; and in +Dr. Holland’s <cite>Elements of Jurisprudence</cite>, pp. 30-38 of ninth edition.</p> +</div> +<div class='footnote' id='f36'> +<p class='c001'><a href='#r36'>36</a>. A very minute and careful collection of the authorities regarding <span lang="la"><i>Ius +Naturae</i></span> and <span lang="la"><i>Ius Gentium</i></span> may be found in the book of Dr. Moriz Voigt, +<span lang="de"><cite>Die Lehre vom Jus Naturale, aequum et bonum und Jus Gentium der Römer</cite></span>. +I do not find myself always able to agree with his views, but they are +stated with painstaking ability, and the citations have often aided me.</p> +</div> +<div class='footnote' id='f37'> +<p class='c001'><a href='#r37'>37</a>. In the days after the fall of the Roman Empire, however, different laws +were applied to different sets of persons in the extra-European dominions +of European States, <i>e.g.</i> the Roman law to the clergy and the provincial +subjects, the barbarian law to barbarians. And the same thing happens now +in countries where Europeans and Musulmans or semi-civilized tribes dwell +side by side.</p> +</div> +<div class='footnote' id='f38'> +<p class='c001'><a href='#r38'>38</a>. Among some of the Greek cities, however, before they were engulfed in the +Roman dominion, there had grown up a practice by which friendly commonwealths +reciprocally extended certain civil rights to one another’s citizens.</p> +</div> +<div class='footnote' id='f39'> +<p class='c001'><a href='#r39'>39</a>. The word <span lang="la"><i>gens</i></span>, though we commonly translate it ‘nation,’ was originally +used to denote a clan or sept (e.g. Fabii, Julii), and always retained this as +one of its meanings. Can this original sense have had anything to do with +the earliest legal meaning of the term? One is tempted to conjecture that +there might have been a sort of common law of the <span lang="la"><i>gentes</i></span>, recognized in +contradistinction to the law of each <span lang="la"><i>gens</i></span>, but when we find the term in the +time of Cicero, it has the sense mentioned in the text, and I do not know of +any facts supporting such a conjecture. So far back as one can go <span lang="la"><i>ius +quiritium</i></span> is the term applied to the law of the city as a whole.</p> +</div> +<div class='footnote' id='f40'> +<p class='c001'><a href='#r40'>40</a>. Though <span lang="la"><i>ius gentium</i></span> is sometimes the term used to describe those +usages which as being common to all men were in fact observed by States +in their relation to one another; cf. Sallust, <cite>Jug.</cite> c. 35; Livy, i. 14; v. 36. +Obviously the rules which all nations recognize would be those which they +would apply in their dealings with one another.</p> +</div> +<div class='footnote' id='f41'> +<p class='c001'><a href='#r41'>41</a>. See the article <span lang="la"><i>Ius Gentium</i></span> in Professor H. Nettleship’s <cite>Contributions +to Latin Lexicography</cite> . He thinks the term had become a popular one +before the time of Cicero.</p> +</div> +<div class='footnote' id='f42'> +<p class='c001'><a href='#r42'>42</a>. See Essay II, vol. i. pp. 113-118.</p> +</div> +<div class='footnote' id='f43'> +<p class='c001'><a href='#r43'>43</a>. See as to this Essay XIV, p. <a href='#Page_292'>292</a>. Thus Praetor-made law, <span lang="la"><i>ius honorarium</i></span>, +very largely coincides with and covers the field of <span lang="la"><i>ius gentium</i></span>, but the two +are by no means identical. The <span lang="la"><i>actio Publiciana</i></span>, for instance, belonged to +the former, but not (except so far as natural equity suggested it) to the +latter. So in <cite>Digest</cite> xvi. 3. 31 ‘merum ius gentium’ is opposed to ‘praecepta +civilia et praetoria.’</p> +</div> +<div class='footnote' id='f44'> +<p class='c001'><a href='#r44'>44</a>. ‘Itaque maiores aliud ius gentium, aliud ius civile esse voluerunt. Quod +civile, non idem continuo gentium, quod autem gentium, idem civile esse +debet’ (<cite>De Off.</cite> iii. 17. 69).</p> +</div> +<div class='footnote' id='f45'> +<p class='c001'><a href='#r45'>45</a>. <cite>Orat. Partit.</cite> xxxvii. 130.</p> +</div> +<div class='footnote' id='f46'> +<p class='c001'><a href='#r46'>46</a>. See especially the fragment of his <span lang="la"><cite>De Republica</cite></span> preserved by Lactantius, +<cite>Div. Inst.</cite> vi. 8, 7.</p> +</div> +<div class='footnote' id='f47'> +<p class='c001'><a href='#r47'>47</a>. Many writers have, however, thought that Cicero did mean to identify +<span lang="la"><i>ius gentium</i></span> and <span lang="la"><i>ius naturae</i></span>, basing themselves on <cite>De Off.</cite> iii. 17, 69, and +iii. 5, 23. Cf. also the words ‘lege ... naturae, communi iure gentium’ in +<cite>De Harusp. Respons.</cite> 15, 32, and ‘consensio omnium gentium lex naturae +putanda est’ in <cite>Tusc. Disp.</cite> i. 13. The point is argued, at great length, by +Voigt (<i>op. cit.</i> vol. i. pp. 65-75, 213-219, and Appendix II). Nor does +Cicero quite precisely define the relation of his Laws of Nature to positive +law. He writes rather as a moralist than as a jurist.</p> +</div> +<div class='footnote' id='f48'> +<p class='c001'><a href='#r48'>48</a>. There does not, however, seem to be any ground for the notion +that the Roman lawyers ever despised <span lang="la"><i>ius gentium</i></span> as only fit for inferior +people; that they deemed it ‘an ignoble appendage to their civil law,’ +as Sir H. Maine says. That this was ever their feeling is mere surmise. +No traces of such a view appear in our authorities.</p> +</div> +<div class='footnote' id='f49'> +<p class='c001'><a href='#r49'>49</a>. Not, of course, in the Austinian sense that law is only what the State +has expressly enacted, for the ancients always dwell upon custom (<span lang="la"><i>mores +maiorum, consuetudo inveterata, consensus utentium</i></span>) as a chief source of law.</p> +</div> +<div class='footnote' id='f50'> +<p class='c001'><a href='#r50'>50</a>. Cic. <cite>De Rep.</cite> i. 32. 49.</p> +</div> +<div class='footnote' id='f51'> +<p class='c001'><a href='#r51'>51</a>. Gaius, <cite>Inst.</cite> i. 1; <cite>Dig.</cite> i. 1. 9.</p> +</div> +<div class='footnote' id='f52'> +<p class='c001'><a href='#r52'>52</a>. In <cite>Inst. Iust.</cite> i. 2. 2, taken from Marcian.</p> +</div> +<div class='footnote' id='f53'> +<p class='c001'><a href='#r53'>53</a>. Gaius, <cite>Inst.</cite> i. 1.</p> +</div> +<div class='footnote' id='f54'> +<p class='c001'><a href='#r54'>54</a>. Ulpian in <cite>Dig.</cite> i. 1. 1, 4.</p> +</div> +<div class='footnote' id='f55'> +<p class='c001'><a href='#r55'>55</a>. Marcian in <cite>Dig.</cite> xlviii. 19. 17.</p> +</div> +<div class='footnote' id='f56'> +<p class='c001'><a href='#r56'>56</a>. Gaius in <cite>Dig.</cite> xli. 1. 1, <cite>pr.</cite></p> +</div> +<div class='footnote' id='f57'> +<p class='c001'><a href='#r57'>57</a>. Gaius, <cite>Inst.</cite> i. 1. The formal express and specific identification is to +be found only in some jurists, and is most explicitly stated by Gaius. There +does not, however, seem to be sufficient ground for thinking (as Voigt, +<i>op. cit.</i>, argues) that there was any real difference of opinion among them. +Their language on these points is seldom precise.</p> +</div> +<div class='footnote' id='f58'> +<p class='c001'><a href='#r58'>58</a>. See p. 137, <a href='#r47'>note 47</a>, <i>supra</i>.</p> +</div> +<div class='footnote' id='f59'> +<p class='c001'><a href='#r59'>59</a>. Ulpian in <cite>Dig.</cite> l. 17. 32.</p> +</div> +<div class='footnote' id='f60'> +<p class='c001'><a href='#r60'>60</a>. <cite>Dig.</cite> i. 5. 4, § 1: cf. <cite>Inst.</cite> i. 5; Gaius, <cite>Inst.</cite> i. 52.</p> +</div> +<div class='footnote' id='f61'> +<p class='c001'><a href='#r61'>61</a>. The doctrine that slavery is against nature was older than Aristotle, +who does not accept it. The orator Alcidamas (a contemporary of Socrates) +said ἐλευθέρους ἀφῆκε πάντας θεός· οὐδένα δοῦλον ἡ φύσις πεποίηκεν. See W. L. +Newman’s <cite>Politics of Aristotle</cite>, Introduction, p. 141.</p> +</div> +<div class='footnote' id='f62'> +<p class='c001'><a href='#r62'>62</a>. Sir H. Maine in <cite>Ancient Law</cite>. It will be seen that the view which he +takes of <span lang="la"><i>ius gentium</i></span> and <span lang="la"><i>ius naturae</i></span> seems to me to be in several points at +variance with the facts; but I need hardly say that no one feels more +strongly than I do the value of the stimulus to English study and thought +on these subjects which his fertile mind and brilliant treatment have +given, and for which all subsequent writers must be grateful.</p> +</div> +<div class='footnote' id='f63'> +<p class='c001'><a href='#r63'>63</a>. Cf. Macrob. <cite>Saturn.</cite> i. 7; and Justin. <cite>Hist.</cite> xliii. 1, who says that not +only slavery but also private property was unknown under the reign of +Saturn, so great was his justice!</p> +</div> +<div class='footnote' id='f64'> +<p class='c001'><a href='#r64'>64</a>. Virg. <cite>Georg.</cite> ii. 539.</p> +</div> +<div class='footnote' id='f65'> +<p class='c001'><a href='#r65'>65</a>. There remained as aliens (1) the class called <span lang="la"><i>dediticii</i></span>, the lowest species +of freedmen, (2) persons deprived of citizenship as a punishment for crime, +(3) foreigners, <i>i.e.</i> subjects of some other State temporarily resident in the +Empire, and probably also persons imperfectly manumitted subsequently to +the Edict, together (possibly) with the inhabitants of territories added to the +Empire subsequently to the Edict. See Muirhead (<cite>Historical Introduction to +the Private Law of Rome</cite>, 2nd edition, by Professor Goudy, p. 319), and, for +a fuller discussion of the topic, Mitteis, <span lang="de"><cite>Reichsrecht und Volksrecht in den +östlichen Provinzen des Römischen Kaiserreichs</cite></span>, chap. vi.</p> +</div> +<div class='footnote' id='f66'> +<p class='c001'><a href='#r66'>66</a>. ‘Natural Law is that which Nature has taught all animals; for that kind +of law is not peculiar to mankind, but is common to all animals.... Hence +comes that union of the male and female which we call marriage; hence the +procreation and bringing up of children.’</p> +</div> +<div class='footnote' id='f67'> +<p class='c001'><a href='#r67'>67</a>. As, for instance, in Pliny the Elder’s ascription to the lower animals of +moral sentiments (<cite>Hist. Nat.</cite> viii. 5; viii. 16, 19; x. 52). Michael Drayton’s +lines, of birds pairing in spring,—</p> + +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>‘And but that Nature by her all-constraining law,</div> + <div class='line'>Each bird to her own kind this season doth invite,’—</div> + </div> + </div> +</div> + +<p class='c019'>hover between Ulpian’s ‘Law of Nature’ and the ‘Laws of Nature’ of +modern science.</p> +</div> +<div class='footnote' id='f68'> +<p class='c001'><a href='#r68'>68</a>. This is, broadly speaking, the view of the Classical jurists. But +occasionally, especially in late times, phrases are used which point to +primitive societies as governed by the natural law: e.g. <span lang="la"><i>Novell. Iust.</i></span> +lxxxix. c. 12, § 5.</p> +</div> +<div class='footnote' id='f69'> +<p class='c001'><a href='#r69'>69</a>. So in a fragment preserved by Dositheus, a jurist of classical times says +of ‘ius naturale vel gentium’—‘omnes nationes similiter eo utuntur: quod +enim bonum et aequum est omnium utilitati convenit.’</p> +</div> +<div class='footnote' id='f70'> +<p class='c001'><a href='#r70'>70</a>. Although they sometimes dwell on the fact that an institution is to be +found among all nations. So Gaius observes of Guardianship, ‘Impuberes +in tutela esse omnium civitatium iure contingit, quia id naturali rationi +conveniens est ut is, qui perfectae aetatis non sit, alterius tutela regatur; +nec fere ulla civitas est in qua non licet parentibus liberis suis impuberibus +testamento tutorem dare’ (<cite>Inst.</cite> i. 189).</p> +</div> +<div class='footnote' id='f71'> +<p class='c001'><a href='#r71'>71</a>. ‘Omnes leges aut divinae sunt aut humanae. Divinae natura, humanae +moribus constant, ideoque hae discrepant, quoniam aliae aliis gentibus +placent. Fas lex divina est: ius lex humana. Transire per agrum alienum +fas est, ius non est.’—<cite>Dist. Prima</cite>, c. i. ‘Humanum genus duobus regitur, +naturali videlicet iure et moribus. Ius naturale est quod in lege et evangelio +continetur, quo quisque iubetur alii facere quod sibi vult fieri et prohibetur +alii inferre, quod sibi nolit fieri. Unde Christus in Evangelio “Omnia +quaecunque vultis ut faciant vobis homines, et vos eadem facite illis. Haec +est enim lex et prophetae.”’ Here the Sermon on the Mount is taken as +stating the Law of Nature.</p> +</div> +<div class='footnote' id='f72'> +<p class='c001'><a href='#r72'>72</a>. Cf. the citation by Marcian, in <cite>Dig.</cite> i. 3. 2, of the dictum of Demosthenes +(<cite>Adv. Aristog.</cite> p. 774) νόμος εὕρημα καὶ δῶρον θεοῦ; and Justinian’s <cite>Institutes</cite>, +i. 2, § 11 ‘Naturalia iura, quae apud omnes gentes peraeque servantur, +divina quadam providentia semper firma atque immutabilia permanent.’</p> +</div> +<div class='footnote' id='f73'> +<p class='c001'><a href='#r73'>73</a>. ὅταν εἴπω τὴν φύσιν, Θεὸν λέγω, ὁ γὰρ τὴν φύσιν δημιουργήσας αὐτὸς ἔστιν.</p> +</div> +<div class='footnote' id='f74'> +<p class='c001'><a href='#r74'>74</a>. <cite>Summa Theologiae</cite>, prima secundae, Q. xciv. 2.</p> +</div> +<div class='footnote' id='f75'> +<p class='c001'><a href='#r75'>75</a>. On this subject see the authorities collected and luminously expounded +by Professor Dr. Gierke in his <cite>Johannes Althusius</cite>, chap. vi.</p> +</div> +<div class='footnote' id='f76'> +<p class='c001'><a href='#r76'>76</a>. Gierke, <span lang="la"><i>ut supra</i></span>. Baldus and other jurists declare that the Emperor +‘tenetur ratione naturali, cum ius naturae sit potentius principatu,’ and one +goes so far as to hold him to be also bound by <span lang="la"><i>ius gentium</i></span>. See Arthur +Duck, <span lang="la"><cite>De Usu et Authoritate Iuris Civilis</cite></span>, bk. i. chap. iii, § 12.</p> +</div> +<div class='footnote' id='f77'> +<p class='c001'><a href='#r77'>77</a>. The Romans had been content to derive law (see Essay X, p. 76) from +the will of the people, whether expressed directly by legislation or tacitly +by customs, and this doctrine continued to be enounced under the autocracy +of Justinian much as it had been in Republican times.</p> +</div> +<div class='footnote' id='f78'> +<p class='c001'><a href='#r78'>78</a>. With Hobbes compare the view of Spinoza, <span lang="la"><cite>Tractatus Theologico-Politicus</cite></span>, +cap. xvi.</p> +</div> +<div class='footnote' id='f79'> +<p class='c001'><a href='#r79'>79</a>. I owe these references to Sir F. Pollock’s Essay in <cite>Columbia Law +Review</cite>, already mentioned.</p> +</div> +<div class='footnote' id='f80'> +<p class='c001'><a href='#r80'>80</a>. <cite>Commentaries</cite>, Introd. § 2.</p> +</div> +<div class='footnote' id='f81'> +<p class='c001'><a href='#r81'>81</a>. <cite>Ibid.</cite> bk. iii. chap. ix.</p> +</div> +<div class='footnote' id='f82'> +<p class='c001'><a href='#r82'>82</a>. See on this subject Sir C. P. Ilbert’s <cite>Government of India</cite>, chap. vi. +The expression ‘equity and good conscience’ in this connexion is as old as +the Charter to the E. India Company of 1683; <i>ibid.</i> chap. i. p. 21.</p> +</div> +<div class='footnote' id='f83'> +<p class='c001'><a href='#r83'>83</a>. When he uses the phrase <span lang="la"><i>ius gentium</i></span>, Grotius dwells on the fact that +its force springs from the Will of the Nations which use it, and he observes +that when it is ascribed to the will of all nations it is practically <span lang="la"><i>ius naturale</i></span>, +but that there is much of it which rests on the will, not of all, but only of +many nations, since sometimes we find a <span lang="la"><i>ius gentium</i></span> holding good in one +part of the world which does not exist in other parts.</p> +</div> +<div class='footnote' id='f84'> +<p class='c001'><a href='#r84'>84</a>. Grotius, who (differing but little from the old schoolmen) defines the +eternal and immutable Law of Nature as ‘dictatum rectae rationis, indicans +actui alicui ex eius convenientia aut disconvenientia cum ipsa naturali ratione +inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab +auctore naturae Deo talem actum aut vetari aut praecipi,’ distinguishes from +it the more arbitrary laws of God (<span lang="la"><i>ius voluntarium</i></span>) which God may change, +whereas He cannot change His own Natural Law any more than He can +make two and two anything but four. In another place he observes that +Human Nature itself is the mother of natural law, and (through contract) +great-grandmother of civil (= positive) law. ‘Naturalis iuris mater est ipsa +humana natura, quae nos, etiamsi re nulla indigeremus, ad societatem mutuam +appetendam ferret’ (here repeating Aristotle), ‘civilis vero iuris mater est +ipsa ex consensu obligatio, quae cum ex naturali iure vim suam habeat, +potest natura huius quoque iuris quasi proavia dici’ (<cite>Proleg.</cite> 9. 16). He +had just before said, ‘Cum iuris naturae sit stare pactis, necessarius enim +erat inter homines aliquis se obligandi modus, neque vero alius modus +naturalis fingi potest; ab hoc ipso fonte iura civilia fluxerunt. Nam qui se +coetui alicui aggregaverant, aut homini hominibusque subiecerant, hi aut +expresse promiserant, aut ex negotii natura tacite promisisse intelligi, +secuturos se id quod aut coetus pars maior, aut hi, quibus delata potestas +erat, constituissent.’ His <span lang="la"><i>ius divinum voluntarium</i></span> is divided into that +part which was delivered by God to all mankind at the Creation, after the +Flood, and at Christ’s coming, and that part which was delivered to Israel +alone. It is therefore Revealed Law, and so different from the Law of +Nature.</p> +</div> +<div class='footnote' id='f85'> +<p class='c001'><a href='#r85'>85</a>. See Essay <a href='#eXII'>XII</a>.</p> +</div> +<div class='footnote' id='f86'> +<p class='c001'><a href='#r86'>86</a>. As has been proposed by Dr. Holland in his admirable <cite>Elements of +Jurisprudence</cite> .</p> +</div> +<div class='footnote' id='f87'> +<p class='c001'><a href='#r87'>87</a>. Some excellent remarks on the intellectual characteristics of Bentham +may be found in Mr. Leslie Stephen’s <cite>English Utilitarians</cite>, vol. i (1901).</p> +</div> +<div class='footnote' id='f88'> +<p class='c001'><a href='#r88'>88</a>. See Essay XI, p. 130 sqq.</p> +</div> +<div class='footnote' id='f89'> +<p class='c001'><a href='#r89'>89</a>. An example of how stimulating this may be made is furnished by the +treatment of Possession in the acute and learned lectures on the Common +Law of Mr. O. W. Holmes (now Chief Justice of Massachusetts).</p> +</div> +<div class='footnote' id='f90'> +<p class='c001'><a href='#r90'>90</a>. Lord Mansfield in the eighteenth century or Lord Cairns in the nineteenth, +perhaps the two most philosophical minds that have adorned the +English bench, would doubtless, if they had written on law, have shone as +legal writers far more than Lord St. Leonards; and it is of course true that +in order to have a fair comparison our great judges ought to be thrown into +the English scale. But the form in which their wisdom appears makes it +less available than the form in which we have that of the Romans. So +too Lord Justice Mellish, the most solid and cogent reasoner of his time, +and Lord Bowen, the most subtle and ingenious, would doubtless have +produced admirable work had not their time been absorbed by their forensic +and judicial duties.</p> +</div> +<div class='footnote' id='f91'> +<p class='c001'><a href='#r91'>91</a>. There was practically only one set of laws or customs belonging to +highly civilized communities which the Romans could compare with their +own law, those, namely, which they found in the various Greek cities. These +laws and customs, though varying a good deal in detail, from city to city, +seem to have borne a family likeness to one another. The laws of the Italic +cities were probably on the whole similar to those of Rome herself. But +the customs of the Carthaginians, of the Syrians, and of the Egyptians, had +many peculiar features.</p> +</div> +<div class='footnote' id='f92'> +<p class='c001'><a href='#r92'>92</a>. Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to the +Rivers and to the Earth.</p> +</div> +<div class='footnote' id='f93'> +<p class='c001'><a href='#r93'>93</a>. Thus we are told by an early Irish annalist that ‘the sun and the wind +killed Laoghaire (king of Ireland in the time of St. Patrick) because he +broke his oath to the men of Munster.’</p> +</div> +<div class='footnote' id='f94'> +<p class='c001'><a href='#r94'>94</a>. But in Norway the Assembly is usually held at a temple, as in Iceland +the Goði is both a priest and a chief, and the temple is the place where +judicial oaths are taken. See Essay V, vol. i. p. 318.</p> +</div> +<div class='footnote' id='f95'> +<p class='c001'><a href='#r95'>95</a>. The γραμματεῖς (scribes), νομικοί (lawyers), and νομοδιδάσκαλοι (doctors of +the law) of the New Testament seem to be different names for the same +class, and identical with the ἱερογραμματεῖς of Josephus.</p> +</div> +<div class='footnote' id='f96'> +<p class='c001'><a href='#r96'>96</a>. Stambul (Constantinople) is larger, but Stambul has always had a large +Christian element, whereas Cairo was till about thirty years ago almost wholly +Muhamadan. Moreover Cairo was better situated for drawing students +from North Africa and Western Asia than Stambul, which is almost on the +outermost edge of the Musulman world.</p> +</div> +<div class='footnote' id='f97'> +<p class='c001'><a href='#r97'>97</a>. The columns of the ancient and most sacred mosque at Kairoan or Kêrwan +(in the territory of Tunis), built by Sidi Okba, the conqueror of North Africa, +were brought from Christian churches, and many from the great basilica of +Carthage, the floor of which has been recently uncovered.</p> +</div> +<div class='footnote' id='f98'> +<p class='c001'><a href='#r98'>98</a>. In the session of 1898-9 there were 198 professors and 7,676 students +attached to the Mosque itself (without counting its dependent Kuttabs).</p> +</div> +<div class='footnote' id='f99'> +<p class='c001'><a href='#r99'>99</a>. In 1896 (eight years after my visit) instruction began to be provided in +geometry, algebra, arithmetic and geography, but it is given by secular +teachers appointed by the Egyptian Government, not by the regular staff of +the Mosque.</p> +</div> +<div class='footnote' id='f100'> +<p class='c001'><a href='#r100'>100</a>. In 1898-9 the numbers of the four sects were as follows:</p> +<div class='lg-container-l c022'> + <div class='linegroup'> + <div class='group'> + <div class='line'>Shafites—Professors, 86; Students, 3,495.</div> + <div class='line'>Hanefites—Professors, 41; Students, 2,168.</div> + <div class='line'>Malekites—Professors, 68; Students, 1,983.</div> + <div class='line'>Hanbalites—Professors, 3; Students, 30.</div> + </div> + </div> +</div> + +</div> +<div class='footnote' id='f101'> +<p class='c001'><a href='#r101'>101</a>. Place of birth constituted an important basis of classification in mediaeval +Universities. In Oxford, as in Paris, the students were divided into the +Northern and Southern nations (whence the two Proctors), and in each +of the Universities of Glasgow and Aberdeen there are still four Nations, +a system of organization preserved for the purposes of the election of a Lord +Rector. Nations exist also in the University of Upsala.</p> +</div> +<div class='footnote' id='f102'> +<p class='c001'><a href='#r102'>102</a>. In 1898-9 the total sum paid to El Azhar out of the public treasury was +LE (Egyptian pounds) 6,611, and out of the administration of the Wakfs +LE5,224, besides a sum of LE1,512 derived from the endowments of the several +Riwaks. The best endowed Riwaks are those of the Turks (516) and of the +Mogrebins (364). I owe these figures to the kindness of my friend Yacoub Artin +Pasha, the energetic and enlightened head of the educational administration +of Egypt. The Egyptian pound is about twenty shillings and fourpence.</p> +</div> +<div class='footnote' id='f103'> +<p class='c001'><a href='#r103'>103</a>. Of this sum (which has been arrived at after deducting outgoings on +estates, so that as respects this kind of property it represents net revenue) +£55,000 is the revenue of the University and £278,000 the revenue of all +the Colleges, including fees and room rents.</p> +</div> +<div class='footnote' id='f104'> +<p class='c001'><a href='#r104'>104</a>. Whether this system tends to facilitate the bribing of judges, almost +universal in countries ruled by a Musulman monarch, <span lang="la"><i>quaere</i></span>.</p> +</div> +<div class='footnote' id='f105'> +<p class='c001'><a href='#r105'>105</a>. I do not mean to suggest that races like those of Arabia, Syria, and +Persia, may not under the contact and stimulus of European literature and +thought again develop an intellectual life of their own. But it can hardly +be a life on the orthodox lines of Islam. The first thing to be hoped for is +that Syria and Asia Minor may get rid of the Turk, who has never shown +himself fit for anything but fighting.</p> +</div> +<div class='footnote' id='f106'> +<p class='c001'><a href='#r106'>106</a>. Julian in <cite>Dig.</cite> i. 3. 32.</p> +</div> +<div class='footnote' id='f107'> +<p class='c001'><a href='#r107'>107</a>. The ‘Ulster Custom’ is an interesting instance, but it never quite got the +length of becoming law.</p> +</div> +<div class='footnote' id='f108'> +<p class='c001'><a href='#r108'>108</a>. Book i. chap. 26.</p> +</div> +<div class='footnote' id='f109'> +<p class='c001'><a href='#r109'>109</a>. The <span lang="la"><i>iudex</i></span> (who is not to be thought of at this period as a judge in our +sense—he is more like a jury of one, or a referee) was not necessarily +a skilled lawyer, and therefore was presumably not competent to decide +a knotty technical point by the force of his own knowledge.</p> +</div> +<div class='footnote' id='f110'> +<p class='c001'><a href='#r110'>110</a>. The precise nature of the action taken by Augustus and Tiberius is the +subject of some controversy, as to which see Goudy’s edition of Muirhead’s +<cite>History of Roman Law</cite>, p. 292, Sohm, <span lang="de"><i>Institutionen</i></span>, § 18, and Krüger, +<span lang="de"><i>Geschichte der Quellen des Römischen Rechts</i></span>, § 15. <span lang="de"><i>Responsa</i></span> had been +given in earlier days by the <span lang="la"><i>Pontifices</i></span>, and Augustus was <span lang="la"><i>Pontifex Maximus</i></span>. +As to a similar practice among Muslims see Essay XIII, p. 239 <span lang="la"><i>ante</i></span>.</p> +</div> +<div class='footnote' id='f111'> +<p class='c001'><a href='#r111'>111</a>. The late Lord Justice W. M. James.</p> +</div> +<div class='footnote' id='f112'> +<p class='c001'><a href='#r112'>112</a>. <cite>Dig.</cite> i. 3. 38.</p> +</div> +<div class='footnote' id='f113'> +<p class='c001'><a href='#r113'>113</a>. Orders in Council are also issued in certain cases under the prerogative +of the Crown without statutory delegation.</p> +</div> +<div class='footnote' id='f114'> +<p class='c001'><a href='#r114'>114</a>. If the view in question is defended as being if not historically true yet +a convenient analysis of the actual facts of the case in modern England, the +answer is that the Judge, as we know him to-day, can be represented as +a delegate of Parliament only by arguing that Parliament commands whatever +it does not forbid—a way of making facts square with a pre-conceived +theory, which is not only opposed to English traditions, but essentially +unreal and fantastic.</p> +</div> +<div class='footnote' id='f115'> +<p class='c001'><a href='#r115'>115</a>. The name Praetor meant Leader, and was originally applied to the +Consuls. The Praetor’s competence for military functions was equal to that +of the Consuls. He had both <span lang="la"><i>imperium</i></span> and <span lang="la"><i>iurisdictio</i></span>.</p> +</div> +<div class='footnote' id='f116'> +<p class='c001'><a href='#r116'>116</a>. The Praetor, said the Romans, does not make law (<span lang="la"><i>Praetor ius facere +non potest</i></span>). Yet they also called the rules which emanated from him <span lang="la"><i>iura</i></span> +(see Cic. <span lang="la"><cite>De Invent.</cite></span> ii. 22): and the whole body of rules due to his action +was in later times described as <span lang="la"><i>ius honorarium</i></span>, <span lang="la"><i>ius praetorium</i></span>. Sometimes +a right resting on <span lang="la"><i>ius</i></span> is contrasted with one depending on the protection +(<span lang="la"><i>tuitio</i></span>) of the Praetor: Ulpian in <cite>Dig.</cite> vii. 4. 1. Those who put the Praetor’s +authority highest called the Edict <span lang="la"><i>lex annua</i></span>, says Cicero, <cite>Verr.</cite> ii. 1. 42. This +uncertainty of language corresponds to the peculiar character of these rules, +which in one sense were, and in another were not, Law.</p> +</div> +<div class='footnote' id='f117'> +<p class='c001'><a href='#r117'>117</a>. ‘Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi +vel corrigendi iuris civilis gratia propter utilitatem publicam.’ Papinian in +<cite>Dig.</cite> i. 1. 7.</p> +</div> +<div class='footnote' id='f118'> +<p class='c001'><a href='#r118'>118</a>. His declarations did not originally, in strictness of law, bind even +himself, and it was found necessary to enact, by a <span lang="la"><i>lex Cornelia</i></span> of <span class='fss'>B.C.</span> 67, +that the Praetor should not depart from the statements of his Edict (‘ut +praetores ex edictis suis perpetuis ius dicerent, quae res cunctam gratiam +ambitiosis praetoribus qui varie ius dicere solebant, sustulit.’ Ascon. <span lang="la"><cite>in Cic. +Pro Cornelio</cite></span>, <a id='corr276.32'></a><span class='htmlonly'><ins class='correction' title='58.'>58.)</ins></span><span class='epubonly'><a href='#c_276.32'><ins class='correction' title='58.'>58.)</ins></a></span></p> + +<p class='c001'>The Edict regularly issued at the beginning of each year was called +<span lang="la"><i>Edictum perpetuum</i></span>, as opposed to <span lang="la"><i>Edictum repentinum</i></span>, one issued for an +emergency.</p> +</div> +<div class='footnote' id='f119'> +<p class='c001'><a href='#r119'>119</a>. A particular case decided in a particular way under a provision of the +Edict which was omitted next year would of course not be disturbed, +for the Romans held firmly to the principle <span lang="la"><i>stare iudicatis</i></span>.</p> +</div> +<div class='footnote' id='f120'> +<p class='c001'><a href='#r120'>120</a>. ‘Primus divus Augustus semel iterumque gratia personarum motus, vel +quia per ipsius salutem rogatus quis diceretur aut ob insignem quorundam +perfidiam, iussit consulibus auctoritatem suam interponere, quod quia iustum +videbatur et populare erat, paulatim conversum est in adsiduam iurisdictionem’ +(<cite>Inst.</cite> ii. 23. 1). See also <cite>Inst.</cite> ii. 25.</p> +</div> +<div class='footnote' id='f121'> +<p class='c001'><a href='#r121'>121</a>. Not that all the cases we find in the <cite>Digest</cite> are concrete cases, for a good +many seem to have been imagined for the sake of illustrating the applications +of a principle. Cf. the illustrations in Macaulay’s Indian Penal Code.</p> +</div> +<div class='footnote' id='f122'> +<p class='c001'><a href='#r122'>122</a>. By the time of Justinian the distinction had come to be between <span lang="la"><i>Ius</i></span> +as the old Law, including republican statutes, Senatus consulta, the Edicts +of magistrates and the writings of the jurists, and the new Law, which +consisted of imperial ordinances, and was called sometimes <span lang="la"><i>Ius Novum</i></span>, +sometimes <span lang="la"><i>Leges</i></span>.</p> +</div> +<div class='footnote' id='f123'> +<p class='c001'><a href='#r123'>123</a>. ‘Scriptum ius est lex, plebiscita, senatus consulta, principum placita, +magistratuum edicta, responsa prudentium. Lex est quod populus Romanus +senatore magistratu interrogante, veluti consule, constituebat: plebiscitum +est quod plebs plebeio magistratu interrogante, veluti tribuno, constituebat’ +(<cite>Inst.</cite> i. 2. 3, 4).</p> +</div> +<div class='footnote' id='f124'> +<p class='c001'><a href='#r124'>124</a>. See 52 & 53 Vict. c. 55, § 14, subs. 4.</p> +</div> +<div class='footnote' id='f125'> +<p class='c001'><a href='#r125'>125</a>. I saw a few years ago, in the ruins of Salona in Dalmatia, a lately +uncovered inscription, dating apparently from the sixth or seventh century +<span class='fss'>A.D.</span>, in which the protection of God is asked for the ‘respublica Romana.’ +It need hardly be said that the term has in strictness nothing to do with the +form of government, no more than has our English term ‘Commonwealth.’</p> +</div> +<div class='footnote' id='f126'> +<p class='c001'><a href='#r126'>126</a>. The Crown is now in England bound by statute to summon Parliament, +but should the Crown omit to do so, Parliament could not legally meet +of itself, save that upon the demise of the Crown it does forthwith come +together to swear allegiance to the new Sovereign.</p> +</div> +<div class='footnote' id='f127'> +<p class='c001'><a href='#r127'>127</a>. This is illustrated by the words of Gaius, ‘Senatus consultum legis +vicem obtinet quamvis fuerit quaesitum’ (Gai <cite>Inst.</cite> i. 4). Ulpian however +says, ‘Non ambigitur senatum ius facere posse’ (<cite>Dig.</cite> i. 3. 9). It too exerted +a sort of dispensing power: cf. Sallust, <cite>Cat.</cite> 29.</p> +</div> +<div class='footnote' id='f128'> +<p class='c001'><a href='#r128'>128</a>. Though Augustus found over a thousand members in it, many of them +unworthy, and was obliged to purge it carefully down to a reasonable +strength (Sueton. <cite>Octav.</cite> 35). Whether there were senators with no legal +right to speak but only to vote—they voted, as in the English Parliament, by +dividing into two bodies—is matter of controversy. There was no closure, +so senators used to talk against time.</p> +</div> +<div class='footnote' id='f129'> +<p class='c001'><a href='#r129'>129</a>. Cf. Just. <cite>Inst.</cite> i. 2. 6: cf. <cite>Dig.</cite> i. 4. 1.</p> +</div> +<div class='footnote' id='f130'> +<p class='c001'><a href='#r130'>130</a>. Dante, <cite>Purgat.</cite> canto x.</p> +</div> +<div class='footnote' id='f131'> +<p class='c001'><a href='#r131'>131</a>. Sometimes the speeches delivered to the Senate are included, but in +these cases the law seems (as already observed) to have been deemed +rather senatorial than imperial.</p> +</div> +<div class='footnote' id='f132'> +<p class='c001'><a href='#r132'>132</a>. Of whom we are told that he never sanctioned any Constitution without +the advice of at least twenty jurisconsults. After Hadrian the <span lang="la"><i>Consiliarius +Augusti</i></span> had a position of recognized dignity.</p> +</div> +<div class='footnote' id='f133'> +<p class='c001'><a href='#r133'>133</a>. Τὸ μὲν γὰρ ἁμαρτάνειν πολλαχῶς ἐστι, τὸ δὲ κατορθοῦν μοναχῶς, says +Aristotle: ‘You can hit only in one way, but you may miss in many.’</p> +</div> +<div class='footnote' id='f134'> +<p class='c001'><a href='#r134'>134</a>. Many of Diocletian’s rescripts are well expressed and show a mastery of +the old legal principles.</p> +</div> +<div class='footnote' id='f135'> +<p class='c001'><a href='#r135'>135</a>. The admirable <cite>History of English Law</cite> of Professors Pollock and +Maitland stops soon after the point at which parliamentary legislation +begins. Since the passage in the text was written, the book of Sir +C. P. Ilbert, entitled <cite>Legislative Methods and Forms</cite>, has been published. +It is full of valuable information and acute remarks upon modern English +legislation, and brings together a mass of historical facts never previously +collected.</p> +</div> +<div class='footnote' id='f136'> +<p class='c001'><a href='#r136'>136</a>. Now (1900) reduced to six by the discontinuance of the habit of putting +the question that Mr. Speaker do leave the chair when the House of +Commons goes into Committee.</p> +</div> +<div class='footnote' id='f137'> +<p class='c001'><a href='#r137'>137</a>. Now, however, subject to the power of imposing the closure of debate, +a power the growing frequency of whose exercise has greatly altered the +character of the House.</p> +</div> +<div class='footnote' id='f138'> +<p class='c001'><a href='#r138'>138</a>. Now reduced to eleven. The number of stages for a Bill which passes +through both Houses must be calculated by subtracting one from the number +reached by adding the stages in each House, because a Bill coming from +either House to the other obtains its first reading as a matter of course, +without debate.</p> +</div> +<div class='footnote' id='f139'> +<p class='c001'><a href='#r139'>139</a>. As to the actual methods and difficulties of Parliamentary legislation, +see the penetrating and careful analysis contained in Sir C. P. Ilbert’s +<cite>Legislative Methods and Forms</cite>, chap. x.</p> +</div> +<div class='footnote' id='f140'> +<p class='c001'><a href='#r140'>140</a>. Although, as observed above, the Emperor might, if he liked, cause a +draft Constitution to be debated in his Consistory.</p> +</div> +<div class='footnote' id='f141'> +<p class='c001'><a href='#r141'>141</a>. According to Sir C. P. Ilbert (<i>op. cit.</i>) nine-tenths.</p> +</div> +<div class='footnote' id='f142'> +<p class='c001'><a href='#r142'>142</a>. It must, however, be added that the difficulties which surround this +most unsatisfactory branch of our law are partly due to the recurring +collision of two different theories, that of <span lang="la"><i>Caveat emptor</i></span> (let the buyer +beware) and that which would exact <span lang="la"><i>uberrima fides</i></span> (the amplest good faith) +from a company promoter or director.</p> +</div> +<div class='footnote' id='f143'> +<p class='c001'><a href='#r143'>143</a>. It is convenient to stop with Justinian, because he gave the law the +shape in which it has influenced modern Europe, and because our historical +data became much more scanty after his time. But of course the history of +the law goes on to <span class='fss'>A.D.</span> 1204, and in a sense even to <span class='fss'>A.D.</span> 1453, in an unbroken +stream, the codes issued by the later Emperors, and especially the <span lang="la"><i>Basilica</i></span> +of Leo the Philosopher, being based upon Justinian’s redaction.</p> +</div> +<div class='footnote' id='f144'> +<p class='c001'><a href='#r144'>144</a>. I do not include India or the Crown Colonies, because the population +of these is not English.</p> +</div> +<div class='footnote' id='f145'> +<p class='c001'><a href='#r145'>145</a>. ‘Decem tabularum leges quae nunc quoque in hoc immenso aliarum +super alias acervatarum legum cumulo fons omnis publici privatique est +iuris’ (iii. 34).</p> +</div> +<div class='footnote' id='f146'> +<p class='c001'><a href='#r146'>146</a>. ‘Bibliothecas mehercule omnium philosophorum unus mihi videtur xii +tabularum libellus, siquis legum fontes et capita viderit, et auctoritatis pondere +et utilitatis ubertate superare’ (<cite>De Orat.</cite> i. 44). An odd comparison, +and one in which there is more of patriotism than of philosophy.</p> +</div> +<div class='footnote' id='f147'> +<p class='c001'><a href='#r147'>147</a>. As to the <span lang="la"><i>ius gentium</i></span> see Essay XI, p. 128 sqq.</p> +</div> +<div class='footnote' id='f148'> +<p class='c001'><a href='#r148'>148</a>. As to this see Essay II, vol. i. p. <a href='https://www.gutenberg.org/files/78300/78300-h/78300-h.htm#Page_91'>91</a>.</p> +</div> +<div class='footnote' id='f149'> +<p class='c001'><a href='#r149'>149</a>. Of course I do not mean to disparage the immense importance of +economic causes always and everywhere, but in the ancient world, where +communities were mostly small, they tended more quickly to engender +political revolutions, and thus their action became involved with politics. In +the modern world, where nations are mostly large and political change is +usually more gradual, economic factors frequently tell upon society and +affect the working of institutions without leading to civil strife. The more +the world develops and settles down, and the further it moves away from +its primitive conditions, the greater becomes the relative significance of the +economic elements.</p> +</div> +<div class='footnote' id='f150'> +<p class='c001'><a href='#r150'>150</a>. ‘Parthos atque Britannos’ are aptly coupled by Horace as the two +peoples that remained outside the Empire.</p> +</div> +<div class='footnote' id='f151'> +<p class='c001'><a href='#r151'>151</a>. Described in the last preceding Essay, p. 257.</p> +</div> +<div class='footnote' id='f152'> +<p class='c001'><a href='#r152'>152</a>. As Milton says:—</p> +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>‘And that two-handed engine at the door</div> + <div class='line'>Stands ready to strike once and strike no more.’</div> + </div> + </div> +</div> + +</div> +<div class='footnote' id='f153'> +<p class='c001'><a href='#r153'>153</a>. Although the Napoleonic government was in many things only completing +work begun under Lewis the Fourteenth.</p> +</div> +<div class='footnote' id='f154'> +<p class='c001'><a href='#r154'>154</a>. I owe this observation to my friend Mr. Dicey.</p> +</div> +<div class='footnote' id='f155'> +<p class='c001'><a href='#r155'>155</a>. Within two centuries after Justinian’s time official abridgements of his +<span lang="la"><i>Corpus Iuris</i></span> began to be issued, and it was virtually superseded in the end +of the ninth century by the <span lang="la"><i>Basilica</i></span> of the Emperor Leo the Philosopher. +The action of his successors was largely directed to cutting down the +old law into a shape better fitted for the changed conditions of the Empire, +and the declining intelligence of the people.</p> +</div> +<div class='footnote' id='f156'> +<p class='c001'><a href='#r156'>156</a>. The interest excited by cases such as those of the <span lang="la"><i>Mogul Steamship +Company</i></span> v. <span lang="la"><i>Macgregor</i></span> and <span lang="la"><i>Allen</i></span> v. <span lang="la"><i>Flood</i></span> illustrates this.</p> +</div> +<div class='footnote' id='f157'> +<p class='c001'><a href='#r157'>157</a>. See Essay XI, p. 150.</p> +</div> +<div class='footnote' id='f158'> +<p class='c001'><a href='#r158'>158</a>. Euripides (<cite>Androm.</cite> vv. 173-180) contrasts the marriage usages of barbarians +and Greeks, and dilates (cf. v. 465 sqq.) on the evils of polygamy.</p> +</div> +<div class='footnote' id='f159'> +<p class='c001'><a href='#r159'>159</a>. Tac. <cite>Germ.</cite> c. xvii.</p> +</div> +<div class='footnote' id='f160'> +<p class='c001'><a href='#r160'>160</a>. Although Julius Caesar, if we may credit Suetonius, caused a measure to +be drafted for enabling him to marry as many wives as he liked for the sake +of having legitimate issue (Suet. <cite>Julius</cite>, c. 52).</p> +</div> +<div class='footnote' id='f161'> +<p class='c001'><a href='#r161'>161</a>. Among the Jews it was (though forbidden by Roman law) not formally +abolished till the tenth century.</p> +</div> +<div class='footnote' id='f162'> +<p class='c001'><a href='#r162'>162</a>. Some writers doubt whether this power of sale existed, and refer to +a supposed ‘law of Romulus’ mentioned by Plutarch which devoted to the +infernal gods whoever sold his wife. But the balance seems to incline in +favour of the existence of the power.</p> +</div> +<div class='footnote' id='f163'> +<p class='c001'><a href='#r163'>163</a>. There has been much dispute as to this ceremony: I give what seems +the most probable view. It may descend from a more ancient sale of the +wife by her relatives to the husband, similar to that which we find in some +primitive peoples.</p> +</div> +<div class='footnote' id='f164'> +<p class='c001'><a href='#r164'>164</a>. This was in pursuance of the general rule that rights over a movable were +acquired by a year’s continuous holding: ‘usus auctoritas fundi biennium, +caeterarum rerum annuus esto.’</p> +</div> +<div class='footnote' id='f165'> +<p class='c001'><a href='#r165'>165</a>. If she was in the power (<span lang="la"><i>potestas</i></span>) of her father, she had no property of +her own. If she was <span lang="la"><i>sui iuris</i></span>, she was under guardianship.</p> +</div> +<div class='footnote' id='f166'> +<p class='c001'><a href='#r166'>166</a>. Nevertheless it was retained in a few families for the purpose of providing +persons who could hold four great priestly offices, since by ancient usage +none save those born from a marriage with confarreation were able to serve +these priesthoods. But its operation seems to have been restricted by a +decree of the senate so as to apply only so far as religious rites were concerned +(<span lang="la"><i>quoad sacra</i></span>) (Gai <cite>Inst.</cite> i. 136).</p> +</div> +<div class='footnote' id='f167'> +<p class='c001'><a href='#r167'>167</a>. I pass by the distinction between <span lang="la"><i>iustae nuptiae</i></span>, which could be contracted +only between Roman citizens, and the so-called ‘natural’ marriage, +or <span lang="la"><i>matrimonium iuris gentium</i></span>, which was created by the marriage of a full +citizen to a half citizen or an alien (<span lang="la"><i>peregrinus</i></span>), because the latter is of no +consequence for our purpose, and practically disappeared when all Roman +subjects became citizens. It was a perfectly valid marriage, and the children +were legitimate. As to their status, see Gai <cite>Inst.</cite> i. 78, 79.</p> +</div> +<div class='footnote' id='f168'> +<p class='c001'><a href='#r168'>168</a>. Where either party was subject to the paternal power of his or her +father (or grandfather), the consent of the father (or grandfather) (or both) +was required, though in a few specified cases it might be either dispensed +with or compelled. This was a consequence of the Roman family system. +It was irrespective of the age of bride or bridegroom.</p> +</div> +<div class='footnote' id='f169'> +<p class='c001'><a href='#r169'>169</a>. The Emperor Majorian (<span class='fss'>A.D.</span> 455-461) is said to have issued a constitution +for the Western Empire, making the creation of a <span lang="la"><i>dos</i></span> essential to the +validity of a marriage: but this provision, which can hardly have been +intended to be general, seems to have never taken effect. The Western +Empire was then in the throes of dissolution.</p> +</div> +<div class='footnote' id='f170'> +<p class='c001'><a href='#r170'>170</a>. See Paul., <cite>Sent. Recept.</cite> xix. 8; <cite>Dig.</cite> xxii. 2. 5. The suggestion which +may be found in some modern writers that Marriage fell within the class +of the contracts created by the delivery of an object (the so-called Real +Contracts), has no Roman authority in its favour, and is indeed based on +a misconception of the nature of those four contracts, in all of which the +obligation created is for the restoring of the object delivered. Marriage is +assuredly not a bailment.</p> +</div> +<div class='footnote' id='f171'> +<p class='c001'><a href='#r171'>171</a>. This was at any rate a usage among the Latins; but how far in Rome +seems doubtful.</p> +</div> +<div class='footnote' id='f172'> +<p class='c001'><a href='#r172'>172</a>. Under the Empire we usually find women using two names, from their +father’s <span lang="la"><i>gens</i></span> and family (e.g. <span lang="la"><i>Caecilia Metella</i></span>). Sometimes, it would seem, +the name of the father’s <span lang="la"><i>gens</i></span> was followed by one taken from the mother +(e.g. <span lang="la"><i>Iunia Lepida</i></span>, <span lang="la"><i>Annaea Faustina</i></span>). The subject is fully discussed by +Mommsen, in his <span lang="de"><i>Römisches Staatsrecht</i></span>.</p> +</div> +<div class='footnote' id='f173'> +<p class='c001'><a href='#r173'>173</a>. A special action (<span lang="la"><i>rerum amotarum</i></span>) was given in this case. Some jurists +held that the joint enjoyment of household goods made the conception of +Theft inapplicable to a wife’s dealings, however unauthorized, with her +husband’s property. <cite>Dig.</cite> xxv. 2. 1.</p> +</div> +<div class='footnote' id='f174'> +<p class='c001'><a href='#r174'>174</a>. <cite>Dig.</cite> xliii. 30. 2.</p> +</div> +<div class='footnote' id='f175'> +<p class='c001'><a href='#r175'>175</a>. The guardianship of women of full age seems to have died out after +women received power to select a guardian for themselves, a change which +of course made his action purely formal.</p> +</div> +<div class='footnote' id='f176'> +<p class='c001'><a href='#r176'>176</a>. The mother’s succession was originally granted only where she had +borne three children (if a freed-woman, four).</p> +</div> +<div class='footnote' id='f177'> +<p class='c001'><a href='#r177'>177</a>. The ‘custom of conveyancers’ has worked itself into English law in a +somewhat similar way.</p> +</div> +<div class='footnote' id='f178'> +<p class='c001'><a href='#r178'>178</a>. This was the rule as settled by Justinian. Before his time, the +husband took the <span lang="la"><i>Dos</i></span> at the wife’s death unless it had been given by her +father.</p> +</div> +<div class='footnote' id='f179'> +<p class='c001'><a href='#r179'>179</a>. There are many less important rules regarding the extent of the husband’s +interest and the form in which the property is to be restored at the end of +the marriage, which it is not necessary to set forth, as they do not affect the +general principle. Indeed generally through these pages I am forced, for +the sake of clearness and brevity, to omit a number of minor provisions.</p> +</div> +<div class='footnote' id='f180'> +<p class='c001'><a href='#r180'>180</a>. ‘Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset ut +discuterentur matrimonia si non donaret is qui posset atque ea ratione +eventurum ut venalicia essent matrimonia.’ This view was sanctioned by +the Emperor Caracalla in his speech to the senate, which introduced the +exception next mentioned in the text; <cite>Dig.</cite> xxiv. 1. 2.</p> +</div> +<div class='footnote' id='f181'> +<p class='c001'><a href='#r181'>181</a>. ‘Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, +divini et humani iuris communicatio;’ Modestinus in <cite>Dig.</cite> xxiii. 2. 1.</p> +</div> +<div class='footnote' id='f182'> +<p class='c001'><a href='#r182'>182</a>. This was expressed in the phrase which the bride anciently used when +brought to the husband’s house: ‘Ubi tu Gaius, ego Gaia.’</p> +</div> +<div class='footnote' id='f183'> +<p class='c001'><a href='#r183'>183</a>. ‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus +Alexander in the third century. <cite>Cod.</cite> viii. 38. 2.</p> +</div> +<div class='footnote' id='f184'> +<p class='c001'><a href='#r184'>184</a>. A so-called ‘law of Romulus’ is said to have enumerated poisoning the +children, adultery, and the use of false keys as grounds justifying the +husband in divorcing his wife, no parallel right being granted to her. And +there seems to have been a provision regarding divorce in the Twelve Tables.</p> +</div> +<div class='footnote' id='f185'> +<p class='c001'><a href='#r185'>185</a>. ‘Si sine uxore, Quirites, possemus esse, omnes ea molestia careremus, +sed quoniam ita natura tradidit ut neque cum illis commode nec sine illis +ullo modo vivi possit, saluti perpetuae potius quam brevi voluptati consulendum.’ +Aul. Gell. <cite>Noct. Att.</cite> i. 6: cf. Liv. <cite>Epit.</cite> Book lix, and Sueton. +<cite>Vit. Aug.</cite> Augustus, according to Gellius and Suetonius, caused this speech, +delivered a century before, to be read aloud in the Senate in support of his +bill <span lang="la"><cite>De Maritandis Ordinibus</cite></span>, as being one which might fitly have been made +for their own times.</p> +</div> +<div class='footnote' id='f186'> +<p class='c001'><a href='#r186'>186</a>. </p> +<div class='lg-container-b c018'> + <div class='linegroup'> + <div class='group'> + <div class='line'>‘Aut minus aut certe non plus tricesima lux est</div> + <div class='line in2'>Et nubit decimo iam Thelesina viro.’</div> + <div class='line in37'>Mart. vi. 7.</div> + </div> + </div> +</div> + +</div> +<div class='footnote' id='f187'> +<p class='c001'><a href='#r187'>187</a>. The older doctrine had been that foreign captivity destroyed marriage +<span lang="la"><i>ipso facto</i></span>.</p> +</div> +<div class='footnote' id='f188'> +<p class='c001'><a href='#r188'>188</a>. Especially those contained in the <span lang="la"><i>lex Iulia et Papia Poppaea</i></span>.</p> +</div> +<div class='footnote' id='f189'> +<p class='c001'><a href='#r189'>189</a>. It is a curious instance of the variance of custom in this respect, that +after it had in England become unusual for cousins of different sexes to kiss +one another, the practice remained common in the simpler society of Scotland +and still more in that of Ireland.</p> +</div> +<div class='footnote' id='f190'> +<p class='c001'><a href='#r190'>190</a>. Tac. <cite>Ann.</cite> xii. 5-7.</p> +</div> +<div class='footnote' id='f191'> +<p class='c001'><a href='#r191'>191</a>. Many other prohibitions of marriages applying to persons holding official +relations, or to persons of widely different rank, or to cases where adoptive +relationships come in, need not be mentioned, as they have no longer any +great interest.</p> +</div> +<div class='footnote' id='f192'> +<p class='c001'><a href='#r192'>192</a>. <cite>Cod. Theod.</cite> iii. 12, 2 sqq.; <cite>Cod. Iustin.</cite> v. 5. 5 and 8.</p> +</div> +<div class='footnote' id='f193'> +<p class='c001'><a href='#r193'>193</a>. The connexion of two slaves, called <span lang="la"><i>contubernium</i></span>, was not deemed a +legal relation at all, and children born from it were not legitimate. So also +a free person could not legally intermarry with a slave.</p> +</div> +<div class='footnote' id='f194'> +<p class='c001'><a href='#r194'>194</a>. See Essay XI, p. 128.</p> +</div> +<div class='footnote' id='f195'> +<p class='c001'><a href='#r195'>195</a>. ‘Ad breve Regis de bastardia utrum aliquis natus ante matrimonium +habere poterit hereditatem sicut ille qui natus est post. Responderunt omnes +Episcopi quod nolunt nec possunt ad istud respondere, quia hoc esset contra +communem formam Ecclesie. Ac rogaverunt omnes Episcopi Magnates ut +consentirent quod nati ante matrimonium essent legitimi sicut illi qui nati +sunt post matrimonium quantum ad successionem hereditariam quia Ecclesia +tales habet pro legitimis; et omnes comites et barones una voce responderunt +quod nolunt leges Anglie mutare que usitatate sunt et approbate.’ +20 Henr. III, <cite>Stat. Mert.</cite></p> +</div> +<div class='footnote' id='f196'> +<p class='c001'><a href='#r196'>196</a>. Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak custom +as existing in Scotland down almost to our own time.</p> +</div> +<div class='footnote' id='f197'> +<p class='c001'><a href='#r197'>197</a>. See Lord Stowell’s famous judgement in <i>Lindo</i> v. <i>Belisario</i> (<cite>Consist. +Cases</cite>, p. 230), where he examines in an interesting way the requisites of +marriage under the ‘law of nature.’</p> +</div> +<div class='footnote' id='f198'> +<p class='c001'><a href='#r198'>198</a>. Canon VII of Session XXIV anathematizes those who deny the teaching +of the Church that the adultery of one spouse does not dissolve the <span lang="la"><i>vinculum +matrimonii</i></span>, and Canon X those who deny that it is better and happier to +remain in a state of virginity or celibacy.</p> +</div> +<div class='footnote' id='f199'> +<p class='c001'><a href='#r199'>199</a>. The pontifices had a certain oversight over the sacred marriage by +<span lang="la"><i>confarreatio</i></span>, and their action was needed to effect a <span lang="la"><i>diffareatio</i></span>, when it was +desired to extinguish the <span lang="la"><i>manus</i></span> of the husband over a divorced wife.</p> +</div> +<div class='footnote' id='f200'> +<p class='c001'><a href='#r200'>200</a>. Others think that this expression, which would seem to refer not to real +property but to chattels, is a relic of ancient Teutonic custom. As is observed +by Messrs. Pollock and Maitland (<cite>History of English Law</cite>, vol. ii. p. 401), we +must not assume that, from the days of savagery down to our own, all changes +have been in favour of women. They had apparently more power over their +own property in Anglo-Saxon times than in the thirteenth century.</p> +</div> +<div class='footnote' id='f201'> +<p class='c001'><a href='#r201'>201</a>. Messrs. Pollock and Maitland, in their admirable <cite>History of English Law</cite>, +to which the reader curious in these matters may be referred.</p> +</div> +<div class='footnote' id='f202'> +<p class='c001'><a href='#r202'>202</a>. The House of Lords was equally divided upon this point in the case of +<i>Reg.</i> v. <i>Millis</i>, in 1843; but historical inquiry tends to confirm the view of Lord +Stowell, that the presence of a clergyman was not essential (see <cite>Dalrymple</cite> +v. <cite>Dalrymple</cite>, 2 Haggard, p. 54).</p> +</div> +<div class='footnote' id='f203'> +<p class='c001'><a href='#r203'>203</a>. The English Dissenters soon began to complain of this Act, as they +were thenceforth (until 1836) obliged to be married in church. Charles +James Fox used to denounce the Act as ‘contrary to the Law of Nature.’</p> +</div> +<div class='footnote' id='f204'> +<p class='c001'><a href='#r204'>204</a>. A civil marriage is not, however, compulsory in England as it is in France +and some other continental countries. In Scotland it has now become +fashionable for Presbyterians to be wedded in church, but the Scottish law, +as every one knows, does not prescribe either a clergyman or a registrar.</p> +</div> +<div class='footnote' id='f205'> +<p class='c001'><a href='#r205'>205</a>. Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429 b).</p> +</div> +<div class='footnote' id='f206'> +<p class='c001'><a href='#r206'>206</a>. Kovalevsky, <cite>Modern Customs and Ancient Laws of Russia</cite>, p. 44.</p> +</div> +<div class='footnote' id='f207'> +<p class='c001'><a href='#r207'>207</a>. My friend Mr. F. W. Maitland, whose authority on these matters is +unsurpassed, informs me that he knows of no such trace. The practice, +however, seems to have been not uncommon. Several instances of the sale +of a wife by auction, sometimes along with a child, are reported from Kent +between 1811 and 1820.</p> +</div> +<div class='footnote' id='f208'> +<p class='c001'><a href='#r208'>208</a>. See Pollock and Maitland, vol. ii. p. 395.</p> +</div> +<div class='footnote' id='f209'> +<p class='c001'><a href='#r209'>209</a>. Blackstone, <cite>Commentaries</cite>, vol. i. bk. i. chap. 15.</p> +</div> +<div class='footnote' id='f210'> +<p class='c001'><a href='#r210'>210</a>. 1 Q. B. p. 671 (in the Court of Appeal). The judgements are instructive. +The Master of the Rolls goes so far as to doubt whether the husband +ever had a legal power of correction, a curious instance of the way in which +the sentiment of a later time sometimes tries to force upon the language of an +older time a non-natural meaning, the new sentiment being one which the +older time would have failed to understand. It would have been simpler to +admit that what may well have been law in the seventeenth century is not +to be taken to be law now, manners and ideas having so completely +changed as to render the old rules obsolete.</p> +</div> +<div class='footnote' id='f211'> +<p class='c001'><a href='#r211'>211</a>. This promise does not appear in the forms of marriage service commonly +used by the unestablished churches of England, or most of them.</p> +</div> +<div class='footnote' id='f212'> +<p class='c001'><a href='#r212'>212</a>. Messrs. Pollock and Maitland refer to the dooms of Aethelbert as showing +the permissibility of divorce in early English law (<cite>History of English +Law</cite>, vol. ii. p. 390).</p> +</div> +<div class='footnote' id='f213'> +<p class='c001'><a href='#r213'>213</a>. But canonical ingenuity discovered methods by which in some cases the +legitimacy of the children might be saved though the marriage was declared +void.</p> +</div> +<div class='footnote' id='f214'> +<p class='c001'><a href='#r214'>214</a>. There had also sprung up the practice of effecting private separations +between a husband and a wife by means of a deed executed by each of them, +and such a deed presently came to be recognized as a defence to a suit by +either party for the restitution of conjugal rights.</p> +</div> +<div class='footnote' id='f215'> +<p class='c001'><a href='#r215'>215</a>. Probably the English Jews were permitted to exercise in the seventeenth +and eighteenth century the right of divorce which their own law +gave them. But in those days the Jews were so cut off from the general +English society that the phenomenon passed almost unnoticed. They were +a very small community, living practically under their personal law, as the +Parsis do in Western India to-day.</p> +</div> +<div class='footnote' id='f216'> +<p class='c001'><a href='#r216'>216</a>. The Act of 1857 (amended in some points by subsequent statutes) contains +provisions intended to prevent collusion between the parties, and empowers +the Court to regulate the property rights of the divorced persons and +the custody of the children (if any) of the marriage.</p> +</div> +<div class='footnote' id='f217'> +<p class='c001'><a href='#r217'>217</a>. In two or three States the law provides that when an inhabitant goes +into some other State for the purpose of getting a divorce for a cause arising +within the State, or for a cause which the law of the State would not +authorize, a divorce granted to him shall have no effect within the State.</p> +</div> +<div class='footnote' id='f218'> +<p class='c001'><a href='#r218'>218</a>. In Canada during the same twenty years only 135 divorces were granted +in a population which was, in 1881, 4,324,000. In some provinces of the +Dominion divorces could be obtained only by private Act of Parliament.</p> +</div> +<div class='footnote' id='f219'> +<p class='c001'><a href='#r219'>219</a>. In an interesting article in the <cite>Political Science Quarterly</cite> for March, 1893, +Mr. W. F. Willcox (now (1900) of the U. S. Census Office) argues that the +divorce rate is influenced by depression of trade, declining when the lower +middle and working class, among whom it is frequent, are less able to +afford it.</p> + +<p class='c001'>Mr. Willcox quotes some remarkable figures from Japan showing an +extremely high divorce rate there. In 1886 there were in Japan 315,311 +marriages and 117,964 divorces. This is four and a-half times the rate in +the U. S. of America, which comes next.</p> +</div> +<div class='footnote' id='f220'> +<p class='c001'><a href='#r220'>220</a>. The conditions prevailing among a coloured population which had, under +slavery, no legal marriage, go far to explain this phenomenon.</p> +</div> +<div class='footnote' id='f221'> +<p class='c001'><a href='#r221'>221</a>. This Report, published in 1889 by the United States Labour Bureau +at Washington, contains many instructive data. The Annual Reports of the +voluntary Association, called the League for the Protection of the Family, +also deserve to be consulted. Its corresponding secretary is the Rev. Dr. +S. W. Dike of Auburndale, Mass., who has written a number of thoughtful +articles upon the subject, and to whom I am much indebted for documents +supplied to me and for the expression of his own views.</p> +</div> +<div class='footnote' id='f222'> +<p class='c001'><a href='#r222'>222</a>. <cite>Western Reserve Law Journal</cite> for October, 1899.</p> +</div> +<div class='footnote' id='f223'> +<p class='c001'><a href='#r223'>223</a>. The Report for 1891 of the League for the Protection of the Family +says: ‘Connecticut for two years reports the number of divorced persons +married each year. In 1889 there were 286 such—135 men and 151 women, +which is a little above one-third the number divorced in the year. In 1890 +there were 477 divorces granted, or 954 individuals divorced; and there +were 350 divorced persons—this year 207 women and 143 men—who +married again during the year. An extended induction along this line +should be possible. Guesses based on mere observation are untrustworthy +guides in legislation or social reform.’</p> +</div> +<div class='footnote' id='f224'> +<p class='c001'><a href='#r224'>224</a>. This point has been worked out by M. Bertillon, a well-known French +statistician. I owe my knowledge of it to an acute and suggestive paper +(some of whose conclusions however seem to me questionable) by Mr. W. F. +Willcox, of Cornell University, New York. ‘The Divorce Problem’: +New York, 1891.</p> +</div> +<div class='footnote' id='f225'> +<p class='c001'><a href='#r225'>225</a>. Efforts have recently been made to induce States to adopt identical +legislation on this among other topics; and there seems to be a prospect +that a certain number will do so.</p> +</div> +<div class='footnote' id='f226'> +<p class='c001'><a href='#r226'>226</a>. According to a high Russian authority, divorce was freely practised by +the Russian peasantry under their ancient customs.</p> +</div> +<div class='footnote' id='f227'> +<p class='c001'><a href='#r227'>227</a>. I take the above figures from <cite>Parliamentary Paper</cite> [C-7639] of 1895. +No figures are given for Russia or Denmark.</p> +</div> +<div class='footnote' id='f228'> +<p class='c001'><a href='#r228'>228</a>. Parliamentary Return of March 9, 1889.</p> +</div> +<div class='footnote' id='f229'> +<p class='c001'><a href='#r229'>229</a>. See above, p. 388 sqq. Although no formal legal act and no religious +rites were absolutely required for marriage at the time when we first +discover the Roman Law as a working system, the practice of using either +such an act or such rites was all but universal.</p> +</div> +<div class='footnote' id='f230'> +<p class='c001'><a href='#r230'>230</a>. The <span lang="la"><i>Dos</i></span> supplied a connexion, but the wife’s right to claim it at the +end of the marriage was not greatly affected by her conduct (see pp. 397 +and 406 <span lang="la"><i>supra</i></span>).</p> +</div> +<div class='footnote' id='f231'> +<p class='c001'><a href='#r231'>231</a>. Sometimes not even that. A few years ago, in the United States Senate, +some one quoted, in order to prove the corruption of public life in England, a +play represented there, in which a Secretary of State or his wife was involved +in a disgraceful job connected with an Indian railway. Nobody in England +had taken such a thing seriously enough to comment on the absurdity of it.</p> +</div> +<div class='footnote' id='f232'> +<p class='c001'><a href='#r232'>232</a>. Some of the Churches in the United States have however tried to deal +with the matter. The Protestant Episcopal Church is at this moment (1901) +considering a draft canon.</p> +</div> +<div class='footnote' id='f233'> +<p class='c001'><a href='#r233'>233</a>. By Equality I do not mean any recognition of Identity or even Similarity +as respects capacity and practical work (though the tendency is in that +direction), but the equal possession of private civil rights and the admission +of an individuality entitled to equal respect and an equally free play of +action. Such Equality is perfectly compatible, given sufficient affection, +with a complete identification of the consorts in the harmony which comes +of the union of diverse but complementary elements.</p> +</div> +<div class='footnote' id='f234'> +<p class='c001'><a href='#r234'>234</a>. Delivered at Oxford, February 25, 1871, on entering on the duties of +the Regius Professorship of Civil Law.</p> +</div> +<div class='footnote' id='f235'> +<p class='c001'><a href='#r235'>235</a>. ‘Oriuntur discordiae graves, lites et appellationes antea inauditae. +Tunc leges et causidici in Angliam primo vocati sunt, quorum primus erat +magister Vacarius. Hic in Oxenefordia legem docuit, et apud Romam +magister Gracianus et Alexander, qui et Rodlandus, in proximo papa +futurus, canones compilavit.’—(Gervas. Dorob.; <span lang="la"><cite>Act. Pontif Cantuar.; +Theodbaldus</cite></span>.)</p> +</div> +<div class='footnote' id='f236'> +<p class='c001'><a href='#r236'>236</a>. For some time after the breach Englishmen used to resort to continental +universities, and there, of course, they found Roman law taught; but this +practice died out before very long.</p> +</div> +<div class='footnote' id='f237'> +<p class='c001'><a href='#r237'>237</a>. This was effected by the Judicature Act of 1873.</p> +</div> +<div class='footnote' id='f238'> +<p class='c001'><a href='#r238'>238</a>. To these one may now add the new German Empire, which was +coming into being when this Lecture was delivered in <span class='fss'>A.D.</span> 1871. A Civil +Code for the Empire began to be prepared in 1872 and came into force in +1900.</p> +</div> +<div class='footnote' id='f239'> +<p class='c001'><a href='#r239'>239</a>. Dr. K. A. von Vangerow.</p> +</div> +<div class='footnote' id='f240'> +<p class='c001'><a href='#r240'>240</a>. 12 Mod. 482.</p> +</div> +<div class='footnote' id='f241'> +<p class='c001'><a href='#r241'>241</a>. This defect was removed by the Judicature Act of 1873.</p> +</div> +<div class='footnote' id='f242'> +<p class='c001'><a href='#r242'>242</a>. Now (1901) one of the Law Lords sitting in the House of Lords.</p> +</div> +<div class='footnote' id='f243'> +<p class='c001'><a href='#r243'>243</a>. Although it is the custom of placing a youth (untrained in theory) in an +attorney’s office to learn practice which Blackstone is here condemning, the +spirit of his concluding remarks is almost equally applicable to the present +usage of entering a conveyancer’s or pleader’s chambers before one has +gained any systematic knowledge (or indeed any knowledge whatever) of +the law.</p> +</div> +<div class='footnote' id='f244'> +<p class='c001'><a href='#r244'>244</a>. Sir H. S. Maine.</p> +</div> +<div class='footnote' id='f245'> +<p class='c001'><a href='#r245'>245</a>. <span lang="de"><cite>Vom Beruf unserer Zeit für die Gesetzgebung und Rechtswissenschaft</cite></span>, c. 4.</p> +</div> +<div class='footnote' id='f246'> +<p class='c001'><a href='#r246'>246</a>. Cases decided in the United States are more frequently cited in English +Courts now (1901) than they were in 1871.</p> +</div> +<div class='footnote' id='f247'> +<p class='c001'><a href='#r247'>247</a>. The reference was to the war, just ending when this lecture was +delivered, between Germany and France.</p> +</div> +<div class='footnote' id='f248'> +<p class='c001'><a href='#r248'>248</a>. This Act caused so much trouble that it had to be amended and the law +recast by the Married Women’s Property Act of 1876.</p> +</div> +<div class='footnote' id='f249'> +<p class='c001'><a href='#r249'>249</a>. A marked improvement has, however, taken place since the establishment +of the office of the Parliamentary Counsel a few years ago. Many Bills, +however, including all those brought in by private members, do not pass +through this office, and even those which come from it suffer in point of form +in their passage through Parliament. Since 1871, much has been done in +the way of consolidating the Statute law. See Essay <a href='#eXIV'>XIV</a>, <span lang="la"><i>ante</i></span>.</p> +</div> +<div class='footnote' id='f250'> +<p class='c001'><a href='#r250'>250</a>. The reference was to the scandals which had recently arisen in some of +the State Courts in the United States. These have now (1901) been almost +entirely removed.</p> +</div> +<div class='footnote' id='f251'> +<p class='c001'><a href='#r251'>251</a>. Preface to vol. iii. of the <span lang="de"><cite>System des heutigen römischen Rechts</cite></span>.</p> +</div> +<div class='footnote' id='f252'> +<p class='c001'><a href='#r252'>252</a>. Delivered on resigning the Regius Professorship of Civil Law at Oxford, +June 10, 1893.</p> +</div> +<div class='footnote' id='f253'> +<p class='c001'><a href='#r253'>253</a>. A very few names occur to me of persons who have so written or +taught, but I abstain from mentioning these lest I should omit others.</p> +</div> +<div class='footnote' id='f254'> +<p class='c001'><a href='#r254'>254</a>. Dr. John Matthias Wilson, formerly Professor of Moral Philosophy.</p> +</div> +<div class='footnote' id='f255'> +<p class='c001'><a href='#r255'>255</a>. Formerly Corpus Professor of Jurisprudence.</p> +</div> +<div class='footnote' id='f256'> +<p class='c001'><a href='#r256'>256</a>. Formerly Professor of Moral Philosophy.</p> +</div> +<div class='footnote' id='f257'> +<p class='c001'><a href='#r257'>257</a>. Formerly Rector of Lincoln College.</p> +</div> +<div class='footnote' id='f258'> +<p class='c001'><a href='#r258'>258</a>. Formerly Regius Professor of Modern History.</p> +</div> +<div class='footnote' id='f259'> +<p class='c001'><a href='#r259'>259</a>. Formerly Regius Professor of Ecclesiastical History, afterwards Dean +of Westminster.</p> +</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> +<p class='c001'><a id='endnote'></a></p> +<div class='tnotes'> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div><span class='large'>Transcriber’s Note</span></div> + </div> +</div> + +<p class='c001'>Lapses in punctuation in the Index have been addressed with no further notice +here.</p> + +<p class='c001'>Any references in the footnotes to other notes have been changed to +reference the re-sequenced note numbers.</p> + +<p class='c001'>The reference at <a id='c_85.19'></a><a href='#corr85.19'>85.19</a> to Romans 8.1, regarding the +basis of civil law in the Law of God, should be more +plausibly made to Romans 13.1.</p> + +<p class='c001'>Other errors deemed most likely to be the printer’s have been corrected, and +are noted here. The references are to the page and line in the original.</p> + +<table class='table1'> +<colgroup> +<col class='colwidth12'> +<col class='colwidth69'> +<col class='colwidth18'> +</colgroup> + <tr> + <td class='c025'><a id='c_13.2'></a><a href='#corr13.2'>13.2</a></td> + <td class='c025'>should be supported [r]ather than</td> + <td class='c026'>Added.</td> + </tr> + <tr> + <td class='c025'><a id='c_54.32'></a><a href='#corr54.32'>54.32</a></td> + <td class='c025'>interrupted, or rather overrid[d]en,</td> + <td class='c026'>Inserted.</td> + </tr> + <tr> + <td class='c025'><a id='c_232.31'></a><a href='#corr232.31'>232.31</a></td> + <td class='c025'>during the great age in Bagdad[,] in Spain</td> + <td class='c026'>Added.</td> + </tr> + <tr> + <td class='c025'><a id='c_276.32'></a><a href='#corr276.32'>276.32</a></td> + <td class='c025'>Ascon. <i>in Cic. Pro Cornelio</i>, 58.[)]</td> + <td class='c026'>Added.</td> + </tr> + <tr> + <td class='c025'><a id='c_339.6'></a><a href='#corr339.6'>339.6</a></td> + <td class='c025'>except,[ ]perhaps,</td> + <td class='c026'>Added.</td> + </tr> + <tr> + <td class='c025'><a id='c_376.19'></a><a href='#corr376.19'>376.19</a></td> + <td class='c025'>imper[ /i]al cities,</td> + <td class='c026'>Restored.</td> + </tr> + <tr> + <td class='c025'><a id='c_401.12'></a><a href='#corr401.12'>401.12</a></td> + <td class='c025'>no liability is incurred[.]</td> + <td class='c026'>Added.</td> + </tr> + <tr> + <td class='c025'><a id='c_439.14'></a><a href='#corr439.14'>439.14</a></td> + <td class='c025'>A statute of that year,[ ]amended</td> + <td class='c026'>Added.</td> + </tr> +</table> + +</div> + +<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 78301 ***</div> + </body> + <!-- created with ppgen.py 3.57e on 2026-03-26 14:01:07 GMT --> +</html> diff --git a/78301-h/images/cover.jpg b/78301-h/images/cover.jpg Binary files differnew file mode 100644 index 0000000..ab5cdfa --- /dev/null +++ b/78301-h/images/cover.jpg |
