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+*** START OF THE PROJECT GUTENBERG EBOOK 78301 ***
+
+------------------------------------------------------------------------
+
+ Transcriber’s Note:
+
+This version of the text cannot represent certain typographical effects.
+Italics are delimited with the ‘_’ character as _italic_.
+
+Footnotes have been re-sequenced for uniqueness and have been moved to
+follow the paragraphs in which they are referenced.
+
+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.
+
+Minor errors, attributable to the printer, have been corrected. Please
+see the transcriber’s note at the end of this text for details regarding
+the handling of any textual issues encountered during its preparation.
+
+ STUDIES
+
+ IN
+
+ HISTORY AND JURISPRUDENCE
+
+
+
+
+ HENRY FROWDE, M.A.
+ PUBLISHER TO THE UNIVERSITY OF OXFORD
+ LONDON, EDINBURGH
+ NEW YORK
+
+
+
+
+ STUDIES
+ IN HISTORY AND
+ JURISPRUDENCE
+
+ BY
+
+ JAMES BRYCE, D.C.L.
+
+ AUTHOR OF
+ ‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC.
+ FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY
+ OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY
+ COLLEGES, CORRESPONDING MEMBER OF THE
+ INSTITUTE OF FRANCE
+
+
+
+
+ IN TWO VOLUMES
+
+ VOLUME II
+
+
+
+
+
+ OXFORD
+ AT THE CLARENDON PRESS
+ 1901
+
+ OXFORD
+
+ PRINTED AT THE CLARENDON PRESS
+
+ BY HORACE HART, M.A.
+ PRINTER TO THE UNIVERSITY
+
+
+
+
+ CONTENTS
+
+ _VOLUME I_
+
+
+ ESSAY I
+
+
+ PAGE
+
+ _THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA_ 1–84
+
+ Conquest or Absorption by modern European nations of the less 1
+ advanced races
+
+ Creation by this process of a sort of unity of mankind 2
+
+ Earlier effort of Rome to unify mankind 3
+
+ Part borne by England in the work of ruling and civilizing new 4
+ territories
+
+ The Colonies of England: the British Empire in India 4
+
+ Position of Rome and England respectively in their Empires 8
+
+ Origin of the British Indian compared with that of the Roman 8
+ Empire
+
+ Conditions favouring Roman and British Indian conquest 10
+
+ Military character of Roman and British rule 13
+
+ What the Roman and the English conquerors have owed to natural 14
+ frontiers
+
+ Strength of the Roman and British armies 17
+
+ Efforts to find a scientific frontier 19
+
+ The Romans and English as Road and Railway Builders 21
+
+ Success of both in maintaining internal order and security 23
+
+ Character of Roman and British administration 26
+
+ Despotic system: measure of self-government left to the subjects 30
+
+ Variations in provincial administration in Roman Empire and 35
+ India
+
+ Revenue and taxation of the two Empires 37
+
+ Employment of native subjects in civil and military posts 42
+
+ Civil rights of conquerors and of subjects 46
+
+ Respect shown to native religions and customs: contrast of 51
+ religious feeling in ancient and in modern world
+
+ Character of the conquerors as a source of their strength 58
+
+ Contrasts between the two Empires: geographical position of the 61
+ ruling race
+
+ Fusion of Romans and provincials: no similar fusion of English 62
+ and Indians
+
+ Influence of Climate, of Colour, of Religion 63
+
+ Languages and literature in Roman Empire and in India 70
+
+ Influences which favoured fusion in Roman Empire absent from 74
+ India
+
+ Retroactive influences of the provinces on Rome and of India on 76
+ Britain
+
+ What the experience of the English in India has proved 79
+
+ Causes which overthrew the Roman Empire 80
+
+ Probable future of British power in India 82
+
+
+ ESSAY II
+
+
+ THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD 85-144
+
+ Geographical areas now covered by Roman and by English Law 85
+
+ Extension of Roman Law by conquest 88
+
+ Methods of Legal Administration in the provinces 91
+
+ Gradual assimilation of Roman and Provincial Law 97
+
+ Establishment of one law for the Roman Empire 99
+
+ How the Romans were able to create an imperial law 103
+
+ Spread of Roman Law after the fall of the Western Empire 105
+
+ Diffusion of English Law over regions settled or conquered 110
+
+ Legal systems which the English found in India 113
+
+ Policy followed by the English in dealing with Indian Law 117
+
+ Codification in India 121
+
+ Reciprocal action of English and Native Law on one another 124
+
+ Merits and working of the Anglo-Indian Codes 127
+
+ Roman Law in the Empire compared with English Law in India 133
+
+ Probable future of English Law in India 138
+
+ English and Roman Law over the world 142
+
+
+ ESSAY III
+
+
+ FLEXIBLE AND RIGID CONSTITUTIONS 145-254
+
+ Observations on the Constitutions of Rome and England 145
+
+ Old Classification of Constitutions as Written and Unwritten 148
+
+ Proposed new classification 150
+
+ Flexible Constitutions: how far distinguishable from laws in 154
+ general
+
+ Origin of Flexible Constitutions 159
+
+ Strength and weakness of Flexible Constitutions 163
+
+ Such Constitutions are rather elastic than unstable 168
+
+ Illustrations from the Constitutions of Rome and England 169
+
+ Dangers possibly inherent in Flexible Constitutions 175
+
+ Flexible Constitutions suited to aristocratic governments 178
+
+ Checks applied in Rome and in England 181
+
+ Influence of Constitutions on the mind of a nation 185
+
+ Illustrations from Rome and England 189
+
+ Capacity of Constitutions for Territorial Expansion 193
+
+ Enumeration of existing Rigid Constitutions 196
+
+ Circumstances under which Rigid Constitutions arise 200
+
+ Enactment and amendment of Rigid Constitutions 205
+
+ Various modes now in use for amending them 210
+
+ How far can Rigid Constitutions be definite or complete? 217
+
+ Stability of Rigid Constitutions 221
+
+ The interpretation of Rigid Constitutions 228
+
+ Contrast of Anglo-American doctrines with those of the European 230
+ Continent
+
+ American views as to Interpretation 232
+
+ Suitability of Rigid Constitutions to Democracies 234
+
+ Recent changes of opinion in the United States and England 239
+
+ Probable future of the two types of Constitution 242
+
+ Proposals for federalizing the British Constitution 245
+
+ Possible creation of new States and Constitutions 249
+
+
+ ESSAY IV
+
+
+ THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL 255-311
+ CONSTITUTIONS
+
+ The influence of aggregative and disjunctive forces on political 255
+ societies
+
+ Tendencies which may act either Centripetally or Centrifugally 261
+
+ Influences of Interest and Sympathy 263
+
+ Illustrations of the action of Racial and Religious sentiment 265
+
+ In the progress of civilization, material interest and sentiment 269
+ may be opposed
+
+ How Constitutions may use the existing Centripetal and 271
+ Centrifugal forces
+
+ Illustrations from Commerce, Law and Religion 274
+
+ Instances of the troubles caused by Racial or Religious 281
+ sentiment
+
+ Methods by which Constitutions may disarm or regulate the 286
+ centrifugal forces: illustrations
+
+ Difficulties due to differences of colour in races 291
+
+ How the Constitutions of the United States and Switzerland have 296
+ acted
+
+ The Centripetal force generally, but not always, dominant in 300
+ European history
+
+ Effects of Conquest and of Dynastic Succession 303
+
+ Probable future strength of the centrifugal and centripetal 307
+ forces respectively
+
+ Present tendency to the enlargement or consolidation of States 309
+ is not necessarily permanent
+
+
+ ESSAY V
+
+
+ PRIMITIVE ICELAND 312-358
+
+ Discovery and Settlement of Iceland 312
+
+ Beginnings of a Polity: the Thing 316
+
+ Rise of the Goði or Priest-Chieftain 317
+
+ The first political constitution of the island 322
+
+ Judicial organization and powers of the Althing 325
+
+ The Speaker of the Law 327
+
+ Thingvellir and the meetings of the Althing 327
+
+ General character of the Icelandic Republic 333
+
+ Growth and character of the law of Iceland 335
+
+ Complexity of the constitution and the law 337
+
+ Sources of our knowledge of the law 341
+
+ Illustrations of features of the early law 343
+
+ An action for the ejectment of ghosts 345
+
+ The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga 348
+ the Fair
+
+ The introduction of Christianity 350
+
+ Reflections on the early history of Iceland 353
+
+ Fall of the Republic: subsequent fortunes of the isle 356
+
+
+ ESSAY VI
+
+
+ THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST 359-429
+
+ Value of contemporary views of an institution 359
+
+ The _Federalist_: Alex Hamilton and James Madison 360
+
+ The United States in A.D. 1788 361
+
+ Predictions of the opponents of the New Constitution 366
+
+ Views of its supporters: dangers feared by them 369
+
+ Examination of the predictions of 1788 374
+
+ Characteristic merits and defects of American Democracy only 378
+ slightly foreseen
+
+ The _Democracy in America_ of Alexis de Tocqueville 381
+
+ Merits and flaws in Tocqueville’s study of the United States 382
+
+ His insufficient knowledge of England 385
+
+ His preoccupation with France 387
+
+ The deficiencies observable in his book scarcely affect its 390
+ present value
+
+ Condition of the United States in Tocqueville’s day 392
+
+ His description of the salient features of the nation 397
+
+ Advantages which he conceives Democracy to have secured 403
+
+ Evils he discovers in American Democracy 404
+
+ Causes which in his view maintain Republican government 406
+
+ His forecasts: the negroes: weakness of the Federal Union 408
+
+ Points omitted in his description 413
+
+ Chief events in the United States since Tocqueville’s time 415
+
+ Chief political changes of the last sixty-seven years 417
+
+ Examination of Tocqueville’s predictions 418
+
+ Summary of Tocqueville’s conclusions 425
+
+ General course of events in America since 1788 427
+
+ What Tocqueville would say to-day 428
+
+
+ ESSAY VII
+
+
+ TWO SOUTH AFRICAN CONSTITUTIONS 430-467
+
+ Originality of the Constitutions of the two Dutch Republics 430
+
+ Circumstances under which they arose 432
+
+ Constitution of the Orange Free State 436
+
+ Constitution of the South African Republic (Transvaal) 441
+
+ Observations on the Constitution of the South African Republic 448
+
+ Is it a Rigid or a Flexible Constitution? 449
+
+ Controversy as to the so-called ‘testing power’ 452
+
+ The Constitution is certainly a Flexible one 453
+
+ Observations upon both these Constitutions 455
+
+ Comparison of these Constitutions with that of Britain and that 458
+ of the United States
+
+ Relations of Executive and Legislature in these Dutch Republics 460
+
+ Practical Working of the Constitution of the Orange Free State 463
+
+ Working of the Constitution of the South African Republic 464
+
+ Postscript 466
+
+
+ ESSAY VIII
+
+
+ THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553
+
+ Interest attaching to the new Constitution of Australia 468
+
+ Origin and progress of the movement for federalizing Australia 471
+
+ Causes which induced Federation 477
+
+ Influence of a Pan-Australian sentiment 480
+
+ Physical and racial conditions favouring Federation 483
+
+ Comparison with the conditions of the United States and of 487
+ Canada
+
+ Two leading types of Federal Government 489
+
+ Distribution of powers between the Nation and the States in the 491
+ Australian Constitution
+
+ Position of the Australian States under the Constitution 494
+
+ Differences from the Federal systems of the United States and of 498
+ Canada
+
+ The National Government: few restrictions on its powers 501
+
+ The Legislature: Representation of the States in the Senate 503
+
+ The House of Representatives 506
+
+ The Executive and the Judiciary 508
+
+ Question as to Constitutional Appeals: the British Government 509
+ yield to Australian sentiment
+
+ Intended working of the scheme of Government: The Cabinet 513
+
+ Provision against legislative deadlocks 516
+
+ Relations of the Two Houses 518
+
+ Financial provisions: railways and rivers 521
+
+ Location of the national capital: admission of New States 522
+
+ Mode of amending the Constitution 523
+
+ Relations of the Australian Commonwealth to the British Crown 525
+
+ General comparison of the Australian Constitution with that of 527
+ the United States
+
+ Comparison with that of the Dominion of Canada 528
+
+ Further observations on the Constitution 531
+
+ It is less strictly Federal and more National than that of the 532
+ United States
+
+ Its highly democratic character 535
+
+ It contemplates a party system 539
+
+ Difficulties which may arise from the existence of a third party 540
+
+ What political issues are likely to arise in Australia? 542
+
+ Probable prominence of Economic questions 545
+
+ Possible creation and admission of New States 547
+
+ Will New Zealand enter the Federation? 548
+
+ Tendencies to consolidation maybe strengthened by disputes with 550
+ foreign powers
+
+ Future relations of Australia to Britain 551
+
+
+ _VOLUME II_
+
+
+ ESSAY IX
+
+
+ OBEDIENCE 1-48
+
+ Different Theories of the Nature of Political Obedience 1
+
+ The grounds of compliance in general: Indolence 6
+
+ Deference and Sympathy 9
+
+ Reason and Fear 12
+
+ Respective strength of these springs of Obedience 14
+
+ Will as a political force: Illustrations from the East 15
+
+ Formation of the habit of Obedience in the individual 19
+
+ Influences forming Obedience in early societies 21
+
+ Slight interest of men in liberty for its own sake 24
+
+ Is the tendency to obey likely to decrease? 26
+
+ Influences apparently making for subordination 28
+
+ What may be hoped for the future of democratic government 31
+
+ How a pessimist might view existing conditions 33
+
+ Conclusion: The disposition to obey will be permanent 41
+
+ Note on the application to the definitions of Jurisprudence of a 44
+ theory of Obedience
+
+
+ ESSAY X
+
+
+ THE NATURE OF SOVEREIGNTY 49-111
+
+ Confusions regarding the term Sovereignty 49
+
+ Sovereignty _de iure_ and _de facto_ must be distinguished 51
+
+ Sovereignty _de iure_ exists in the sphere of law only, and is 56
+ not concerned with obedience
+
+ Sovereignty _de facto_: concrete instances 59
+
+ Relations of Sovereignty _de iure_ to that _de facto_ 64
+
+ Action and reaction of each on the other 68
+
+ The Roman doctrine of Sovereignty: the people are the source of 73
+ political power
+
+ Mediaeval views of Sovereignty: Emperor and Pope 79
+
+ New theories of the sixteenth and seventeenth centuries 82
+
+ Bodin, Althaus, Hobbes 84
+
+ Relation of Hobbes’ system to the events of his time 86
+
+ Bentham revives Hobbes’ doctrine 88
+
+ Views of John Austin: illustrations of their unsoundness 89
+
+ Confusion of various questions regarding Sovereignty which are 94
+ really distinct
+
+ Rights in the moral sphere of Sovereignty _de iure_ and 98
+ Sovereignty _de facto_
+
+ Sovereignty in International Relations 101
+
+ Sovereignty in a Federation 104
+
+ Conclusion: Theoretical Controversies regarding Sovereignty have 108
+ mostly had their origin in current politics
+
+
+ ESSAY XI
+
+
+ THE LAW OF NATURE 112-171
+
+ Origin of the notion of Nature as a ruling force 112
+
+ It is different from modern conception of the Laws of Nature 117
+
+ Nature as a force in human society 120
+
+ The term ‘Natural’ as applied to Customs and Laws 122
+
+ St. Paul and the Greek philosophers on Natural Law 124
+
+ The Roman Law of the Nations (_Ius Gentium_) 128
+
+ How the ‘common law of the nations’ was formed 131
+
+ Cicero on the Law of the Nations and Law of Nature 135
+
+ Growth of the idea of Natural Law among the jurists 138
+
+ Practical identification of _Ius Gentium_ and _Ius Naturae_ 142
+
+ Points of difference which remained: Slavery 144
+
+ Extension of Roman citizenship removes the need for a _Ius 147
+ Gentium_
+
+ Senses in which the jurists use the term ‘Nature’ 148
+
+ Value and practical influence of the notion of Natural Law 151
+
+ The Law of Nature and Law of God in the Middle Ages 157
+
+ The Law of Nature in Modern Times 161
+
+ Its relation to the Law of England 164
+
+ Its influence on the rise of International Law 167
+
+ ‘Natural Law’ as meaning a Philosophy of Law 169
+
+ Conclusion: Comparative quiescence of the idea in recent times 170
+
+
+ ESSAY XII
+
+
+ THE METHODS OF LEGAL SCIENCE 172-208
+
+ No Philosophy of Law among the Roman Jurists; is such a 172
+ Philosophy necessary or serviceable?
+
+ Four Methods employed in Legal Science 174
+
+ The Metaphysical Method: German _Naturrecht_ 174
+
+ The Analytic Method: the Benthamites 178
+
+ Errors in John Austin’s use of it 180
+
+ The Historical Method 184
+
+ The Comparative Method 186
+
+ Value of these four Methods respectively 190
+
+ How they may best be applied to Legal Study 193
+
+ Did the Romans suffer from having no general Philosophy of Law? 197
+
+ Merits observable in the Roman Jurists: comparison of their 199
+ treatises with those of English lawyers
+
+ Summary: The Roman Jurists are philosophical in spirit and in 207
+ their practical handling of law
+
+
+ ESSAY XIII
+
+
+ THE RELATIONS OF LAW AND RELIGION 209-246
+
+ Apparent Antagonism of Law and Religion 209
+
+ Close connexion of Law and Religion in early states of Society 211
+
+ Differences in this respect between different peoples 215
+
+ The Jews in Roman times: primitive Christianity 216
+
+ Islam; identification of Law with Religion 218
+
+ Illustrations from a Musulman University: the Mosque El Azhar at 219
+ Cairo
+
+ Description of El Azhar and its Teaching 220
+
+ Course of Instruction: Graduation: Endowments 225
+
+ Resemblances of El Azhar to the European Universities of the 229
+ Middle Ages
+
+ Causes of the arrested development of Musulman Universities 233
+
+ Nature and consequences of the Musulman identification of Law 234
+ and Religion
+
+ Identity of State and Church under Islam 240
+
+ How Christianity avoided a similar identification 242
+
+
+ ESSAY XIV
+
+
+ METHODS OF LAW-MAKING IN ROME AND IN ENGLAND 247-338
+
+ Relations of the History of Law to the Constitutional or 247
+ Political History of a Country
+
+ Law-making Authorities in general 249
+
+ Three main sources of Law: the Ruling Authority, the Magistrate, 253
+ and the Legal Profession
+
+ The Jurists as makers of Law in earlier times 255
+
+ Changed position of the Jurists under the Empire 257
+
+ Differences between the action of Roman and English Jurists 261
+
+ Roman Treatises compared with English Reports 266
+
+ Magistrates and Judges: in what sense Law-makers 269
+
+ The Praetor at Rome 273
+
+ Nature and Working of the Praetor’s Edict 275
+
+ The English Chancellor 278
+
+ Praetorian Edicts compared with English Case-Law 281
+
+ Further observations on Praetorian methods 287
+
+ Strong and weak points in the English Case-System 289
+
+ Direct Legislation at Rome: its Organs 293
+
+ The Popular Assembly: its method of legislating 297
+
+ Merits of the Roman Statutes 300
+
+ Legislation by the Senate: its characteristics 303
+
+ Direct legislation by the Emperor 308
+
+ Vast powers of the Emperor: his Privy Council 313
+
+ Defects in Imperial legislation 315
+
+ Profusion and inferiority of legislation under the later 318
+ Emperors
+
+ Direct legislation in England: its history 321
+
+ Advantages of Parliament and Congress for legislation 323
+
+ Strictures commonly passed on English and Amercan Statutes 325
+
+ Difficulties incident to Parliamentary legislation 327
+
+ Reflections suggested by the history of English compared with 332
+ that of Roman legislation
+
+ Some branches of law better fitted than others to be handled by 333
+ direct legislation
+
+
+ ESSAY XV
+
+
+ THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND 339-380
+
+ Roman and English Law have both been developed in a 339
+ comparatively independent way
+
+ Conspicuous epochs of legal change at Rome and in England 341
+
+ Forces and influences chiefly active in determining legal 344
+ changes
+
+ Roman Legal History during the republican period 345
+
+ Effect on the law of the establishment of the imperial autocracy 350
+
+ Rise of Christianity: dissolution of the Empire in the West 352
+
+ The decline in legal learning induced Codification 354
+
+ Political events and External Influences are the chief sources 357
+ of changes in Roman Law
+
+ Causes of legal change operative in England: the periods of 358
+ Henry II and Edward I
+
+ The Reformation and the Civil War 361
+
+ The Reform Act of 1832 and the Victorian Epoch 364
+
+ The Law of Family and Inheritance at Rome and the Law of Land in 367
+ England
+
+ Effects of Territorial Expansion on Roman and on English Law 369
+
+ Economic influences more generally potent in England: political 371
+ in Rome
+
+ Observations on France and Germany 375
+
+ Private law is the branch least affected by political changes 377
+
+ Legal topics in which further advances may be looked for 379
+
+
+ ESSAY XVI
+
+
+ MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH LAW 381-474
+
+ Diversity of the Law of Marriage in different countries 381
+
+ Features generally characteristic of the institution in the 383
+ ancient Mediterranean World
+
+ Early Marriage law of the Romans 386
+
+ Subordination of the Wife: the ‘Hand Power’ (_Manus_) 387
+
+ Transition to a freer system 389
+
+ Later Marriage Law: nature of the personal relation it creates 392
+
+ Relation of the Consorts as respects Property 395
+
+ General character of the Roman Conception of Marriage: its 400
+ freedom
+
+ Roman doctrine and practice regarding Divorce 402
+
+ Influence of Christianity on Imperial Legislation 406
+
+ Other Roman rules: prohibited degrees: _Concubinatus_ 409
+
+ Marriage under the Canon Law 416
+
+ The English Law: jurisdiction of the Spiritual Courts 420
+
+ Relations of the Consorts as respects Property under English Law 424
+
+ Amendment of English Matrimonial Law by courts of Equity and by 427
+ Legislation
+
+ Personal Liberty of the Wife now well established 430
+
+ English law has wavered between different theories of the 431
+ relation
+
+ Divorce under the Canon Law 433
+
+ History of Divorce in England 436
+
+ Divorce Laws in the United States 439
+
+ Laxity of Procedure in Divorce Cases 441
+
+ Statistics of Divorce in the United States: causes for which it 443
+ is granted
+
+ Illustrations from the ‘Western Reserve’ counties of Ohio 446
+
+ Divorce in modern European countries 450
+
+ Comparison of the phenomena of Divorce in the Roman and in the 453
+ Modern World
+
+ Causes now tending to weaken the permanence of the Marriage Tie 457
+
+ Does the growth of Divorce betoken a moral decline? 461
+
+ Influence of the Church and of the Law 464
+
+ Does the English Divorce Law need amendment? 465
+
+ Changes in Theory and in Sentiment regarding Marriage 469
+
+ INAUGURAL LECTURE 475
+
+ VALEDICTORY LECTURE 504
+
+ INDEX 527
+
+
+
+
+ IX
+
+ OBEDIENCE
+
+
+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?
+
+
+ I. THEORIES REGARDING POLITICAL OBEDIENCE.
+
+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.
+
+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 _Republic_, where the Sophist says that Justice is
+nothing but the advantage of the stronger; and 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.
+
+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 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.
+
+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 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 the actual working strength of its
+machinery; and they discover this in the fact that physical force is the
+_ultima ratio_ 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[1]—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.
+
+-----
+
+Footnote 1:
+
+ See as to the doctrine of Hobbes, the Essay on Sovereignty which
+ follows this Essay.
+
+-----
+
+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 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?
+
+
+ II. THE GROUNDS OF OBEDIENCE IN GENERAL.
+
+Political obedience is not a thing by itself, but a form of what may be
+called Compliance in general.
+
+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.
+
+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 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 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.
+
+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
+ourselves quite as wise as he is. But he is clear and positive, we are
+lazy or wavering; and therefore we follow him.
+
+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
+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.
+
+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 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.
+
+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 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.
+
+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 that it should be just, that an existing authority should be
+supported rather 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.
+
+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.
+
+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 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.
+
+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 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.
+
+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 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.
+
+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
+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[2]. 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,
+that the adventurer of genius and volition has a chance of rivalling the
+heroes of the East.
+
+-----
+
+Footnote 2:
+
+ 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.
+
+-----
+
+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.
+
+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 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.
+
+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; 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.
+
+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 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.
+
+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
+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 A.D. 638 onwards were kings _de
+facto_. 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.
+
+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 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 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.
+
+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 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.
+
+In A.D. 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 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.
+
+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.
+
+Two questions arising out of the view that has been here presented
+regarding the main sources of Obedience remain to be considered.
+
+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.
+
+
+ III. THE FUTURE OF POLITICAL OBEDIENCE.
+
+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 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?
+
+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 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
+_plus_ 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
+_laissez-faire_. 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.
+
+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 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 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.
+
+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.
+
+Whether we examine the moral constitution of man 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.
+
+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 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.
+
+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.
+
+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
+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.
+
+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 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.
+
+Are the omens in this quarter of the heavens so favourable as we are apt
+to assume?
+
+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 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.
+
+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.
+
+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.
+
+The doctrines of _Laissez-Faire_ 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?’
+
+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 cannot, from the nature of the case, effectively
+exert[3]. Thus there is, instead of more independence, always more and
+more obedience.
+
+-----
+
+Footnote 3:
+
+ 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.
+
+-----
+
+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.
+
+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 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.
+
+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.
+
+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 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.
+
+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? 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.
+
+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 that the majority is
+irresistible[4], 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.
+
+-----
+
+Footnote 4:
+
+ Some remarks upon this feature of the United States may be found in
+ the author’s _American Commonwealth_, vol. ii. chap. lxxxv, ‘The
+ Fatalism of the Multitude.’
+
+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 the pride of
+personal independence, have filled the void which the less frequent
+appeal to physical force has left.
+
+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.
+
+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
+_Constitutional History of England_ (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.
+
+
+ NOTE TO THE ABOVE ESSAY
+
+ON THE APPLICATION OF THE THEORY OF OBEDIENCE TO THE FUNDAMENTAL
+ DEFINITIONS OF JURISPRUDENCE.
+
+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.
+
+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 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.
+
+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, 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.
+
+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 Benthamite definition goes
+further, and may be misleading even as regards modern laws generally.
+
+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 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.
+
+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.
+
+
+
+
+ X
+
+ THE NATURE OF SOVEREIGNTY
+
+
+ I. PRELIMINARY.
+
+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.
+
+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.
+
+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[5],
+and familiar usage applies it in monarchies to the monarch, because he
+stands first in the State, be his real power great or small.
+
+-----
+
+Footnote 5:
+
+ 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.
+
+-----
+
+
+ II. LEGAL SOVEREIGNTY (_De Iure_).
+
+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
+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.
+
+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.
+
+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, 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.
+
+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.
+
+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; 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 overridden, by the action of a power not
+regularly at 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.
+
+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.e._ 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 (_e.g._ 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.
+
+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 legal control from being
+duly vested in a person or body of persons for a term which he, or they,
+cannot extend.
+
+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 _in vacuo_, 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 (_de iure_) has not
+necessarily anything to do with the Sovereign who prevails in fact (_de
+facto_), though, as we shall see presently, the two conceptions, however
+distinct scientifically, exercise a significant influence each on the
+other.
+
+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.
+
+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[6]. 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 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.
+
+-----
+
+Footnote 6:
+
+ 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.
+
+-----
+
+
+ III. PRACTICAL SOVEREIGNTY (_De Facto_).
+
+We may now turn back to the more popular meaning in which the term
+Sovereignty is used by others than lawyers[7]. 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 prevail whether with the law or against the
+law. He (or they) is the _de facto_ ruler, the person to whom obedience
+is actually paid.
+
+-----
+
+Footnote 7:
+
+ 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.
+
+-----
+
+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.
+
+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 _de facto_ 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 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 _de iure_ 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 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[8].
+
+-----
+
+Footnote 8:
+
+ During part of Lewis the Fifteenth’s reign Madame Du Barry might
+ almost have been, and probably was, described as sovereign _de facto_
+ of France.
+
+-----
+
+The Musulman world furnishes two instances which deserve a passing word.
+The Mogul Emperors after Aurungzebe continued to be sovereigns _de iure_
+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 _de facto_. Since the time of Sultan Selim the First (A.D.
+1516) the Turkish Sultans have been (in large measure) Khalifs _de
+facto_. They claim to be Khalifs _de iure_, 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 _de facto_ makes no
+difference. Possibly therefore the Shereef of Mecca may be better
+entitled to call himself the Khalif _de iure_, entitled to the obedience
+of all the Faithful.
+
+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 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.
+
+We have, however, found in every political community two kinds of
+Sovereign, belonging to two different spheres of thought, the Sovereign
+_de iure_ and the Sovereign _de facto_. Let us see what are the
+relations of the two conceptions, or the two concrete persons, each to
+the other.
+
+
+ IV. THE RELATIONS OF LEGAL TO PRACTICAL SOVEREIGNTY.
+
+The Sovereign _de iure_ may also be the sovereign _de facto_. 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 _de facto_
+is disjoined from Sovereignty _de iure_, 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.
+
+Sovereignty _de iure_ and Sovereignty _de facto_ have a double tendency
+to coalesce; and it is this tendency which has made them so often
+confounded.
+
+Sovereignty _de facto_, when it has lasted for a certain time and shown
+itself stable, ripens into Sovereignty _de iure_. 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 _de facto_ ruler become ultimately
+valid laws, and make him a _de iure_ 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 _de facto_ power, if it
+can maintain itself long enough, will end by being _de iure_. 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 _de facto_ ruler as legitimate. They
+take any pretext for giving him a _de iure_ title if they can, for it
+makes their subjection more agreeable and may impose some restraint upon
+him.
+
+Sovereignty _de iure_ in its turn tends to attract to itself sovereignty
+_de facto_, or, in other words, the possession of legal right tends to
+make the legal sovereign actually powerful. Hence a ruler _de facto_ is
+always anxious to get some sort of _de iure_ 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 _de iure_ sovereign than to foretell
+who will prove to be sovereign _de facto_; and whereas the _de iure_
+sovereign is certain, if victorious, to punish as rebels those who have
+opposed him, the _de facto_ 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 _de facto_ king[9]. 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 _de iure_ sovereigns, so often
+fail.
+
+-----
+
+Footnote 9:
+
+ 11 Henry VII, cap. 1.
+
+-----
+
+Similarly it happens that where sovereignty _de iure_ 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 _de facto_; 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.
+
+When a sovereign has been long and quietly established _de iure_, 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 _de facto_ sovereignty is frequently in
+dispute, as happened in the Roman Empire during part of the third
+century A.D., and happens now in some of the so-called republics of
+Central and South America, the _de iure_ sovereign virtually disappears,
+and nothing but the actual strength of each _de facto_ sovereign, or
+pretender to sovereignty, is regarded. Some of these republics are so
+much accustomed to the suspension of _de iure_ government by _de facto_
+disturbance, that they provide that when a rebellion is over the
+previously enacted constitution shall be deemed not to have lost its
+force[10]. 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 _de iure_,
+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 _de facto_ sovereign, often
+with no legal right to the obedience of the subject, but Caesar Augustus
+remained 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 _de iure_ 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 _de iure_, though the Restoration Parliament
+treated it as having been (on the whole) _de facto_. In most Central or
+South American republics, on the other hand, as among the Italian
+republics of the fourteenth century, the interferences of the _de facto_
+sovereign with the course of law and administration are so numerous that
+the very notion of _de iure_ government loses its practical efficacy,
+and people simply submit to force, praising the ruler who least abuses
+his despotic power.
+
+-----
+
+Footnote 10:
+
+ 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, _Établissement et Révision des Constitutions_, p. 236.
+
+-----
+
+The action and reaction of power _de iure_ and _de facto_ 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 _de iure_ needle or the frequent
+quiverings of the _de facto_ needle indicate the stability or
+instability of the institutions of a country. One may express the
+relations of the two somewhat as follows:—
+
+ When Sovereignty _de iure_ attains its maximum of quiescence,
+ Sovereignty _de facto_ is usually also steady, and is, so to speak,
+ hidden behind it.
+
+ When Sovereignty _de iure_ is uncertain, Sovereignty _de facto_ tends
+ to be disturbed.
+
+ When Sovereignty _de facto_ is stable, Sovereignty _de iure_, though
+ it may have been lost for a time, reappears, and ultimately becomes
+ stable.
+
+ When Sovereignty _de facto_ is disturbed, Sovereignty _de iure_ is
+ threatened.
+
+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.
+
+Let us try to sum up the propositions to which the foregoing inquiry has
+led us:—
+
+The term Sovereignty is used in two senses, Legal Supremacy and
+Practical Mastery.
+
+ Legal Sovereignty exists in the sphere of Law: it belongs to him who
+ can demand obedience as of Right.
+
+ Practical Sovereignty exists in the sphere of Fact: it is the power
+ which receives and can by the strong arm enforce obedience.
+
+ 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.
+
+ 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.
+
+ 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.
+
+ Legal Sovereignty is Divisible: _i.e._ 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.
+
+ 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 _de facto_ or also _de iure_. There might of 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.
+
+ Legal Sovereignty may be Limited, _i.e._ 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.
+
+ 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.
+
+Although Legal and Practical Sovereignty are distinct conceptions,
+belonging to different spheres, they are in so far related that—
+
+ Legal Authority is a potent factor in creating Practical Mastery.
+
+ Practical Mastery usually ripens, after a certain time, into Legal
+ Authority.
+
+Thus—
+
+ In an orderly State, the respect for Legal Sovereignty keeps questions
+ of Practical Sovereignty in abeyance.
+
+ In a disorderly State, conflicts regarding Practical Sovereignty
+ weaken and ultimately destroy the respect for Legal Sovereignty.
+
+To which we may add, with a view to questions to be discussed presently—
+
+ 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—
+
+ Legal Sovereignty carries with it a _prima facie_ moral claim to the
+ obedience of all citizens;
+
+ 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.
+
+ 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.
+
+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 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.
+
+
+ V. ROMAN AND MEDIAEVAL VIEWS OF SOVEREIGNTY.
+
+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 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 _a priori_
+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.
+
+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.
+
+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 the Republic, legislative supremacy belonged to the people meeting
+in their _comitia_, 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[11].
+
+-----
+
+Footnote 11:
+
+ As to the Senate’s right of legislation, see Essay XIV, p. 304.
+
+-----
+
+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 _Institutes_ and _Digest_ 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[12].
+
+-----
+
+Footnote 12:
+
+ 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.
+
+-----
+
+It need hardly be said that centuries before Justinian’s day this
+doctrine of delegation, for a time formally expressed in the so-called
+_lex de imperio_ 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 _Digest_, by the lawyers of the second and
+third centuries, as the source of the Emperor’s powers, were not in A.D.
+533, except in a vague _de iure_ 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.e._ 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[13]?’
+
+-----
+
+Footnote 13:
+
+ _Dig._ i. 3. 32, § 1 (cf. _Inst._ i. 2. 11). In the _Institutes_ of
+ Justinian the Emperor’s legislative power, though complete, is still
+ grounded on a delegation formerly made by the people.
+
+-----
+
+It need hardly be observed that if Tribonian and the other commissioners
+employed by Justinian to condense and arrange the old law had, instead
+of inserting in their compilation sentences written three or four
+centuries before their own time[14], 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 _Digest_ 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.
+
+-----
+
+Footnote 14:
+
+ 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.
+
+-----
+
+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.
+
+But there was also another influence, born while the autocracy of the
+early Emperors was passing from the stage of power _de facto_ into that
+of sovereignty _de iure_, 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 _de iure_. Much more then does conquest carry
+the right of legal command. Conquest is the most direct and emphatic
+assertion of _de facto_ supremacy, and as the _de facto_ 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—
+
+ ‘Victorque volentes
+ Per populos dat iura,’
+
+while the suggestion of a divine power encircling the irresistible
+conqueror, an idea always familiar to the East, appears in the words
+
+ ‘viamque adfectat Olympo,’
+
+which complete the passage.
+
+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
+put in writings which were destined, more than any others, to rule the
+minds of men for many centuries to come.
+
+ ‘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
+ (_lit._ 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).
+
+ ‘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 (_lit._ bridle) the ignorance of
+ foolish men’ (1 Pet. ii. 13-15).
+
+Here the authority of the Emperor is not only recognized as being _de
+iure_ 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).
+
+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 out may be seen by
+examining the reasonings of Dante in his _De Monarchia_, 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 _de iure_ 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[15]. 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 delegated[16]. 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
+_de facto_ 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 _de iure_, 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.
+
+-----
+
+Footnote 15:
+
+ 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.
+
+Footnote 16:
+
+ 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.
+
+-----
+
+In these mediaeval controversies it was assumed throughout and on all
+sides that power _de facto_ must follow Sovereignty _de iure_. 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 _de facto_ 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.
+
+
+ VI. MODERN THEORIES OF SOVEREIGNTY.
+
+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:—
+
+The Emperor died out as universal Sovereign, and became thenceforth
+little more than a German monarch, with a titular precedence over other
+princes.
+
+The Pope was gravely wounded by a revolt which ended by withdrawing half
+Europe from his sway.
+
+The feudal structure of society began to crumble away, and therewith the
+power of the Crown in each country grew.
+
+A new spirit of inquiry, sceptical in its tendencies and no longer
+deferential to authority, sprang up in Western and Southern Europe.
+
+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 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.
+
+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 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.
+
+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 _Maiestas_ 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 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.
+
+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 viii. 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[17].
+
+-----
+
+Footnote 17:
+
+ A full and instructive account of this writer’s theories is contained
+ in the admirable book of Professor Otto Gierke, _Johannes Althusius
+ und die Entwickelung der naturrechtlichen Staatstheorien_, which is a
+ repertory of information regarding mediaeval and post-mediaeval
+ doctrines of the State.
+
+-----
+
+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 in the book entitled _Leviathan_ (and in the treatise
+_De Cive_), 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 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.
+
+Though Hobbes is chiefly concerned with establishing his Sovereign _de
+iure_, and making his _de iure_ autocracy complete, he does also
+conceive him as enjoying complete _de facto_ 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
+_de iure_ title so fully recognized that _de facto_ power will follow.
+The Civil War had raised grave questions in the _de iure_ sphere, and it
+was natural to believe that, were those questions out of the way,
+Practical Mastery would accompany 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[18].
+
+-----
+
+Footnote 18:
+
+ 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.
+
+-----
+
+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 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 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 _de facto_ sphere and suits a _de facto_
+sovereign, but does not touch the _de iure_ 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 _de iure_[19].
+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, 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.
+
+-----
+
+Footnote 19:
+
+ 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 _pro tanto_ the inadequacy of the theory.
+
+-----
+
+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, 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 (_Kronländer_) 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[20]. Or take the United States, whose
+Constitution has become a sort of model for many more recent
+confederations. 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.
+
+-----
+
+Footnote 20:
+
+ 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.
+
+-----
+
+Austin denies that there is any difference between a government _de
+iure_ and one _de facto_, because Sovereignty _de iure_ must itself
+issue from the Sovereign himself, and the same person cannot be both
+creature 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 _de facto_ is also
+Sovereign _de iure_, 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.
+
+
+ VII. QUESTIONS REGARDING SOVEREIGNTY LIABLE TO BE CONFOUNDED.
+
+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.:—
+
+ 1. The conception and definition of legal supremacy.
+
+ 2. The conception of practical mastery.
+
+ 3. The historical question as to the origin of the notion of Legal
+ Right.
+
+ 4. The historical question as to the origin of organized political
+ communities in general, and of the habit of obedience therein.
+
+ 5. The moral obligation on the members of a State to render obedience
+ to the authorities within it, whether those authorities rule by law
+ or by force.
+
+ 6. The moral obligations which bind the holder of power, whether _de
+ iure_ or _de facto_.
+
+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.
+
+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 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.
+
+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 _de iure_ or _de
+facto_ 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.
+
+Questions 1 and 2 have been already dealt with. When the qualification
+_de iure_ or _de facto_, as the case may be, is in each case added,
+there need be no more mystery about either of them.
+
+As regards 3 and 4, _i.e._ the origin of political power, whether _de
+facto_ or _de iure_, the reply of history is unequivocal. There never
+was and never could have been any social contract in the sense either of
+Hobbes 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 _de facto_ is commonly
+supposed to have begun, preceded authority _de iure_, 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 irresistible force of
+public opinion which controls all those organs.
+
+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 _de facto_ and not also _de iure_ is not now
+deemed a duty, unless the ruler _de iure_ 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 _de
+facto_, apart from legal sanction, carries no title to respect. When it
+is abused, the good citizen not only may but ought to resist it.
+
+With the Sovereign _de iure_ the case is different. He has a _prima
+facie_ claim to obedience, which can be rebutted or disregarded only in
+one of three events, (_a_) if he has lost _de facto_ power, and is
+therefore unable to perform a Sovereign’s duties, (_b_) 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, (_c_) 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 (_b_) the
+proper course would seem to be to resist the _de iure_ 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 _de
+iure_. In case (_c_), where no constitutional remedy exists, the
+formerly _de iure_ 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 _de
+facto_ 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.
+
+As respects the moral restraints by which the Sovereign, whether _de
+facto_ or _de iure_, 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 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.
+
+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 (except
+of course in self-defence) or bringing a false charge against him, for
+the sake of saving his own life.
+
+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 _de iure_ and that which exists _de facto_ on the questions
+that have arisen regarding Sovereignty in the international sphere.
+
+
+ VIII. SOVEREIGNTY IN INTERNATIONAL RELATIONS.
+
+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 _de
+iure_, 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 _de facto_. 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 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 _de iure_ 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[21]. 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 _de iure_ part of the Ottoman Empire for
+some purposes, is also _de iure_ (for certain other purposes) under the
+control of six European Powers, and is _de facto_ 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.
+
+-----
+
+Footnote 21:
+
+ 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.
+
+-----
+
+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.e._ States) are not _prima facie_ bound (by
+international usage and comity) to pay any regard to the fact that the
+inferior State is _de facto_ dependent. They may properly treat it as
+being completely Sovereign. But just as there are some cases in which a
+_de facto_ Sovereign becomes morally entitled to obedience from the
+citizens of a community, so there are some extreme cases in which a
+State, while technically independent, is notoriously so much _de facto_
+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.
+
+
+ IX. SOVEREIGNTY IN A FEDERATION.
+
+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 _de iure_ and _de facto_, 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.
+
+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 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.
+
+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.
+
+On these questions, which were treated as questions 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 _de iure_ the same in 1860 as they had been in 1791,
+a new state of things had in fact grown up, which the old _de iure_
+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.
+
+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 _de iure_ will be also Sovereign _de facto_.
+Austin cannot admit any one to be a Sovereign who is not so both _de
+iure_ and _de facto_. 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 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 _de iure_ 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.
+
+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 _de facto_ by a war which lasted
+nearly four years, and in which about a million of men are supposed to
+have perished.
+
+
+ X. CONCLUSION.
+
+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 _de iure_ 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 _de iure_, but also of _de facto_
+power. Save during a few intervals of conflict, all that we English have
+needed to know about Sovereignty is where the law places it[22]. We were
+beginning to 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[23]. In the seventeenth century a struggle which arose over
+the respective rights of the component parts of this composite Sovereign
+was settled _de facto_ 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 _de facto_ was so far from being fully expressed _de iure_ 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 _de iure_
+Sovereignty has coincided with _de facto_ obedience. The idea that power
+_de facto_ naturally goes along with authority _de iure_ has grown to be
+almost a part of an Englishman’s mental constitution, a happy result
+whereof let us all say—_Esto perpetua_. 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 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.
+
+-----
+
+Footnote 22:
+
+ 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.e._ its right to interfere with certain branches of the prerogative
+ of one part of it, the Crown, remained long contested.
+
+Footnote 23:
+
+ In his _Commonwealth of England_ (published in 1583): ‘All that ever
+ the people of Rome might do, either _Centuriatis comitiis_ or
+ _Tributis_, 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 _Harvard Law Review_ for January, 1895, and his _First
+ Book of Jurisprudence_, p. 247.
+
+-----
+
+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 _de iure_ exists, that of international
+relations, where all power is _de facto_ only, is also the sphere in
+which morality has made least progress, and in which justice and honour
+are least regarded.
+
+
+ NOTE.
+
+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 _Early History of Institutions_) 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 _Fortnightly
+Review_ 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 _Annals of the American Academy of Political and
+Social Science_ 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
+_Science of Politics_ 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
+_Introduction to the Science of Politics_, and shows very clearly the
+unsoundness of the Austinian view. Finally, Mr. C. E. Merriam, junior,
+in his _History of the Theory of Sovereignty since Rousseau_, 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.
+
+
+
+
+ XI
+
+ THE LAW OF NATURE
+
+
+ I. THE IDEA OF NATURE AS A RULING FORCE.
+
+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 to the Roman jurists; and
+that they used it in a thoroughly practical spirit.
+
+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.
+
+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 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.
+
+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 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.
+
+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.
+
+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 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, _Natura_, Nature.
+
+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 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.
+
+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.e._ 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.
+
+This view of nature and her processes as characterized by uniformity of
+action, and this view of such 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[24]. 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 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[25].
+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[26]. 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—
+
+ ‘Thou dost preserve the stars from wrong,
+ And the most ancient heavens by Thee are fresh and strong.’
+
+-----
+
+Footnote 24:
+
+ The term has been extended from material phenomena to those dealt with
+ by other sciences, such as economics and philology (_e.g._ laws of
+ supply and demand, ‘Grimm’s law’).
+
+Footnote 25:
+
+ 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.
+
+Footnote 26:
+
+ There is a passage in a Constitution of the Emperors Theodosius,
+ Arcadius, and Honorius (_Cod. Theod._ 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.
+
+-----
+
+Now let us turn to the phenomena of political society and see how the
+conception works itself out in this field.
+
+
+ II. ORIGIN OF THE CONCEPTION OF NATURAL LAW.
+
+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[27]. 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
+_inter se_, bear a slighter resemblance to those of more advanced
+nations. Yet even between the 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.
+
+-----
+
+Footnote 27:
+
+ 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, _apud_
+ Marcian in Justinian’s _Digest_, i. 3. 2.
+
+-----
+
+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.
+
+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 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.
+
+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.
+
+This antithesis of the Customs and Laws which are 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.
+
+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
+_Antigone_ 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:—
+
+ οὐ γάρ τί μοι Ζεὺς ἦ ὁν κηρύξας τάδε
+ οὐδ’ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη.
+
+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:—
+
+ οὐ γάρ τι νῦν γε κἀχθές, ἀλλ’ ἀεί ποτε
+ ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾿φάνη.
+
+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[28].
+
+-----
+
+Footnote 28:
+
+ Soph. _Antig._ l. 450; _Oed. Tyr._ l. 865.
+
+-----
+
+The idea frequently recurs in later literature, and is nowhere more
+impressively stated than in the _Apologia_ 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.
+
+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.
+
+‘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[29].’
+
+A similar view, _mutatis mutandis_, 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
+
+-----
+
+Footnote 29:
+
+ 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.’
+
+-----
+
+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[30], 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[31]. 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 (ἴδιος), settled
+by each community for itself[32]. 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[33].
+
+-----
+
+Footnote 30:
+
+ Xen. _Memor._ 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.
+
+Footnote 31:
+
+ _Eth. Nicom._ v. 7.
+
+Footnote 32:
+
+ _Rhet._ 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.
+
+ 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
+
+ ἀλλὰ τὸ μὲν πάντων νόμιμον διά τ’ εὐρυμέδοντος
+ αἰθέρος ἠνεκέως τέταται διά τ’ ἀπλέτου αὐγῆς. (_Rhet._ i. 13.)
+
+Footnote 33:
+
+ _Against Aristocrates_, 639.
+
+-----
+
+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.e._ 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.
+
+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 ‘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.
+
+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[34]. 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[35].
+
+-----
+
+Footnote 34:
+
+ 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).
+
+Footnote 35:
+
+ Since this Essay was in type I have seen the article _On the History
+ of the Law of Nature_, by Sir F. Pollock, published in the _Journal_
+ of the Society of Comparative Legislation for Dec. 1900, and
+ simultaneously in the _Columbia Law Review_, 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 _Natural Rights_ (published in 1895), Part i; and in Dr.
+ Holland’s _Elements of Jurisprudence_, pp. 30-38 of ninth edition.
+
+-----
+
+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.
+
+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[36].
+
+-----
+
+Footnote 36:
+
+ A very minute and careful collection of the authorities regarding _Ius
+ Naturae_ and _Ius Gentium_ may be found in the book of Dr. Moriz
+ Voigt, _Die Lehre vom Jus Naturale, aequum et bonum und Jus Gentium
+ der Römer_. 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.
+
+-----
+
+
+ III. THE ROMAN ‘LAW OF THE NATIONS.’
+
+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 _connubium_ and _commercium_) which included the
+capacity for forming family ties, and for entering into business
+relations according to Roman rules. These strangers or aliens
+(_peregrini_) 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.
+
+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
+jurisdiction, or the situation of the property dealt with, requires the
+application of some other (_i.e._ foreign) law[37]. 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[38]. 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.
+
+-----
+
+Footnote 37:
+
+ 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, _e.g._ 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.
+
+Footnote 38:
+
+ 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.
+
+-----
+
+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 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 (_ius
+gentium_)[39], not in the sense of law valid as between nations (what we
+should call International Law[40]), but as being the common or general
+law, just as the expression _nusquam gentium_ means ‘nowhere at
+all[41].’ 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 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.
+
+-----
+
+Footnote 39:
+
+ The word _gens_, 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 _gentes_, recognized in contradistinction to the law
+ of each _gens_, 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 _ius
+ quiritium_ is the term applied to the law of the city as a whole.
+
+Footnote 40:
+
+ Though _ius gentium_ 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, _Jug._ 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.
+
+Footnote 41:
+
+ See the article _Ius Gentium_ in Professor H. Nettleship’s
+ _Contributions to Latin Lexicography_ . He thinks the term had become
+ a popular one before the time of Cicero.
+
+-----
+
+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 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, _plus_ their
+own notions of what was fair and just, together with such recollections
+as they had of the principles of English law[42].
+
+-----
+
+Footnote 42:
+
+ See Essay II, vol. i. pp. 113-118.
+
+-----
+
+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[43]. 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
+_ius civile_. Such dicta of the professional jurists regarding _ius
+gentium_ 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 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[44]’; and in several other passages
+he contrasts the two kinds of law, observing in one place that the _ius
+gentium_, like part of the _ius civile_, is unwritten, _i.e._ not
+included in statutory enactments[45]. 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 _ius gentium_ would as respects commercial
+matters be found in good faith and common sense, and as respects family
+matters and inheritance in natural affection.
+
+-----
+
+Footnote 43:
+
+ See as to this Essay XIV, p. 292. Thus Praetor-made law, _ius
+ honorarium_, very largely coincides with and covers the field of _ius
+ gentium_, but the two are by no means identical. The _actio
+ Publiciana_, for instance, belonged to the former, but not (except so
+ far as natural equity suggested it) to the latter. So in _Digest_ xvi.
+ 3. 31 ‘merum ius gentium’ is opposed to ‘praecepta civilia et
+ praetoria.’
+
+Footnote 44:
+
+ ‘Itaque maiores aliud ius gentium, aliud ius civile esse voluerunt.
+ Quod civile, non idem continuo gentium, quod autem gentium, idem
+ civile esse debet’ (_De Off._ iii. 17. 69).
+
+Footnote 45:
+
+ _Orat. Partit._ xxxvii. 130.
+
+-----
+
+This sketch, slight as it is, may suffice to indicate how the Romans
+were brought to deal in a concrete and 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 B.C., 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 B.C. 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 _ius gentium_ 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.
+
+
+ IV. CONNEXION OF THE LAW OF NATURE WITH THE LAW OF THE NATIONS.
+
+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
+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.
+
+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 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[46]. 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 _ius gentium_ which he contrasts
+with the peculiar law of Rome, at any rate to describe it as the source
+and parent of _ius gentium_. This, however, he does not actually do,
+though more than once he comes near it[47]. _Ius gentium_ is to him a
+part of positive law, though much wider in its range than _ius civile_,
+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.’
+
+-----
+
+Footnote 46:
+
+ See especially the fragment of his _De Republica_ preserved by
+ Lactantius, _Div. Inst._ vi. 8, 7.
+
+Footnote 47:
+
+ Many writers have, however, thought that Cicero did mean to identify
+ _ius gentium_ and _ius naturae_, basing themselves on _De Off._ iii.
+ 17, 69, and iii. 5, 23. Cf. also the words ‘lege ... naturae, communi
+ iure gentium’ in _De Harusp. Respons._ 15, 32, and ‘consensio omnium
+ gentium lex naturae putanda est’ in _Tusc. Disp._ i. 13. The point is
+ argued, at great length, by Voigt (_op. cit._ 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.
+
+-----
+
+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 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.
+
+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 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.
+
+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[48].
+In particular the idea of 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.
+
+-----
+
+Footnote 48:
+
+ There does not, however, seem to be any ground for the notion that the
+ Roman lawyers ever despised _ius gentium_ 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.
+
+-----
+
+For this all-embracing commonwealth, this _societas omnium hominum_, 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[49],
+according to the dictum, _Quid est civitas nisi iuris societas[50]?_ 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 common law of mankind was the _ius gentium_. 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 (_ius commune omnium hominum_[51]) (_omni
+humano generi commune_[52]), or as the law which exists among all
+peoples (_ius quod apud omnes populos peraeque custoditur_[53]) (_ius
+quo gentes humanae utuntur_[54]). It was applicable to persons who had
+no rights of citizens in any city (ἀπόλιδες)[55]. It was coeval with the
+human race itself (_cum ipso humano genere proditum_[56]). It was in all
+these respects contrasted with _ius civile_, just as the Law of Nature
+(_ius naturale_) was similarly contrasted. Finally it was the law which
+natural reason had created (_ius quod naturalis ratio constituit_[57]).
+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[58] was formally enounced by jurists at least as early as the
+time of Hadrian. In Justinian’s _Institutes_ the identification is
+complete.
+
+-----
+
+Footnote 49:
+
+ Not, of course, in the Austinian sense that law is only what the State
+ has expressly enacted, for the ancients always dwell upon custom
+ (_mores maiorum, consuetudo inveterata, consensus utentium_) as a
+ chief source of law.
+
+Footnote 50:
+
+ Cic. _De Rep._ i. 32. 49.
+
+Footnote 51:
+
+ Gaius, _Inst._ i. 1; _Dig._ i. 1. 9.
+
+Footnote 52:
+
+ In _Inst. Iust._ i. 2. 2, taken from Marcian.
+
+Footnote 53:
+
+ Gaius, _Inst._ i. 1.
+
+Footnote 54:
+
+ Ulpian in _Dig._ i. 1. 1, 4.
+
+Footnote 55:
+
+ Marcian in _Dig._ xlviii. 19. 17.
+
+Footnote 56:
+
+ Gaius in _Dig._ xli. 1. 1, _pr._
+
+Footnote 57:
+
+ Gaius, _Inst._ 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, _op. cit._, argues) that there was any real
+ difference of opinion among them. Their language on these points is
+ seldom precise.
+
+Footnote 58:
+
+ See p. 137, note 47, _supra_.
+
+-----
+
+A third conception, to which reference has not yet been made,
+contributed to this fusion, viz. the conception of Equity (_aequum et
+bonum, aequitas_). 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.
+
+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 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.
+
+
+ V. RELATION OF NATURAL LAW TO GENERAL CUSTOMARY LAW.
+
+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.
+
+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 _ius
+gentium_. But philosophers had pointed out (even before the time of
+Cicero) that it was contrary to nature[59]. Here, therefore, is a large
+department in which the sanction of Nature could not be claimed for this
+part of _ius gentium_ any more than it could for much of _ius civile_.
+Slavery, says one jurist, is an institution of the Law of the Nations,
+whereby one man is subjected to the ownership of another against
+Nature[60]. 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 _ius gentium_. And the Roman jurists indeed go so far
+as to hold that by Nature all men are equal[61]. 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 _ius civile_ rather than to that
+of _ius gentium_.
+
+-----
+
+Footnote 59:
+
+ Ulpian in _Dig._ l. 17. 32.
+
+Footnote 60:
+
+ _Dig._ i. 5. 4, § 1: cf. _Inst._ i. 5; Gaius, _Inst._ i. 52.
+
+Footnote 61:
+
+ 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 _Politics of Aristotle_, Introduction,
+ p. 141.
+
+-----
+
+Secondly, the Romans did not, when they referred any particular
+institution to the _ius gentium_, necessarily intend to convey that it
+was universally prevalent. The origin of _hypotheca_ for instance
+(mortgage of immovables) and of the _syngraphe_ (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 _ius gentium_.
+
+Thirdly, there is no ground for thinking that when the Roman jurists
+said that Natural Reason was the source of _ius gentium_, 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 or could imagine, had actually prevailed among mankind.
+The expression ‘lost Code of Nature,’ which a distinguished writer has
+used[62], 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 _ius gentium_ served as law. So far were
+they from such a delusion that they ascribe to _ius gentium_ war,
+captivity, slavery, and all the consequences of these facts, while in
+the golden age, the _Saturnia regna_ of the poets, all men were free[63]
+and war was unknown—
+
+ ‘Necdum etiam audierant inflari classica, necdum
+ Impositos duris crepitare incudibus enses[64].’
+
+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 the two terms as practically synonymous, though
+generally employing _ius naturae_ or _naturalis ratio_ when they wish to
+lay stress on the motive or ground of a rule,_ius gentium_ 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.
+
+-----
+
+Footnote 62:
+
+ Sir H. Maine in _Ancient Law_. It will be seen that the view which he
+ takes of _ius gentium_ and _ius naturae_ 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.
+
+Footnote 63:
+
+ Cf. Macrob. _Saturn._ i. 7; and Justin. _Hist._ xliii. 1, who says
+ that not only slavery but also private property was unknown under the
+ reign of Saturn, so great was his justice!
+
+Footnote 64:
+
+ Virg. _Georg._ ii. 539.
+
+-----
+
+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 A.D.,
+an act which destroyed the distinction between _ius gentium_ and _ius
+civile_ so far as the persons governed by each were concerned, for there
+were thereafter comparatively few _peregrini_ (non-citizen subjects),
+since _ius civile_ was now enjoyed by all the dwellers in the Roman
+world[65].
+
+-----
+
+Footnote 65:
+
+ There remained as aliens (1) the class called _dediticii_, the lowest
+ species of freedmen, (2) persons deprived of citizenship as a
+ punishment for crime, (3) foreigners, _i.e._ 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 (_Historical Introduction to the Private
+ Law of Rome_, 2nd edition, by Professor Goudy, p. 319), and, for a
+ fuller discussion of the topic, Mitteis, _Reichsrecht und Volksrecht
+ in den östlichen Provinzen des Römischen Kaiserreichs_, chap. vi.
+
+-----
+
+This may be one of the reasons why, in the constitutions of the Emperors
+collected in the Codes of Theodosius the Second (A.D. 438) and of
+Justinian (A.D. 534), constitutions the earliest of which date from
+Hadrian, the term _ius gentium_ never occurs. It is frequent in the
+_Institutes_ of Justinian (A.D. 533), but that book (based on the
+_Institutes_ 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.
+
+
+ VI. MEANING ATTACHED BY THE ROMAN JURISTS TO NATURE.
+
+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.
+
+The following senses in which they use the word Nature may be
+enumerated, though these cannot be sharply distinguished, for some run
+into others.
+
+1. The character and quality of an object, or of a living creature, or
+of a legal act or conception (e.g. _natura venenorum_, _natura hominum_,
+_natura apium_ (_fera est_), _natura contractus_, _natura dotis_).
+
+2. The physical system of the Universe (_rerum natura_), and the
+character which it bears. Thus it is said that Nature has taken some
+objects (_e.g._ the sea and air) out of the possibility of private
+ownership.
+
+3. The physical ground of certain relations among men, as for instance
+of blood relationship (_cognationem natura constituit_). So the rule
+that children born out of wedlock follow the condition of the mother is
+ascribed to Nature (_liberi naturales_); so the rule that persons under
+puberty should have a guardian.
+
+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 (_naturalis ratio_) 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 _utilitas_ is frequently
+employed by the Romans.
+
+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 (_e.g._ adultery)
+disgraceful, while other offences are not necessarily base (_turpia_).
+So—and this is an interesting illustration of Roman sentiment—it is
+against Nature to contemplate the probability that a freeman may become
+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. (_Is Natura debet quem iure
+gentium dare oportet, cuius fidem secuti sumus._)
+
+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[66]. But this fancy of his, which
+appears now and then in other ancient writers[67], and received great
+attention in the Middle Ages because the passage was embodied in
+Justinian’s _Institutes_, 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 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.
+
+-----
+
+Footnote 66:
+
+ ‘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.’
+
+Footnote 67:
+
+ As, for instance, in Pliny the Elder’s ascription to the lower animals
+ of moral sentiments (_Hist. Nat._ viii. 5; viii. 16, 19; x. 52).
+ Michael Drayton’s lines, of birds pairing in spring,—
+
+ ‘And but that Nature by her all-constraining law,
+ Each bird to her own kind this season doth invite,’—
+
+ hover between Ulpian’s ‘Law of Nature’ and the ‘Laws of Nature’ of
+ modern science.
+
+-----
+
+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 _ius
+civile_ 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.
+
+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 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[68]. 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[69]. 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 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.
+
+-----
+
+Footnote 68:
+
+ 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. _Novell.
+ Iust._ lxxxix. c. 12, § 5.
+
+Footnote 69:
+
+ 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.’
+
+-----
+
+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 _ius gentium_ as roughly
+equivalent to their _ius naturae_, 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 _ius gentium_[70]. They are content to ascribe to
+_ius gentium_ 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 becomes the property of the
+finder, the principle that a debtor ought to pay his debts. _Redde quod
+debes aequissima vox est, et ius gentium prae se ferens._
+
+-----
+
+Footnote 70:
+
+ 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’ (_Inst._ i. 189).
+
+-----
+
+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
+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.
+
+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 worked, the ecclesiastical
+law of her later period being an efflux of the civil law of her earlier.
+
+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 (_ius quiritium_), 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 _ius gentium_, 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 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.
+
+
+ VII. THE LAW OF NATURE IN THE MIDDLE AGES.
+
+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 _Decretum_ of Gratian, the oldest part of
+the collected Canon Law. Isidore says[71]: ‘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 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[72], 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[73].’ The idea receives its
+final expression in Dante’s identification of the Divine Love with the
+Force that pervades the universe—
+
+ ‘L’Amor che muove il sol e le altre stelle.’
+
+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[74].
+And so Suarez 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.
+
+-----
+
+Footnote 71:
+
+ ‘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.’—_Dist. Prima_, 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.
+
+Footnote 72:
+
+ Cf. the citation by Marcian, in _Dig._ i. 3. 2, of the dictum of
+ Demosthenes (_Adv. Aristog._ p. 774) νόμος εὕρημα καὶ δῶρον θεοῦ; and
+ Justinian’s _Institutes_, i. 2, § 11 ‘Naturalia iura, quae apud omnes
+ gentes peraeque servantur, divina quadam providentia semper firma
+ atque immutabilia permanent.’
+
+Footnote 73:
+
+ ὅταν εἴπω τὴν φύσιν, Θεὸν λέγω, ὁ γὰρ τὴν φύσιν δημιουργήσας αὐτὸς
+ ἔστιν.
+
+Footnote 74:
+
+ _Summa Theologiae_, prima secundae, Q. xciv. 2.
+
+-----
+
+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[75]. Now and then princes put it forward as a
+ground for legislation. Philip the Fair of France, proposing to liberate
+serfs, says (A.D. 1311) that ‘every human creature formed in the image
+of Our Lord ought 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[76]. 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
+_Faust_—
+
+ ‘Natur und Geist! so spricht man nicht zu Christen:
+ Desshalb verbrennt man Atheisten.’
+
+-----
+
+Footnote 75:
+
+ On this subject see the authorities collected and luminously expounded
+ by Professor Dr. Gierke in his _Johannes Althusius_, chap. vi.
+
+Footnote 76:
+
+ Gierke, _ut supra_. 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 _ius gentium_.
+ See Arthur Duck, _De Usu et Authoritate Iuris Civilis_, bk. i. chap.
+ iii, § 12.
+
+-----
+
+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 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.
+
+
+ VIII. THE LAW OF NATURE IN MODERN TIMES.
+
+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[77], and though the term _ius gentium_ 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 _Saturnia regna_ of Virgil, nor the brutish savagery (_mutum et
+turpe pecus_) 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[78]; 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
+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.
+
+-----
+
+Footnote 77:
+
+ 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.
+
+Footnote 78:
+
+ With Hobbes compare the view of Spinoza, _Tractatus
+ Theologico-Politicus_, cap. xvi.
+
+-----
+
+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 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.
+
+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.
+
+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 _aequitas_,
+which was in substance identical with the Law of Nature and the _ius
+gentium_. For obvious reasons the Chancellors and Masters of the Rolls
+did not talk much about Nature, and still less would they have talked
+about _ius gentium_. 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 _Digest_ and the _Institutes_, 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 strictness of law. A passage in the remarkable little
+book called _Doctor and Student_, 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.e._ the customs commonly
+observed by traders of divers countries, is referred to as part of the
+Law of Nature by Lord Chancellor Stillington in the same reign[79]. Here
+we have the old identification of _ius naturae_ and _ius gentium_ 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[80]’; and he ascribes to ‘natural reason
+and the just construction of law[81]’ the extension which his
+contemporary, Lord Mansfield, gave to the enforcement of implied
+contracts[81]. 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 directed to apply ‘the principles of justice, equity, and good
+conscience[82]’ in cases where no positive law or usage is found to be
+applicable.
+
+-----
+
+Footnote 79:
+
+ I owe these references to Sir F. Pollock’s Essay in _Columbia Law
+ Review_, already mentioned.
+
+Footnote 80:
+
+ _Commentaries_, Introd. § 2.
+
+Footnote 81:
+
+ _Ibid._ bk. iii. chap. ix.
+
+Footnote 82:
+
+ See on this subject Sir C. P. Ilbert’s _Government of India_, chap.
+ vi. The expression ‘equity and good conscience’ in this connexion is
+ as old as the Charter to the E. India Company of 1683; _ibid._ chap.
+ i. p. 21.
+
+-----
+
+The second line of action is the part which the terms _ius naturae_ and
+_ius gentium_ 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
+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
+_ius gentium_[83] in what began to be taken as a new sense[84]. It was
+indeed their wish to represent this Law of Nature as being essentially a
+Law for the Nations, _i.e._ a law governing the intercourse 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 _ius gentium_ 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.
+
+-----
+
+Footnote 83:
+
+ When he uses the phrase _ius gentium_, 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 _ius naturale_, 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 _ius gentium_ holding good in one part of the world which does
+ not exist in other parts.
+
+Footnote 84:
+
+ 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
+ (_ius voluntarium_) 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’
+ (_Proleg._ 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 _ius divinum voluntarium_ 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.
+
+-----
+
+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[85] upon this _Naturrecht_ or
+_Droit Naturel_, 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 _ius gentium_, that is to say, as a 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.
+
+-----
+
+Footnote 85:
+
+ See Essay XII.
+
+-----
+
+
+ IX. CONCLUSION.
+
+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.
+
+Nevertheless the notion sometimes appears, and properly appears, in
+unexpected places. The British 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.e._ 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.’
+
+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?
+
+
+
+
+ XII
+
+ THE METHODS OF LEGAL
+ SCIENCE
+
+
+Whoever, having heard the Roman law praised as a philosophical system,
+enters upon the study of it, and peruses either the _Corpus Iuris
+Civilis_ 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?
+
+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
+_Institutes_ and in the first few titles of his _Digest_ may be found
+some few dicta, more sonorous than exact, about Justice and Nature and
+the origin of law. Nothing more in the _Corpus Iuris_ 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 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 _Digest_ .
+
+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?
+
+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[86], 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.
+
+-----
+
+Footnote 86:
+
+ As has been proposed by Dr. Holland in his admirable _Elements of
+ Jurisprudence_ .
+
+-----
+
+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.
+
+Four methods are commonly spoken of as employed in legal science, being
+the following:—
+
+The Metaphysical or _a priori_ method.
+
+The Analytic method.
+
+The Historical method.
+
+The Comparative method.
+
+This classification is doubtless open to criticism, but being in actual
+use, it may serve our present needs.
+
+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 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, _e.g._ 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,
+_e.g._ the rights of majorities as against minorities; the grounds on
+which a ruler may demand submission, or those on which subjects may
+properly 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.
+
+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 _priori_ 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.
+
+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 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.
+
+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.
+
+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.
+
+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 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.’
+
+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 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.
+
+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—
+
+ ‘Quum neque Musarum scopulos quisquam superarat,
+ Nec dicti studiosus erat.’
+
+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 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.
+
+Between Bentham and Austin there is one conspicuous difference[87].
+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.
+
+-----
+
+Footnote 87:
+
+ Some excellent remarks on the intellectual characteristics of Bentham
+ may be found in Mr. Leslie Stephen’s _English Utilitarians_, vol. i
+ (1901).
+
+-----
+
+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 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.
+
+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.e._ 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.
+
+The utilities of the Historical Method as applied to any given system of
+law are two.
+
+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 pure analysis, since it deals with the present
+only, can never fully explain any legal system.
+
+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 (_Rechtsbewusstsein_) the maker and moulder of its
+law.
+
+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.
+
+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 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.
+
+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.
+
+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
+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 _ius gentium_[88].
+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.
+
+-----
+
+Footnote 88:
+
+ See Essay XI, p. 130 sqq.
+
+-----
+
+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.
+
+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.
+
+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 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.
+
+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 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.
+
+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.
+
+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.e._ legislators and draftsmen. Legislators,
+however, whether monarchs or members of legislative assemblies, 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, _res inaestimabilis_, 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.
+
+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 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.
+
+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.
+
+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[89], and of some glimmers from the East and from the
+laws of ancient European peoples.
+
+-----
+
+Footnote 89:
+
+ 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).
+
+-----
+
+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.
+
+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?
+
+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.
+
+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 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.
+
+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 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.
+
+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.
+
+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, 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.
+
+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.
+
+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 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.
+
+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?
+
+What is it which we admire in the Roman jurists, and in the Roman law
+generally?
+
+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 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 _Patria Potestas_, 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 (_elegantia iuris_), 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.
+
+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[90]. 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 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 _Leading Cases_ and
+_Contracts_ ), illustrates the same tendencies.
+
+-----
+
+Footnote 90:
+
+ 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.
+
+-----
+
+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?
+
+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 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 _Digest_ 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.
+
+Finally, the administration of justice by the _Praetor peregrinus_, who
+doubtless based himself mainly upon the commercial usages of the
+merchants who from various quarters resorted to Rome, and still more 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[91]. 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 the old and the new in many
+institutions—the development of _Formula_ beside _Legis Actio_, of _Ius
+Gentium_ beside _Ius Civile_, of _Bonorum possessio_ beside
+_Haereditas_, of _Longi temporis praescriptio_ beside _Usucapio_? 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.
+
+-----
+
+Footnote 91:
+
+ 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.
+
+-----
+
+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 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 (_Rechtsphilosophie_) 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
+_Naturrecht_ 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 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.
+
+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 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 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.
+
+Let us see what are the conclusions to which we have, by this somewhat
+devious course, been led.
+
+1. There are four chief methods of studying law—the Metaphysical, the
+Analytical, the Historical, and the Comparative.
+
+2. Each of these has its proper sphere and its distinctive value, even
+if the two latter are of most general practical service.
+
+3. All four ought to find a place in a complete scheme of legal
+training.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+
+
+
+ XIII
+
+ THE RELATIONS OF LAW AND
+ RELIGION
+
+
+ THE MOSQUE EL AZHAR
+
+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 God’s will that the
+antithesis vanishes, and we have the Perfect Law of Liberty.
+
+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.
+
+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 _Pilgrim’s
+Progress_ 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.
+
+But in earlier times, and in many countries, the two 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 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 _Iliad_ [92],
+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[93]. 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 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.
+
+-----
+
+Footnote 92:
+
+ Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to
+ the Rivers and to the Earth.
+
+Footnote 93:
+
+ 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.’
+
+-----
+
+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.
+
+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.
+
+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.
+
+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 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.
+
+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[94]. The same may be true
+of the Gadhelic 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.
+
+-----
+
+Footnote 94:
+
+ 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.
+
+-----
+
+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[95] (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 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.’
+
+-----
+
+Footnote 95:
+
+ 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.
+
+-----
+
+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 A.D. 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.
+
+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 of legal sanction to the
+external duties which custom prescribed would have prevailed.
+
+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.
+
+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.
+
+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 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.
+
+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), 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 A.D.), 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[96]. The number of students sometimes reaches ten thousand; at the
+time of my visit (in 1888) it was estimated at eight thousand.
+
+-----
+
+Footnote 96:
+
+ 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.
+
+-----
+
+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, 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.
+
+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.e._ civil law. The
+subject was Wills, and the requisites to the validity of a will, such as
+the sanity, freedom and full 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.
+
+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—_Actus
+non est reus nisi mens sit rea_—to be carefully defined and qualified
+before it can be applied, seeing how often good intent is followed by
+bad result.
+
+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 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.
+
+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[97], 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 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
+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.
+
+-----
+
+Footnote 97:
+
+ 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.
+
+-----
+
+There are about two hundred and thirty professors, that is to say,
+persons authorized to teach and engaged in teaching[98]. 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 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[99].
+
+-----
+
+Footnote 98:
+
+ In the session of 1898-9 there were 198 professors and 7,676 students
+ attached to the Mosque itself (without counting its dependent
+ Kuttabs).
+
+Footnote 99:
+
+ 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.
+
+-----
+
+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) is accordingly the most numerous[100], 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.
+
+-----
+
+Footnote 100:
+
+ In 1898-9 the numbers of the four sects were as follows:
+
+ Shafites—Professors, 86; Students, 3,495.
+ Hanefites—Professors, 41; Students, 2,168.
+ Malekites—Professors, 68; Students, 1,983.
+ Hanbalites—Professors, 3; Students, 30.
+
+-----
+
+The word _Riwak_ (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[101]. 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 _à la belle étoile_ are preferable. Practically, I was
+told, every student who wished could obtain quarters in a Riwak, because
+only 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.
+
+-----
+
+Footnote 101:
+
+ 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.
+
+-----
+
+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 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[102].
+
+-----
+
+Footnote 102:
+
+ 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.
+
+-----
+
+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, _honeste vivere, alterum non laedere, suum
+cuique tribuere_.’
+
+It was impossible to spend a day in El Azhar without being struck by its
+similarity to the Universities of Europe as they existed in the
+thirteenth and fourteenth centuries.
+
+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.
+
+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.
+
+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[103];
+Harvard University in Massachusetts with nearly four thousand students
+has £235,000 (of which tuition fees contribute £114,000).
+
+-----
+
+Footnote 103:
+
+ 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.
+
+-----
+
+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 pleases, may stay as long as he pleases, and may be examined or
+not as he pleases.
+
+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.
+
+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.
+
+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 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.
+
+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
+Bagdad, in Spain and in Egypt, and the schools of Western Europe in 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.
+
+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?
+
+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, 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.
+
+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.
+
+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.
+
+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 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.
+
+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 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.
+
+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.
+
+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.
+
+The other is the promulgation of this revelation through a monarch both
+temporal and spiritual, Muhamad, the Prophet of God.
+
+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.
+
+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.
+
+Three results follow of necessity.
+
+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.
+
+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 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.
+
+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[104]. 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.e._ the
+non-Occidentalized Musulman) can form of an advocate in our sense of the
+word is a paid, and presumably false, witness.
+
+-----
+
+Footnote 104:
+
+ Whether this system tends to facilitate the bribing of judges, almost
+ universal in countries ruled by a Musulman monarch, _quaere_.
+
+-----
+
+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 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[105].
+
+-----
+
+Footnote 105:
+
+ 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.
+
+-----
+
+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, _ex necessitate terminorum_, 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 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.e._ 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.
+
+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 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.
+
+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.
+
+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 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.
+
+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.
+
+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 four centuries in debating what it was
+that the authors of the Epistles meant to enjoin.
+
+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.
+
+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.
+
+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 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 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.
+
+
+
+
+ XIV
+
+ METHODS OF LAW-MAKING IN
+ ROME AND IN ENGLAND
+
+
+ INTRODUCTORY.
+
+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 whence law
+springs and the forces whereby it is moulded.
+
+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.
+
+
+ I. LAW-MAKING AUTHORITIES IN GENERAL.
+
+First let us see what, speaking generally, are the authorities in a
+community that make the Law, and How—that is to say, by what modes or
+through what organs, they make it.
+
+Broadly speaking, there are in every community two authorities which can
+make Law:—the State, _i.e._ 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[106]?’ This is the universal view of the Romans, 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.
+
+-----
+
+Footnote 106:
+
+ Julian in _Dig._ i. 3. 32.
+
+-----
+
+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.
+
+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 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.
+
+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 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[107]. 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.
+
+-----
+
+Footnote 107:
+
+ The ‘Ulster Custom’ is an interesting instance, but it never quite got
+ the length of becoming law.
+
+-----
+
+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, 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.
+
+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 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.
+
+
+ II. JURISTS AS MAKERS OF LAW.
+
+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 B.C., 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 _lex horrendi carminis_, which Livy
+quotes in his account of the trial of Horatius for killing his
+sister[108]. 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.
+
+-----
+
+Footnote 108:
+
+ Book i. chap. 26.
+
+-----
+
+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 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 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.
+
+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 _iudex_[109] trying a case to endeavour to
+obtain from some eminent jurist an opinion in his favour, which he
+produced to the _iudex_ 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
+_responsa_, _i.e._ answers or opinions on points of law, under and with
+his authority, directing such opinions, when signed and sealed, to be
+received by a _iudex_ trying a case as settling a controverted point.
+His successor, Tiberius, issued formal commissions to the same
+effect[110]. Here we enter the third stage, for from this time forward
+not only did it become obligatory on the _iudex_ 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 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.
+
+-----
+
+Footnote 109:
+
+ The _iudex_ (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.
+
+Footnote 110:
+
+ 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 _History of Roman Law_, p. 292, Sohm, _Institutionen_, §
+ 18, and Krüger, _Geschichte der Quellen des Römischen Rechts_, § 15.
+ _Responsa_ had been given in earlier days by the _Pontifices_, and
+ Augustus was _Pontifex Maximus_. As to a similar practice among
+ Muslims see Essay XIII, p. 239 _ante_.
+
+-----
+
+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. 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
+_interpretatio iuris_ (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 (_iuris conditor_). He acted only by
+interpreting, _i.e._ 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 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 _ius respondendi_;
+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.
+
+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 _Digest_ ) 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 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 _Treatise on Tenures_ . 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.
+
+
+III. DIFFERENCE BETWEEN THE ACTION OF ROMAN AND THAT OF ENGLISH JURISTS.
+
+What are the causes of this singular difference between the course of
+legal development in England 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 _responsa_ which they had
+authenticated by their seal, and a _responsum_ 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 _responsa_ 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 _responsa_
+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,
+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.
+
+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 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.
+
+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 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.
+
+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 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.
+
+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 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[111] 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.e._ 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[112]; 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 _res iudicata_
+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 days there was a difference between the force
+of a jurist’s _responsum_ signed, sealed, and produced to a _iudex_, 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 _obiter dicta_. 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.
+
+-----
+
+Footnote 111:
+
+ The late Lord Justice W. M. James.
+
+Footnote 112:
+
+ _Dig._ i. 3. 38.
+
+-----
+
+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.e._ 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 students, whether English
+judges or Roman text-writers, that has done the work which the people,
+or the Courts for the people, have accepted.
+
+
+ IV. MAGISTRATES AND JUDGES AS MAKERS OF LAW.
+
+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.e._ 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.
+
+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 procures the approval of the Crown in Council to what he issues in
+the form of an Order in Council[113]. 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
+_iudices terrae_ 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 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.
+
+-----
+
+Footnote 113:
+
+ Orders in Council are also issued in certain cases under the
+ prerogative of the Crown without statutory delegation.
+
+-----
+
+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.e._ Parliament, to exercise them, is an inversion of
+historic truth and legal doctrine, an attempt to support a false theory
+by imaginary facts[114]. It is easier and safer 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 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.
+
+-----
+
+Footnote 114:
+
+ 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.
+
+-----
+
+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
+_Magistratus_ or an English Chancellor. Now let us come to the Roman
+Praetor.
+
+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 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[115], 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 B.C. 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 B.C. 247.
+He came to be called _Praetor peregrinus_, while the original Praetor
+was described as the Praetor of the City (_urbanus_). 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.
+
+-----
+
+Footnote 115:
+
+ 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 _imperium_ and _iurisdictio_.
+
+-----
+
+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 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[116].
+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 (_e.g._ 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[117].
+
+-----
+
+Footnote 116:
+
+ The Praetor, said the Romans, does not make law (_Praetor ius facere
+ non potest_). Yet they also called the rules which emanated from him
+ _iura_ (see Cic. _De Invent._ ii. 22): and the whole body of rules due
+ to his action was in later times described as _ius honorarium_, _ius
+ praetorium_. Sometimes a right resting on _ius_ is contrasted with one
+ depending on the protection (_tuitio_) of the Praetor: Ulpian in
+ _Dig._ vii. 4. 1. Those who put the Praetor’s authority highest called
+ the Edict _lex annua_, says Cicero, _Verr._ 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.
+
+Footnote 117:
+
+ ‘Ius praetorium est quod praetores introduxerunt adiuvandi vel
+ supplendi vel corrigendi iuris civilis gratia propter utilitatem
+ publicam.’ Papinian in _Dig._ i. 1. 7.
+
+-----
+
+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 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[118]. 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.
+
+-----
+
+Footnote 118:
+
+ His declarations did not originally, in strictness of law, bind even
+ himself, and it was found necessary to enact, by a _lex Cornelia_ of
+ B.C. 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. _in Cic. Pro Cornelio_, 58.)
+
+ The Edict regularly issued at the beginning of each year was called
+ _Edictum perpetuum_, as opposed to _Edictum repentinum_, one issued
+ for an emergency.
+
+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 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.
+
+The Praetor, therefore, having (like the Consul) _imperium_ (_i.e._ 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 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.
+
+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 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 _imperium_. 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 _in consimili casu_, 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 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.
+
+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.e._ if
+a plaintiff 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.e._ 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.
+
+
+ V. THE SYSTEM OF PRAETORIAN EDICTS AS COMPARED WITH ENGLISH CASE LAW.
+
+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 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 _ratio decidendi_ that can be quoted as
+an authority. No _dictum_ 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 _ratio decidendi_ 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.
+
+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 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 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.
+
+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.
+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.
+
+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 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.
+
+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 other the
+law is injured. But on the Roman system these evils were, not indeed
+wholly, yet to a much greater extent avoided[119]. 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.
+
+-----
+
+Footnote 119:
+
+ 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 _stare iudicatis_.
+
+-----
+
+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 (B.C.
+241 to 117 A.D.). 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 _Edictum Perpetuum_ in a new
+sense; it was then enacted by a _Senatus Consultum_, 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.
+
+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.e._ by imposing on the honour and good
+faith of the person to whom property was left a legal obligation to 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 (_codicilli_) 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 _codicilli_, thenceforward a well-established legal
+doctrine[120]. 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.
+
+-----
+
+Footnote 120:
+
+ ‘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’ (_Inst._ ii. 23. 1). See also _Inst._ ii. 25.
+
+-----
+
+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
+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[121].
+
+-----
+
+Footnote 121:
+
+ Not that all the cases we find in the _Digest_ 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.
+
+-----
+
+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, 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 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.
+
+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.
+
+
+ VI. DIRECT LEGISLATION AT ROME.
+
+ A. _The Popular Assembly._
+
+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 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.
+
+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.
+
+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.
+
+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 _Ius_ and
+_Lex_[122]: we contrast Common Law and Statute.
+
+-----
+
+Footnote 122:
+
+ By the time of Justinian the distinction had come to be between _Ius_
+ 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
+ _Ius Novum_, sometimes _Leges_.
+
+-----
+
+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.
+
+The Roman State lasted 2,206 years—from the unauthenticated ‘founding of
+the city’ (for which I assume the traditional date of B.C. 753) down to
+the well authenticated capture of Constantinople by the Turks in A.D.
+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 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.
+
+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 A.D.) and in the
+_Digest_ and _Institutes_ of Justinian enacted in the sixth century A.D.
+The Emperor says, ‘The written law consists of statutes, resolutions of
+the _plebs_, decrees of the Senate, the ordinances of emperors, the
+edicts of magistrates, the answers of jurisconsults[123].’ 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.e._ declarations of the will of the State
+formally promulgated as law.
+
+-----
+
+Footnote 123:
+
+ ‘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’ (_Inst._ i. 2. 3, 4).
+
+-----
+
+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 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
+_comitia_ (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 _mallum_, 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, _curia_,
+_centuria_, or _tribus_, 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 (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[124]. 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.e._ 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.
+
+-----
+
+Footnote 124:
+
+ See 52 & 53 Vict. c. 55, § 14, subs. 4.
+
+-----
+
+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 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.
+
+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.e._ 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 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 _comitia_ turned out was a matter for satisfaction, not for
+regret.
+
+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 _comitia_. 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 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.
+
+It is worth remarking that the earliest Roman conception of a _Lex_ 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
+_lex_ meant in early Latin simply a set form of words; and when applied
+to an enactment by the _comitia_, it described, not a special kind of
+legal rule, but merely the expression of the 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 _comitia_ and the Magistrate
+representing the Corporate State. Hence the definition of _Lex_ which we
+find given by Papinian (_Dig._ i. 3. 1), ‘the common covenant of the
+republic’ (_communis reipublicae sponsio_), probably descends from the
+old practice according to which the Consul or other presiding Magistrate
+asked (_rogavit_) the _comitia_ 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 _stipulatio_ the questioner asks the
+promiser whether he promises to do such and such a thing, to which the
+latter answers, ‘I promise’ (_spondeo_); so the Consul asks the Quirites
+whether they wish and order that such and such a thing shall be done
+(_Velitis, iubeatis, Quirites?_), whereto the citizens answer, ‘Be it as
+you ask’ (_Uti rogas_). 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.
+
+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 not been exercised since 1707. So when actual
+power passed from the _comitia_ 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 _comitia_ 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 _comitia_ 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 _Respublica Romana_ survived in documents and
+inscriptions when the old associations it evoked had been
+forgotten[125]. 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[126].
+
+-----
+
+Footnote 125:
+
+ 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 A.D., 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.’
+
+Footnote 126:
+
+ 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.
+
+-----
+
+
+ VII. DIRECT LEGISLATION AT ROME.
+
+ B. _The Senate._
+
+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 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[127]. When the _comitia_ 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 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.
+
+-----
+
+Footnote 127:
+
+ This is illustrated by the words of Gaius, ‘Senatus consultum legis
+ vicem obtinet quamvis fuerit quaesitum’ (Gai _Inst._ i. 4). Ulpian
+ however says, ‘Non ambigitur senatum ius facere posse’ (_Dig._ i. 3.
+ 9). It too exerted a sort of dispensing power: cf. Sallust, _Cat._ 29.
+
+-----
+
+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 _iudices_; 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 (in normal times)
+to be business-like, and to avoid the danger of degenerating into a
+mob[128]. Like the _comitia_, it voted only once on a proposition, and
+that one vote was sufficient to pass a law. Again like the _comitia_, it
+could only deal with what the magistrate brought before it, private
+members having no initiative. But, unlike the _comitia_, 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 _Senatus consultum_ itself, but
+the speech (_oratio_) in which the Emperor proposed it to 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.
+
+-----
+
+Footnote 128:
+
+ 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. _Octav._ 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.
+
+-----
+
+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.
+
+The checks which have been noted as existing in the case of the
+_comitia_ 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 _Senatus consulta_ 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 _leges_. They are less imperative in form, and often
+express quite as much in their preamble, which contains the motives 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.
+
+The _Senatus consulta_ actually preserved, or known to us by name, are
+less numerous than might have been expected. The same may be said of the
+_leges_, 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 _leges_ and _Senatus consulta_, 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.
+
+
+ VIII. DIRECT LEGISLATION AT ROME.
+
+ C. _The Emperor._
+
+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 origin which has come down to us was enacted by
+the Emperors, the number of _leges_ and _Senatus consulta_ 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.
+
+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[129], it is important to remember that its true parent is to
+be sought, not in _leges_, nor even in _Senatus consulta_, 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.
+
+-----
+
+Footnote 129:
+
+ Cf. Just. _Inst._ i. 2. 6: cf. _Dig._ i. 4. 1.
+
+-----
+
+Even the action of the jurists, and the custom of issuing answers on
+points of law (_responsa_), 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 _iudex_, how much
+more weight was due to a declaration proceeding from himself, the
+fountain-head of authority? That the imperial ordinances 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[130]—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.
+
+-----
+
+Footnote 130:
+
+ Dante, _Purgat._ canto x.
+
+-----
+
+It is not necessary for our immediate purpose to 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
+(_decreta_), decisions of the Emperor as being at first practically, and
+at last legally also, a Supreme Court of Appeal[131]. In later times the
+general name of Constitutions (_constitutio est quod imperator
+constituit_), 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.
+
+-----
+
+Footnote 131:
+
+ 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.
+
+-----
+
+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 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 A.D. 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.
+
+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 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.
+
+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 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
+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[132]. 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.
+
+-----
+
+Footnote 132:
+
+ Of whom we are told that he never sanctioned any Constitution without
+ the advice of at least twenty jurisconsults. After Hadrian the
+ _Consiliarius Augusti_ had a position of recognized dignity.
+
+-----
+
+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 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.
+
+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 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.
+
+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[133], but because the law
+ought to undergo as few bold and sudden changes as possible. 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.
+
+-----
+
+Footnote 133:
+
+ 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.’
+
+-----
+
+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 _responsa_ 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 those questions which it was necessary to
+establish or deal with. After the time of Diocletian[134], 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 _elegantia_, 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 _leges_. But they were, during the first
+two centuries of the Empire, simple and concise. Afterwards, while
+becoming more 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’ (_Novels_ ) 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 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.
+
+-----
+
+Footnote 134:
+
+ Many of Diocletian’s rescripts are well expressed and show a mastery
+ of the old legal principles.
+
+-----
+
+
+ IX. DIRECT LEGISLATION IN ENGLAND:
+ PARLIAMENT.
+
+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 not be surprised that
+this particular department still waits for its historian[135].
+
+-----
+
+Footnote 135:
+
+ The admirable _History of English Law_ 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 _Legislative Methods and Forms_, 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.
+
+-----
+
+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.
+
+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 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.
+
+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 branches, either of which can criticize and
+amend the Bills passed by the other.
+
+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 seven stages in the House of
+Commons[136], and six in the House of Lords, and at each of these stages
+it may be debated at indefinite length[137]. 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[138]. 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?
+
+-----
+
+Footnote 136:
+
+ 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.
+
+Footnote 137:
+
+ 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.
+
+Footnote 138:
+
+ 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.
+
+-----
+
+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 men as compose our
+commercial classes, such technically competent as well as practical men
+as the judges of the land.
+
+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[139].
+
+-----
+
+Footnote 139:
+
+ As to the actual methods and difficulties of Parliamentary
+ legislation, see the penetrating and careful analysis contained in Sir
+ C. P. Ilbert’s _Legislative Methods and Forms_, chap. x.
+
+-----
+
+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 person who prepared and proposed it, and on him alone[140]; 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.
+
+-----
+
+Footnote 140:
+
+ Although, as observed above, the Emperor might, if he liked, cause a
+ draft Constitution to be debated in his Consistory.
+
+-----
+
+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.e._ 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.
+
+Private (_i.e._ unofficial) members of Parliament might 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.
+
+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
+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.
+
+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; 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.
+
+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 Committee, which is
+conducting a general revision of the statutes. It has issued a Revised
+Edition coming down to A. D. 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.
+
+
+ X. SOME REFLECTIONS SUGGESTED BY THE HISTORY OF LEGISLATION.
+
+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.
+
+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.
+
+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 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.
+
+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[141] and in
+the 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.
+
+-----
+
+Footnote 141:
+
+ According to Sir C. P. Ilbert (_op. cit._) nine-tenths.
+
+-----
+
+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 _formulae_
+(established by the _Lex Aebutia_ probably about B.C. 200) and the
+criminal _quaestiones perpetuae_ 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.
+
+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.
+
+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 _de novo_, that is to say, on general principles
+and without much 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[142].
+
+-----
+
+Footnote 142:
+
+ 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 _Caveat emptor_ (let the
+ buyer beware) and that which would exact _uberrima fides_ (the amplest
+ good faith) from a company promoter or director.
+
+-----
+
+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.
+
+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 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.
+
+
+
+
+ XV
+
+ THE
+ HISTORY OF LEGAL DEVELOPMENT
+ AT ROME AND IN ENGLAND
+
+
+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
+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, except, perhaps, 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.
+
+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, 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.
+
+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 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.
+
+
+ I. FIVE CHIEF EPOCHS OF LEGAL CHANGE AT ROME.
+
+In the thousand years of Roman history that lie between the first
+authentic records of the constitution and laws of the city, say 451
+B.C., when the Decemviral Commission, which produced the laws of the
+Twelve Tables, was appointed, and 565 A.D., when Justinian died, having
+completed his work of codification and new legislation[143], we may
+single out five such epochs.
+
+-----
+
+Footnote 143:
+
+ 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 A.D. 1204, and in a sense even to
+ A.D. 1453, in an unbroken stream, the codes issued by the later
+ Emperors, and especially the _Basilica_ of Leo the Philosopher, being
+ based upon Justinian’s redaction.
+
+-----
+
+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.
+
+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.
+
+3. The end of the Republic and early days of the 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.
+
+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.
+
+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.
+
+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 _Urbs_ became _Orbis Terrarum_. 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 semi-dependent self-governing States which reproduce
+England[144]. 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.
+
+-----
+
+Footnote 144:
+
+ I do not include India or the Crown Colonies, because the population
+ of these is not English.
+
+-----
+
+
+ II. FIVE EPOCHS OF LEGAL CHANGE IN ENGLAND.
+
+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.
+
+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.
+
+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.
+
+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 relation
+of the Monarch to the landholding aristocracy, and that of the State to
+its subjects in religious matters, underwent profound alterations.
+
+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.
+
+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.
+
+Five such determining causes may be singled out as of special
+importance. They are these.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+
+ III. OUTLINE OF LEGAL CHANGES AT ROME.
+
+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 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 enacted as a Statute, and became thenceforth, in
+the words of Livy[145], ‘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[146].
+
+-----
+
+Footnote 145:
+
+ ‘Decem tabularum leges quae nunc quoque in hoc immenso aliarum super
+ alias acervatarum legum cumulo fons omnis publici privatique est
+ iuris’ (iii. 34).
+
+Footnote 146:
+
+ ‘Bibliothecas mehercule omnium philosophorum unus mihi videtur xii
+ tabularum libellus, siquis legum fontes et capita viderit, et
+ auctoritatis pondere et utilitatis ubertate superare’ (_De Orat._ i.
+ 44). An odd comparison, and one in which there is more of patriotism
+ than of philosophy.
+
+-----
+
+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.
+
+Meanwhile Rome was conquering Italy. The defeat of Pyrrhus in B.C. 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 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 (_peregrini_) with one another or with Romans
+gave rise, and accordingly a Magistrate (_Praetor peregrinus_) 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 _ius gentium_ (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[147]. Through the
+action of the older Urban Praetor much of this _ius gentium_ 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 _ius gentium_, generalized from the customs
+found operative among different peoples, and therefore deemed to
+represent general principles 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[148].
+
+-----
+
+Footnote 147:
+
+ As to the _ius gentium_ see Essay XI, p. 128 sqq.
+
+Footnote 148:
+
+ As to this see Essay II, vol. i. p. 91.
+
+-----
+
+These remarkable changes, which may be said to belong to the period
+which begins with the outbreak of the First Punic War (B.C. 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[149].
+
+-----
+
+Footnote 149:
+
+ 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.
+
+-----
+
+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 _ius gentium_. 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.
+
+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[150]. 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 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[151]. 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.
+
+-----
+
+Footnote 150:
+
+ ‘Parthos atque Britannos’ are aptly coupled by Horace as the two
+ peoples that remained outside the Empire.
+
+Footnote 151:
+
+ Described in the last preceding Essay, p. 257.
+
+-----
+
+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 (A.D. 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.
+
+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 to all subjects a century before Constantine,
+makes itself felt in his legislation.
+
+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 _colonatus_ 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.
+
+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, 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 A.D. 408 to A.D. 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 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.
+
+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.
+
+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 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.
+
+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 _Edictum_ of Theodorich, King of the East
+Goths, published in A.D. 500, the _Lex Romana Visigothorum_, commonly
+called the _Breviarium Alaricianum_, published by Alarich II, King of
+the West Goths (settled in Aquitaine and Spain), in A.D. 506, a year
+before his overthrow by Clovis, and the _Lex Romana Burgundionum_,
+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 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.
+
+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.
+
+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 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.
+
+
+ IV. OUTLINE OF THE PROGRESS OF LEGAL CHANGES IN ENGLAND.
+
+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.
+
+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 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.
+
+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 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.
+
+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 _Quia Emptores_ and _De Donis
+Conditionalibus_, 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 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.
+
+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 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.
+
+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 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[152]. 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 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[153].
+
+-----
+
+Footnote 152:
+
+ As Milton says:—
+
+ ‘And that two-handed engine at the door
+ Stands ready to strike once and strike no more.’
+
+Footnote 153:
+
+ Although the Napoleonic government was in many things only completing
+ work begun under Lewis the Fourteenth.
+
+-----
+
+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 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.
+
+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 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.
+
+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.
+
+
+V. SOME DIFFERENCES BETWEEN THE DEVELOPMENT OF ROMAN AND THAT OF ENGLISH
+ LAW.
+
+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.
+
+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 century B.C. 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.
+
+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 (_Quia
+Emptores_) 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 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.
+
+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 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.
+
+The vaster territorial expansion of the eighteenth and nineteenth
+centuries has told quite as little on the 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.
+
+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.
+
+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 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.
+
+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. 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.
+
+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 a City State and a large rural State exposed their political
+system to more frequent shocks and ultimately to a more radical
+transformation.
+
+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.
+
+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[154]. 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 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.
+
+-----
+
+Footnote 154:
+
+ I owe this observation to my friend Mr. Dicey.
+
+-----
+
+
+ VI. OBSERVATIONS ON FRANCE AND GERMANY.
+
+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 _Corpus Iuris_ 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 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 al’ 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 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 (_Wechselordnung_) (1848-1850),
+while a general Commercial Code (_Gemeines Handelsgesetzbuch_) 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.
+
+
+ VII. PRIVATE LAW LEAST AFFECTED BY POLITICAL CHANGES OR DIRECT
+ LEGISLATION.
+
+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 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.
+
+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[155]. In England commerce is still growing,
+education is still advancing, new and complicated problems 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[156]. 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 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.
+
+-----
+
+Footnote 155:
+
+ Within two centuries after Justinian’s time official abridgements of
+ his _Corpus Iuris_ began to be issued, and it was virtually superseded
+ in the end of the ninth century by the _Basilica_ 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.
+
+Footnote 156:
+
+ The interest excited by cases such as those of the _Mogul Steamship
+ Company_ v. _Macgregor_ and _Allen_ v. _Flood_ illustrates this.
+
+-----
+
+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.
+
+
+
+
+ XVI
+
+ MARRIAGE AND DIVORCE UNDER
+ ROMAN AND ENGLISH LAW
+
+
+ I. INTRODUCTORY.
+
+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[157]. 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
+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.
+
+-----
+
+Footnote 157:
+
+ See Essay XI, p. 150.
+
+-----
+
+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 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.
+
+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.
+
+
+ II. CHARACTER OF MARRIAGE IN EARLY LAW.
+
+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 the social development of the two
+regions[158]. 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[159]. 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[160], 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[161].
+
+-----
+
+Footnote 158:
+
+ Euripides (_Androm._ vv. 173-180) contrasts the marriage usages of
+ barbarians and Greeks, and dilates (cf. v. 465 sqq.) on the evils of
+ polygamy.
+
+Footnote 159:
+
+ Tac. _Germ._ c. xvii.
+
+Footnote 160:
+
+ 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. _Julius_, c. 52).
+
+Footnote 161:
+
+ Among the Jews it was (though forbidden by Roman law) not formally
+ abolished till the tenth century.
+
+-----
+
+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 earlier stages of civilization. They are worth
+noting, because they constitute the central threads of the history of
+the relation during civilized times.
+
+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.
+
+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.
+
+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.
+
+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.
+
+
+ III. THE EARLIER FORM OF ROMAN MARRIAGE LAW.
+
+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.
+
+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.
+
+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 (B.C. 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 _per se_ that created the power of the husband, for a woman
+might be legally married and not be under 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 (_manus_), and brought
+the wife into her husband’s power, putting her, so far as legal rights
+went, in the position of a daughter (_filiae loco_). 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[162]. 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’ (_sui heredes_), 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.
+
+-----
+
+Footnote 162:
+
+ 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.
+
+-----
+
+There were two forms of ceremony by which this 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 (_far_), whence it was called
+_confarreatio_. 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)[163], 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.
+
+-----
+
+Footnote 163:
+
+ 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.
+
+-----
+
+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 absented herself from his house
+for three continuous nights during that year[164]. And where the Hand
+power had not been created, the property rights of the wife, whatever
+they were[165], 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.
+
+-----
+
+Footnote 164:
+
+ 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.’
+
+Footnote 165:
+
+ If she was in the power (_potestas_) of her father, she had no
+ property of her own. If she was _sui iuris_, she was under
+ guardianship.
+
+-----
+
+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.
+
+
+ IV. CHANGE FROM THE EARLIER TO THE LATER
+ SYSTEM AT ROME.
+
+Before the close of the republican period the rite of _confarreatio_
+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
+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[166]. The form of _coemptio_,
+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
+_Inst._ 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.
+
+-----
+
+Footnote 166:
+
+ 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 (_quoad sacra_) (Gai _Inst._ i.
+ 136).
+
+-----
+
+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, 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.
+
+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.
+
+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, 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.
+
+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[167].
+
+-----
+
+Footnote 167:
+
+ I pass by the distinction between _iustae nuptiae_, which could be
+ contracted only between Roman citizens, and the so-called ‘natural’
+ marriage, or _matrimonium iuris gentium_, which was created by the
+ marriage of a full citizen to a half citizen or an alien
+ (_peregrinus_), 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 _Inst._ i. 78, 79.
+
+-----
+
+
+ V. LATER MARRIAGE LAW: PERSONAL RELATION
+ OF THE CONSORTS.
+
+The following points deserve to be noted as characterizing the Roman
+view.
+
+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[168].
+
+-----
+
+Footnote 168:
+
+ 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.
+
+-----
+
+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.
+
+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’ (_nuptiae solo consensu contrahuntur_) is
+the invariable Roman maxim. Even the conducting of the bride to the
+bridegroom’s house, which has sometimes been represented as
+necessary[169], seems to have been regarded rather as evidence needed in
+certain cases than as essential to the validity of the act[170]. A
+generally prevalent usage made a formal betrothal (_sponsalia_) precede
+the actual wedding. But the betrothal promise created no legal right. No
+action lay upon it, such as that which English and 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[171]. 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 (_pactum turpe_) 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.
+
+-----
+
+Footnote 169:
+
+ The Emperor Majorian (A.D. 455-461) is said to have issued a
+ constitution for the Western Empire, making the creation of a _dos_
+ 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.
+
+Footnote 170:
+
+ See Paul., _Sent. Recept._ xix. 8; _Dig._ 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.
+
+Footnote 171:
+
+ This was at any rate a usage among the Latins; but how far in Rome
+ seems doubtful.
+
+-----
+
+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 _gens_, but
+now she retained her own, besides her personal ‘first name’
+(_praenomen_) (_e.g._ Tertia)[172]. Each spouse being interested 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 (_actio infamans_),
+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[173]. 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[174].
+
+-----
+
+Footnote 172:
+
+ Under the Empire we usually find women using two names, from their
+ father’s _gens_ and family (e.g. _Caecilia Metella_). Sometimes, it
+ would seem, the name of the father’s _gens_ was followed by one taken
+ from the mother (e.g. _Iunia Lepida_, _Annaea Faustina_). The subject
+ is fully discussed by Mommsen, in his _Römisches Staatsrecht_.
+
+Footnote 173:
+
+ A special action (_rerum amotarum_) 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. _Dig._ xxv. 2. 1.
+
+Footnote 174:
+
+ _Dig._ xliii. 30. 2.
+
+-----
+
+
+ VI. LATER LAW. PECUNIARY RELATIONS OF THE CONSORTS.
+
+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 as well as during life, though the wife needed, down to
+a comparatively late time, the authority of her guardian[175]. 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 (_cognati_) 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 (_Senatus
+Consultum Tertullianum_, _Sc. Orphitianum_) of the time of Hadrian and
+Marcus Aurelius gave the mother and the children reciprocal rights of
+inheritance[176], which, finding a place in the general scheme of
+succession based on consanguinity which Justinian established, have
+passed into modern law.
+
+-----
+
+Footnote 175:
+
+ 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.
+
+Footnote 176:
+
+ The mother’s succession was originally granted only where she had
+ borne three children (if a freed-woman, four).
+
+-----
+
+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 _Dos_, 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 _Dos_, 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[177]. 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[178]. If, however, the property had been bn 414.png given
+by the wife’s father, he might, if still living, reclaim it[179]. The
+_Dos_ 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 (_donatio propter nuptias_). 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 _Dos_, 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 _Dos_, so if a divorce was caused by the husband’s fault,
+the _donatio propter nuptias_, 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 general
+legal doctrine whose provisions were applicable to gifts made upon or in
+contemplation of marriage.
+
+-----
+
+Footnote 177:
+
+ The ‘custom of conveyancers’ has worked itself into English law in a
+ somewhat similar way.
+
+Footnote 178:
+
+ This was the rule as settled by Justinian. Before his time, the
+ husband took the _Dos_ at the wife’s death unless it had been given by
+ her father.
+
+Footnote 179:
+
+ 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.
+
+-----
+
+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 (_ne mutuato amore invicem
+spoliarentur_). 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[180]. 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 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.
+
+-----
+
+Footnote 180:
+
+ ‘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; _Dig._ xxiv. 1.
+ 2.
+
+-----
+
+
+ VII. GENERAL CHARACTER OF THE ROMAN CONCEPTION OF MARRIAGE.
+
+
+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.
+
+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[181]. The wife is the
+husband’s equal[182]. 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.
+
+-----
+
+Footnote 181:
+
+ ‘Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae,
+ divini et humani iuris communicatio;’ Modestinus in _Dig._ xxiii. 2.
+ 1.
+
+Footnote 182:
+
+ This was expressed in the phrase which the bride anciently used when
+ brought to the husband’s house: ‘Ubi tu Gaius, ego Gaia.’
+
+-----
+
+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 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.
+
+The marriage relation rests entirely on the free will of the two
+parties[183]. If either having promised to enter it refuses to do so, no
+liability is incurred. 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.
+
+Compulsion in any form or guise is utterly opposed to a connexion which
+springs from free choice and is sustained by affection only.
+
+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.
+
+-----
+
+Footnote 183:
+
+ ‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus
+ Alexander in the third century. _Cod._ viii. 38. 2.
+
+-----
+
+
+ VIII. DIVORCE IN ROMAN LAW.
+
+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.
+
+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 _A_ and _B_ for the sale and purchase of a house.
+Such a bargain creates what the Romans call an obligation, a bond of law
+(_vinculum iuris_) 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.
+
+Accordingly divorce can be effected by either party 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.
+
+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[184]; and we gather that in such cases she was entitled to
+demand her emancipation, _i.e._ 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 B.C. 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 B.C. divorce
+was no longer rare. In the days of Julius Caesar it had 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.
+
+-----
+
+Footnote 184:
+
+ 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.
+
+-----
+
+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 B.C. 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[185]. 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 property to thyself’
+(_tuas res tibi habeto_). 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[186]. 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.
+
+-----
+
+Footnote 185:
+
+ ‘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. _Noct. Att._ i. 6: cf. Liv. _Epit._
+ Book lix, and Sueton. _Vit. Aug._ 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 _De Maritandis Ordinibus_,
+ as being one which might fitly have been made for their own times.
+
+Footnote 186:
+
+ ‘Aut minus aut certe non plus tricesima lux est
+ Et nubit decimo iam Thelesina viro.’
+ Mart. vi. 7.
+
+-----
+
+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 _lex Iulia de adulteriis_, 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 embodied in manners, remedies avail nothing (_Desinit esse
+remedio locus ubi quae fuerant vitia mores sunt_).
+
+
+ IX. INFLUENCE OF CHRISTIANITY ON THE ROMAN DIVORCE LAW.
+
+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 _Dos_ 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 _Dos_ at once,
+instead of being allowed a year’s grace.
+
+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
+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 _Dos_, 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 _donatio propter nuptias_. 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 _Dos_ or _Donatio_, 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.
+
+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[187],
+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 _divortium bona gratia_.
+
+-----
+
+Footnote 187:
+
+ The older doctrine had been that foreign captivity destroyed marriage
+ _ipso facto_.
+
+-----
+
+Finally, if both the parties agreed of their own free wills to
+separate—the _divortium communi consensu_—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 (_Novella Constitutio_ 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.
+
+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 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.
+
+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.
+
+
+ X. SOME OTHER FEATURES OF ROMAN MARRIAGE LAW.
+
+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[188]
+designed to promote marriage and the bearing of children by attaching
+certain burdens or disabilities to the unmarried 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.
+
+-----
+
+Footnote 188:
+
+ Especially those contained in the _lex Iulia et Papia Poppaea_.
+
+-----
+
+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 (_lucra nuptialia_), 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.
+
+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 near relatives,
+as far as second cousins, to kiss one another without incurring censure
+(_ius osculi_). 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[189]. 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 (_Ann._ 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[190]. 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 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[191]. This rule was adopted by Justinian, in whose
+_Codex_ it finds a place[192].
+
+-----
+
+Footnote 189:
+
+ 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.
+
+Footnote 190:
+
+ Tac. _Ann._ xii. 5-7.
+
+Footnote 191:
+
+ 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.
+
+Footnote 192:
+
+ _Cod. Theod._ iii. 12, 2 sqq.; _Cod. Iustin._ v. 5. 5 and 8.
+
+-----
+
+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[193]. One of these was the
+marriage of a citizen, whether male or female, with a non-citizen,
+_i.e._ a person who did not enjoy that part of citizenship which covered
+family rights and was called _connubium_. This was called a natural
+marriage (_matrimonium naturale_, _matrimonium iuris gentium_) as
+existing under the Law of Nature or Law of the Nations (_ius gentium_),
+as contradistinguished from the peculiar law of Rome (_ius
+civile_)[194]. 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 exceptions) only to persons outside the Empire, and marriages
+with such persons, who were _prima facie_ enemies, were forbidden.
+
+-----
+
+Footnote 193:
+
+ The connexion of two slaves, called _contubernium_, 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.
+
+Footnote 194:
+
+ See Essay XI, p. 128.
+
+-----
+
+The other relation was that called concubinage (_concubinatus_). 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 (_Novella_
+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’ (_licita consuetudo_), and was not abolished till
+long after his time by the Emperor Leo the Philosopher in A.D. 887. In
+the West it became by degrees discredited, yet doubtless 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.
+
+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
+(_Cod._ v. 27, 5 and 6; _Nov._ xii. 4; _Nov._ lxxxix. 8); a rule of
+great importance, which was long afterwards introduced into the Canon
+Law by Pope Alexander III in A.D. 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 (A.D.
+1235-6) refused their consent in the famous words, ‘We will not change
+the laws of England which hitherto have been used and approved[195].’
+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 over the parents, and were from
+this called in Germany, France, and Normandy, ‘mantle children[196].’
+
+-----
+
+Footnote 195:
+
+ ‘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, _Stat. Mert._
+
+Footnote 196:
+
+ Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak
+ custom as existing in Scotland down almost to our own time.
+
+-----
+
+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.
+
+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 _plebs_ 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 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.
+
+
+ XI. MARRIAGE UNDER THE CANON LAW.
+
+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 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[197],
+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.
+
+-----
+
+Footnote 197:
+
+ See Lord Stowell’s famous judgement in _Lindo_ v. _Belisario_
+ (_Consist. Cases_, p. 230), where he examines in an interesting way
+ the requisites of marriage under the ‘law of nature.’
+
+-----
+
+This view prevailed, and may be said to have been the common law of
+Christendom, as it had been of the old Roman Empire, down till the
+Council of Trent[198]. That assembly, against the strong protests of
+some of its members, passed a decree (Sessio XXIV, cap. i, _De
+Reformatione Matrimonii_) 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 of marriage than as regards the mode of
+contracting it.
+
+-----
+
+Footnote 198:
+
+ Canon VII of Session XXIV anathematizes those who deny the teaching of
+ the Church that the adultery of one spouse does not dissolve the
+ _vinculum matrimonii_, and Canon X those who deny that it is better
+ and happier to remain in a state of virginity or celibacy.
+
+-----
+
+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.
+
+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[199]. 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 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[200].
+
+-----
+
+Footnote 199:
+
+ The pontifices had a certain oversight over the sacred marriage by
+ _confarreatio_, and their action was needed to effect a _diffareatio_,
+ when it was desired to extinguish the _manus_ of the husband over a
+ divorced wife.
+
+Footnote 200:
+
+ 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 (_History of English
+ Law_, 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.
+
+-----
+
+
+ XII. THE ENGLISH LAW OF MARRIAGE.
+
+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 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[201]) 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.
+
+-----
+
+Footnote 201:
+
+ Messrs. Pollock and Maitland, in their admirable _History of English
+ Law_, to which the reader curious in these matters may be referred.
+
+-----
+
+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 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.’
+
+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
+into it, consent, and consent alone, being still all that was necessary
+to make a marriage valid[202]. 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 A.D. 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[203]. 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[204]. During the Commonwealth 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 _Reg._ v. _Millis_, 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.
+
+-----
+
+Footnote 202:
+
+ The House of Lords was equally divided upon this point in the case of
+ _Reg._ v. _Millis_, in 1843; but historical inquiry tends to confirm
+ the view of Lord Stowell, that the presence of a clergyman was not
+ essential (see _Dalrymple_ v. _Dalrymple_, 2 Haggard, p. 54).
+
+Footnote 203:
+
+ 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.’
+
+Footnote 204:
+
+ 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.
+
+-----
+
+
+ XIII. PROPERTY RELATIONS OF THE CONSORTS UNDER ENGLISH LAW.
+
+Now let us turn to the effect of marriage in the law of England upon the
+property and the personal rights of the wife.
+
+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 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’ (_quia fuit sub
+virga viri sui_[205]).
+
+-----
+
+Footnote 205:
+
+ Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429
+ b).
+
+-----
+
+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 _manus_ 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.
+
+As respects her personal safety, she was better 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[206].
+
+-----
+
+Footnote 206:
+
+ Kovalevsky, _Modern Customs and Ancient Laws of Russia_, p. 44.
+
+-----
+
+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[207], though a case is reported to have arisen in A.D. 1302, when
+a husband granted his wife by deed to another man, with whom she
+thereafter lived in adultery[208].
+
+-----
+
+Footnote 207:
+
+ 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.
+
+Footnote 208:
+
+ See Pollock and Maitland, vol. ii. p. 395.
+
+-----
+
+The compensation given to the English wife for the loss (or suspension
+during the marriage) of her control 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.
+
+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.’
+
+
+ XIV. GRADUAL AMENDMENT OF THE ENGLISH MATRIMONIAL LAW.
+
+However, the Courts of Equity ultimately set themselves in England to
+improve the wife’s condition. 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.
+
+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 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 year, amended 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, and perhaps will long sustain, a system
+resembling that of the Roman _Dos_. 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.
+
+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):—
+
+ ‘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 _aliter quam ad virum, ex causa
+ regiminis et castigationis uxoris suae, licite et rationabiliter
+ pertinet_. 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[209].’
+
+-----
+
+Footnote 209:
+
+ Blackstone, _Commentaries_, vol. i. bk. i. chap. 15.
+
+-----
+
+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
+very special circumstances) may be deemed to have become exploded since
+the case of _Reg._ v. _Jackson_ in 1891[210]. 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.
+
+-----
+
+Footnote 210:
+
+ 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.
+
+-----
+
+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 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[211] 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 _Dos_ (and _Donatio propter nuptias_) at Rome, in which
+each of the married pair has an interest.
+
+-----
+
+Footnote 211:
+
+ This promise does not appear in the forms of marriage service commonly
+ used by the unestablished churches of England, or most of them.
+
+-----
+
+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 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.
+
+
+ XV. DIVORCE UNDER THE CANON LAW.
+
+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.
+
+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 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[212], 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.
+
+-----
+
+Footnote 212:
+
+ Messrs. Pollock and Maitland refer to the dooms of Aethelbert as
+ showing the permissibility of divorce in early English law (_History
+ of English Law_, vol. ii. p. 390).
+
+-----
+
+One of these, called the divorce from the bond of marriage (_a vinculo
+matrimonii_), 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. 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[213].
+
+-----
+
+Footnote 213:
+
+ But canonical ingenuity discovered methods by which in some cases the
+ legitimacy of the children might be saved though the marriage was
+ declared void.
+
+-----
+
+The other kind of divorce was that called ‘from board and bed’ (_a mensa
+et thoro_). 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.
+
+
+ XVI. THE LATER LAW OF DIVORCE IN ENGLAND AND SCOTLAND.
+
+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 A.D. 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 law went on unchanged, save
+that after the abolition of many of the canonical impediments, mentioned
+above, divorces _a vinculo_, 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 _Reformatio legum
+ecclesiasticarum_) 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 _a mensa et thoro_, 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 A.D. 1801[214].
+
+-----
+
+Footnote 214:
+
+ 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.
+
+-----
+
+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 to the poor had become a scandal[215]. 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 _a vinculo matrimonii_) or a ‘judicial
+separation’ (divorce _a mensa et thoro_). 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[216].
+
+-----
+
+Footnote 215:
+
+ 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.
+
+Footnote 216:
+
+ 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.
+
+-----
+
+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.
+
+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.
+
+
+ XVII. THE DIVORCE LAWS OF THE UNITED STATES.
+
+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.
+
+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 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.
+
+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 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 _ipso iure_ 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 _a mensa et thoro_. 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.
+
+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 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 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 _prima facie_ dissolved
+everywhere[217]; 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.
+
+-----
+
+Footnote 217:
+
+ 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.
+
+-----
+
+
+ XVIII. STATISTICS OF DIVORCE IN AMERICA.
+
+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[218]. 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 far larger than 79·4, there are only five in which divorce
+has not grown faster than population.
+
+-----
+
+Footnote 218:
+
+ 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.
+
+-----
+
+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[219].
+
+-----
+
+Footnote 219:
+
+ In an interesting article in the _Political Science Quarterly_ 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.
+
+ 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.
+
+-----
+
+It is, in the South, apparently somewhat greater among the coloured
+people than among the whites[220]. 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.
+
+-----
+
+Footnote 220:
+
+ The conditions prevailing among a coloured population which had, under
+ slavery, no legal marriage, go far to explain this phenomenon.
+
+-----
+
+Some other facts to be noted before we pass on to consider those causes
+are the following.
+
+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[221].
+
+-----
+
+Footnote 221:
+
+ 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.
+
+-----
+
+A wife alleges that her husband has accused her sister of stealing,
+thereby sorely wounding her feelings.
+
+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.’
+
+Another complains that her husband does not wash himself, ‘thereby
+inflicting on plaintiff great mental anguish.’
+
+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.’
+
+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.’
+
+In all these cases, and in many others enumerated in 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.
+
+‘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.
+
+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.
+
+I take from a valuable paper by an Ohio lawyer (Mr. Newton D.
+Baker)[222] 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 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.e._ 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 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.’
+
+-----
+
+Footnote 222:
+
+ _Western Reserve Law Journal_ for October, 1899.
+
+-----
+
+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.
+
+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[223]. Practising lawyers say that nothing is
+commoner. It would appear, however, from some European[224] 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.
+
+-----
+
+Footnote 223:
+
+ 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.’
+
+-----
+
+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[225]. 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.
+
+-----
+
+Footnote 224:
+
+ 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.
+
+Footnote 225:
+
+ 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.
+
+-----
+
+
+ XIX. DIVORCE IN MODERN EUROPEAN COUNTRIES.
+
+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.e._ on the
+grounds of infidelity, grave crime, desertion, cruelty, &c.) to
+non-Catholic citizens, while Italy, Portugal, and Spain adhere to the
+Tridentine system which recognizes only a judicial separation (_a mensa
+et thoro_) 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[226].
+
+-----
+
+Footnote 226:
+
+ According to a high Russian authority, divorce was freely practised by
+ the Russian peasantry under their ancient customs.
+
+-----
+
+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[227]. In England
+divorces rose from 127 in 1860 to 390 in 1887, an increase much more
+rapid than that of population or of marriages[228]. 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 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.
+
+-----
+
+Footnote 227:
+
+ I take the above figures from _Parliamentary Paper_ [C-7639] of 1895.
+ No figures are given for Russia or Denmark.
+
+Footnote 228:
+
+ Parliamentary Return of March 9, 1889.
+
+-----
+
+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 _a vinculo_ 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.
+
+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.
+
+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. 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.
+
+
+XX. COMPARISON OF THE PROCESS OF CHANGE AT ROME AND IN THE MODERN WORLD.
+
+The Romans began with a doctrine of marriage which had four salient
+characteristics[229]:
+
+ A formal legal act almost invariably accompanying marriage.
+ A religious element in the oldest form of this act.
+ A subjection of the wife to the husband’s power.
+ A complete absorption of the wife’s property rights into the legal
+ personality of the husband.
+
+-----
+
+Footnote 229:
+
+ 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.
+
+-----
+
+These characteristics all vanished; and under the newer law and custom
+of the city, and ultimately of the Empire—
+
+ The act of marriage required no formalities, and was entirely a
+ private affair.
+ It was also a purely civil, not a religious, affair.
+ The wife became absolutely independent of her husband, remaining
+ (unless she had been emancipated) in the legal family of her
+ father.
+ The wife’s property remained her own, though it was usual for the
+ consorts to have some joint property.
+
+Concurrently with and following on these changes 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.
+
+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[230], and the fact that the legal family did not
+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.
+
+-----
+
+Footnote 230:
+
+ The _Dos_ 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 _supra_).
+
+-----
+
+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.
+
+Before the Reformation what were the features of the marriage relation
+in Europe?
+
+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.
+
+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.
+
+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 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.
+
+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.
+
+What has been the course of things since the Reformation?
+
+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.
+
+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. 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.
+
+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.
+
+
+ XXI. TENDENCIES AFFECTING THE PERMANENCE OF THE MARRIAGE TIE.
+
+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.
+
+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.
+
+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 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.
+
+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.
+
+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 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.
+
+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.
+
+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 at work everywhere, and
+which springs from some widely diffused features of modern life.
+
+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?
+
+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[231], 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’ 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.
+
+-----
+
+Footnote 231:
+
+ 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.
+
+-----
+
+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.
+
+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.
+
+
+ XXII. INFLUENCE OF THE CHURCH AND THE LAW.
+
+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 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[232].
+
+-----
+
+Footnote 232:
+
+ 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.
+
+-----
+
+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.
+
+
+ XXIII. DOES THE ENGLISH LAW OF DIVORCE NEED AMENDMENT?
+
+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 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.
+
+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.
+
+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 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.
+
+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 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.
+
+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; 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.
+
+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.
+
+
+ XXIV. SOME GENERAL REFLECTIONS: CHANGES IN THEORY AND IN SENTIMENT
+ REGARDING MARRIAGE.
+
+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 been
+called those of Subordination and Equality[233]. 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.
+
+-----
+
+Footnote 233:
+
+ 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.
+
+-----
+
+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.
+
+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 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.
+
+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 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.
+
+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 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.
+
+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.
+
+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 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.
+
+
+
+
+ XVII
+ _INAUGURAL LECTURE_[234]
+
+ THE ACADEMICAL STUDY OF THE
+ CIVIL LAW
+
+
+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 or nearly all the other
+members of the European commonwealth.
+
+-----
+
+Footnote 234:
+
+ Delivered at Oxford, February 25, 1871, on entering on the duties of
+ the Regius Professorship of Civil Law.
+
+-----
+
+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[235]; 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 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[236]. 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.’
+
+-----
+
+Footnote 235:
+
+ ‘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.; _Act. Pontif Cantuar.;
+ Theodbaldus_.)
+
+Footnote 236:
+
+ 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.
+
+-----
+
+The ancient rivalry of the Civil and the Common law proved eventually
+the cause of mischief to both. Having reigned bn 494.png 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 A.D. 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.
+
+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 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.
+
+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[237]? 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[238], English lawyers 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.
+
+-----
+
+Footnote 237:
+
+ This was effected by the Judicature Act of 1873.
+
+Footnote 238:
+
+ To these one may now add the new German Empire, which was coming into
+ being when this Lecture was delivered in A.D. 1871. A Civil Code for
+ the Empire began to be prepared in 1872 and came into force in 1900.
+
+-----
+
+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, 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.
+
+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.
+
+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 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
+_gens_, the nature of the agnatic tie and of the _patria potestas_, 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 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.
+
+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 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.
+
+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.
+
+The history of law and of the evolution of legal conceptions, 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 _ius gentium_. The
+codification of Justinian has been constantly cited, and occasionally
+examined, in recent discussions respecting the propriety and the methods
+of digesting and codifying English law.
+
+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[239]—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.
+
+-----
+
+Footnote 239:
+
+ Dr. K. A. von Vangerow.
+
+-----
+
+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 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[240].’ 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.
+
+-----
+
+Footnote 240:
+
+ 12 Mod. 482.
+
+-----
+
+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 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.
+
+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
+technical, perhaps still too technical, and they are sometimes
+needlessly circuitous[241]; 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 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.
+
+-----
+
+Footnote 241:
+
+ This defect was removed by the Judicature Act of 1873.
+
+-----
+
+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.
+
+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[242], 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 A.D. 1758, he says:—
+
+ ‘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
+ 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.
+
+ ‘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: _ita lex scripta est_ is the utmost his knowledge will
+ arrive at; he must never aspire to prove, and seldom expect to
+ comprehend, any arguments drawn _a priori_ from the spirit of the laws
+ and the natural foundations of justice[243].’
+
+-----
+
+Footnote 242:
+
+ Now (1901) one of the Law Lords sitting in the House of Lords.
+
+Footnote 243:
+
+ 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.
+
+-----
+
+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.
+
+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 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 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
+_prudentes_ 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.
+
+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; 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[244],
+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.
+
+-----
+
+Footnote 244:
+
+ Sir H. S. Maine.
+
+-----
+
+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 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[245].’
+
+-----
+
+Footnote 245:
+
+ _Vom Beruf unserer Zeit für die Gesetzgebung und Rechtswissenschaft_,
+ c. 4.
+
+-----
+
+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 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.
+
+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.
+
+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 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[246].
+
+-----
+
+Footnote 246:
+
+ Cases decided in the United States are more frequently cited in
+ English Courts now (1901) than they were in 1871.
+
+-----
+
+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[247], 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 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[248]. 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[249]. 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 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.
+
+-----
+
+Footnote 247:
+
+ The reference was to the war, just ending when this lecture was
+ delivered, between Germany and France.
+
+Footnote 248:
+
+ 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.
+
+Footnote 249:
+
+ 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
+ XIV, _ante_.
+
+-----
+
+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[250], 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.
+
+-----
+
+Footnote 250:
+
+ 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.
+
+-----
+
+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 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[251].’
+
+-----
+
+Footnote 251:
+
+ Preface to vol. iii. of the _System des heutigen römischen Rechts_.
+
+-----
+
+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 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.
+
+
+
+
+ XVIII
+ _VALEDICTORY LECTURE_[252]
+
+ LEGAL STUDIES IN
+ THE UNIVERSITY OF OXFORD
+
+
+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.
+
+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: 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.
+
+-----
+
+Footnote 252:
+
+ Delivered on resigning the Regius Professorship of Civil Law at
+ Oxford, June 10, 1893.
+
+-----
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+That serious deficiencies exist I am well aware: I shall presently
+advert to them and to the steps that may be taken 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.
+
+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 (_sc._ 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 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.
+
+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.
+
+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
+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.
+
+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 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.
+
+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 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.
+
+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 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.
+
+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.
+
+‘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?’
+
+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 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, _Leges scire non est verba earum tenere sed vim atque
+potestatem_. 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 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.
+
+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 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.
+
+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
+_cupida legum iuventus_ 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 _Roma caput mundi regit orbis frena rotundi_, 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.
+
+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 among us, is now destined to shine with a steady light
+for generations to come.
+
+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 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 _Political Science Quarterly_,
+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.
+
+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[253].
+
+-----
+
+Footnote 253:
+
+ 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.
+
+-----
+
+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 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.
+
+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
+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.
+
+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 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.
+
+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 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 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.
+
+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.
+
+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[254], most loveable of men; the luminous and fertile
+intellect of Sir Henry Maine[255]; the masculine force and high sense of
+public duty of Thomas Green[256]; the penetration and learning, not more
+wide than exact, of Mark Pattison[257]; the fine taste and golden lips
+of Henry Liddon; the warm heart and vehement discourse and noble love of
+truth of Edward Freeman[258]; 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[259]. 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.
+
+-----
+
+Footnote 254:
+
+ Dr. John Matthias Wilson, formerly Professor of Moral Philosophy.
+
+Footnote 255:
+
+ Formerly Corpus Professor of Jurisprudence.
+
+Footnote 256:
+
+ Formerly Professor of Moral Philosophy.
+
+Footnote 257:
+
+ Formerly Rector of Lincoln College.
+
+Footnote 258:
+
+ Formerly Regius Professor of Modern History.
+
+Footnote 259:
+
+ Formerly Regius Professor of Ecclesiastical History, afterwards Dean
+ of Westminster.
+
+-----
+
+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 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. [Blank Page]
+
+
+
+
+ INDEX
+
+
+ Abolitionists, in America, i. 414.
+
+ Aborigines, in Australia, i. 549.
+
+ Achaean League, i. 204.
+
+ Adoption, by Indian princes, i. 37;
+ in Indian law, i. 124;
+ by Roman emperors, ii. 482.
+
+ Adultery, a crime in Indian Penal Code, i. 126;
+ in Roman law, ii. 403.
+
+ Aeschylus, quoted, i. 167.
+
+ Afghanistan, i. 20.
+
+ Agricola, i. 15; ii. 405.
+
+ Alabama case, i. 416.
+
+ Alarich II, laws of, ii. 356, 483.
+
+ Algeria, i. 293.
+
+ Alsace, annexation of, i. 305.
+
+ Althing, or general assembly, in Iceland, i. 322-332, 347, 354.
+
+ Althusius, on sovereignty, ii. 85.
+
+ Amendment of constitution, i. 151, 205-217;
+ in Australia, i. 523-525.
+
+ America. _See_ United States.
+
+ _American Commonwealth_, referred to, i. 201, 211, 377; ii. 41.
+
+ Analytic school of jurisprudence, ii. 178-184.
+
+ Anarchism, ii. 28, 170.
+
+ Areopagus, i. 92.
+
+ Argentina, constitution of, i. 212, 253.
+
+ Aristocracy and flexible constitutions, i. 178-185.
+
+ Aristotle, i. 155, 430; ii. 2, 125, 317, 484.
+
+ Armenia, i. 20.
+
+ Army of Rome and India, i. 17, 18, 45.
+
+ Asiatic peoples, ii. 16-18.
+
+ Augustus, ii. 26, 61, 67, 68, 257, 289, 404, 405.
+
+ Austin criticized, ii. 89-97, 127, 180-184.
+
+ Australia: constitution of the Commonwealth, i. 468-553;
+ movement for federation, 471-482;
+ conditions favouring federation, 483-489;
+ character of federation, 489-491;
+ distribution of powers between Commonwealth and States, 491-494;
+ position of States under constitution, 494-498;
+ differences from United States and Canada, 498-501;
+ few restrictions on powers of Commonwealth, 501-504;
+ the legislature, 504-507;
+ the executive, 508;
+ the judiciary, 508-512;
+ dependence of executive upon legislature, 513-516;
+ provisions against deadlocks, 516-518;
+ relations of the two Houses, 518-521;
+ miscellaneous provisions, 521-523;
+ amendment of constitution, 523-525;
+ relations of Commonwealth to British crown, 525, 526;
+ comparison with United States and Canada, 527-530;
+ general observations, 531-535;
+ democratic character, 535-539;
+ political parties, 539-541;
+ future political issues, 542-546;
+ possible entrance of new States, 547-551;
+ future relations to Britain, 551-553.
+
+ Austro-Hungary, constitution of, i. 203, 284, 470; ii. 91, 92;
+ divorce in, ii. 450, 451.
+
+ Bacon, i. 261; ii. 96, 480.
+
+ Baker, Newton D., ii. 446.
+
+ Banns, publication of, ii. 417.
+
+ _Basilica_, of Leo, ii. 341, 378.
+
+ Belgium, divorce in, ii. 450, 451.
+
+ Bentham, criticized, ii. 3, 44-48, 88-97, 127, 179-184.
+
+ Bernier, on Mogul empire, i. 10.
+
+ Betrothal, in Roman law, ii. 393.
+
+ Beyrut, law school of, ii. 264, 320.
+
+ Bills, in House of Commons, ii. 325, 499.
+
+ Bishops, in Iceland, i. 327.
+
+ Bismarck, ii. 25.
+
+ Blackstone, i. 118; ii. 77, 166, 181, 265, 427, 430, 491.
+
+ Blood feuds, i. 321; ii. 212.
+
+ Bodin, on sovereignty, ii. 84, 85.
+
+ Bologna, law school of, i. 105; ii. 219, 231.
+
+ Bosnia, ii. 102.
+
+ Boss system in America, i. 417; ii. 30.
+
+ Bowen, Lord, ii. 199, 266.
+
+ Bracton, ii. 261, 332.
+
+ Brand, President, i. 463.
+
+ Breach of promise, action for, ii. 394.
+
+ Brehon law, i. 111; ii. 188.
+
+ Bulgaria, constitution of, i. 210, 211; ii. 102.
+
+ Cabinet government, in England, i. 177;
+ under the Australian constitution, i. 513-516.
+
+ Cairns, Lord, ii. 199, 266.
+
+ Cairo, university of, ii. 219-231.
+
+ Calhoun, i. 395; ii. 105.
+
+ Canada, constitution, i. 197, 198, 203;
+ compared with Australian, i. 470, 478, 488, 492, 495, 497, 498-501,
+ 527-530;
+ law of divorce, ii. 443.
+
+ Canning, Lord, i. 37.
+
+ Canon Law, growth of, i. 105, 106; ii. 245;
+ regulation of marriage and divorce by, ii. 414, 416-420, 433-435.
+
+ Cape Colony, i. 432.
+
+ Capital, of United States, i. 406;
+ of Australian Commonwealth, i. 523.
+
+ Caracalla, edict of, i. 48, 99; ii. 147, 354.
+
+ Case law, compared with praetorian edict, ii. 281-293.
+
+ Caste, i. 68.
+
+ Catullus, i. 27, 53; ii. 393.
+
+ Caucus, the, i. 177.
+
+ Celibacy, discouragement of, at Rome, ii. 401, 409;
+ of clergy, ii. 414.
+
+ Centripetal and centrifugal forces, their action on political
+ constitutions, i. 255-311;
+ interest and sympathy, 263-265;
+ race and religion, 265-267;
+ how constitutions may utilize centripetal forces, 271-281;
+ and how modify centrifugal forces, 281-295;
+ illustrations from United States, 295-298;
+ probable results in the future, 300-311;
+ effect of conquest and family succession, 303-307.
+
+ Chancellor, the Lord, as builder of equity, ii. 164-166;
+ as law-maker, ii. 271, 279-281.
+
+ Character, of conquering races, i. 59-61.
+
+ Chartism, i. 175, 238.
+
+ Chastisement of wife by husband, ii. 426.
+
+ Christianity, unifying influence of, i. 3;
+ persecution of, i. 53;
+ in India, i. 69;
+ introduction into Iceland, i. 350, 351;
+ as affecting growth of law, ii. 242-246, 352;
+ influence on Roman law of divorce, ii. 406-409.
+
+ Church, identified with State, ii. 240.
+
+ Cicero, against Verres, i. 27, 89, 94; ii. 275;
+ on the Law of Nature, ii. 133-138, 173;
+ on the Twelve Tables, ii. 347, 494;
+ divorced his wife, ii. 404.
+
+ Citizenship under Roman empire, i. 48, 90.
+
+ Clarendon, Constitutions of, ii. 360.
+
+ Claudian, quoted, i. 75.
+
+ Claudius, Emperor, ii. 411.
+
+ Climate, effect of, on Roman and Indian empires, i. 63, 64.
+
+ Clive, i. 9, 13, 28, 60.
+
+ _Codicilli_, ii. 289.
+
+ Codification, of Roman law, i. 104;
+ of French law, i. 107, 388; ii. 376;
+ of German law, i. 108; ii. 377, 479;
+ of Indian law, i. 121-133;
+ of Icelandic law, i. 341-343.
+
+ _Coemptio_, Roman marriage by, ii. 388-390.
+
+ Coke, Lord, ii. 199, 260.
+
+ Collectivism, i. 309.
+
+ Colonies, of England, i. 4.
+
+ Colour of Race, effect of, in Roman and Indian empires, i. 64-67,
+ 291-294.
+
+ _Comitia_, ii. 297-303.
+
+ Commands, laws as, i. 334; ii. 3, 44-48, 194.
+
+ Committee stage, in English legislation, ii. 328.
+
+ Commonwealth. _See_ Australia.
+
+ Comparative method of jurisprudence, ii. 170, 186-190.
+
+ Concubinage, ii. 413.
+
+ _Confarreatio_, Roman marriage by, ii. 388-390.
+
+ Congress, as a legislative body, ii. 323-326.
+
+ Conquest, formation of empire by, i. 8-16;
+ extension of Roman law by, i. 88; ii. 78;
+ effect of, as a centripetal force, i. 303-307.
+
+ _Consistorium_, ii. 314.
+
+ Consolidation: of law in India, i. 131;
+ of law in America, ii. 326;
+ of English law, ii. 331, 499.
+
+ Constantinople, law school of, ii. 264, 320.
+
+ _Constituta_, of Roman emperors, i. 99; ii. 311.
+
+ Constitutions: of Rome and England, i. 145-150;
+ proposed new classification, 150-159;
+ origin of flexible, 159-162;
+ strength and weakness of flexible, 162-178;
+ aristocracies, 178-185;
+ influence on the mind of a nation, 185-193;
+ capacity for territorial expansion, 193-196;
+ origin of rigid, 196-205;
+ enactment and amendment of rigid, 205-217;
+ definiteness of rigid, 217-221;
+ stability of rigid, 221-228;
+ interpretation of rigid, 228-234;
+ democracies, 234-242;
+ future of flexible and rigid, 242-249;
+ possibility of new types, 249-252;
+ classes of governments, 253, 254.
+
+ Contract code, in India, i. 128-130.
+
+ Contractualists, the, ii. 1-5, 163.
+
+ Convention, for amendment of constitution, i. 211, 213, 216, 476.
+
+ Cousins, intermarriage of, ii. 411.
+
+ Criminal law, i. 92; ii. 334.
+
+ Croatia, i. 268.
+
+ Cromwell, Oliver, i. 8, 200; ii. 60, 68.
+
+ Crown colonies, i. 5.
+
+ Custom: source of Icelandic law, i. 334-337;
+ of law generally, ii. 211, 251, 268, 334.
+
+ Customs duties, in Australian constitution, i. 522.
+
+ Dacoity, i. 25.
+
+ Dante, i. 379;
+ quoted, ii. 80, 158, 310.
+
+ Dartmouth college case, i. 496.
+
+ Darwin, i. 366; ii. 150.
+
+ Deadlocks, provisions against, in Australian constitution, i. 516-521.
+
+ Deceased wife’s sister, marriage with, under Roman law, ii. 412.
+
+ Decemviral legislation, at Rome, ii. 341.
+
+ Declaration of Independence, ii. 35, 139, 163.
+
+ Deference, as ground of political obedience, ii. 9, 14.
+
+ Delegations, in Austro-Hungary, ii. 92.
+
+ Democracy and rigid constitutions, i. 234-242.
+
+ Democratic character of Australian constitution, i. 535-539.
+
+ Demosthenes, quoted, ii. 126, 158.
+
+ Denmark, acquisition of Iceland by, i. 357;
+ constitution of, ii. 61, 63;
+ divorce in, ii. 450.
+
+ Dicey, Prof. E., i. 157; ii. 267, 506.
+
+ Dictator, i. 170; ii. 55.
+
+ Diet, of empire, i. 323, 355, 376.
+
+ Diocletian, ii. 319, 342, 352.
+
+ Divorce: in Ireland, ii. 370, 382, 438;
+ in Scotland, 382, 435-438;
+ in Roman law, 402-406;
+ influence of Christianity on Roman law, 406-408;
+ under canon law, 433-435;
+ later law in England and Scotland, 435-438;
+ laws in United States, 439-443;
+ American statistics, 443-449;
+ in modern European countries, 450-453;
+ connexion with conjugal infidelity, 461-463;
+ does English law need amendment? 465-469.
+
+ _Donatio propter nuptias_, ii. 398, 407, 432.
+
+ _Dos_, in Roman law, ii. 397, 406, 432.
+
+ Dower, ii. 420, 427, 432.
+
+ Drayton, quoted, ii. 150.
+
+ _Droit Naturel_, ii. 169, 173-178.
+
+ Duck, Arthur, ii. 160, 477.
+
+ Dutch law, in South Africa, i. 86, 109, 439.
+
+ Dutch republics, in South Africa, i. 430-467.
+
+ Ecclesia, of Greek cities, i. 183; ii. 297.
+
+ Ecclesiastical courts, ii. 420, 421, 435.
+
+ Edict of the praetor, i. 91, 92; ii. 275, 282-285, 291.
+
+ _Edictum perpetuum_, ii. 288.
+
+ Education, in Roman and Indian empires, i. 57, 73.
+
+ Edward I, legislation of, ii. 360.
+
+ Egypt, political position of, i. 35, 70, 102, 267, 282; ii. 61, 103.
+
+ El Azhar, mosque and university, ii. 219-231.
+
+ Elegance, in Roman law, ii. 198, 495.
+
+ Emancipation of women, ii. 401, 458-460, 470.
+
+ Empedocles, quoted, ii. 126.
+
+ Emperor: as sovereign in middle ages, ii. 80;
+ as source of law at Rome, ii. 308-321.
+
+ England: Roman empire compared with British empire in India, i. 1-84;
+ extension of English law throughout the world, i. 85-144;
+ the constitution, i. 145-147, 152, 155-158, 165, 168, 171, 172, 174,
+ 183, 191, 192, 194, 206, 230, 244-249, 272;
+ sovereignty of Parliament, ii. 57, 61, 68, 90, 109;
+ conception of equity as affected by law of nature, ii. 164-167;
+ analytic school of jurisprudence, ii. 178-184;
+ want of elegance in English law, ii. 199;
+ legal writers as sources of law, ii. 260-269;
+ judges as sources of law, ii. 270-272, 278-281;
+ case law, ii. 281-291;
+ legislation by Parliament, ii. 321-331;
+ five epochs of legal change, ii. 343;
+ outline of progress of legal changes, ii. 358-366;
+ comparison with Roman law, ii. 367-375;
+ private law least affected, ii. 377-380;
+ law of marriage, ii. 419-424;
+ property relations of consorts, 424-427;
+ gradual amendment of law, 423-427, 468, 499;
+ law of divorce, 433-438;
+ does law of divorce need amendment? 465-469.
+
+ English language in India, i. 74.
+
+ Ennius, quoted, ii. 181.
+
+ Epicurus, ii. 127.
+
+ Equality theory of marriage, ii. 431-433, 470.
+
+ Equity, in Roman law, ii. 143;
+ in English law, ii. 164;
+ in Indian law, ii. 166;
+ as amending law of wife’s property, ii. 427, 428.
+
+ Erastianism, ii. 210.
+
+ Eurasians, in India, i. 66, 69, 136.
+
+ Euripides, quoted, ii. 384.
+
+ European influence over rest of world, i. 1.
+
+ Evidence Code, in India, i. 128.
+
+ Executive, the: at Rome, i. 191, 192;
+ in Australian constitution, i. 508, 513.
+
+ Executive Council, the: in the Orange Free State, i. 438, 457, 459,
+ 464;
+ in the South African Republic, i. 445, 457, 459.
+
+ Family, its influence on Roman law, ii. 367;
+ as religious organism, ii. 211.
+
+ Family succession: effect of, as a centripetal force, i. 303-307.
+
+ Fathers of the Church, ii. 244, 484.
+
+ Fathers of the Republic, i. 365, 381.
+
+ Fear, as ground of political obedience, ii. 1-5, 12-14, 20.
+
+ Federal courts: in the United States, i. 399, 419, 420;
+ in Australia, i. 508-512.
+
+ _Federalist, The_, i. 360, 366-374.
+
+ Federation: types of, i. 469, 470, 489-492;
+ sovereignty in, ii. 104-108;
+ of British empire, i. 245-249, 553.
+
+ Fetwa, ii. 241.
+
+ Finance: in Roman and Indian empires, i. 37-42;
+ in Australian constitution, i. 478, 522.
+
+ Finland, autonomy of, i. 288.
+
+ Flag, the, in the United States, i. 298, 418.
+
+ Flexible and rigid constitutions, i. 145-252;
+ is the Transvaal constitution flexible? i. 449-451.
+
+ Folk Mot, i. 161, 162, 316, 353, 434; ii. 297.
+
+ _Formulae_, ii. 334.
+
+ France: constitution of the republic, i. 152, 202;
+ legal history, ii. 375-377;
+ divorce in, ii. 450, 451.
+
+ Franks, the, ii. 22.
+
+ Free State. _See_ Orange Free State.
+
+ Free Trade, ii. 26.
+
+ French law, codification of, i. 107.
+
+ French Republic, constitution of, i. 152, 214.
+
+ Frontiers, of Roman and Indian empires, i. 14-20.
+
+ Fundamental statutes, i. 206.
+
+ Fusion: of races in Roman empire, i. 62, 74;
+ of Roman and provincial law, i. 96-98.
+
+ Future life, belief in, ii. 459.
+
+ Fylki, in Norway, i. 353.
+
+ Gaius, ii. 142, 145, 153, 260, 264, 296, 304, 354, 390, 392, 512.
+
+ Gardiner, S. R., i. 200.
+
+ _Gens_, meaning of, ii. 131.
+
+ Gentili, Alberico, ii. 167, 507.
+
+ German empire, constitution of, i. 196, 204, 215, 470;
+ divorce in, ii. 450, 451.
+
+ German law, codification of, i. 108;
+ history of, ii. 375-377.
+
+ Ghosts, legal ejectment of, in Iceland, i. 345, 346.
+
+ Gierke, Prof. Otto, ii. 85, 159.
+
+ Gilman, President, i. 382.
+
+ Glanvill, ii. 261, 332.
+
+ Goethe, quoted, ii. 160.
+
+ Goði, or priest-chieftain, in Iceland, i. 317-322, 325, 326, 332, 344,
+ 352-354.
+
+ Gortyn, laws of, i. 89.
+
+ Grace, opposed to law, ii. 209.
+
+ Graduation, at El Azhar, ii. 225.
+
+ Grammar, in Musulman university, ii. 224, 225.
+
+ Gratian, ii. 157.
+
+ Greece, constitution of, i. 209.
+
+ Greek Civilization, spread of, in ancient world, i. 2.
+
+ Greek law, i. 89, 102; ii. 145, 202.
+
+ Greenland, colonized from Iceland, i. 333.
+
+ Grondwet, the: of the South African Republic, i. 442-447;
+ was it a rigid constitution? i. 449-455.
+
+ Grotius, ii. 167, 168.
+
+ Group, defined, i. 257;
+ parliamentary, i. 541.
+
+ Growth, phenomena of, ii. 114.
+
+ Grueber, Dr. E., ii. 506.
+
+ Gunnlaug’s Saga, i. 348, 349.
+
+ Habit, as governing action, ii. 14, 45, 65.
+
+ Haiti, constitution of, i. 211.
+
+ Hamilton, Alexander, chief writer in _The Federalist_, i. 360, 365,
+ 366, 369-381, 427; ii. 105.
+
+ Hand power, in Roman marriage law, ii. 387-391.
+
+ Hannen, Lord, ii. 465.
+
+ Harrison, Frederic, on Austin, ii. 111.
+
+ Harvard University, ii. 230.
+
+ Hastings, Warren, i. 29, 77, 459.
+
+ Hatts, promulgated by the Sultan, ii. 253.
+
+ Hawaiian Islands, i. 2, 292, 417.
+
+ Hegel, ii. 108, 177.
+
+ Henry II, influence on English law, ii. 358-360.
+
+ Heraclitus, ii. 124.
+
+ Herodotus, ii. 120.
+
+ High Court: in India, i. 46;
+ in Australia, i. 508-512.
+
+ Hindu Law, administered in India, i. 113-119.
+
+ Hindustani language, i. 72.
+
+ Historical school of jurisprudence, ii. 184-186.
+
+ Hobbes, criticized, ii. 85-88, 106, 162.
+
+ Holland, constitution of, i. 210, 214;
+ divorce in, ii. 450, 451.
+
+ Holland, Dr., ii. 173.
+
+ Holmes, Chief Justice, ii. 192, 264.
+
+ Home Rule, for Ireland, i. 207.
+
+ Homer, i. 160, 318; ii. 47, 124, 212, 521.
+
+ Homicide, penalty for, in Iceland, i. 321, 344.
+
+ Horace, i. 66;
+ quoted, ii. 350.
+
+ House of Representatives, the: its position in the United States, i.
+ 368, 371, 375, 377, 401, 421;
+ in the Australian Commonwealth, i. 504-507, 514-521, 537.
+
+ Hungary, constitution of, i. 155.
+
+ Husband and wife, identity of, in English law, ii. 424, 425.
+ _See also_ Marriage.
+
+ Hustings, i. 316.
+
+ Iceland, i. 312-358;
+ discovery and settlement, 312-316;
+ beginnings of a polity, 316;
+ the priest-chieftain, 317-320;
+ first political constitution, 320-322;
+ organization and powers of the Althing, 322-327;
+ the speaker of the law, 327;
+ Thingvellir, 329-332;
+ character of the republic, 332, 333;
+ character and growth of the law, 334-341;
+ sources of our knowledge of the law, 341-343;
+ illustrations of the law, 343-349;
+ introduction of Christianity, 349-351;
+ reflections on early history, 353-356;
+ fall of the republic, 356;
+ union with Denmark, 357;
+ independence, i. 284; ii. 26.
+
+ Ihering, Rudolf von, ii. 186, 516.
+
+ Ilbert, Sir C. P., i. 29, 67, 86, 118; ii. 167, 322, 326.
+
+ _Imperium_, of praetor, ii. 277.
+
+ Inaugural lecture, ii. 475-503.
+
+ India: British conquest, i. 5-8;
+ military character of empire, 13, 14;
+ natural frontiers, 16-18;
+ roads and railways, 21, 22;
+ internal peace, 24, 25;
+ character of administration, 28-34;
+ protected states, 37;
+ fiscal system, 37-42;
+ native army, 45;
+ native civil service, 46;
+ private civil rights, 50;
+ legislative councils, 51;
+ religious usages, 56;
+ education, 57;
+ influence of climate, 63;
+ influence of colour, 64-67;
+ influence of religion, 67-69;
+ influence of language and literature, 72-74;
+ no fusion of races, 75;
+ little influence on England, 76-78;
+ probable future of British power, 82-84;
+ legal systems found by the English, 113-116;
+ English continued existing systems of law, 116-120; ii. 133;
+ codification, i. 121-124;
+ merits and working of the codes, 127-131;
+ probable future of legal development, 138-141;
+ as governed by Englishmen, ii. 16.
+
+ Indian tribes, in United States, i. 377, 408; ii. 16.
+
+ Individualism, ii. 36, 463.
+
+ Indolence, as ground of political obedience, ii. 6-9, 14.
+
+ International law: sovereignty in, ii. 101-104;
+ natural law in, ii. 167-169.
+
+ Interpretation of rigid constitutions, i. 228-234.
+
+ Inter-state commission, i. 509.
+
+ Ireland, law of, i. 111;
+ political forces in, i. 264, 285;
+ little influence on English law, ii. 369;
+ no divorce in, ii. 438.
+
+ Irish, in Iceland, i. 313, 316.
+
+ Irrigation, in Australia, i. 474, 478, 522, 545.
+
+ Isidore of Seville, ii. 157.
+
+ Islam, law of, i. 85, 87;
+ administered in India, i. 113-119;
+ characteristics of, ii. 218, 233-241.
+
+ Italy, constitution of, i. 155, 196, 202, 208.
+
+ _Iudex_, in Roman law, ii. 257.
+
+ _Ius_, contrasted with _lex_, i. 149; ii. 294.
+
+ _Ius gentium_, in Roman law, i. 97; ii. 128-135, 144-148, 348.
+
+ _Ius honorarium_, ii. 133.
+
+ _Ius non scriptum_, i. 148.
+
+ _Ius respondendi_, in Roman law, ii. 257-260.
+
+ Jackson, President, i. 395, 406, 411.
+
+ Japan, constitution of, i. 197, 253; ii. 70;
+ divorce in, ii. 444.
+
+ Jay, Chief Justice, i. 360, 365.
+
+ Jefferson, i. 363, 365, 366, 373; ii. 98.
+
+ Jewish law, ii. 214, 242;
+ of divorce, ii. 437.
+
+ Joint stock companies, law of, ii. 336, 366, 494.
+
+ Jointure, in lieu of dower, ii. 427.
+
+ Judges, the, as makers of law, ii. 269-281.
+
+ Judicature Act, ii. 479, 489, 517.
+
+ Judiciary, the: its position in the United States, i. 399, 419, 420;
+ in the Orange Free State, 439;
+ in the South African Republic, 446, 453, 462;
+ in the Australian Commonwealth, 508-512;
+ as makers of law, ii. 269-281.
+
+ Julian, jurist, i. 219; ii. 76, 205, 249, 288.
+
+ Julius Caesar, i. 176.
+
+ Jurists, as makers of law, ii. 155, 255-261;
+ difference between the action of Roman and English, 261-269, 496.
+
+ Justinian, his codification of Roman law, ii. 355-357;
+ change in law of divorce, ii. 408.
+
+ Kadi, Muhammadan judge, ii. 226, 239, 253.
+
+ Kant, ii. 108, 177.
+
+ Kent, Chancellor, ii. 265.
+
+ Khalifs, the, ii. 62, 240, 241.
+
+ King’s Proctor, ii. 437.
+
+ Kissing, as test of prohibited degrees, ii. 411.
+
+ Koran, the, ii. 59, 223, 226, 231, 235, 237, 253.
+
+ Kotzé, J. G., i. 441.
+
+ Kovalevsky, ii. 426.
+
+ Kruger, President, i. 465.
+
+ Labeo, ii. 138, 260, 264.
+
+ Labour Party, in the United States, i. 418;
+ in Australia, i. 541.
+
+ _Laissez-faire_, ii. 28, 36.
+
+ Land, its influence on English law, ii. 368.
+
+ Land Revenue, in Roman and Indian empires, i. 37-39.
+
+ Landesgemeinde, i. 160, 434.
+
+ Langdell, Prof. C. C., i. 112; ii. 512.
+
+ Language, effect of, in Roman and Indian empires, i. 70-74.
+
+ Laos States, in Siam, i. 276.
+
+ Law Reports, compared with Roman treatises, ii. 266-269.
+
+ Law Speaker, in Iceland, i. 327-329, 330, 332, 337.
+
+ Lawyers, power of, in America, i. 405.
+
+ Legal development at Rome and in England, ii. 338-380:
+ five chief epochs of legal change at Rome, 341-343;
+ five epochs of legal change in England, 343-345;
+ outline of legal changes at Rome, 345-358;
+ outline of legal changes in England, 358-366;
+ differences between development of Roman and English law, 367-375;
+ observations on France and Germany, 375-377;
+ private law least affected, 377-380.
+
+ Legal profession, as a maker of law, ii. 269-281.
+
+ Legislation. _See_ Methods of law-making.
+
+ Legislative Councils, in India, i. 51.
+
+ Legitimation, of children born before marriage, ii. 414.
+
+ Leibnitz, on Mogul empire, i. 10.
+
+ Leo, Emperor-Philosopher: _Basilica_ of, ii. 341, 378;
+ abolishes divorce by consent, ii. 408, 413.
+
+ _Lex_, meaning of, ii. 294-296, 301, 302.
+
+ Libel, punishment for, in Iceland, i. 345.
+
+ Liberty, love of, ii. 24-26.
+
+ Liberty of the press, in South African republics, i. 440, 443.
+
+ Limitation of sovereignty, ii. 71.
+
+ Literature, effect of, in Roman and Indian empires, i. 70-73.
+
+ Lithuania, Roman law in, i. 110.
+
+ Littleton, ii. 261.
+
+ Livy, quoted, ii. 131, 255, 347.
+
+ Liwan, or hall of prayer, ii. 223.
+
+ Locke, ii. 163.
+
+ Lögberg, or Hill of Laws, in Iceland, i. 330.
+
+ Lögsögumaðr, or Law Speaker, in Iceland, i. 327-329, 330, 332, 337.
+
+ Lords, House of, ii. 322-325, 329.
+
+ Louis Napoleon, i. 213; ii. 26, 65.
+
+ Lyall, Sir A. C., i. 37, 55.
+
+ Macaulay, codification of Indian law by, i. 121, 127; ii. 290.
+
+ Madison, President, i. 360, 365, 366, 375; ii. 105.
+
+ Magistrates, as makers of law, ii. 269-281.
+
+ Maine, Sir H. S., i. 167; ii. 111, 140, 146, 215, 495, 506, 524.
+
+ Maitland, Prof., ii. 322, 420, 421, 425, 426, 434.
+
+ Manipur, i. 25.
+
+ Mansfield, Lord, ii. 133, 181, 199, 266, 276, 279, 477, 478.
+
+ Mantle children, ii. 415.
+
+ _Manus_, in Roman marriage, ii. 387-390.
+
+ Maoris, the, in New Zealand, i. 293, 550.
+
+ Marcian, ii. 120, 142, 158.
+
+ Marquardt, i. 32.
+
+ Marriage and divorce under Roman and English law, ii. 381-474:
+ diversity of law of marriage in different countries, 381-383;
+ character of marriage in early law, 383-385;
+ early form of Roman marriage law, 386-389;
+ change to later system, 389-392;
+ personal relations of consorts, 392-395;
+ pecuniary relations of consorts, 395-400;
+ Roman conception of marriage, 400, 401;
+ divorce in Roman law, 402-406;
+ influence of Christianity on divorce, 406-409;
+ encouragement of marriage, 409;
+ discouragement of second marriage, 410;
+ prohibited degrees, 410-412;
+ natural marriage, 412;
+ concubinage, 413-415;
+ marriage under canon law, 416-420;
+ English law of marriage, 420-424;
+ property relations of consorts, 424-427;
+ gradual amendment of English matrimonial law, 427-433;
+ divorce under canon law, 433-435;
+ later law of divorce in England and Scotland, 435-438;
+ divorce laws of United States, 439-443;
+ statistics of divorce in America, 443;
+ divorce in modern European countries, 450-453;
+ comparison of change at Rome with modern world, 453-457;
+ tendencies affecting permanence of marriage tie, 457-464;
+ influence of church and law, 464;
+ does English law need amendment? 465-469;
+ changes in theory and sentiment regarding marriage, 469-474.
+
+ Martial, quoted, ii. 405.
+
+ Martyrs, the Christian, ii. 24.
+
+ Mastery theory of marriage, ii. 431-433.
+
+ Maurer, Konrad, writer on Iceland, i. 319.
+
+ Mellish, Lord Justice, ii. 199.
+
+ _Mensa et torus_, divorce from, ii. 435, 436.
+
+ Merriam, C. E., jun., ii. 111.
+
+ Merwing kings, ii. 22.
+
+ Metaphysical basis of law, ii. 169, 174-178.
+
+ Methods of law-making in Rome and in England, ii. 247-337:
+ law-making authorities in general, 248-255;
+ jurists as makers of law, 255-261;
+ difference between action of Roman and English jurists, 261-269;
+ magistrates and judges as makers of law, 269-281;
+ praetorian edicts compared with English case law, 281-293;
+ direct legislation at Rome (_a_) the popular assembly, 293-303;
+ (_b_) the senate, 303-308;
+ (_c_) the emperor, 308-321;
+ direct legislation in England—Parliament, 321-331;
+ reflections suggested by the history of legislation, 331-337.
+
+ Methods of legal science, ii. 172-208:
+ metaphysical or _a priori_, 174-178;
+ analytic, 178-184;
+ historical, 184-186;
+ comparative, 186-190;
+ value of each, 190-192;
+ utility for legal study, 192-197.
+
+ Mexico, constitution of, i. 198, 204.
+
+ Military Character of Roman and Indian empires, i. 13, 14.
+
+ Milton, quoted, ii. 36, 363;
+ on divorce, ii. 436.
+
+ Mitteis, Dr. L., i. 100, 102; ii. 147.
+
+ Modestinus, ii. 258, 354, 400, 483.
+
+ Mogul emperors, i. 6, 10; ii. 17, 62.
+
+ Mommsen, ii. 395, 516.
+
+ Money bills, i. 158, 173, 518.
+
+ Monroe Doctrine, the, i. 414, 481.
+
+ Montenegro, an autocracy, i. 155, 251, 253.
+
+ Montesquieu, i. 145, 379.
+
+ Mormons, ii. 384.
+
+ Mosaic law, ii. 217, 242.
+
+ Mosque of El Azhar, ii. 219-231.
+
+ Mufti, ii. 226, 253.
+
+ Muhammadan law, administered in India, i. 113-119;
+ characteristics of, ii. 218, 233-241.
+
+ Muirhead, ii. 147, 257.
+
+ Municipalities, in India, i. 33.
+
+ Musulman law, administered in India, i. 113-119;
+ characteristics of, ii. 218, 233-241.
+
+ Napoleon, codes of, i. 107.
+
+ Natal, i. 433, 434.
+
+ National sentiment, as a political force, i. 282-286; ii. 34.
+
+ Nations, in academical usage, ii. 227, 298.
+
+ Natural marriage, ii. 412, 417.
+
+ Nature, Law of, ii. 112-171:
+ origin of idea of Nature as a ruling force, 112-120;
+ origin of conception of Natural Law, 120-128;
+ Roman _ius gentium_ or Law of the Nations, 128-135;
+ connexion of Law of Nature with Law of the Nations, 135-144;
+ relation of Law of Nature to general customary law, 144-148;
+ meaning attached by Roman jurists to Nature, 148-157;
+ Law of Nature in middle ages, 157-161;
+ in modern times, 161-171.
+
+ _Naturrecht_, ii. 169, 173-178.
+
+ Negotiable instruments, law of, ii. 335, 365;
+ in Germany, ii. 377.
+
+ Negro question in United States, i. 293, 363, 374, 393, 408, 416, 426.
+
+ Nettleship, Prof. H., ii. 131.
+
+ Newman, W. L., ii. 144.
+
+ New Testament, law in, ii. 79, 209, 216, 243, 434, 482.
+
+ New Zealand, outside Australian Commonwealth, i. 548-550.
+
+ Non-regulation provinces, in India, i. 35.
+
+ Norman feudalism, influence on British constitution, i. 192.
+
+ Norway, constitution of, i. 209;
+ relations with Sweden, i. 284;
+ settlement of Iceland from, i. 314-316;
+ subjection of Iceland to, 356, 357;
+ divorce in, ii. 450, 451.
+
+ _Novels_ of Justinian, ii. 320.
+
+ Nuncomar, execution of, i. 120.
+
+ Obedience, political, ii. 1-48:
+ theories regarding, 1-6;
+ grounds of, 6-26;
+ future of, 26-45;
+ theory of, applied to jurisprudence, 44-48.
+
+ _Obiter dicta_, ii. 268, 282.
+
+ Ohio, divorce in, ii. 446.
+
+ Old Age Pensions, specifically mentioned in Australian constitution, i.
+ 478, 479, 494, 536.
+
+ Olympian games, as unifying influence, i. 280.
+
+ Oppressed nationalities, ii. 34.
+
+ Orange Free State, i. 430-467:
+ early history, 432-436;
+ constitution of the republic, 436-441;
+ observations on its working, 455-463;
+ recent history, 463, 466.
+
+ Orders in Council, i. 172; ii. 270.
+
+ Organs of law-making, ii. 249-254.
+
+ Orthodox Church, in Russia, i. 279.
+
+ Outlawry, ii. 213.
+
+ Oxford, ii. 219, 227, 230, 231, 523-525.
+
+ Papinian, ii. 205, 266, 275, 302, 314, 354, 483.
+
+ Parke, Baron, i. 340.
+
+ Parliament, as source of law in England, i. 152; ii. 321-331;
+ sovereignty of, i. 152; ii. 57, 90;
+ marriages dissolved by, ii. 436.
+
+ Parsis, in Parliament, i. 50.
+
+ Partnership theory of marriage, ii. 432.
+
+ Party organization, in the United States, i. 370, 374, 393, 396, 413,
+ 417, 420, 541;
+ in Australia, i. 539-541.
+
+ Patagonia, i. 249.
+
+ _Patria Potestas_, i. 101; ii. 198, 215, 482.
+
+ Paul, jurist, ii. 354, 393.
+
+ Penal Code, in India, i. 121, 127; ii. 290, 334.
+
+ Pension system, in United States, i. 376, 422.
+
+ People, the, as a source of law, ii. 249-251;
+ at Rome, 293-303.
+
+ _Peregrini_, aliens, in Roman law, i. 90, 93, 134; ii. 129, 348.
+
+ Persia, i. 12; ii. 104, 234, 236.
+
+ Philippine Islands, occupation of, by United States, i. 2, 34, 79, 417;
+ ii. 35.
+
+ Philosophy of law, ii. 169, 173-178, 193-196.
+
+ _Pilgrim’s Progress, The_, ii. 210.
+
+ Pitso, of Kafirs, i. 160, 316; ii. 297.
+
+ Plato, i. 384, 396; ii. 1, 125.
+
+ Plebiscite, amendment of constitution by, i. 153, 213.
+
+ Pliny, the elder, ii. 150.
+
+ Plutarch, ii. 411.
+
+ Poland, partition of, i. 284;
+ Roman law in, i. 109, 110.
+
+ _Political Science Quarterly, The_, ii. 518.
+
+ Pollock, Sir F., ii. 109, 111, 128, 166, 322, 415, 420, 421, 425, 426,
+ 434.
+
+ Polyandry, in ancient times, ii. 383.
+
+ Polybius, i. 9, 145.
+
+ Polygamy, among Eastern peoples, i. 140; ii. 383, 384, 469.
+
+ _Pontifices_, oversight over marriage, ii. 419.
+
+ Pope, the, as sovereign, ii. 80;
+ jurisdiction over marriage, ii. 419, 434.
+
+ Popular assembly, as source of law at Rome, i. 152; ii. 293-303.
+
+ Population, growth of, ii. 38.
+
+ Portuguese empire, i. 55, 294.
+
+ Possession, in Roman and English law, ii. 192, 195, 482.
+
+ Post-graduate studies, ii. 522.
+
+ Praetorian edict compared with case law, ii. 281-293.
+
+ Praetorian prefect, ii. 314, 315.
+
+ Praetors, the, ii. 133, 187, 201, 274-278, 282-285, 291-293, 348.
+
+ Pre-contract, impediment to marriage, ii. 422, 435.
+
+ President, the: his position in the constitution of the United States,
+ i. 367, 372, 373, 377, 399, 412, 419; ii. 55;
+ in the Orange Free State, i. 438, 440, 457, 460, 463;
+ in the South African Republic, i. 444, 445, 457, 460, 465.
+
+ Press, influence of the, i. 184, 400, 418; ii. 37.
+
+ Priests, in Iceland, i. 317.
+
+ Primary assemblies, i. 160, 316, 434; ii. 297.
+
+ Privy Council, appeal to, i. 113, 117, 125, 172, 276; ii. 365;
+ under Australian constitution, i. 510-512.
+
+ Procedure Codes, in India, i. 122, 127.
+
+ Procedure, law made through, ii. 280.
+
+ Procopius, i. 60.
+
+ Profession of law, at Rome and in England, ii. 263.
+
+ Prohibited degrees of marriage, ii. 410-412, 420.
+
+ Protected states, in Roman and Indian empires, i. 5, 36, 37; ii. 102.
+
+ Protective tariff, in the United States, i. 393, 411;
+ in Australia, i. 539.
+
+ Protectorate, the, in England, i. 163, 176, 200; ii. 60, 68.
+
+ Protestantism, ii. 15, 32.
+
+ Province, meaning of the word, i. 36;
+ in Canada, i. 492, 493.
+
+ Provincial government, under Roman empire, i. 27, 30, 32, 91.
+
+ Prussia, constitution of, i. 202; ii. 25.
+
+ Public schools, ii. 21.
+
+ Puerto Rico, acquisition of, by United States, i. 233, 417.
+
+ Puritanism of New England, i. 363, 393.
+
+ _Quaestiones perpetuae_, ii. 334.
+
+ Queensland, i. 265.
+
+ Quorum, for amendment of constitution, i. 210.
+
+ Rabbis, the, ii. 217.
+
+ Racial feeling, as political force, i. 265.
+
+ Railways, in India, i. 14, 21;
+ in United States, i. 416;
+ in Australian constitution, i. 522, 548.
+
+ Rajputs, i. 64, 65.
+
+ _Ratio decidendi_, ii. 282.
+
+ Reason, as ground of political obedience, ii. 1-5, 12-14;
+ of the Stoics, ii. 126.
+
+ Referendum, the, i. 152, 212, 417, 475, 524; ii. 71.
+
+ Reformation, influence on law, ii. 361;
+ on marriage law, ii. 418, 435, 450.
+
+ Regular marriage, ii. 417.
+
+ Religion, relations of law to, ii. 209-246:
+ apparent antagonism, 209, 210;
+ close connexion in early times, 210-215;
+ differences between different peoples, 215;
+ Jews in Roman times, 216;
+ primitive Christianity, 217;
+ illustrations from El Azhar, 219-229;
+ mediaeval universities, 229-233;
+ arrested development of Musulman universities, 233-242;
+ differences in Christianity, 242-246.
+
+ Religious feeling: in ancient and modern world, i. 52-57;
+ effect of, in Roman and Indian empires, i. 67-70;
+ no obstacle to spread of Roman law, i. 103;
+ as political force, i. 266, 277-279, 283, 406.
+
+ Reports, in English law, ii. 266-268.
+
+ Representative Government: no place in the ancient world, i. 32;
+ or in India, i. 50.
+
+ Rescripts of Roman emperors, ii. 311.
+
+ Resolutions (_besluite_) of Transvaal Volksraad, i. 451-455.
+
+ _Responsa_, in Roman law, ii. 257, 262.
+
+ Restitution of conjugal rights, ii. 431.
+
+ Rhodesia, Southern, ii. 171.
+
+ Rights of Man, i. 287; ii. 163.
+
+ Rigid and flexible constitutions, i. 145-252.
+
+ Ritchie, D. G., ii. 111, 128.
+
+ Rivers, importance of, in Australia, i. 478, 522.
+
+ _Riwaks_, at El Azhar, ii. 227, 228.
+
+ Road builders, Roman and English, i. 21-23.
+
+ Romano-Germanic empire, i. 106, 196, 267, 283, 301, 530; ii. 57, 80-82,
+ 162, 375.
+
+ Rome: Roman empire compared with Indian empire, i. 6-77;
+ diffusion of Roman law by conquest, i. 88-99;
+ establishment of one law for the empire, i. 99-104;
+ extension of Roman law after fall of western empire, i. 104-110;
+ Roman law compared with Indian law, i. 133-138;
+ present position of Roman and English law, i. 142-144;
+ constitution of, i. 145, 146, 155-158, 164, 169-171, 174, 181,
+ 189-191;
+ political religion, i. 277; ii. 23;
+ few national revolts, i. 282;
+ no race prejudices, i. 291, 294;
+ empire established by conquest, i. 306;
+ succession of emperors, ii. 67;
+ Roman views of sovereignty, ii. 74-79;
+ Roman conception of _ius gentium_, ii. 128-148;
+ meaning of Nature in Roman jurists, ii. 148-157;
+ philosophical treatment of Roman law, ii. 197-208;
+ jurists as makers of law, ii. 255-268;
+ magistrates as makers of law, ii. 269-293;
+ legislation by popular assembly, ii. 293-303;
+ legislation by senate, ii. 303-308;
+ legislation by emperor, ii. 308-321;
+ chief epochs of legal change, ii. 341-343;
+ outline of legal changes, ii. 345-358;
+ legal development compared with England, ii. 367-374;
+ early form of marriage law, ii. 386-389;
+ change from earlier to later system, ii. 389-392;
+ later marriage law, ii. 392.
+
+ Romilly, i. 121; ii. 479.
+
+ Rousseau, criticized, ii. 2-5, 163.
+
+ Rules, by delegated authority, ii. 269.
+
+ Russia: extension of dominion by, i. 2, 8, 58, 79;
+ adoption of Roman law by, i. 86, 109;
+ fundamental laws of the empire, i. 160;
+ influence of Orthodox Church, i. 279;
+ sovereignty in, ii. 52, 253;
+ marital right of chastisement, ii. 426;
+ divorce, ii. 451.
+
+ Sacrament of marriage, ii. 413, 417, 434.
+
+ Sagas, i. 341, 351.
+
+ Sale of wife by husband, ii. 387, 426.
+
+ Sallust, ii. 131.
+
+ Salt tax, in Roman and Indian empires, i. 40.
+
+ Sand River Convention, i. 433.
+
+ Sassanid kings of Persia, i. 12, 20, 53, 283; ii. 384.
+
+ Savigny, i. 132; ii. 203, 204, 495, 501, 516.
+
+ Scaevola, Q. Mucius, i. 341; ii. 136, 264.
+
+ Scandinavia, extension of Roman law to, i. 110.
+
+ Scientific frontiers, i. 18-20.
+
+ Scotland: has adopted Roman law, i. 86, 107;
+ national life, i. 288;
+ little influence on English law, ii. 370;
+ marriage law, ii. 423;
+ law of divorce, ii. 435, 438, 451.
+
+ Scribes, the, ii. 216.
+
+ Second marriage, discouraged by early Christianity, ii. 410.
+
+ Second Volksraad, in Transvaal, i. 447.
+
+ Self-help, ii. 36.
+
+ Senate, the: its position in Rome, i. 181, 182; ii. 75;
+ in the United States, i. 368, 375, 401, 421, 504, 518, 521;
+ in Australian Commonwealth, i. 504-507, 514-521, 537;
+ as source of law at Rome, ii. 303-308.
+
+ _Senatus consulta_, ii. 306-309.
+
+ Seneca, quoted, ii. 405.
+
+ Separate property, of wife, ii. 428-430.
+
+ Separation of husband and wife, ii. 436.
+
+ Septennial Act, ii. 91.
+
+ Servia, constitution of, i. 210, 211.
+
+ Settlement, prenuptial, ii. 428.
+
+ Sheik ul Islam, the, ii. 58, 221, 241, 313.
+
+ Siam, i. 19, 276.
+
+ Sidgwick, H., ii. 111.
+
+ Sigismund, laws of, ii. 356.
+
+ Signore, of Italian city, i. 170; ii. 47.
+
+ Sikkim, i. 25.
+
+ Slavery: in Iceland, i. 343;
+ in the United States, i. 224, 363, 374, 393, 409, 416, 426;
+ forbidden by Transvaal constitution, ii. 443;
+ in Roman law, ii. 145, 198.
+
+ Slavonic law, i. 109.
+
+ Smith, Goldwin, i. 200; ii. 524.
+
+ Smith, John William, ii. 200, 267, 288.
+
+ Smith, Sir Thomas, ii. 109.
+
+ Social contract, ii. 2-5, 163.
+
+ Social Democrats, ii. 170.
+
+ Socrates, ii. 124.
+
+ Sonderbund, war of the, i. 283, 477.
+
+ Sophocles, quoted, i. 252; ii. 123.
+
+ South Africa, constitution of the two Dutch Republics, i. 155, 198,
+ 430-467; ii. 103.
+
+ South American republics, i. 198, 211, 249, 253; ii. 48, 60, 66-68.
+
+ South Carolina, no divorce, ii. 440.
+
+ Sovereignty, ii. 49-111:
+ confusions regarding the term, 49-51;
+ legal or _de iure_ sovereignty, 51-59;
+ practical or _de facto_ sovereignty, 59-64;
+ relations of legal to practical sovereignty, 64-73;
+ Roman and mediaeval views, 73-82;
+ modern theories, 82-94;
+ questions liable to be confounded, 94-101;
+ in international relations, 101-104;
+ in a federation, 104-108;
+ recent discussions, 110, 111.
+
+ Spain, constitution of, i. 208; ii. 58.
+
+ Spanish Empire, in America, i. 6, 8, 41, 55, 58, 294, 426.
+
+ Spinoza, ii. 162.
+
+ Spoils system, in United States, i. 374, 378, 417.
+
+ _Sponsalia_, ii. 393.
+
+ St. Augustine, ii. 159.
+
+ St. Chrysostom, quoted, ii. 158.
+
+ St. German, Christopher, ii. 165.
+
+ St. Leonards, Lord, ii. 136, 199, 260.
+
+ St. Paul, quoted, i. 69; ii. 79, 158, 209.
+
+ St. Peter, quoted, ii. 79.
+
+ St. Thomas Aquinas, ii. 80, 158.
+
+ Statistics of divorce in America, ii. 443-449.
+
+ Statute _de donis_, ii. 360.
+
+ Statute of Frauds, ii. 363.
+
+ Statute of Uses, i. 113; ii. 289, 361.
+
+ Statute of Wills, ii. 361.
+
+ Statute _quia emptores_, ii. 360, 368.
+
+ Stephen, Sir J. F., codification of Indian law by, i. 129.
+
+ Stephen, Leslie, ii. 182.
+
+ Stoics, the, ii. 126.
+
+ Story, Justice, ii. 265.
+
+ Stowell, Lord, ii. 266, 417, 423.
+
+ Stubbs, Bishop, ii. 43.
+
+ Suetonius, i. 53; ii. 304, 306, 384, 404.
+
+ Sulla, i. 163.
+
+ Sultan of Turkey, ii. 58, 62.
+
+ Suzerainty of England over Transvaal, i. 464.
+
+ Swiss Confederation, constitution of, i. 152, 231, 298, 470, 501, 503,
+ 525;
+ divorce in, ii. 450, 451.
+
+ Sympathy, as ground of political obedience, ii. 10.
+
+ Tacitus, quoted, i. 313, 318; ii. 384, 411.
+
+ Tacking of bills, prohibited in Australian constitution, i. 519.
+
+ Teaching of law: at Rome, ii. 264;
+ at Oxford, ii. 473-525.
+
+ Ten Commandments, ii. 46.
+
+ Territorial expansion, capacity of constitutions for, i. 193-196.
+
+ Teutonic law, i. 110, 342; ii. 189, 375, 419.
+
+ Theal, Dr., i. 432, 435.
+
+ Theodorich, _edictum_ of, ii. 356.
+
+ Theodosius II, code of, i. 104; ii. 148, 354.
+
+ Theology, identified with law, ii. 211-219, 236.
+
+ Thing, or assembly, in Iceland, i. 316-322; ii. 297.
+
+ Thingvellir, in Iceland, i. 322, 329-331.
+
+ Thucydides, ii. 60.
+
+ Thuggi, i. 25.
+
+ Thule, i. 313.
+
+ Tocqueville, Alexis de: his _Democracy in America_, i. 381-429;
+ his insufficient knowledge of England, 385;
+ his preoccupation with France, 387;
+ his description of the United States, 397-415;
+ examination of his views, 415-425.
+
+ Torts, law of, in India, i. 116, 118, 123.
+
+ Trade, as a consolidating influence, i. 263, 413, 479.
+
+ Trade Unions, in America, ii. 30, 36.
+
+ Trajan, i. 10, 30; ii. 311.
+
+ Transvaal, the, i. 198, 430-467:
+ constitution of the South African Republic, 441-448;
+ observations, 449;
+ is it a rigid or a flexible constitution? 449-455;
+ observations on its working, 455-464;
+ recent history, 464-467.
+
+ Transylvania, i. 291.
+
+ Trebatius, ii. 289.
+
+ Trent, Council of, ii. 418.
+
+ Tribonian, ii. 76, 265, 355-357.
+
+ Tribute, in Roman, but not in Indian empire, i. 41, 42.
+
+ Trusts, commercial, i. 240; ii. 30.
+
+ Trusts, in law, i. 124; ii. 289.
+
+ Tunis, ii. 103.
+
+ Twelve Tables, the, i. 181, 338; ii. 301, 341, 345-347, 350.
+
+ Tyrant, in Greece, ii. 47, 90, 98.
+
+ Ukase, ii. 311.
+
+ Ulfljot, founder of the Althing in Iceland, i. 322, 341.
+
+ Ulpian, quoted, i. 158; ii. 143, 144, 150, 153, 205, 275, 354, 381.
+
+ Ulster custom, ii. 253.
+
+ United States: law of, i. 113;
+ constitution of, i. 147, 197, 203, 209, 211, 212, 214, 216, 220, 222,
+ 224, 226, 231, 235, 239, 274, 285, 289, 293, 295-298;
+ constitution as seen in the past, i. 359-429;
+ constitution as seen in _The Federalist_, 361-366;
+ predictions of the opponents of the constitution, 366-369;
+ views of the supporters of the constitution, 369-374;
+ criticism of both opinions, 374-381;
+ the _Democracy in America_ of Tocqueville 381-392;
+ his views and impressions, 392-415;
+ examination of them, 415-425;
+ subsequent history, 427;
+ constitution compared with South African republics, i. 441, 459, 460;
+ compared with Australian Commonwealth, i. 476, 477, 487, 492, 495,
+ 496, 499, 502, 504-507, 512, 516, 518, 527-530, 533;
+ boss system, trade unions, trusts, ii. 30;
+ growth of population and wealth, 38;
+ divided sovereignty, 53, 55, 58, 93, 104-108;
+ legislation by Congress, 323-326;
+ marriage law, 382;
+ varying laws of divorce, ii. 439-443;
+ statistics of divorce, 443-449.
+
+ Universities, Musulman and mediaeval, ii. 229-233;
+ in India, i. 57, 73;
+ in Germany, i. 280; ii. 219;
+ in America, i. 417.
+
+ _Urbs_ became _orbis_, i. 133; ii. 342.
+
+ Utility, ii. 127, 179, 180.
+
+ Vacarius, at Oxford, ii. 476, 507.
+
+ Valedictory lecture, ii. 504-525.
+
+ Vangerow, Dr. K. A. von, ii. 204, 486, 516.
+
+ Verres, i. 27, 29, 94.
+
+ Veto: none in South African republics, i. 440, 456;
+ under Australian constitution, i. 526, 537;
+ of crown in parliament, ii. 77, 302.
+
+ Vigfússon, Guðbrand, i. 330.
+
+ Vikingry, i. 321.
+
+ Village Councils, in India, i. 33.
+
+ Villiers, Melius de, i. 436.
+
+ Vinerian professorship at Oxford, ii. 265, 478, 491, 506.
+
+ _Vinculum matrimonii_, divorce from, ii. 434, 436.
+
+ Virgil, i. 72;
+ quoted, i. 315; ii. 78, 146.
+
+ Voigt, Moriz, ii. 128.
+
+ Volksraad, the: of the original Dutch emigrants, i. 434;
+ of the Orange Free State, i. 436-438;
+ of the South African Republic, i. 443-445;
+ the Second Volksraad, i. 447;
+ predominance of the Volksraad in the constitution, i. 456, 461.
+
+ Wages, rise of, ii. 38.
+
+ _Wakf_ (= endowments), at El Azhar, i. 114, 229.
+
+ Wapentake, in Iceland, i. 347.
+
+ Washington city, i. 411.
+
+ Washington, George, i. 361, 362, 365, 539.
+
+ West Indies, under English law, i. 86.
+
+ Whig party, in United States, i. 414, 420.
+
+ Wife. _See_ Marriage.
+
+ Will, as a political force, ii. 15.
+
+ Willcox, W. F., ii. 444, 449.
+
+ Wills, in Musulman law, ii. 221;
+ Hindu law of, i. 125.
+
+ Women’s suffrage, in Australia, i. 507, 536, 544.
+
+ Wordsworth, quoted, ii. 119.
+
+ Written constitutions, i. 148.
+
+ Xenophon, quoted, ii. 125.
+
+ Yelverton, ii. 165.
+
+ Zollverein, i. 263, 275.
+
+
+
+
+ THE END
+
+
+
+
+ OXFORD
+ PRINTED AT THE CLARENDON PRESS
+ BY HORACE HART, M.A.
+ PRINTER TO THE UNIVERSITY
+
+------------------------------------------------------------------------
+
+------------------------------------------------------------------------
+
+ Transcriber’s Note
+
+Lapses in punctuation in the Index have been addressed with no further
+notice here.
+
+Any references in the footnotes to other notes have been changed to
+reference the re-sequenced note numbers.
+
+The reference at 85.19 to Romans 8.1, regarding the basis of civil law
+in the Law of God, should be more plausibly made to Romans 13.1.
+
+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.
+
+ 13.2 should be supported [r]ather than Added.
+ 54.32 interrupted, or rather overrid[d]en, Inserted.
+ 232.31 during the great age in Bagdad[,] in Spain Added.
+ 276.32 Ascon. _in Cic. Pro Cornelio_, 58.[)] Added.
+ 339.6 except,[ ]perhaps, Added.
+ 376.19 imper[ /i]al cities, Restored.
+ 401.12 no liability is incurred[.] Added.
+ 439.14 A statute of that year,[ ]amended Added.
+
+*** END OF THE PROJECT GUTENBERG EBOOK 78301 ***
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