Cornell University Library K 190.M22 1875 Ancient law, its connection with ttie earl 3 1924 021 177 807 ajorttfU Ham Bt\^m\ ICibtarg Digitized by Microsoft® ANCIENT LAW ITS CONNBCTION WITH TEE EARLY HiaTOEY QP SOCIETY, AND ITS RELATION TO MODERN IDEAS HENKY SUMNER MAINE Hember of the Supreme Council of India; formerly Reader on Jurisprudence mtti the '^ Civil Law at the Middle Temple^ and Hegiua Profeaaor of the Civil Law ' , *" 'As University of Cambridge. t IT.' WITH AN INTBODUCTION BTT THEODORE W. DWIGHT, LL.D., PnOFESSOB OP MUNICIPAL LAW, COLUMBIA COLLEGE, NEW YOnK TBIBD AMERICAN— FSOM FIFTS LOSDON EDITION. NEW yORE HENRY HOLT AND COMPANY 1875 *.i^: Digitized by Microsoft® M 10^ IG Eutered, according to Act of CongrrKs, In the year 1P64, by CHARLES SCRIBNBn, In the Clerk's Office of the District Court of the United States for the Southern District of New York. John F, Trow & Son, Printers, 205-213 East taTH St., Nsw York. Digitized by Microsoft® PREFACE TO THE FIFTH EDITION. While further reflection and reseai'cli have not led the Author of this work to alter his views on most of the matters of which it treats, he has con- vinced himself that the opinions expressed in the First Chapter on the difficult and still obscure subject of the origin of Customary Law require correction and modification. He has attempted to supply a part of the necessary corrections and modifications in a volume called " Village Com- munities in the East and West " (London : Mur- ray, 1871).* H. S. M. London, December, 1873. * This work will be publislied in the United States as soon as tlia next edition of it ia called for in England. — Am. Pub. Digitized by Microsoft® PREFACE TO THE THIRD EDITION The Second and Third Editions of this work have been substantially reprints of the First. Some few errors have, however, been corrected. It is necessary to remind the reader that the First Edition was published in 1861. The course of events since that period in Russia and in North- ern America has taken away much of its applica- tion to existing facts from the language employed by the writer on the subject of serfage in Russia, of the Russian village-communities, and of negro- slavery in the United States. It may perhaps be interesting to the I'eader to observe the bearing of the changes which kave taken place on the argu ment of that part of the work. H S. M. Calcutta, November, 1865. Digitized by Microsoft® PREFACE TO THE FIRST EDITION. TiiE chief object of the following pages is to indi- cate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of those ideas to modern thought. Much of the inquiry attempted could not have been pros- ecuted with the slightest hope of a useful resulfif there had not existed a body of law, like that of the Romans, bearing in its earliest portions the traces of the most remote antiquity, and supplying from its later rules- the staple of the civil institu- tions by which modern society is even now con- trolled. The necessity of taking the Roman Law as a typical system has compelled the Author to draw from it what may appear a disproportionate num- ber of his illustrations ; but it has not been his intention to write a treatise on Roman Jurispru- dence, and he has as much as possible avoided all Digitized by Microsoft® vi PREFACE. discussions whicli might give that appearance to his work. The space allotted in the Third and Fourth -Chapters to certain philosophical theories of the Roman Jurisconsults has been approjjriated to them for two reasons. In the first place, those theories appear to the Author to have had a much wider and more permanent influence on the thought and action of the world than is usually supposed. Secondly, they are believed to be the ultimate source of most of the views Avhich have been pre- valent, till quite recently, on the subjects treated of in this volume. It was impossible for the Au thor to proceed far with his undertaking, without stating his opinion on the origin, meaning, and value of those speculations. H. S. M LoKDON, January^ 1861. Digitized by Microsoft® CONTENTS luTiJODiroTiON, ^ . . \x — Ixix CHAP. ^ I. Ancient Codes, . 1 / II. Legal Fictions, 20 / III. Law of Natuee and Equity, 42 '' IV. The Modben Histoet op the Law of Natuee, . 70 V V. Peimitive Society and Ancient Law, , . .109 '^ VI. The Eaely Histoey oe Testamentaey Succession, 166 > VII. Ancient and Modeen Ideas eespeoting Wills and SnooEssioNs; 209 VIII. The Eaely Histoey of Peopbety, .... 287 / IX. The Eaely Histoey of Oonteaot, .... 295 / X. The Eaely History of Dklict and Crime, . . 855 Index, 387 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® IK"TEODUOTIOI*T. The work of Professor Maine on "Ancient Law" is almost the only one in the English lan- guage in which general jurisprudence is regarded from the historical point of view. The text hooks prepared by lawyers both in England and this country, have only aimed to present a view of legal history, so far as it was necessary for practical pui-- poses. The professed treatises on the " History of the English Law," such as those of Keeves and Crabbe, make no claim to philosophical deductions, and while the former is especially accurate and re- liable, it is written in a manner altogether dry and uninteresting. Mr. Maine's work is vitalized throughout by the true spirit of philosophy. It is not, however, a philosophy which bases itself on an inspection of the present condition of society. It is founded on facts derived from the most patient and tliorough historical investigation. It is to be hoped Digitized by Microsoft® X INTEODUOTION, that he, or some other equally competent person, will do that for the English common law, which has already been done in so masterly a manner for " ancient law." It is a remarkable fact that many of the early books of the common law are nearly inaccessible to the student. Some of them are in manuscript, hidden away in legal libraries. Those which are printed are composed in a language now obsolete, .and with abbreviations which the general scholar does not easily understand, Mr. Wallace, of Philadelphia, in his learned work on the Eng- lish Reporters has pointed out that the Parliament of England could do no more important work, than to reproduce in an accessible and intelligible form, these antique works which illustrate the early com- mon law. He has truly said, that no philosophical knowledge of the law can ever be had without ref- erence to its origin and history. Has not the time arrived when the materials for a comprehensive view of the common law should be furnished to the scholars of England ? Mr. Maine's work may be said to consist of two parts ; the first part, embracing four chapters, con- tains the philosophy of legal history. No more accurate and profound generalization was probably ever made in jurisprudence, than that which sums up the agencies of legal progress : Fiction, Equity, and Legislation. Its truth strikes the attention of one versed only in the English common law. The first two agencies, especially, accomplished all the Digitized by Microsoft® INTRODUCTION. xi eai ly advancement in that system of jurisprudence It is tlirougli them that public opinion gradually modified the law. Without them, the English nation would have remained stationary, or have been driven to a revolution. Sometimes fiction affects the law without consciousness on the part of the judge. Instances of this are given by Mr. Maine. At other times, the judiciary cover their intent to alter the law with a thin and transparent veU of fiction. When the English Parliament had passed the Statute of Entailments, by which the nobility expected to secure their landed possessions to their families, the judges, who did not sympathize with the legislature, eluded its effect by a fictitious legal proceeding, called a common recovery. It came to be a rule that no express words could be used in creating an entailment, which would prevent its destruction by this pretended action. It was an early complaint, that by the growth of Equity, the " heart of the common law was eaten out." An excellent illustration of its workings is derived from the law of trusts. The ancient com- mon law made the validity of a conveyance depend upon a visible act. The owner gave the intended purchaser a clod of earth, or other symbol of pos- session. The ovmership thus created admitted of no qualification. The visible owner was to all in tents and purposes the actual proprietor. On this simple conception, Equity grafted the notion of * uses." An owner of land could transfer it to an Digitized by Microsoft® XII INTRODUOTIOSr. indifl'ereut person by a visible symbol, and charge the transferree to liold it for the use of another. The " conscience " of the transferree was said to be affected by this transaction, and he was equitably bound to perform the trust imposed upon him. This obligation could only be enforced in a Court of Chancery, the presiding judge being an ecclesias- tic. That Court was supposed to proceed upon those principles "which affect the moral sense. In all the old law Abridgments, Chancery law is found under the title " Conscience." Chief Justice Fortescue, in the reign of Henry VI., a. d. 1453, derives Equity from the two words con-scio, which he explains to mean the case where men have the same knowledge as God possesses, that is, they know His will as nearly as possible by reason. He further remarks that a man may have a claim at common law, when by " conscience " he would be condemned. In another case, occurring in the year 1474, the Chancellor said that a case before him must be de- termined according to the law of nature in the Chancery.* When this principle came to be fully estab- lished, rights were recognized in one court, Avhich were denied in the other. Thus in the case under contemplation, the transferree of the land was said to have the legal title, and tbe owner of the " use " * Year Book, 13 Ed. IV. fol. 9, case 5. This Is an earlier recogni- tion of the duty of modern Courts of Equity to follow the Eoman " law of nature " than any noticed by Mr. Maine. Digitized by Microsoft® INTRODUCTION. xiii an equitaUe interest, and the Court of Cbaiicery sul;)stantially protected Mm in the enjoyment of the rights of ownership. He could, in genera], insist on having the legal title made over to him by a formal conveyance. This doctrine was soon seized upon to create other modifications of propertj^. For example, no owner of land could, by the common law, dispose of it by will, except in certain local- ities where a custom permitting a will prevailed. An evasion of this rule of law could be made through uses. If a man wished to make a will, he trans- feiTed his land to another to hold to his use. This person was in conscience bound to hold it for the grantor, who was said to have a " use." He could make a vrill of the use, and the devisee could then, by a resort to Chancery, compel the grantee to give him a deed of the land. If the grantor died with- out making a will, the " use " descended to his heir, who could in like manner exact a deed from the grantee. For many years, men were in the constant practice of evading in Equity the legal rule that an owner of land could not make a will. Every intel- ligent person knew of this double rule, but no steps were taken to remove the anomaly. Even Parlia- ment passed special statutes facilitating the exercise by the king of the power to make a will in accord- ance with this device. The time came when the fact was recognized that the difference between law and equity upon this and other points connected with uses was a mere Digitized by Microsoft® XIV INTRODUCTION. form. The third agency indicated by Mr. Maiue then interferes. Legislation corrects the anomaly. He who has the use, is declared to be the owner of the land, and a statute is passed conferring the power to make wills. When the statute of uses is brought before the courts, a narrow construction is adopted. It ia decided that certain uses shall not be turned into legal ownership. Chancery seizes upon these re- jected uses, and upholds them as trusts, fastening itself on the " conscience " of the legal owner. These trusts had become in certain cases purely formal, when after three centuries, the legislature of New York carries out the principle of the original statute, and declares that by no device shall there be a mere formal trust in land. This topic might be pursued to an indefinite length, and many similar instances summoned from English legal history. Mr. Maine deserves the cj-e dit of being the first to give body and form to th^ principle, which every student of law perceives as soon as it is stated to him. The second part of his book is equally striking. It contains an account of the origin and progress of leading rules in legal science. In its method, it is in direct antagonism to the loose .declamatory style in which many discourse of legal principles. The work throughout has a high and cheerful tone. It maintains the steady progress of mankind in jurisprudence from an age of fonnalities and cere- Digitized by Microsoft® INTRODUCTION. xv monies to an era of simplicity and symmetrical development. It asserts the continuity of the human race, and we are permitted to feel nearly every link of the chain which binds the men of our day to the nations of the remotest antiquity. The chapters on conveyances, wills, and con- tracts have an especial value, and will serve to dispel many erroneous views concerning transac- tions which make up a large part of the business of human life. In the hope of facilitating the use of this book in law schools and colleges, the writer has prepared an abstract of its contents. He only vouches for its general accuracy. The special qualifications and limitations of the principar propositions must, of course, be sought in the body of the work. It is confidently believed that this treatise is worthy of the careful study of all young men who desire to make the law an honorable pursuit, and not a mere trade or calling.. It may also be warmly commended to the general scholar, who cannot fail to derive instruction and stimulation from its weighty and earnest words. The earliest notion of law is not an enunciation of a principle, but a judgment in a particular case. "When pronounced, in the early ages, by a king, it was assumed to be the result of a direct divine B Digitized by Microsoft® XVI INTRODUOTIOK. inspiration. Afterward came the notion of a cus- tom which a judgment affirms, or punishes ita breach. In the outset, however, the only author- itative statement of right and wrong is a judicial sentence rendered after the facts have occurred. It does not presuppose a law to have been violated, but is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. When ai'istocracies succeeded to the power of the kings, they became depositaries and administra- tors of law, without claiming direct inspiration for each sentence. They monopolize the knowledge of law. Oustomary law now exists, which is assumed to be precisely known to the privileged order or caste. This is the era of true unwritten law. Be- fore the invention of writing, this was the only expedient by which there could be an approximation to an accurate preservation of the customs of a race or tribe. Next we arrive at the era of the Codes, of which the Twelve Tables are best known. Everywhere law graven on tablets takes the place of usages announced by the oligarchy. This movement was not due to any notion of the supei-iority of codifi- cation, but to the fact that writing was a better depositary of law than the memoiy of individuals. The importance of the codes can not be denied. They afforded protection against the frauds of the oligarchy and the debasement of the national insti- tutions. A great mark of distinction between the Digitized by Microsoft® rNTROPUCTlON. xvr, Romans and the Hindoos consists in tbe fact that the Romans had a code early in their history, while customs were wholesome, and before that jsage which was reasonable had generated that which waa unreasonable. As soon as a code is produced, there is no lon- ger a spontaneous developn)ent of law. Hereaftei', investigations must be confined to progressive I'aces of men. With these, social necessities and social opinion are always more or less in advance of law, Law is stable; society is progressive. How shall this gulf be narrowed which has a perpetual tend- ency to re-open ? There are three agencies with which law is brought into harmony with society — Legal Fiction, Equit}'^, and Legislation. Their historic order follows this arrangement. (1) By Legal Fiction is meant an assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, the letter remaining unchanged, but its opevation being modified. This is a rude device absolutely necessary in the early stages of society ; but fictions have had their day. (2) The next instrumentality by which law is adapted to social wants is called Equity. This is a body of rules existing by the side of the original law, founded on distinct princi- ples, and claiming incidentally to supersede the civil law by virtue of a superior sanctity in its principles, This doctrine of Equity is found in the Roman law, and in the English law under the direction of the Digitized by Microsoft® XVIII INTKODUOTIOIT. Court of Chancery. It differs on the one hand frtm fiction, for its interference with the law is open and avowed, and on the other from legislation, for it does not lay claim to authority on the prerogative of any external person or body, but rests only on the special nature of its principles. (3) Next in order is Legislation. This derives its authority from an extei'nal body or person. It is not necessarily governed by any piinciple. The extei'nal body may legislate in the wantonness of caprice, or its action may be dictated by some principles of equity. In either case, its binding power depends solely upon its external authority. In the youth and infancy of a nation it is a rare thing for legislation to be called into action for the general reform of private law. Its development must depend on the first two agencies which have been described. Having thus stated the difference between these terms, the method in which they act upon positive law may now be noticed. This will be best disclosed by illustrations. (1) Fiction. A striking instance of fiction is found in the case law of England. When a case is about to be decided under the common law, the assumption on the argument is that its decision will call only for the application of principles and distinc- tions which have long since been allowed. It is assumed that there is a rule of law which will govern the question now litigated, and which may be dis- Digitized by Microsoft® INTRODUOTIOK xix covered by tie exercise of sufficient skill and know- ledge. As soon as the case has been decided, a new train of thought is adopted, and it is admitted that the decision has modified the law. Though the law has been changed, men fail to notice that the old rule has been repealed. Even lawyers convey the paradoxical proposition that, except by equity and statute law, nothing has been added to the basis of common law since it was first constituted. They maintain that its rules, with some assistance from the Court of Chancery and Parliament, are co-extensive with the interests of modern society. A similar illustration may be derived from the Roman law. " The Responsa pi'udentum," or answers of the learned in the law, consisted of explanations of authoritative written documents. It was assumed that the written law was binding, but the responses practically modified and even overruled it. A great variety of rules was thus supposed to be educed from the Twelve Tables, which were not in fact to be found there. They could be announced by any jurisconsult whose opinions might, if he were distin- guished, have a binding force nearly equal to enact- ments of the legislature. The responses were not published by their author, but were recorded and edited by his pupils, and to this fact the world is indebted for the educational treatises, called Institutes or Commentaries, which are among the most remark- able features of the Roman system. The distinction between the "responses" and the "case law" of Digitized by Microsoft® XX INTEODUOTIOlSr. England should be noticed. The one consists of expositions by the 'ba7\ and the other by the Imch. It might have been expected that such a system would have popularized the law. This was not the fact. Weight was only attached to the responses of conspicuous men who were masters of the prin- ciples as well as details of jurisprudence. The great development of legal principles at Rome was due to this method of producing law. Under the Eng- lish system no judge can enunciate a principle until an actual controversy arises to which the rule can be applied ; under the Roman theoiy, there was no limit to the question to which a response might be given, except the skill and ingenuity of the ques- tioner. Every possible phase of a legal principle could thus be examined, and the result would show the symmetrical product of a single master mind. This method of developing law nearly ceased at the fall of the republic. The Responses were systematized and reduced into compendia. The right to make responses was limited by Augustus to a few juris- consults. The edict of the Praetor became a source of law, and a great school of jurists, containing such men as Ulpian, Paulus, Gains, and Papinian, arose, who were authors of treatises rather than of re-' Bponses. (2) Equity. The theories of Equity obtained an early currency, both in Rome and in England. Digitized by Microsoft® INTRODUOTION. xxi (A) Equity Law of England. A discussion of the jurisprudei/ce of the English Court of Chancery would require a separate treatise. It is complex in its texture, and derives its materials from heteroge- neous sources, such as the canon law, Roman law and the mixed systems of jurisprudence and morals constructed by the publicists of the low countries. It was greatly controlled in its growth by the neces- sitj of conforming itself to the analogies of the common law, although it claimed in many respects to override it on the strength of an intrinsic ethical superiority. (B) Equity Law of Home. — (a) Lts General Principles. The Equity of Rome was a much sim- pler structure and its development can be more easily traced. The Roman legal system consisted of two ingredients : one, the law which the people enacts for itself, called the civil law^ and the other that which natural reason appoints for all men, and which is called the Law of Nations^ because all men use it. This latter element is elsewhere called the Law of Nature, and is said to be the offspring of natural equity as well as of natural reason. It was a peculiar feature in Roman history that the fortunes of the republic were greatly affected by the presence of foreigners. This fact is partly attributable to a disposition to seek refuge in a strong government fi-om the instability of unsettled society, and partly to the active commercial relations Digitized by Microsoft® XXII INTRODUCTION. which Trere had with Carthage and the interior of Italy. The alien, however, had no share in the purelji Roman institutions. He could not make a strictly Roman conveyance nor bring a formal legal action. Controversies involving his interests could not be decided by pure Roman civil law. The Roman lawyers in this difficulty resorted to the expedient of selecting the rules of law common to Rome and to the different Italian communities in which the foreigners were born. This common element was called the Jihs Gentium^ or the law common to all nations. The result was that whenever a particular usage was seen to be practised by a large number of separate races, it was set down as a part of the law common to all nations. It must not be supposed that the early Roman lawyer had any special respect for this law. It was forced on his attention by a political necessity. He was attached to the civil law with its ceremonies and foi'malities, and cared no more for the " law of na- tions " than for the foreigners for whose benefit it was intended. The " law of nations ^' must not be confounded with international law, or the law he- tween nations. At a later period, the law of nations was consid ered as the model to which all law ought as nearly as possible to conform. This result was brought about by the Greek theory of a law of nature. Under this theory, nature denoted the physical world Digitized by Microsoft® INTEODUCTIOK xxiii regarded as the result of some original element or law. The later sects added the moral to the physi- cal world in the conception of nature. It was not merely the phenomena of human society, but pheno- mena resolvable into some general and simple laws, Greek Philosophers imagined that but for some accident, the human race would have conformed itself to simple rules of conduct, and have lived according to nature. This was the end for which man was created ; it was the substance of the stoic phi- losophy. On the subjugation of Greece, this philoso- phy made the most rapid progress in Roman society. The Roman lawyers were the leading disciples of the new school, who affected the stoic principles of life according to nature. The alliance of the lawyers with the philosophers lasted for centuries. The influence of the stoic philosophy is not to be meas- ured by the specific legal rules which it contributed to jurisprudence, but by the single assumption that the old jus gentium was the lost code of nature, and that the equity jurisprudence of the prsetorwas the restoration of a type from which law had departed. From this moment, the law improved with great rapidity. The simplicity and symmetry associate with the conception of nature were regarded as the characteristics of a good legal system. Ceremonies and useless formalities disappeared, and finally the law assumed its present shape under the superin- tendence of Justinian. Digitized by Microsoft® xxTV INTPvODUCTION. The pc int of contact between the law of nations and the law of nature was equity. Some have derived this term from a Greek word which indicates the principle of equal distribution. We prefer that origin which gives it the sense of levelling. The civil law of Eome recognized many arbitrary dis- tinctions between classes of men and property. The neglect of these distinctions was that feature of the law of nature which is depicted in equity. It was at first applied to foreign litigants without ethical meaning, and to the early Romans was without doubt extremely distasteful. When the "law of nature" was fully recognized a different view prevailed. Nature implied symmetrical order, and equity came to have associations with the idea of equal distribu- tion. This may be inferred from the language of Cicero, and it is the first stage of a transmutation of the conception of equity which has been carried on by nearly every ethical system of later times. b. The formal instrumentality hy which the law of nations and of nature was incorporated into the Roman law. After the expulsion of the Tarquins, the supreme judicial office devolved on the praetor. He had au undefined supremacy over law and legislation which had always attached to ancient sovereigns. This indefinite portion of his functions was the more ira portant on account of the multitude of persons who Digitized by Microsoft® INTEODUOTION. xxv were not indigenous Eomans, and who would have been without remedies, had not the praetor under- taken to decide upon their rights. It was a rule at Rome, as a matter of precaution, that everj' magis- trate having indefinite powers should publish, on commencing his year of office, an edict or proclama- tion in which he declared the manner in which his department would be administered. The praetor was *govei'ned by this rule. It soon became the practice for each praetor to publish his predecessor's edict, with such modifications as he deemed neces- sary. The proclamation obtained the name of the edictum perpetuum, or the continuous or unbroken edict. The practice of increasing the edict, ceased in the reign . of the Eniperor Hadrian, under the magistracy of Salvius Julianus, and the perpetual edict was then called the edict of Julianus. It might seem at first thought that there was no limit by which this extensive power was con- fined, and that the action of the praetor might be- come dangerous to social order. Practically, his power was restrained by the ideas and views of the legal profession to which he belonged. At first his intervention was dictated by simple concern for tho safety of the State. Afterward, he used the " re spouses " as a means of applying fundamental prin ciples. Still subsequently, he acted under the influ ence of Greek philosophical theories which marked out the line of his progi-ess. After the edict of Julianus, the equity jurispni Digitized by Microsoft® xsvi INTRODUCTION. dence of Rome was developed by the labors of a succession of great lawj-ers who flourished between the reign of Hadrian and that of Alexander Severus. Their treatises chiefly took the form of commenta- ries on the edict. The same tribunal administered law and equity. As soon as an equitable rule was evolved, the prsetor applied it by the side of the old rule, which was substantially repealed without any act of the legislature. Although there was no com- plete fusion of law and equity, yet the latter sup- plied the jurist with all his materials for generaliza- tion, with all his methods of inter])retation, with his elucidations of fii-st principles, and with the great mass of limiting rules which seriously control the application of every legislative act. In the reign of Alexander Severus, the power of growth in Roman equity was exhausted. Then follow imperial constitutions, and finally the attempts to codify the unwieldy mass of Roman jurispru- dence, the most celebrated of which is the Corpus Juris of Justinian. (c). Features common to English and Homan equity. These systems of jurisprudence had two features in common. First, each of them tended to exactly the same state in which the old common law was when equity first interfered with it, "When the moral principles adopted by courts of equity have been carried out to their legitimate conse- quences, the system becomes rigid and unexpansive, Digitized by Microsoft® INTRODUCTION. xxvn and as liable to fall behind moral rules as a strict legal code. This happened at Rome, in the reign of Alexander Severus. The same period arrived in England during the chancellorship of Lord Eldon, whose task it was to explain and harmonize the jurisprudence of his court. Its morality is not the morality of our own day, but of past centuries. Further improvement is not to be had by this agen- cy, but by legislation. Second : in each of these sys- tems there was a false assumption upon which the claim of the superiority of the equitable rule was founded. The moral progress made was explained as the recovery of a lost perfection, and as a return to a state from which the race had lapsed. The Roman lawyers accounted for the improvement in their jurisprudence by the Greek doctrine of a natural society. In England, the claim of equity to override the common law, was explained by a supposed paternal authority vested in the king, enabling him to superintend the administration of justice. Another mode of expressing the same idea was that equity flowed from the king's conscience. The true reason was overlooked, that there was an improvement in the moral standard of the com- munity. {d). Modern History of the Law of Nature. The Roman theory of the law of nature, though deficient in philosophical precision, was very impor- tant to mankind. There are two dangers to which Digitized by Microsoft® xxvin INTRODUCTION". law and society are liable in their infancy. One of them is that law may be too rapidly developed This occurred with the codes of the Greek com- munities. If the Komans were in danger of it, they had adequate protection in their theoiy of natural law. It kept before the mental vision a type of perfect law, to which there might be an indefinite approximation. This system was not entirely the product of imagination, but it was supposed to underlie existing law. Unlike the modern notion of a law of nature, its functions were remedial, not revolutionary or anarchical. The other liability to which the infancy of so- ciety is exposed, is the identification of law with religion. The perfection of law has been considered as consisting in an adherence to the plan marked out by the original legislator. The great advantage which the Romans possessed, was that throrgh their theory of natural law they had a distinct object to aim at, like that which Bentham gave to English lawyers, when he announced that the true object of jurisprudence was to secure the general good of the community. It was not from motives of philanthropy, but from a sense of simplicity and symmetry, that the Koman lawyers held up the law of nature as an ideal and perfect law. The influence of the Roman theory of " natural law " in modern times has been very great. It is the source of most of the special ideas as to law, politics, and society which France during the last Digitized by Microsoft® INTRODUCTION. xxix hundred years has diffused over the Western world. From various causes, natural law in the eighteenth century had become the common law of France. Its influence would probably have been checked by Montesquieu's " Spirit of the Laws," had not Rous- seau appeared. In all his speculations, the central figure is man in a supposed state of nature. It is the theory of the Roman lawyers inverted. The subject of contemplation is not the law of nature, but the state of nature. Though Rousseau's philosophy in its grosser forms has fallen low in general esteem, yet in its disguises it still possesses popularity and power. The doctrines of nature and her law have preserved their energy by allying themselves with political and social tendencies. They enter largely into the ideas which radiate from France over the civilized world. From this source is derived the doctrine of the fundamental equality of human beings. The proposition in the Roman law, that all men are equal, is a legal rule ; in modei-n times, it is a political dogma. In the Ameiican Declaration of Independence, the French assumption that "all men are born equal," is joined with the English idea that " all men are born free." The greatest function of the Law of Nature was discharged in giving birth to International Law and the Law of War. The piincipal postulates of inter- national law are : first, that there is a determinable aw of nature ; next, that Natural Law is binding on states. As a corollary from the second proposi Digitized by Microsoft® XXX INTEODUCTION. lion, the several states must be absolutely equal Third, in reference to acquisition of property, sove- reigns are related to each other like a group of Roman proprietors. This may be resolved into the propositions that sovereignty is territorial, and that sovereigns as between themselves are absolute owners of the state's territory. The doctrine of territorial sovereignty, by which is meant the view which con- nects sovereignty with the possession of a limited portion of the earth's surface, is the product of feu- dalism. Without this doctrine, Grotius' labors upon international law would have been in vain. The existence of an imperial power ruling over the states of Europe, even in theory, would not have admitted of the application of the principles of natural law. It was essential that they should be insulated and independent of each other in order that they might be equal. Had there been a common superior over them, the notion of positive law would have been introduced and the natural law excluded. (3) Legislation. The Statute Law of Rome wag scanty during the republic, but voluminous under the empire. In the youth of a nation, the interfe- rence of the legislative body is commonly directed to the removal of some abuse, or the decision of some quarrel between classes and dynasties. In this way society was settled after a great civil com- motion. The true period of statute law does not begin till the establishment of the empire, and ia Digitized by Microsoft® INTRODUCTION. the reign of the second emperor considerable approx imation had been made to that condition of the law with which men are familiar at the present day. TI. The true method of investigating the principles of ancient law has often been overlooked. That which has hitherto stood in the place of science has been for the most part a series of guesses. The mistake which has been committed is analogous to the error of one who, in investigating the laws of the material universe, should commence by contem- plating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. Our proper course is to penetrate as far up as we can in the histories of primitive societies. There are only three sources of knowledge upon the rudiments of the social state : (a) accounts by contemporary observers ; (b) records which particu- lai- races have preserved concerning their primitive history ; (c) ancient law. An instance of the first kind is the Germania of Tacitu^. The amount of testimony from the first two sources is exceedingly • small. Contempt, negligence, pride of race, and the religious sentiment of a newer age, have each in their turn impaired the value of such accounts as we have. These suspicions do not attach to Ancient IjAW Digitized by Microsoft® xxxit INTKODUCTIOK Much of this was presened because it was old, and those who retained it offered no account of it except that it had come down to them from their ancestors. Inquiries may therefore be confined to the effect of evidence derived from comparative jurisprudence. ^ This evidence establishes that view of the race which is known as the Patriarchal Theory. This theory is based on the Scriptural history of the Hebrew patriarchs. All known societies were ori- ginally organized on this model. The eldest male parent is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over his children as over his slaves. The flocks and herds of the children are the flocks and hei'ds of the father. These he holds in a repre- sentative rather than in a proprietary character. When society came to be formed, it was not as now a collection of individuals, but an aggregation of families. The unit of an ancient society was the family ; of a modern society, the individual. Law is scanty, because it is supplemented by the despotic commands of the heads of households. It is cere- monious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individ- uals. On this simple society, fiction soon began to operate. New comers were incoi-porated into it by the law of Adoption, which consists in feigning themselves to be of the same stock as the people on which they wei'e engrafted. When this ficti..u Digitized by Microsoft® INTEODUCTION. xxxtii ceased to operate, these societies became aristocra cies, and a new law came into play, viz., Local Con tiguity. The leading developments of this organization will, now be indicated. 1. TJie life-long Authority of the Father over the Permn and Property of his Descendants. This an thority the Romans called Patria Potestas^ or as il may be briefly termed, " the child under power." There is an important distinction to be noticed between the relations created by public and by private law. In reference to the public, the son " under power " was as free as his father ; in all the relations created by private law, he lived under a domestic despotism. The progress of civilization as to this subject is best shown in the Roman law. The eai-ly Roman law adopted the most rigid form of this doctrine. While in the later period of the empire, the power over the person became nominal, that over the property was always exer- cised to the full extent sanctioned by law. The father could enjoy the whole of the son's acquisitions and the benefit of his contracts. The first innova- tion upon this rule took place in the acquisitions of soldiers on service ; afterward, the earnings of per- sons in the civil employments of the state were secured to them. Even in the latest days of the empire, the father was entitled to a life interest in the acquisitions of his child. Digitized by Microsoft® mTRODUCTION. This power of the father imposed upon Lira a corresponding duty. He was liable for the wrong- ful acts of his sou while under powei-. He had a re2?rese?2tatlve ownership which was coextensive with his liability to provide for all the members of thi brotherhood out of a common fund. This was a duty enforced rather by instinct and habit, than by definite sanctions. The universality of "power" (patria potestas) may be shown by the examination of some other topics of ancient law. Among these, the most prominent is kinship. The Romans regarded kinship as Agnatic or Cognatic. Cognates are those whom we term blood relations, being all such persons as trace their descent from the legitimate marriage of a single pair. Agnates are those blood relations who trace their connection exclusively through males. This distinction will be made clear by the following table : John, his son. Agnate. Edwakd, grand- son. Agnate. Father, having paXria potestas. / \ James, his son, Agnate. Jane, Ms mar- ried daughter. Agnate. Makt, grand- daughter. Agnate. 1 Richard, grand- son. Cognate, but not Agnate. Digitized by Microsoft® INTRODUCTION. xxxv All the children of male Agnates, whether male or female, are themselves Agnates ; all the children of female Agnates are Cognates to their mother's father and his other descendants. Under some systems of jurisprudence, as for example the Eo man, Agnatic kindred may be introduced into the family by the fiction of Adoption. This ar rangement of relationship appears entirely arbitrary. Its true principle is the " power " of the father. Wherever "power " (potestas) begins, relationship begins. The reason why descendants of a female were excluded from Agnatic i-elationship was, be- cause after marriage her children fell under the power of her husband. The same person could not be under two jurisdictions.* The doctrine of Agnation has much historical " The question of Agnatic and Oognatic relationship has recently excited interest in connection with the acceptance l)y Maximilian^ Archduke of Austria, of the position of Emperor of Mexico. A family law imposes on every Archduchess contracting marriage, the obliga ti^in of signing for her^elf, or her descendants, an act of renunciation of any pretension to the eventual succession to the Austrian throne, and to certain other rights. A family council resolved to apply the principle of this law to Maximilian, claiming that the acceptance of the foreign throne was analogous in its effect to a marriage by an Archduchess. The Archduke objected on the ground that he was the first Agnate to the Emperor Francis Joseph, and, on his death without a male heir, entitled to the Austrian throne. He urged that while a princess on her marriage loses her quality of Agna'e to such an extent, that her heirs nre only entitled to the title of Cognates, he Btill retained, though Emperor of Mexico, his title of Agnate. The matter was compromised by a renunciation for himself and his heirs of all right to the throne of Austria, so long as the new Mexican dynasty shall continue to reign. — Memorial Diplomatique, quoted in New York Times, April 28 1864. Digitized by Microsoft® XXXVI INTEODUOTION. importance. It can be traced to modern law. Tl ejfplains the harsli rule of the common law of Eng- land, that brothers of the half blood cannot inherit from each other. This doctrine in ancient law -was properly confined to children of the same mother by different fathers (uterine brothers). In Eng- land, through a want of knowledge of the origin of the rule, it was extended to brothers having the same father, but different mothers (consanguineous brothers). The position of woman in the ancient law is also explained by the patria potestas. The Agnatic bond was not released in her case by the death of her parent. She could never become the head of a family, as her brother might be. When her father died, she came under perpetual guardian- ship to her nearest male relatives. This rule of ancient law disappeared from the matured j urispru- dence of the Roman Empire At this point, we observe a remarkable contrast between ancient and modern law. Under the early system, woman was subordinated to her relatives ; under the modern, to her husband. There are in fact three periods of jurisprudence to be noticed : the early Roman law, the later Roman law, and modern systems. Under the early Roman law, marriage could be contracted in three forms, one of which was religious, and the other two, civil. In view of the law, the wife became her husband's daughter, and he exercised over her the patria Digitized by Microsoft® INTRODUCTION, xxxni potestas. He could appoint guardians over her whose authority continued after his death. In the later Roman law, a form of marriage was recognized, which left the wife theoretically under the care of guardians whom her parents had appointed, but practically, when that guardianship became obsolete, under no control whatever. In modern law, therr is a twofold element. The later Roman jurispru dence has been adopted so far as to emancipate unmarried women from the control of their male relatives; while married women, through the influ- ence of religious sentiment and early notions preva- lent among the dominant races from which modern nations have sprung, are governed by the rules of an imperfect civilization. Those systems oflaw are the most severe upon married women, which bor- rowed their rules from the canon law, or which came latest in contact with European civilization, as for instance, the Scandinavian. A clear understanding of the patria potestas may be obtained from the position of married women in the English law. The details upon this topic will be found in a note.* * A summary of the common law concerning the disabilities of married women, and the duties of their husbands. I. The Hdsband's Right ovee the Wife's Peopeett, which MIGHT consist of Real Estate, Leasbs, Eights of Action, oh Peesonal Peopeett. a. As to her reivl estate, he became life tenant for the joint lives of himself and wife. He was entitled to the profits of the land, and they could be seized by his creditors. If any children of the marriage were born alive duiing the wife's life, he had an estate for his own Digitized by Microsoft® sxxviii INTRODUCTION. The doctrine of pati-ia potestas is still furthei illustrated by the law of guardianshio concei-ning life, though he outlived his wife. He was then called tenant by the courtesy of England. i. Her leases belonged to him absolutely in case he survived his wife. If she survived, they belonged to her. Any disposition of them by him during marriage, would defeat her right cf survivorship. c. Her rights of action became his absolutely, if he reduced them to possession while the wife was living. By this was meant a receipt of their amount, either by payment or collection tlirough a lawsuit, or by sale to a purchaser for valuable consideration. They could even be taken by his creditors for the payment of debts, although in that case, if not reduced to possession, they would revert to the wife, if she survived her husband. If the wife died before the claims were collected, the husband received them as administrator, in which case, after payment of her debts, the surplus belonged to him absolutely. If the wife survived, the uncollected claims belonged to her. d. Her personal property of a tangible nature vested in the hus- band absolutely at the moment of marriage. II. The Wife's Capacity to Coxteact. The wife had no power to make a contract. Her leg;il personality was merged in that of her husband. She could not deal with her husband, for husband and wife were in law one person. If she dealt with third parties, the transaction could only be supported on the ground that she was her husband's agent. Her earnings belonged to him, and he could collect them by action. In one or two cases, the wife might act as a single woman. These were where her husband was an alien, always living abroad, or he had been banished, or had abjured the realm. HI. Other Disabilities. A wife could not convey her land except by the fictitious judicial proceedings called tine and recovery. She could not make a will of her land, for she was excepted from the Statute of Will?. Nor could she make a testament of personal property, except by the permission of her husband. She could not be a witness against or for her husband, tither in a civil or criminal case. Her domicile followed that of the husband. The husband, being entitled to her services, could bring actions against one who harbored the wife, or who wrongfully inflicted an injury up m her person. There were in some instances two aciious: one by the husband and wife for the personal injury done to the wife, and one by the husband alone for the injury occasioned Digitized by Microsoft® IlsrTRODUCTION. sxxix male orphans. A person whose wardship had terminated by the death of his father or grandfather was placed at his fifteenth year in the full enjoyment of personal and propi'ietary independence. This rule does not depend upon any consideration of public convenience, but upon the ground that the child was supposed to be capable of becoming a parent himself. Guardianship ended with puberty. This was soon found to be an inconvenient rule, and a statute was passed creating a new kind of by the loss of service. The entire pecuniary results of these actions belonged to him. IV. Duties of the Husband. a. He was under a duty to maintain his wife in accordance with her rank and station. She became in such a case, presumptively, the husband's agent ; and under proper circumstances, she could incur bills with tradesmen, wliioh could be collected from the husband. b. He was bound to pay her debts contracted befor(i marriage. This duty resulted from the fact that her legal personality was merged in his. It followed, that he must be sued with her, while both lived. He would then be compelled to pay her debts, though he had received nothing from her. If she died before an action were brought, he could only be sued as administrator, and be liable to tl.e extent of the assets which he received in that character from her estate. c. He vvas liable for the wife's wrongs committed after marriage. If she was guilty of slander or libel, the damages could be collected from him by action. He might be sent to jail if the judgment was not paid. d. He was presumptively responsible for her felonious acts, and could be indicted for crimes of that grade committed by the wife in his presence. He could, however, introduce evidence to rebut the presnmp'.ion. These principles were affected by the rules adopted in Courts of Equity, which are not within the view of this note. They have been largely modified in the several Stati s of this country by legisla- tion. They are the law of most of the United States, except so far as they have been changed by statute. Digitized by Microsoft® SL INTRODUCTION. guardian (Curator) to protect the infant againsl intellectual incapacity. Finally, the slave was also included in the family. This was well for him, as he was not degraded to the footing of inanimate property. He had in the last resoi't a capacity for inheritance. Those states which have adopted the rules of the Roman law have left the slave not so intolerably wretched as those which have adopted a different theory. The movement of the progressive societies has been, in one respect, uniform. There has been a gradual dissolution of family dependency, and the growth of individual obligation has taken its place. The tie between man and man whi«h replaces those rights and duties which have their origin in the family is contract. It was the tendency of former law to fix the condition or " status " of persons by positive rules ; in modem times, the condition of persons is commonly the immediate or remote result of agreement. The movement has been from status to contract. 2. Testamentary Succession. The conception of a will in modern times is taken from Roman testa- mentary jurisprudence. It came into the English law through the medium of the church. Wills of personal pi-operty were administered in the ecclesi- astical courts, which applied, though in an imper- fect manner, the principles of Roman jurisprudence. The English law of testamentary succession is thus Digitized by Microsoft® INTRODTJOTIOK. xi,i a modified form of the rules under which Roman inheritances were administered. At this point, one may see the advantages of a historical treatment of the subject. Men who should simply reason upon a will would argue that it would take effect at death only ; that it would be secret ; and revocable duiing the testator's life. None of these characteristics oiiginally belonged to a will. It was not secret, nor revocable, and took effect during the testator's life. Many juiists have asserted that the right to make a will is conferred by the law of nature. They would imply either that the right is universal or that nations are prompted to it by an original instinct or impulse. On the contrary, experience teaches us that it is not universal, and history dis- closes to us that in all the early societies, the condi- tion of jurisprudence in which testamentary privi- leges are not allowed precedes that in which they are permitted to supersede the rights of kindred by blood. This subject can only be understood by glancing at the doctrine of Universal S^iccession. By " uni- versal succession " is meant the case where one is invested with the legal character of another, subject to all his liabilities and entitled to all his rights. He becomes the representative of the pei'son to whom he succeeds. Under the Roman law, at the death of a person, his heir became by inheritance his " universal successor." We cannot perhaps easily Digitized by Microsoft® XLii INTRODUCTION'. comprehend this notion, for we have no instances in modern law of this kind of succession. Even in a bankruptcy, the assignee who takes all the debtor's assets, does not assume his responsibilities. If he did, we would have the notion of a "universal succession." Now, the theory of a will in ancient law was to put the devisee in the position of a universal suc- cessor. He was the representative of the testator as completely as the lieir was of an intestate. Though the testator had ceased to live, his legal personality continued in his successor. An executor in our law only partially resembles suck a successor, for he only takes the personal property, and is responsible only to the extent of the assets which he receives. What, then, is the true theory o f an ancient succession ? Kecur for a moment to the idea of the family. It was a corporation, witk the patriarch at its head. He was the representative of its rights and obligations. When he died, the family — the corporation — did not die. Another representative took liis position with all the corporate rights and duties. This feature of the law of family was ulti- mately transferred to the individaal, and when society was resolved into its component parts, it •continued to be the rule that on the death of an individual, his heirs or testamentary successors took his own legal position. We may state the position i)f the testator with sufficient accuracy if we describe Digitized by Microsoft® INTEODUOTIOIT. . xi.ui him as a corporation sole, as a king, who never dies is a corporation sole. When a Roman citizen died without a will, his heirs did not mei-ely represent him. They continued his civil existence. This theory of universal succes- sion is peculiar to Roman jurisprudence. >^A will at the outset was a proceeding by which the devolution of a family was regulated. It was a mode of declaring the person who was to have the chieftainship in succession to the testator. This view explains the connection between wills and the sacra or family rites. No testament was allowed to distribute an inheritance without a strict appor- tionment of the expenses of these religious cere- monies among the co-heirs. Doubtless, Intestate Inheritance was more ancient than Testamentary Succession, and testaments wei'e at first only allowed to take effect on failure of the persons entitled by blood relationship. In fact, the only methods of continuing a family where there was no succession of kindred, was either a will or adoption. In the Hindoo law the place filled by wills is occupied by Adoptions. To the Romans belongs the invention of a will. We are thus enabled to explain the pi'imitive Roman will, which was executed in the Coraitia Curiata, or Parliament of Pati'icians, w^hen assembled for private business. The key to this proceeding is to be sought in the ancient law of intestate succes- fiion. The order of descent was as follows : firsi^ Digitized by Microsoft® xLiv INTEODUOTION. tlie direct descendants who had not been emancipai ted ; second, the nearest Agnate, the nearest person under the same power (patria potestas) as the de- ceased ; third, on the failure of these, the inheritance devolved on the gentiles or the collective members of the dead man's gem or House. This House was composed of all the Roman Patricians who bore the same name, and who were supposed to be descended from a common ancestor. As the Parliament con- sisted of a representation of these very Houses, the object of bringing the will before it was to determine whether the testator had any gentiles whose claims were affected by his will. It might be rejected or allowed, according as the circumstances of the case might demand. The modern will was derived from a transaction /vhich was a conveyance inter vivos. It was a com- plete and irrevocable alienation of the testator's family and substance to the person intended to be his heir. It was derived from the Mancipium or Mancipation. This transaction required the presence of a vendor and vendee as well as five witnesses, together with a person called a lihripens, who held a pair of scales to weigh the money employed in the proceeding. The testator assumed the place of a vendor, and the intended successor pretended to strike the scales with a piece of money. By this proceeding he became, in contemplation of law, the- purchaser of all the testator's property and privi- leges, and assumed all his obligations. This trans Digitized by Microsoft® INTRODUCTION. xlv action vested the property in the heir immediately, even though the testator survived ; and the latter could only continue to govern his household by the sufferance of the former. It was the abdication of the corporator in favor of his successor. When the Twelve Tables were established, the testator could not give any legacies which would bind the " uui versal successor.'' The doctrine finally came into vogue that he must take the inheiitance subject to any burdens imposed upon it by the testator, which might be created, as legacies, either orally or in writing. In the course of jurisprudence, the Praetors or judges introduced another kind of will depending on Equity. The requirements of the Mancipatory Will were observed so far as they furnished security against fraud. Seven witnesses were present; the will was recited, and each of the witnesses affixed his seal to the outside. This kind of will did not confer the legal title to the inheritance. It gave the "successor" an equitable right to the property, which, after a year of undisturbed possession, by force of a principle known as prescription (usuca- pion), ripened into a legal right to the property. The Mancipatory Will was not displaced by the will of the Praetor. At the time of the Empire, an indifferent person was made the " purchaser " of the testator's rights, who was called the emptoi' familim. The person who was to receive the actual benefit was named by the testator. Wills thus became seci-et Digitized by Microsoft® XLVI INTEODUOTIOK. A will then consisted of two parts : the conveyance and a publication. By the " publication " the testa- tor declared his intentions either orally or in writ ing The conveyance having now degenerated into a mere form, the intention was regarded as the principal feature in the transaction, and wills became re^'ocable. At the time of Justinian, a will was introduced into the Eastern Empire, which combined the two already described, but it was employed in that em- pire only, and the maucipatory testament, with all its forms of conveyance, continued to be used in Western Europe, far down into the middle ages. 3. Differences hetween Ancient and Modern Stio- cession. — There are some differences between ancient and modern ideas on this subject, which should be noticed. Though the text of the Twelve Tables allows the utmost liberty of testation, yet a will does not seem to have been regarded by the Romans as a means of disinheriting a family. The principal value of the power of testation was deemed to be the assistance it gave in making provision for a family, and in dividing the property more fairly than would have been done by the law of intestate succession. There was a strange dreid of intent; cy among the Romans. It is difficult to account for this sentiment at first thought. A close examination will reveal its origin. The Roman law consisted of two parts : the civil law, and the equity law. By Digitized by Microsoft® INTEODUOTION. xi.vn tlie civil law, only three clas ses of persons were called to the succession — unemancipated children, the nearest class of Agnatic kindred, or members of the gens or family to which the intestate be- longed. !( The ema ncipated sons had no share in the inheritance. So if a man died childless, it might happen that all his property would devolve on a class of persons with whom he had no connection, except the fiction which assumed that all members of a gens or class had descended from a common ancestor. There was thus a conflict between natu- ral affection and legal theories, and men felt an enthusiasm for an institution which permitted them to escape from the thraldom of legal rules, and to give their property to the objects of their love. The Pi'SBtor by his equity law ultimately per- mitted some persons to succeed who were not in- cluded in the civil law, but the sentiment which had caused a will to be so much regarded in the mind of a Roman outlived the necessity which had called it forth. The opposite view, which values a will because it enables the testator to divei-t his property from his family, or to distribute it among his relations in such form or proportions as he may desire, is of modern origin. It can be unhesitatingly traced to the influence of Primogeniture. When the law had established that all the land should pass to one of the heirs, to the exclusion of the rest, it was easy to reach the result that the excluded persons had no Digitized by Microsoft® xLviii INTRODUCTION. claim upon the other items of property. Prima geniture itself is modern. There is not the faintest trace of it among the Romans, or other ancient na tions. Among the Hindoos, when a son is born, he acquires a vested right in his father's property, which cannot be sold without a recognition of his joint ownership. It may even be divided during the father's life, between him and his children. SimHaJ principles prevailed among the ancient Romans. The history of primogeniture thus becomes exceedingly obscure. The origin of primogeniture must be sought in the beneficiary gifts of the barbarian chieftains who invaded the Roman Empire. Similar gifts were made on a great scale by Charlemagne, and were grants of Roman provincial land to be holden by the beneficiary on condition of military service. Origi- nally held at the pleasure of the grantor, the gran- tees ultimately succeeded in causing them to become hereditary. They sometimes descended to the eldest son, and in other cases a different rule pre- vailed. The method of descent depended upon agreement. Similar phenomena occur when the feudal law impressed itself on all estates of land. Primogeniture once admitted as to some estates, was seen to possess some marked advantages, and spread with great rapidity over Europe, largely through the instrumentality of family settlements. The question recurs, why should primogeniture diffuse itself so rapidly ? Doubtless it had an his- Digitized by Microsoft® INTRODUCTION. xlis toric origin in some ancient theories based on the idea that, whenever political power or public office passes by succession, it follows the rule of primo- geniture. Proofs of this are found in the Hindoo law. It spread rapidly, because European society had retrograded. Civil society having no coherence men threw themselves on a patriarchal institution older than existing organizations. It was a source of strength to hold the entire property together for the use of the family. Power was concentrated in a single hand. After a time the notion that the land was held for the behoof of the whole family wore away. The refined idea that uncontrolled power over property is equivalent to ownership came in contact with the patriarchal theory, and the eldest son became legal proprietor of the inher- itance. The younger brother ceased to participate in the property of his kinsman, and became the priest, soldier, or dependant. There are two forms of primogeniture, of which that already described is the normal one. In tko Celtic societies, the eldest line succeeds. An uncle may inherit rather than an infant son of the last owner. This is principally true in the case of devo- lution of political power, such as the chieftainship of a clan. This modification was doubtless derived from the fact that it is better to be governed by a grown-up chieftain than by a child, and that a younger brother is much more likely to have reached maturity than any of an elder brother's descendants. Digitized by Microsoft® L INTEODUOTIOK 4. The Mirly History of Property. — Historical investigations lead ns to depart from the idea shadowed forth in Roman jurisprudence and adopted 'oy Blackstone and others, that the origin of prop- erty, is to be traced to occupancy. This notion is found in the later Roman law, and is the product of a refined jurisprudence and of a settled condition of the laws. It does not arise until the i-ights of property have gained a sanction from long practical inviolability, and is occasioned by the presumption that everything ought to have an owner. This view is directly contradicted by history. The social compact, which admits occupancy, is made l)y indl- viduals. Ancient law, however, knows nothing of individuals. It is concerned only with families and groups of beings. This notion of occupancy as a natural light has had a powerful influence on modei-n law. From it, some of the great rules of international law have been derived, such as the righf of capture in war, and the claim to new countritg by discovery. As an account of the origin of prop- erty it possesses no historical value. "We cannot look for the germ of the I'ight of property in the Roman law. We must go to an older system, and inspect the customs of the Hin- doos. The village community is there an organized patriarchal society and an assemblage of co-proprie- tors. Co-ownership by the family was the original law of property. At the present time, co-ownership is "egarded as the exceptional condition. In its simplest Digitized by Microsoft® INTEODUCTIOK u form, the "community" was a body of kindred holding a domain in common. It was, however, more than a brotherhood of relatives. It is au organized society, with a common fund and completfl machinery for internal government. More complicated forms also appear. Men of foreign extraction are admitted, and the purchaser of a share may become a member of the brother- hood. The fiction is still preserved that all these persons had a common parentage. If a family be- comes extinct, its share returns to the common stock. We have here a reproduction of the Roman gens or clan. Similar inferences are derived from recent researches into Russian villages which closely resem- ble ancient types. From these various communities we may get some conception of the manner in which the right of individual property grew up. It was chiefly formed by the gradual disentanglement of the sep arate rights of individuals from the blended rights of a community. It would appear that ownership followed the law which has already been noticed in respect to the family. As the family became dis- integrated, ownership became several as well as joint. The difficulties in the way of the transfer of property in ancient times were very great. Convey- ances, being transactions between organized compa- nies of men rather than individuals, were in a high degree ceremonious, requii-ing many symbolical acts, Digitized by Microsoft® I'D INTKODUOTION. and a great uumber of witnesses. Not an item ol this ceremony could be safely omitted, not a gesture, not a syllable, not a witness. If there were an omis- sion, the conveyance was void. The change gradually produced was due to a classification of property. One kind of property was considered of more dignity than another, and demanded more form. The transfer of the other class of objects could be made more simply. After a time the superior convenience of the simple rules leads to their extension to more dignified objects, and the ceremonious forms become obsolete. The classification of objects was often quite arbitrary. It is in vain to attempt to refer it to any philosophical principle. It must simply be viewed historicallj'-. The most probable explanation is that those articles were especially honored which were first known to each community. Other articles were placed on a lower standing, because the knowledge of their value did not exist until after the classification was made. The Romans in this spirit divided all prop- erty into res maneipi and res nee mancipi^ or, in other words, property which could only be sold by the ceremony called " Mancipation " and property which could be transferred without that form. [This is much the same as if we should classify all property into that which can be sold by deed, and that which can be transferred without a deed.] The res man- cipi were Italian lands, slaves, and beasts of burden. They are the instruments of agricultural labor, and Digitized by Microsoft® INTRODUCTION. Liri were never extended. The res nee mancipi admit' ted of indefinite expansion. Such property was transferred by simple delivery. As its items in- creased in number and importance, the advantages of the simpler forms became apparent, and finally the cumbersome ceremony of mancipation entirely disappeared, and delivery became the one great conveyance of the law. It is true, however, that there were some posi- tive restrictions on alienation, which could not be overcome in this manner. In some countries, prop- erty could only be transferred with the consent of children ; in others, alienation was altogether prohib- ited. In some, inherited property could not be sold, while one's own acquisitions were transferable Very extensive classifications of this kind are found among the ancient Germans. Ultimately there was only one distinction of importance, that between land and chattels, land being considered of more importance than personal objects of enjoyment. Another mode in which the trammels of ancient law were relaxed, was by prescription. It was a positive rule of the Twelve Tables, that commodi- ties which had been for a very short period in pos- session of a person became his property. This was a most useful security against a cumbi'ous system of conveyance. If the act of mancipation had been performed in an irregular manner, after two years of possession, the title became perfect. This was an exceedingly important principle, because it quickly Digitized by Microsoft® Liv INTEODUOTIOK healed all defects in the title to objects of enjoy nient. Still another method was by collusive actioa The plaintiff in a fictitious action, claimed that the property belonged to him. The defendant, who was the real owner, made no defence, whereupon the court adjudged that the property belonged to the plaintiff. This was quite analogous to the ficti- tious action in the common law of England, which was employed to destroy entailments, and known as a Common Recovery. The influence of courts of law and their proce- dure upon property has been very great. We can only notice the importance of the legal distinction between property and possession. In the Roman law, the word possession did not merely convey the idea of physical detention, but it also included the intent to insist upon the ownership of the thing detained. Such possessors were protected by the Praetor's interdict or injunction, which was ultimately moulded into a shape fitted to try conflicting claims to a disputed possession. Ultimately, owners vin- dicated their claims to property by the same pro- ceeding. In the same way, the old real actions of the English common law, whose office was to try the title to land, have been superseded by the pos- sessory action of ejectment, which is now employed to try not only the question of possession, but also of ownership. Courts of Equity have also acted powerfully upon Digitized by Microsoft® INTEODUOTION. ' m property, by meacs of the distinction taken between legal and equitable ownership. The Courts of Equity in England, as well as in Rome, created nev» rights in various forms. This 13 a topic too extensive to be followed. It has been alluded to, merely for the purpose of showing that the peculiar notions of feudal ownership are not .0 be traced to the equity law of the Roman Praetor. The true orijrin of feu dal ownership is the emphyteusis^ or perpetual rent of the Roman law. The lessee was there treated as a true proprietor, and could not be disturbed, so long as his rent was paid. The owner of the rent could reenter upon the land, if payment was not made. He also had a right of preemption in case of sale. There is clear evidence that this system was introduced into Germany, in favor of Roman vete- rans, who settled upon the land, with an agreement to I'euder garrison duty, as a substitute for the or- dinary quitrent. The special services rendered to the feudal lord, which were not common to the Roman quitrent, were doubtless borrowed from the relation of patron and client. 5. The History of Contract. — ^The present con- dition of society makes it difficult to comprehend the early history of contract. The archaic rules of imperative law have almost everywhere given way to obligations founded on contract. The mind is apt to transfer this condition to ancient times, and even to have misgivings whether morality is advan- Digitized by Microsoft® Lvi INTKODUCTlOliT. cing. This feeling is often occasioned by some special instances of stupendous fraud. The fact, however, is that social morality has advanced from a rude to a highly refined conception, and we look upon rights growing out of the repose of confidence in others, as entitled to the protection of the penal law. Jurists have been led into the same error as other thinkers. Even the later Eoman lawyers re- garded those contracts, which involved no other ingredient than that of assent, as of earlier origin than those which were made ceremoniously, and looked upon them as contracts, known to man in a state of nature. This twofold error was adopted by Rousseau. He regarded the earlier ages as the times of innocence, which had given way to modern degenei'acy, and based his speculations on the theory of a "social contract." English lawyers laid hold of this theory, and, careless of its historical relations, insisted on the "social contract" as an historical fact. This theory has but little influence at the pres- ent time, partly because it is not satisfactory, and partly because men have ceased to theorize altogether. Men love to analyze society as it exists, and reach no results from an omission to call in the assistance of histoi'y. The patriarchal origin of society leaves but little room for the notion of con- tract. Under that system, two members of a family cannot contract with each other, nor can the family Digitized by Microsoft® INTEODUCTION. lvii itself be bound by the engagements of its subor dinate members. One family may contract witb ano' ther, but only in the most ceremonious manner. The duty resulting from one man's reliance on the word of another is one of the slowest conquests of civilization. There is nothing in early times like the interposition of law to compel the peiformance of a promise. That promise only is sanctioned which is accqmpanied with a ceremonial ; and if the cere- monies be performed, the promise will be carried out, though obtained through duress or deception. This strictness slowly gives way — steps in the cere- mony are dispensed w.th or simplified, some con- tracts of the most practical importance are separated from the rest, and entered into without cumbrous forms. Ultimatelj'' the mental engagement is principally regarded. The Komans distinguished between the two classes of cases, calling the cere- monious engagements, contracts^ and those in which no ceremonies were necessary, pacts. In the pro- gress of jurisprudence, contracts were absorbed by pacts. The progress of this change it is important to notice. The early term for contracts was nixum, and the parties to a contract were said to be con- nected by a strong bond or chain. The definition of nexuin is " every transaction with the copper and balance." This is also the definition of a con- veyance. We thus have a contract confounded with a conveyance. This view is in entire opposi Digitized by Microsoft® Lviii INTEODUCTION". tion to inod( rn notions. We carefully distinguisli between the proprietary rights created by convey ances and the obligations created by contracts. In the ancient law, the same forms were used in a con- veyance as were employed in a contract. After a time, the notion of a contract is disengaged from that of a conveyance. Conveyances are called by a new name, manciiyation^ while nexum designates the ceremony when applied to a contract. The process may be conjectured to have taken place in this manner: If, for example, the transaction con- cerned the sale of a slave, the purchaser was present with his money, and a third person with scales to weigh it. While the transfer was being made, the bond (nexum) continued, but when the sale was completed, the " bond '' was at an end. If the slave was transferred, but the money was not paid, the " nexum " continued on the purchaser's part, but not on that of the seller. If neither party completed the transaction, the ordinary executory contract of sale is made. Under this view, a contract was re- garded as an incomplete conveyance. If this view be correct, we reach a conclusion in direct opposition to that of many modern theorists, who regard contracts as of paramount importance in the early law. We also see why the ancient law was so severe upon debtors, and why it gave such extravagant powers to creditors. Indebtedness was considered as an anomaly, and looked upon with disfavoi", for accord- Digitized by Microsoft® INTRODUCTION. lis ing to principle, the price of a commodity should have been paid when the sale was made. It is necessary, however to analyze more closely, and to distinguish between contracts and pacts. A pact was only the engagement of individuals, without those solemnities which were necessary to a contract. An obligation must have been attached by law to a pact before it became a contract. It is very import- ant to notice, that in the old law, an engagement does not constitute a contract. An obligation must be annexed by the law in the plenitude of its power. The law bound the parties together, and the cJiain could only be broken by a legal process. It is singular that obligation meant the right to have a debt paid, as well as the duty to pay it. In the later Roman law, pacts were nearly in every case connected with legal obligations, but in tracing the history of the subject, we find in the course of its development, the contract classified into four kinds : verbal, literal, real, and consensual. These names were given from the formalities which were required beyond mere consent. (1). The Verbal Contract. — Here a particular form of words must be employed. This was doubt- less the most ancient form of contract. It involved the necessity of a question and an answer. The question was always put by the promisee, and the auower given by the promisor. It was technical in its form, and must be scrupulously followed. Digitized by Microsoft® LX INTEODUOTION. Though not framed for any reasons of convenience, it had its practical advantages. It arrested the promisor's attention, and fixed his mind on the exact engagement which he was making. This is in direct opposition to modern theories, for we look at a con- tract from the point of view of the promisor. The person who asks the question, is called the stipulator, and the act of asking it and receiving the answer, stipulatio. (2). TTie Literal Contract. — This consisted of the entry of the amount due on the debit side of a ledger. This contract depended on the great regu- larity of ancient book-keeping. It was the practice for each member of a family, after entering items of receipt and expenditure in a waste book, to transfer them to a general ledger. It is not known whether the entry in the creditor's books was sufficient to constitute the contract, or whether it was also ne- cessary that the debtor should make a correspond- ing statement. At all events, if a proper entry was made, formalities essential in the verbal contract were not required. We thus have a second relaxa- tion of the rigid law of earl}^ contracts. (3). Real Contracts. — ^The delivery of the thing agreed upon, raised an obligation on the part of the receiver to complete the contract. This view was a great departure from the law of "ceremonious" Digitized by Microsoft® INTKODUOTION. lxi contracts, and for the first time introduced the ele- ment of moral obligation into this branch of law. (4). Con-sensual Contracts. — These very import- ant contracts depend for their validity, purely upon mutual assent. There are fnnr o f this class, which embraces those contracts that are the most import- ant in the intercourse of life. No formalities are requisite. The law attaches its obligation or chain to the mere assent or pact. The mere consent draws with it the obligation in the same manner, as the question, book entry, and delivery attract it in other contracts. Contracts belonging to this class are agency, sale, partnership, and letting and hiring (bailment). The great importance and frequency of these transactions, without doubt, led the Romans to relieve them from all technical rules. This was doubtless the case with other nations, so that these contracts were deemed to be contracts by the " law of nations," and ultimately by the " law of nature," until the singular notion prevailed, that the earlier the civilization, the simpler the contract. From this time forward, consent came to be re- garded as the principal ingredient in a contract. The " consensual " contracts were looked upon with peculiar favor. Although the Praetors could not extend their number, it was determined to give equitable actions in every case in which a pact was founded on a consideration. In this way new con- sensual contracts were introduced, although not so Digitized by Microsoft® Lxii INTEODTTCTIOK. termed. If they were without consideration, the Praetors would not enforce them. It was then ne- cessary to make the contract formal, by means of " question and answer." This history of the progress of Roman law, is probaljly typical of all ancient law in its progress up to a certain point. Some of its features are ex- clusively Roman, such as the nature of " Obligation " and the "Theory of Natural Law." The influence of Jurisprudence upon other branches of science has been remarkable. It is es- pecially noticeable in Politics, Moral Philosophy, and Theology. That part of the law which has been most extensively influential, is the law of obligation, or contract, and the law of wrongs (delicts). In politics, from a confusion of distinct legal notions was derived the error which attributed political rights and duties to an original compact between the governors and governed. The law furnished a body of words and phrases, which approximated in meaning to the ideas which were forming on the subject of political obligation. In Moral Philosophy, ancient law has been more directly laid under contribution. As long as ethical science concerned itself with the practical rules of conduct, it was affected by Roman law. Moral Philosophy was originally incorporated with Theo- logy. Its relation to Jurisprudence was less close when it came to be cultivated by the great Spanish moralists. " Moral Theology " then degenerated into Digitized by Microsoft® INTRODUCTION. lxiii Casuistr}. Under the guidance of Pi-otestauts, a new science of Moral Philosophy abandoned the path which the " Moral Theologians " had followed, and Roman law again exercised its influence on ethical inquiry. There is no branch of knowledge which has been 80 little affected by Roman law as Metaphysics. Discussions upon metaphysical questions were con- ducted in Greek, or in a dialect constructed to give expression to Greek conceptions. The problems of Metaphysics which have been most strongly agitated in Western Eui'ope, betray a legal parentage. No Greek-speaking people has ever been seriously per- plexed by the question of free will and necessity. No such people ever showed the smallest capacity for producing a philosophy of law. The problem of free will arises when we contemplate a metaphys- ical conception under a legal aspect. This concep- tion was theological before it became philosophical. Note the difference between tlie various topics of theological speculation in the two branches of the Roman Empire. The Greek mind engaged in pro- found controversies as to the divine person, the divine substance and the divine nature. The Western Church discussed the nature of sin, and its transmission by inheritance, the atonement, the antagonism between freewill and divine Providence. Why are these problems so strikingly different? We answer unkesitatingly that in the West, theolo- gical speculation had passed from a region of Greek Digitized by Microsoft® LxiT INTEODUCTIOK metaphysics to Roman law. The substratum of lai* in Western theology lies exceedingly deep. Though for a time its doctrines were almost buried under Aristotelian philosophy, yet at the Reformation they were extricated. It is difficult to say whether the system of Calvin or of Arminius has the more marked legal character. Besides, the Roman law of contracts had a strong influence upon institutions. Feudalism is com- pounded of barbaric usage and Roman law. While it resembled in some respects a Hindoo village com- munity, it is in other respects quite different. The Hindoo communities gathered together by instinct, and new comers were introduced by fiction. The feudal obligation was created by contract. The feudal communities were, for this reason, more durable and varied in character than the ancient societies. Some would hold that the variety of modern civilization is due to the exuberant and erratic genius of Germanic races. In opposition to this error, it may be assei-ted that the Roman Em- pire bequeathed to society the legal conception to which all this variety is attributable. The one striking and characteristic fact in the customs and institutions of barbaric races is their extreme uni- formity. 6. Delict or Crime — All known collections of ancient law are characterized by a feature which bioadly distinguishes them from matured systems Digitized by Microsoft® INTRODUCTION. i,xv of jurisprudence. The proportion of civil to crimi- nal law is very dilfferent in the two cases. The elder the system, the fuller and more minute the penal legislation. The poverty of civil law is due to the plan on which the family is organized. There is no corresponding limitation in reference to penal law, and it is also probable that the infancy of na- tions is a period of ungoverned violence. This early penal law is not a true criminal law. ' In all matured systems, a sharp distinction is drawn between crimes and wrongs. In the one, the act is regarded with reference to the State ; in the other, with reference to the individual injured. In ancient law, the act was only regarded with reference to the individual. He proceeds by a civil action, and recovers compensation in the shape of money. In the Twelve Tables, the chief civil wrong is theft Those offences which are now termed crimes, were treated exclusively as torts or wrongs. The same fact is perceived in the consolidated laws of the Germanic tribes. / In the infancy of jurisprudence, the citizen depends for protection against violence or fraud, not on the law of crime, but on the law of tort. It should also be noticed that sins are known to primitive societies. There were in the At-henian and Roman States laws punishing sins as well as torts. The ordinances against the former were based on the conception of an offence against God ; the provisions against the latter, on the conception of an offence against one's neighbor. The idea of an Digitized by Microsoft® Lxn INTEODUOTION. offence against the 8tate did not at first produce a . true criminal jurisprudence. Tlie conception of a wrong done to the State, however, was not wanting. The State was thought to suffer a personal injury, and avenged itself on the criminal by a single act. Every offence was punished by a special act of the legislative power. The trial of an offender was wholly irregular. The proceeding was the same in form as the enactment of an ordinary statute. After regular criminal procedure came into vogue, the people still retained the power of punishing offences by a special law. It may be urged that the State has from the earliest period compelled the wrong doer to com- pound for his wrong, and that this interference must have depended upon the fact that it was injured. The State, however, only interfered in the character oi ai bitrator between two litigants, and received com- pensation for its trouble and loss of time. This is shown by the sums paid in the progress of an action in the Roman law (Sacramenta), and by the sub- jects described by Homer on the shield of Achilles. - It is still further shown by the fact that the court, in awarding damages, took a its guide the measure of vengeance likely to be exacted by the aggrieved > person under all the circumstances. This is the ex- planation of the different penalties imposed on offenders caught in the act of committing crime, and ou those detected after considerable delay. The men of ancient times had none of the scruples of Digitized by Microsoft® INTRODUCTIOIT. rsxvn modern judges in discriminating between the de- grees of criminality whicli belong to offences falling within the same description. They look only at the impulses of the injured" person, and follow the rise and fall of his passions. The earliest ci-iminal tribunals were mere com- mittees of the legislature. The popular assembly delegated its functions to a commission quite analo- gous to the committee of a modern legislative body, except that it did not report to the legislature, but itself rendered a final decision. Some of these commissions resembled modern standing committees, and were appointed regularly every year. There was no true criminal law at Rome, until B. C 149. A Calpurnian law then provided a permanent com- mission for the trial of offences under that act, and judges were selected from particular classes, and renewed in conformity with definite rules. This was a regular criminal judicature. These commis- sions were always regarded as mere committees of the popular assembly. Two important consequences followed. One was that the legislature could always try the case as a special offence, and the other that the punishment of death could not be inflicted by the commission, because it could have no greater powers than the legislative body whence it ema- nated, which could not itself inflict death. Two additional peculiarities should be men- tioned ; the great number of Roman tribunals, and the capricious classification of crimes. Both of these Digitized by Microsoft® Lxviii INTKODUCTION. are explained by the historical account already given. As each commission for the trial of crime had its origin in a distinct statute, which was pass- ed to meet an existing emergency, the commissions were naturally very numerous, and without any connection. It became very difficult to draw any exact lines between the different commissions. This result was not only inconvenient but oppressive, for if there was doubt as to the particular statute under which a crime should be ranged, an alleged criminal could be indicted before several commis- sions, so that if he was acquitted by one, he could be condemned by another. Though this anomaly was abolished by the Empei'ors, yet the classifica- tion of crimes remained remarkably capricious. The only princijDle on which acts were associated, was that they had been made criminal offences at the same time, and by the same statute. Thiis perjury was classed with cutting, wounding, and poisoning, because a law of Sylla had given juris- diction over these foj'ms of crime to the same com- mission. Finally, criminal law was extended by a new description of ofEences called crimina extraor- dinaria. These were offences originally treated merely as wrongs. In the progress of social ideas, the injured party was allowed to pursue them as crimes ; adopting a mode of redress differing from the ordinary procedure. The theory and practice of criminal justice under the Empire has had a powerful effect on modern Digitized by Microsoft® INTRODUCTION. lxix society. There was at first committed to the Senate an extensive criminal jurisdiciton ; it was ultimately transferred to magistrates, nominated by the Em- peror, with an appeal to the Imperial Privy Council. From this source was derived the doctrine, familiar to modern peoples, that the sovereign is the fountain of all justice, and the depositary of all grace. This theory was the fruit of the centralization of the Em- pire. It saved modern society from passing through the series of changes illustrated by the history of the commissions (^qucestiones). The development of criminal law was hastened by t^vo causes ; the memory of the Roman Empire, and the influence of the Church. Two assumptions were contended for by the Church, one that each -feudal ruler might be assimilated to the Roman magistrates spoken of by St. Paul, and the other that the offences which he was to chastise were those selected in the Mo- siac commandments. Thus heresy and perjury were ecclesiastical offences, and the Church only admitted the co-operation of the secular arm ; while murder and robbery were under the jurisdiction of civil rulers, not by the accident of their position, but as an express ordinance of God. Digitized by Microsoft® Digitized by Microsoft® ANCIENT LAW. CHAPTER I. ANCIENT CODES. The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code. From the commencement to the close of its history, the expositors of Roman Law consistently employed language which implied that the body of their system rested on the Twelve Decemviral Tables, and therefore on a basis of written law. Except in one particular, no institutions anterior to the Twelve Tables were recognised at Rome. The theoretical descent of Roman jurisprudence from a code, the theoretical ascription of English law to immemorial unwritten tradition, were the chief reasons why the development of their system dif- fered from the development of ours. Neither the- ory corresponded exactly with the facts, but each produced consequences of the utmost importance. I need hardly say that the publication of the Digitized by Microsoft® 2 ANCIENT CODES. ohap. i Twelve Tables is not the earliest point at which we can take up the histoiy of law. The ancient Roman code belongs to a class of which almost every civil ised nation in the world can show a sample, and which, so far as the Roman and Hellenic worlds were concs?rned, were lai-gely diffused over ^iiem at epochs not widely distant from one another. They appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. Unquestionably, many jural- phe- nomena lie behind these codes and preceded them in point of time. !Not a few documentary records exist which profess to give us information concern- ing the early phenomena of law ; but, until philology has effected a complete analysis of the Sanskrit lit- erature, our best sources of knowledge are undoubt- edly the Greek Homenc poems, considered of course not as a history of actual occurrences, but as a de- scription, not wholly idealised, of a state of society known to the writer. However the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of conscious obser- vation ; and in this respect the Homeric literature b far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled un- der philosophical or theological influences. If by Digitized by Microsoft® CHAP. I. RUDIMENTARY JURAL IDE .VS. 3 any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited itself. The haste or the prejudice which has generally refused them all but the most supei-ficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. Theories, plausible and comprehensive, but absolu- tely unverified, such as the Law of Nature or the Social Compact, enjoy a universal preference over sober research into the primitive history of society and law ; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most j-eal and most im- portant influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. The earliest notions connected with the concep- tion, now so fully developed, of a law or rule of life, are those contained in the Homeric words " Themis " and " Themistes." " Themis," it is well known, ap- pears in the later Greek pantheon as the Goddess of Justice, but this is a modern and much developed idea, and it is in a very different sense that Themis Digitized by Microsoft® 4 ANCIENT CODES. chap. i. is described in the Iliad as the assessor of Zeus, It is now clearly seen by all trustworthy observers of the primitive condition of mankind that, in the in- fancy of the race, men could only account for sus- tained or periodically recurring action by supposing a personal agent. Thus, the wind blowing was a person and of course a divine person ; the sun rising, culminating, and setting was a person and a divine person ; the earth yielding her increase was a person and divine. As, then, in the physical world, so in the moral. When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. The divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was Themis. The pecu- liarity of the conception is brought out by the use of the plural. Themiste-s, Themises, the plural of Themis, are the awards themselves, divinely dic- tated to the judge. Kings are spoken of as if they had a store of " Themistes " ready to hand for use ; but it must be distinctly understood that they are not laws, but judgments, or, to take the exact Teu- tonic equivalent, "dooms." "Zeus, or the human king on earth," says Mr. Grote, in his History of Greece, " is not a law-maker, but a judge." He is provided with Themistes, but, consistently with the belief in their emanation from above, they can- not be supposed to be connected by any thread of principle ; they are separate, isolated judgments. Even in the Homeric poems, we can see that Digitized by Microsoft® CHAP. 1. THEMISTES. 5 these ideas are transient. Parities of circumstance were probably commoner in the simple mechanism of ancient society than they are now, and in the succession of similar cases awards are likely to fol- low and resemble each other. Here we have the germ or rudiment of a custom, a conception poste- rior to that of Themistes or judgments. However strongly we, with our modern associations, may be inclined to lay down a priori that the notion of a Custom must precede that of a judicial sentence, and that a judgment must affirm a Custom or pun- ish its breach, it seems quite certain that the his- torical order of the ideas is that in which I have placed them. The Homeric word for a custom in the embryo is sometimes " Themis " in the singular — more often " Dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or " usage." Nofiog, a Law, so great and famous a term in the political vocabulary of the later Greek society, does not occur in Homer. The notion of a divine agency, suggesting the Themistes, and itself impersonated in Themis, must be kept apart from other pi-imitive beliefs with which a superficial inquirer might confound it. The conception of the Deity dictating an entire code or body of law, as in the case of the Hindoo laws of Menu, seems to belong to a range of ideas more re- cent and more advanced. " Themis " and " Themis- tes " are much less remotely linked with that per- suasion which clung so long and so tenaciously to Digitized by Microsoft® 6 ANCIENT CODES. chap. i. the buman mind, of a divine influence underlying and supporting every relation of life, every social institutioi. In early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. A supernatural presidency is sup- posed to consecrate and keep together all the cardi- nal institutions of those times, the State, the Race, and the Family. Men, grouped together in the dif- ferent relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices ; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they per- form, and which appear intended to deprecate pun- ishment for involuntary or neglectful disrespect. Everybody acquainted with ordinary classical lit- erature will remember the sacra gentilicia, which exercised so important an influence on the early Roman law of adoption and of wills. And to this hour the Hindoo Customary Law, in which some of the most curious features of primitive society are ste- reotyped, makes almost all the rights of persons and all the rules of succession hins^e on the due solemni- sation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. Before we quit this stage of jurisprudence, a caution may be usefully given to the English stu- dent. Bentham, in his " Fragment on Government," and Austin, in his " Province of Jurisprudence De- Digitized by Microsoft® CHAP. I. BENTHAM'S ANALYSIS. 7 termined," resolve every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience ; and it is further predicated of the command^ which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. The results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection ; and it is curious that, the farther we penetrate into the prim- itive history of thought, the farther we find our- selves from a conception of law which at all resem- bles a compound of the elements which Bentham determined. It is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or concfeived of. Law has scarcely reached the footing of custom ; it is rather a habit. It is, to use a French phrase, " in the air." The only authoritative statement of i-ight and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. It is of course extremely difficult for us to realise a view so far removed from us in Digitized by Microsoft® 8 ANCIENT CODES. chap, i point both of time and of association, but it will be- come more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of ca- price. I may add that an Englishman should be better able than a foreigner to appreciate the his- torical fact that the " Themistes " preceded any con- ception of law, because, amid the many inconsistent theories which prevail concerning the character of English jurisprudence, the most popular, or at all events the one which most affects practice, is cer- tainly a theoiy which assumes that adjudged cases and precedents exist antecedently to rules, princi- ples, and distinctions. The "Themistes" have too, it should be remarked, the characteristic which, in the view of Bentham and Austin, distinguishes single or mere commands from laws. A true law enjoins on all the citizens indifferently a number of acts similar in class or kind ; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term " law " to be applied to mere uniformities, successions, and similitudes. A command prescribes only a single act, and it is to commands, therefore, that "The- mistes" are more akin than to laws. They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. Digitized by Microsoft® CHAP. I. CUSTOMARY LAW. 9 The literature of the heroic age discloses to ug law in the germ under the " Themistes " and a little more developed in the conception of " Dike." The next stage which we reach in the history of juris- prudence is strongly marked and surrounded by the utmost interest. Mr. Grote, in the second part and second chapter of his History, has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer. Heroic kingship depended partly on di- vinely given prerogative, and partly on the posses- sion of supereminent strength, courage, and wisdom. Gradually, as the impression of the monarch's sacred- ness became weakened, and feeble members occur- red in the series of hereditary kings, the royal power decayed, and at last gave way to the domin- ion of aristocracies. If language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which Homer repeatedly alludes to and depicts. At all events from an epoch of kingly rule we come everywhere in Europe to an era of oligarchies ; and even where the name of the monarchical functions does not absolutely disappear, the authority of the kinof is reduced to a mere shadow. He becomes a mere hereditary general, as in Lacedsemon, a mere functionary, as the King Archon at Athens, or a mere formal hierophant, like the Rex Sacrificiilus at Rome. In Greece, Italy, and Asia Minor, the dominant orders seem to have universally consisted Digitized by Microsoft® 10 ASOIENT CODES. cilAP. i. ot a number of families united by an assumed I'ela- tionship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. Unless they were prema- turely ovei-thrown by the popular party, they all ultimately approached very closely to what we should now understand by a political aristocracy. The changes which society underwent in the com- munities of the farther Asia occurred of course at periods long anterior in point of time to these revo- lutions of the Italian and Hellenic worlds; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under the Persian monarchy, and those which peopled the peninsula of India, had all their heroic age and their era of aristocracies ; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. Contrary, too, to the course of events in the West, the religious element in the East tended to get the better of the military and political. Military and civil aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacer- dotal order; and the ultimate result at which we arrive is, a monarch enjoying great power, but cii'- cumscribed by the privileges of a caste of priests. With these differences, however, that in the East Digitized by Microsoft® CHAP. I. AEISTOOEATIO PERIOD. 11 aristocracies became religions, in the AVest chnl or political, the proposition that a historical era of aris- tocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of the Indo-European family of nations. The important point for the jurist is that these aristocracies were usually the depositaries and ad- ministrators of law. They seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to su- perhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of partic- ular disputes to be explained by supposing an extra- human interposition. "What the juristical oligarchy now claims is to monopolise the Tcnowledge of the laws, to have the exclusive possession of the pi'in- ciples by which quarrels are decided. We have in fact arrived at the epoch of Customary Law. Cus- toms or Observances now exist as a substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. Our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation or Digitized by Microsoft® 12 ANCIENT CODES. chap, i, engine of tyranny. Before the invention of writing, and during the infancy of the art, an aristocracy in- vested with judicial privileges formed the only ex pedient by which accurate preservation of the cus- toms of the race or tribe couldv be at all approx'- mated to. Their genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the community. The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. The condition of jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law, thus known exclu- sively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college, is true unwritten law. Except this, there is no such thing as unwritten law in the world. English case- law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if code of English jurisprudence were prepared, we should be turning unwritten law into written — a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. The elder English judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. Whether all the law which they claimed to monopolise was really un Digitized by Microsoft® CHAP. I. CUSTOMARY LAW. 18 written is exceedingly questionable ; (but at all events, on tbe assumption that therfe was once a large mass of civil and criminal rules known exclu- sively to tbe judges, it presently ceased to be unwrit- ten law. As soon as tlie Courts at Westminster Hall began to base tbeir judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. At the present moment a rule of English law has first to be disentangled from the recorded facts of ad- judged printed precedents, then thrown into a form of words, varying with the taste, pi-ecision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. But at no stage of this process has it any character- istic which distinguishes it from written law. It is written case-law, and only different from code-law because it is written in a different way. From the period of Customary Law we come to another sharply defined epoch in the history of ju- risprudence. We arrive at the era of Codes, those ancient codes of which the Twelve Tables of Rome were the most famous specimen. In Greece, in Italy, on the Hellenised sea-board of Western Asia, these codes all made their appearance at periods much the same everywhere, not, I mean, at periods identical in point of time, but similar in point of the relative progress of each community. Everywhere, in the coimtries I have named, laws engraven on tablets aiid published to the people take the place of usages Digitized by Microsoft® 14 ANCIENT CODES. chap, i (le])Osiled witli the recollection of a privileged oli- gaichy. It must not for a moment be supposed tliat tlie refined considerations now urged in favour of what is called codification had any part or place in the change I have described. The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge ; and at all events? their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But, though democratic sentiment may have added to their popu- larity, the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. The Roman code belongs to the class of codes I have been describing. Their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they fur- nished to everybody, as to what he was to do, and what not to do. It is indeed true that the Twelve Tables of Rome do exhibit some traces of systematic arrangement, but this is probably explained by the tradition that the fraraers of that body of law called in the assistance of Greeks who enjoyed the later Digitized by Microsoft® CHAP. I. ANCIENT CODES. IB Greek experience in the art of law-making. The fragments of the Attic Code of Solon show, how- ever, that it had but little order, and probably the laws of Draco had even less. Quite enough too remains of these collections, both in the East and in the West, to show that they mingled up religious civil, and merely moral ordinances, without any regard to differences in their essential character ; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress. But, whatever to a modern eye are the singu- larities of these Codes, their importance to ancient societies was unspeakable. The question — and it was one which affected the whole future of each com- munity — was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurispru- dence created by feudalism, it is likely that all modei-n law would be distinctly traceable to one or more of those fountain-heads. But the point on which turned the history of the race was, at what period, at what stage of their social progress, they should have their laws put into writing. In the western world the plebeian or popular element in each State successfully assailed the oligarchical mo- nopoly, and a code was nearly universally obtained early in the history of the Commonwealth. But, in Digitized by Microsoft® Ifl ANCIENT CODES. chap, i the East, as I have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of Asiatic countries had' the effect of making individual communities larger and more numerous than in the West ; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. From whatever cause, the codes obtained by Eastern societies were ob- tained, relatively, much later than by "Western, and wore a very different character. The religious oligarchies of Asia, either for their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal learning in a code ; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. Their complete monopoly of legal knowledge ap- pears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo Code, called the Laws of Menu, which is certainly a Brahmin com- pilation, undoubtedly enshrines many genuine ob- servances of the Hindoo race, but the opinion of the best contemporary oi'ientalists is, that it does not, as a whole, represent a set of rules ever actually ad ministered in Hindostan. It is, in great part, an Digitized by Microsoft® CHAP. I. J.AWS OF MENU. 11 ideal picture of that which, in the view of the Brahmins, ought to be the law. It is consistent with human nature and with the special motives of their authors, that codes like that of Menu should pretend to the highest antiquity and claim to have emanated in their complete form from the Deit3^ Menu, according to Hindoo mythology, is an ema- nation from the supreme God ; but the compila- tion which bears his name, though its exact date is not easily discovered, is, in point of the relative progress of Hindoo jurisprudence, a recent pro- duction. Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the protection_Ehich-they affoi'ded against the frauds of the privileged oligar- chy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Rela- tively to the progress of the Romans in civilization, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably con- founded. Now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular commu- nity is found to have adopted in its infancy and in Digitized by Microsoft® 18 ANCIENT CODES. chap, l its 2>rimitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. But unhappily there is a law of develop- ment which ever threatens to operate upon unwrit- ten usage. The customs are of course obeyed by multitudes who are incapable of undei'standing the true ground of their expediency, and who are there- fore left inevitably to invent superstitious reasons for their permanence. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. Analogy, the most valuable of in- struments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. Prohibi- tions and ordinances, originally confined, for good reasons, to a simple description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. After one kind of food has been interdicted for sanitary reasons, the prohi- bition is extended to all food resemblins: it, thousrh the resemblance occasionally depends on analogies the most fanciful. So, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution ; and that division into classes which at a particular crisis of social his- Digitized by Microsoft® onip. I. VALUE OE THE CODES. 19 tory is necessary for the maintenance of tLe nation al existence degenerates into the most disasti-ous and blighting of all human institutions — Caste. The fate of the Hindoo law is, in fact, the measure of the value of the Roman Code. Ethnology shows us that the Romans and the Hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear to have been their original customs. Even now, Hindoo juris- prudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. From these corruptions the Romans were protected by their code. It was compiled while usage was still wholesome, and a hundred years afterwards it might have been too late. The Hindoo law has been to a great extent embodied in writing, but ancient as in one sense are the compendia which still exist in Sanskrit, they contain ample evidence that they were di-awn up after the mischief had been done. We are not of course entitled- to say that if the Twelve Tables had not been published the Romans would have been condemned to a civilisation as feeble and perverted as that of the Hindoos, but thus much at least is certain, that with their code they were exempt from the very chance of so un- happy a destiny. Digitized by Microsoft® CHAPTER 11. LEGAL F I G T I MS- When primitive law has once been embodied in a Code, there is an end to what may be called its apon- tanfiOJag^ development. Henceforward the changes effected in it, if effected at all, are effected delibe- I'ately and from without. It is impossible to sup- pose that the customs of any race or tribe remained unaltered during the whole of the long — in some instances the immense — interval between their de- claration by a patriarchal monarch and their jjubli- cation in writing. It would be unsafe too to affirm that no part of the alteration was effected deliber- ately. But from the little we know of the progress of law during this period, we are justified in assum- ing that set purpose had the very smallest share in producing change. Such innovations on the ear- liest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. A new era begins, how Digitized by Microsoft® OTAP. n. LEGAL FICTIONS. 21 ever, with the Codes. Wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire ofjiiiproyg- ment, or at all events of compassing objects other than those which were aimed at in the primitive times. It may seem at first sight that no general propo- sitions worth trusting can be elicited from the his- tory of legal systems subsequent to the codes. The field is too vast. We cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. But the undertakinsr will be seen to be more feasible, if we consider that after the epoch of codes the distinction between station- ary and progressive societies begins to make itself felt. It is only with the progrgssivfi^-societies that we are concerned, and nothing is more remarkable than their extreme fewness. In spite of oveerwhlm- ing evidence, it is most difficult for a citizen of western Europe to bring thoroughly home to him- self the truth that the civilisation which surrounds him is a rare exception in the history of the world. The tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly before us the relation of the progressive races to the totality of human life. It is indisputable that much the greatest par-t of mankind has never shown a particle of desire that its civil institutions should be improved since the Digitized by Microsoft® 22 LEGAL FICTIONS. chap, a moment when external completeness was first given to them by their embodiment in some permanent record. One set of usages has occasionally been violently overthrown and superseded hj another; liere and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the per- versity of sacerdotal commentators ; but, except in a small section of the world, there has been nothing lilie the gradual amelioration of a legal system. There has been material civilisation, but, instead of the civilisation expanding the law, the law has limit- ed the civilisation. The study of races in their primi- tive condition affords us some clue to the point at which the development of certain societies has stopped. We can see that Brahminical India has not passed beyond a stage which occurs in the his- tory of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. The members of such a society consider that the transgression of a religious ordi- nance should be punished by civil penalties, and that the violation of a civil duty exposes th« delinquent to divine correction. In China this point has been past, but progress seems to have been there arrest- ed, because the civil laws are coextensive with all the ideas of which the race is capable. The differ- ence between the stationary and progressive socie- ties is, however, one of the great secrets which inquiry has yet to penetrate. Among partial ex Digitized by Microsoft® CHAP. n. STATIONAPwT AND PEOGEESSIVE SOCIETIES. 23 planations of it I venture to place the considerations urged at the end of the last chapter. It may fur- ther be remarked that no one is likely to succeed in the .investigation who does not clearly realise that the stajianjaxy-GonditioiuiLJihfi-Jiuman. J.ace is the rule, the pyogresaive the exception. And another indispensable condition of. success is an accurate knowledge of Koman law in all its principal stages. The Roman jurisprudence has the longest known history of any set of human institutions. The char- acter of all the changes which it underwent is tole- rably well ascertained. From its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of im- provement was continued through periods at which all the rest of human thought and action materially slackened its space, and repeatedly threatened to settle down into stagnation. I confine myself in what follows to the progres- sive societies. With respect to them it may be laid down that so cial necessities and^ocial opinion are always moi'e or less in_advance of Law. We may come indefinitely near to the closing of the gap be- tween them, but it has a perpetual tendency to rc; open. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. A general proposition of some value may be ad- Digitized by Microsoft® 24 LEGAL FICTIONS. chap, n vanced witli respect to the agencies by which Law is brought into harmony with society. These in strumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. Their his- torical order is that in which I have placed them. Sometimes two of them will be seen operating to- gether, and there are legal systems which have es- caped the influence of one or other of them. But I know of no instance in which the order of their appearance has been changed or inverted. The eai'ly history of one of them. Equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. My own belief is that r^emedial Equity is everywhere older than remedial Legislation ; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of se- quence to the periods at which they exercise a sus- tained and substantial influence in transforming the original law. I employ the word " fiction " in a sense consid- erably wider than that in which English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman " fictiones." Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse ; such, for example, as an averment that the plaintiff was a Roman citizen Digitized by Microsoft® OHAF. II. LEGAL FICTIONS. 25 when in truth he was a foreigner. The object of these " fictiones " was, of course, to give jurisdiction, and they therefore strongly resembled the allega- tions in the wi-its of the English Queen's Bench and Exchequer, by which those Courts contrived to usurp the jurisdiction of the Common Pleas : — the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. But I now employ the expres- sion " Legal__Fic±ioB-^M,o aigiiify— any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter re- maining unchanged, its operation being modified. The words, therefore, include the instances of fic- tions which I have cited from the English and Ro- man law, but they embrace much more, for I should speak both of the English Case-law and of the Ro- man Responsa- Prudentum as resting on fictions. Both these examples will be examined presently. The fact is in both cases that the law has been wholly changed; the fiction is that it remains what it always was. It is not difficult to understand why fictions in all their forms are ^particularly congenial to the infancy of society. They satisfy the desircj for improvement, which is not quite wanting, at thai same time that they do not offend the superstitious I disrelish for change which is always present. At a particular stage of social progress they are invalu- able expedi^ts for overcoming the rigidity of law Digitized by Microsoft® 26 LEGAL FICTION'S. chap, u and, iudeed, without one of them, the Fiction of Adoption which permits the family tie to be ai'tifl cially created, it is difficult to understand how soci- ety would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. We must, therefore, not suffer ourselves to be af- fected by the ridicule which Bentham pours on le- gal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those theorists who, discerning that fictions have had their uses, argue that they ought to be stereotyped iu our system. There are several Fictions still exercising powerful influence on English jurisprudence which could not be .dis- carded without a severe shock to the ideas, and con- siderable change in the language, of Flnglish practi- tioners ; but there can be no doubt of the genei-al truth that it is unworthy of us to effect an admit- tedly beneficial object by so rude a device as a legal fiction. I cannot admit any anomaly to be in- nocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. I^ow, among other disadvantages, legal fic- tions are the greatest of obstacles to symmetrical classification. The rule of law remains sticking in the system, but it is a mere shell. It has been long ago undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty iu Digitized by Microsoft® CHAP. n. EQUITY. 27 knowing whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be se lected. If the English law is ever to assume an or- derly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. The next instrumentality by which the adapta- tion of law to social wants is carried on I call Equi- ty, meaning by that word any bodj" of rules exist- ing by the side of the original civil law, foimded on distmct principles and claiming incidentally to su ""pBTSede the civil law in virtue of a superior sanctity inherent in those principles. The Equity whether of the Roman Praetors or of the English Chancellors, differs from the Fictions which in each case preced- ed it, in that the interference with law is open and avowed. On the other hand, it differs from Legis- lation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the ^prerogatixfi—o f an)'- exter n al p oyaon or body, not even on that of the magistrate who enun- ciates it, but o n the special nature of its principles, \ to which it is alleged that all law ought to conform. The very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body, belongs to a much Digitized by Microsoft® 28 LEGAL FICTIONS. chap, ii. more advanced stage of thought than that to which legal fictions originally suggested themselves. Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also dis- tinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legisla- ture, whatever be the actual restraints imposed on it by public opinion, is in theory empowered ' to im- pose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wantonness of caprice. Legisla- tion may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted ; but then these enactments are indebted for their binding foi'ce to the^jjrthority of tihe4egislatH,re, and not to that of the principles on which the legislature acted ; and thus they differ from rules of Equity, in the technical sense of the word, which pretend to a para- mount sacredness entitling them at once to the recognition of the courts even without the concur- rence of prince or parliamentary assembly. It is the more necessary to note these differences because a student of Bentham would be apt to confound Fictions, Equity, and Statute law under the single Digitized by Microsoft® OHAP. n. CASE-LAW. 29 head of legislation. They all, he would say, involve law-raahing ; they differ only in -respect of th^ ma- chinery by which the new law is produced. That is perfectly ti-ue, and we must never forget it ; but it furnishes no reason why we should deprive our. selves of so convenient a term as Legislation in the special sense. Legislation and Equity are disjoined iu the popular mind and in the minds of most law- yers ; and it will never do to ntjglcct the distinction between them, however conventional, when impor- tant practical consequences follow from it. It would be easy to select from almost any regu- larly developed body of rules examples of legal fic- tions, which at once betray their true character^o the modern observer. In the two instances wiichj proceed to consider, the nature of the expetfient employed is not so readily detected. The first authoi's of these fictions did not perhaps iatend to innovate, certainly did not wish to be suspected of innovating. There are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. No examples, therefore, can be better cal- culated to illustrate the wide diffusion of legal fic- tions, and the efiiciency with which they perform tlinir t.wo=f9ld-0ffiee-of transforming a system of laws and of concealing the transformation. We in England are well accustomed to the ex- tension, modification, and improvement of law by a machinery which, in theory, is incapable of altering Digitized by Microsoft® 30 LEGAL FICTIONS. chap, n one jot or one line of existing jurisprudence. The process by whicli this virtual legislation is eifected is not so much insensible as unacknowledged. With respect to that great portion of our legal systein M hich is enshrined in cases and recorded in law re- ports, we habitually employ a double language, and entertain, as it would appear, a double and incon- sistent set of ideas. When a group of facts come before an English Court for adjudication, the whole course of the discussion between the judge and the advocate a ssume 3_jtliat no questi on- is, or can be, raised wEich will call for the application of any principles but old ones , or of any distinctions but such as havelong since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge or acumen, is not forthcoming to detect it. Yet the moment the judgment has been ren- dered and reported, we slide unconsciously or una- vowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed. A clear addition has been made to the precedents, and the canon of law elicited by comparing the j>recedents is not the same with that which would have been obtained if the series of cases had been Digitized by Microsoft® onAP. n. CASE-LAW. 31 curtailed by a single example. The fact that the old rule has been repealed, and that a new one has re- placed it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. I shall not now pause to consider at length the causes which have led Eng- lish lawyers to acquiesce in these curious anomalies. Probably it will be found that originally it was the received doctrine that somewhere, in nuhibus or in gremio magistratwum^ there existed a complete, co- herent, symmetrical body of English law, of an am- plitude sufficient to furnish principles which would apply to any conceivable combination of circum- stances. The theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better foundation. The judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for sus- pecting that in secret they borrowed freely, though not always wisely, from current compendia of the Roman and Canon laws. But that storehouse was closed as soon as the points decided at Wesiminster Hall became numerous enough to supply a basis foi a substantive system of jurisprudence ; and now for centuries English practitioners have so expressed themselves as to convey the paradoxical pi-oposition that, except by Equity and Statute law, nothing has Digitized by Microsoft® 82 LEGAL FICTIONS. chap, n been a(5ded to the basis since it was first constitriteJ. We do not admit that our tribunals legislate ; we imply that they have never legislated ; and yet we maintain that the rules of the English common law, with some assistance from the Court of Chancery and from Parliament, are coextensive with the com- plicated interests of modern society. A body of law bearing a very close and very in- structive resemblance to our case-law in those par- ticulars which I have noticed, was known to the Romans under the name of the Kesponsa Pruden- tum, the " answers of the learned in the law." The form of these Responses varied a good deal at dif- ferent periods of the Roman jurisprudence, but thi'oughout its whole course they consisted of ex- planatory glosses on authoritative written docu- ments, and at first they were exclusively collections of opinions interpretative of the Twelve Tables. As with us, all legal language adjusted itself to the as- , sumption that the text of the old Code remained unchanged. There was the express rule. It over- rode all glosses and comments, and no one openly admitted that any interpretation of it, however emi- nent the interpreter, was safe from revision on ap- peal to the venerable texts. Yet in point of fact. Books of Responses beai-ing the n^ames of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the pro- visions of the Decemviral law. The authors of the Digitized by Microsoft® OHAP. n. ANSWEKS OF THE LEARNED. 33 new jui'isprudence during the whole progress of itg formation professed the most sedulous respect for. the letter of the Code. They were merely explain- ing it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually pre- sented themselves and by speculating on its possible application to others which might occur, by intro ducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed of by the compilers of the Twelve Tables and which were in truth rarely or never to be found there. All these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the Code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. Any name of universally ac- knowledged greatness clothed a Book of Responses with a binding force hardly less than that which belonged to enactments of the legislature ; and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. The Responses of the early lawyers were not how- ever published, in the modern sense, by their au- thor. They were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. The part of the students in these publications must be care- Digitized by Microsoft® 34 LEGAL FICTIONS. chap, ii fully noted, because the service they rendered to their teacher seems to have been generally repaid •by his sedulous attention to the pupils' education. The educational treatises called Institutes or Com inentaries, which are a later fruit of the duty then recognised, are among the most remarkable features of the Roman system. It was apparently in these Institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseo- logy. In comparing the Roman Responsa Prudentum with their nearest English counterpart, it must be carefully borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the hencTi^ but the bar. The decision of a Roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the pi'ofessional repute of the magistrate who happened to be in office for the time. Pro- perly speaking, there was no institution at Rome during the republic analogous to the English Bench, the Chambers of Imperial Germany, or the Parlia- ments of Monarchical France. There were magis- trates indeed, invested with momentous judicial functions in their several departments, but the ten ure of the magistracies was but for a single year, so that they are much less aptly compared to a perma- nent judicature than to a cycle of offices briskly cir- Digitized by Microsoft® CHAP. II. AlfSWERS OF THE LEARXED. 35 culating among the leaders of the bar. Much might be said on the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, how- ever exclusive themselves, tolerated no professional hierarchy above them. It is remarkable that this sj'^stem did not pro- duce certain effects which might on the whole have been expected from it. It did not, for example, popularise the Roman law, — it did not, as in some of the Greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. On the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the Ro- man jurisprudence would have become as minute, technical, and difficult as any system which has since prevailed. Again, a consequence which might still more naturally have been looked for, does not ap- pear at any time to have exhibited itself. The juris- consults, until the liberties of Rome were over- thrown, formed a class which was quite undefined and must have fluctuated greatly in numbers ; never- theless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases sub- mitted to them. The vivid pictures of a leading Digitized by Microsoft® 36 LEGAL FIOTIOITS. chap, n jurisconsult's daily ])ractice which abound in Latin literature — the clients from the country flocking to his antechamber in the eai-ly morning, and the stu dents standing round with their note-books to re- cord the great lawyer's replies — are seldom or never identified at any given period with more than one or two conspicuous names. Owing too to the di- rect contact of the client and the advocate, the Ro- man people itself seems to have been always alive to the rise and fall of professional rej^utation and there is abundance of proof, more particularly in the well-known oration of Cicero, " Pro Muraena," that the reverence of the commons for forensic suc- cess was apt to be excessive rather than deficient. We cannot doubt that the peculiarities which have been noticed in the instrumentality by which the development of the Eoman law was first effect- ed, were the source of its characteristic excellence, i's early wealth in principles. The growth and exu- berance of principle was fostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a Bench, the depositaries instrusted by king or com- monwealth with the prerogative of justice. But the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. The state of facts which caused genuine perplexity to a coun- try client was not a whit more entitled to form the basis of the jurisconsult's Response, or legal deci- sion, than a set of hypothetical circumstances pro- Digitized by Microsoft® CHAP. II. ANSWERS OF THE LEARNED. 31 pounded by an ingenious pupil. All combiuntiuns of fact were on precisely the same footing, whether tbey were real or imaginary. It was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. I do not, indeed, mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a sjj^stem as I have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle, or an exeraplitication of a broad rule, than by merely shaping it for an insulated forensic triumph. It is evident that powerful influ- ence must have been exercised by the want of any distinct check on the suggestion or invention of pos- sible questions. Where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. _ As the law is adminis- tered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly each group of circum- stances which is adjudicated upon receives, to em- ploy a Gallicism, a sort of consecration. It acquires certain qualities which distinguish it fi'om every Digitized by Microsoft® 88 LEGAL FICTIONS. chap, n other case genuine or hypothetical. But at Rome, as I have attempted to explain, there was nothing resembling a Bench or Chamber of judges; and therefore no combination of facts possessed any par- ticular value more than another. When a difficulty came for opinion before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analog}' from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. Whatever were the practical advice given to the client, the responsum treasured up in the note- books of listening pupils would doubtless contem- plate the circumstances as governed by a great principle, or included in a sweeping rule. Nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criti- cisms passed on the English law the manner in which it has been enunciated seems to have been lost sight of The hesitation of our courts in declaring prin- ciples may be much more reasonably attributed to the comparative scantiness of our precedents, vo- luminous as they appear to him who is acquainted with no other system, than to the temper of our judges. It is true that in the wealth of legal princi- ple we are considerably poorer than several modern European nations. But they, it must be remem- bered, took the Roman jurisprudence for the foun dation of their civil institutions. They built the debris of the Roman law into their walls ; but in Digitized by Microsoft® CHAP. II. LATER JURISCONSULTS. 39 the materials and workmanship of the residue there is not much which distinguishes it favourably from the structure erected hy the English judicature. The period of Roman freedom was the period during which the stamp of a distinctive character was impressed on the Roman jurisprudence; and through all the earlier part of it, it was by the Re- sponses of the jurisconsults that the development of the law was mainly carried on. But as we approach the fall of the republic there are signs that the Re- sponses are assuming a form which must have been fatal to their farther expansion. They are becom- ing systematised and reduced into compendia. Q. Mucins Scsevola, the Pontifex, is said to have pub- lished a manual of the entire Civil Law, and there are traces in the writings of Cicero of growing dis- relish for the old methods, as compai'ed with the moi'e active instruments of legal innovation. Other agencies had in fact by this time been brought to bear on the law. The Edict, or annual proclama- tion of the Praetor, had risen into credit as the principal engine of law reform, and L. Cornelius Sylla, by causing to be enacted the great group of statutes called the Leges Oornelice^ had shown what rapid and speedy improvements can be effected by direct legislation. The final blow to the Responses was dealt by Augustus, who limited to a few lead- ing jurisconsults the right of giving binding opin- ions on cases submitted to them, a change which, though it brings us nearer the ideas of the modern Digitized by Microsoft® 40_ LEGAL FICTIONS. ch^p. ii world, must obviously tave altered fundameDtally the characteristics of the legal profession and the nature of its influence on Roman law. At a latei period another school of jurisconsults arose, the great lights of jurisprudence for all time. But Ulpian and Paulus, Gains and Papinian, were not authors of Responses. Their works were regulai' treatises on particular departments of the law, more especially on the Praetor's Edict. The Equity of the Romans and the Prsetorian Edict by which it was worked into their system, will be considered in the next chapter. Of the Statute Law it is only necessary to say that it was scanty during the republic, 1 ut became very voluminous under the empire. In the youth and infancy of a/ nation it is a rare thing for the legislature to bd called into action for the general reform of private i law. The cry of the people is not for change in the laws, which are usually valued above their real woi'th, but solely for their pure, complete and easy administration ; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel be- tween classes or dynasties. There seems in the minds of the Romans to have been some association be- tween the enactment of a large body of statutes and the settlement of society after a great civil commo- tion. Sylla signalised his reconstitution of the repub- lic by the Leges Cornelise; Julius Caesar contemplat- ed vast additions to the Statute Law; Augustus caused Digitized by Microsoft® C3HAP. II. ROMAN STATUTES. 41 to be passed the all-important group of Leges Julise aud among later emperors tlie most active promul gators of constitutions are princes who, like Cou stantine, have the concerns of the world to readjust The true period of Roman Statute Law does not begin till the establishment of the empire. The enactments of the emperors, clothed at first in the pretencs of popular sanction, but afterwards ema- nating und'isguisedly from the imperial prerogative, extend in increasing massiveness from the consolida- tion of Augustus's power to the publication of the Code of Justinian. It will be seen that even in the reign of the second emperor a considerable approxi- mation is made to that condition of the law and that mode of administering it with which we are all familiar. A statute law and a limited board of ex- positors have arisen into being ; a permanent court of appeal and a collection of approved commenta- ries will very shortly be added ; and thus we are bi'ought close on the ideas of our own day. Digitized by Microsoft® CHAPTEE III. ZAW OF NATURE AND EQUITY. The theory of a set of legal principles entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the Ko- man State and in England. Such a body of prin- ciples, existing in any system, has in the foregoing chapters been denominated Equity, a term which, as will presently be seen, was one (though only one) of the designations by which this agent of legal change was known to the Roman jurisconsults. The juris- prudence of the Court of Chanceiy, which bears the name of Equity in England, could only be adequate- ly discussed in a sepai'ate treatise. It is extremely complex in its texture, and derives its materials from several heterogeneous sources. The early ec- clesiastical chancelloi's contributed to it, from the Canon Law, many of the principles which lie deep- est in its structure. The Roman Law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later gene Digitized by Microsoft® CHAP. in. EQUITY. 43 ration of Chancery judges, amid whose recorded dicta we often find entii-e texts from the Corpus Juru Civilis imbedded, with their terms unaltered, though their origin is never acknowledged. Still more re- cently, and particularly at the middle and during the latter half of the e"ghteenth century, the mixed systei^s of jurisprudence and morals constructed by the publicists of the Low Countries appear to have been much studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancei'y. The system, which obtained its ingre- dients from these various quarters, was greatly con- trolled in its growth by the necessity imposed on it of confoi'ming itself to the analogies of the common law, but it has always answered the description of a body of comparatively novel legal principles claim- ing to override the older jurisprudence of the coun- try on the strength of an intrinsic ethical supe- riority. The Equity of Rome was a mucli simpler struc- ture, and its development from its first appearance can be much more easily traced. Boch its character and its history deserve attentive examination. It is the root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. The Romans described their legal system as con- Digitized by Microsoft® 44 LAW OF NATION'S AND OF NATURE. chap, in sisting of two ingredients. " All nations,'' says the Institutional Treatise published under the authority of the Emperor Justinian, " who are ruled by laws and customs, are governed partly by their own par- ticular laws, and partly by those laws which are common to all mankind. The law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it." The part of the law " which natural reason ap- points for all mankind" was the element which the Edict of the Prsetor was supposed to have worked into Koman jurisprudence. Elsewhere it is styled more simply Jus Naturale, or the Law of Nature ; and its ordinances are said to be directed by Natural Equity (fbaturalis mqidtas) as well as by natural I'eason. I shall attempt to discover the origin of these famous phrases. Law of Nations, Law of Na- ture, Equity, and to determine how the conceptions which they indicate are related to one another. The most superficial student of Eoman history must be struck by the extraordinary degree in which the fortunes of the republic were aflfected by the presence of foreigners, under difi^erent names, on her soil. The causes of this immigration are discernible enough at a later period, for we can readily under- stand why men of all races should flock to the mis tress of the world ; but the same phenomenon of a large population of foreigners and denizens meets us in the very earliest records of the Roman State. No Digitized by Microsoft® CHAP. III. LAW OF NATIONS AKD OF NATURE. 46 doubt, the instability of society in ancient Italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from externa attack, even though protection should be purchased at the cost of heavy taxation, political disfranchise- ment, and much social humiliation. It is probable, however, that this explanation is imperfect, and' that it could only be completed by taking into account those active commercial relations which, though they are little reflected in the military traditions of the republic, Home appears certainly to have had with Carthage and with the interior of Italy in pre-historic times. Whatever were the circumstances to which it was attributable, the foreign element in the com- monwealth determined the whole course of its his- tory, which, at all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien population. Nothing like this has been seen in modei-n times ; on the one hand, because modern European communities have seldom or never received any accession of foreign immigrants which was large enough to make itself felt by the bulk of the native citizens, and on the other, because mod- ern states, being held together by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to be Digitized by Microsoft® 46 LAW OF NATIONS. chap, ni united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their biith- right. In the early Roman republic the principle of the aljsolute exclusion of foreignei-s pervaded the Civil Law no less than the constitution. The alien or denizen could have no share in any institution suj)posed to, be coeval with the State. He could not have the benefit of Quii-itarian law. He could not be d party to the neocum which was at once the conveyance and the contract of the primitive Ro- mans. He could not sue by the Sacramental Ac- tion, a mode of litigation of which the, origin mounts up to the very infancy of civilisation. Still, neither the interest nor the security of Rome permitted him to be quite outlawed. All ancient communi- ties ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere in- stinct of self-preservation would force the Romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise — and this was a danger of real importance in the ancient world — have decided their controvei-sies by armed strife. Moreover, at no period of Roman history was foreign trade entirely neglected. It was there- fore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. The assum])- tion of such a jurisdiction brought with it the im- mediate necessity of discovering some principles on Digitized by Microsoft® CHAP. III. LAW OF NATIONS. « which toe questions to be adjudicated upon cciuld be settled, and the principles applied to this ob- ject by the Roman lawyers were eminently char- acteristic of the time. They refused, as I have said before, to decide the new cases by pure Roman Civil Law. They refused, no doubt because it seemed to involve some kind of degradation, to ap- ply the law of the particular State from which the foreign litigant came. The expedient to which they resorted was that of selecting the rules of law com- mon to Rome and to the diflPerent Italian communi- ties in which the immigrants were born. In other words, they set themselves to form a system an- swering to the primitive and literal meaning of Jtis Gentium, that is, Law common to all Nations. Jus Gentium was, in fact, the sum of the common ingre- dients in the customs of the old Italian tribes, for they were all the nations whom the Romans had the means of observing, and who sent successive swarms of immigrants to Roman soil. Whenever a particular usage was seen to be practised by a large number of separate races in common it was set down as part of the Law common to all Nations, or Jus Gentium. Thus, although the conveyance of property was certainly accompanied by very differ- ent forms in the different commonwealths surround- ing Rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was a part of the ceremonial in all of them. It was, for in- stance, a part, though a subordinate part, in the Digitized by Microsoft® 48 LAW OF NATIOlfS. chap, in Mancii^ation or coiiA^eyance peculia,r to Rome. Ti'H' dition, therefore, being in all probability the only common ingredient in the modes of conveyance which the jurisconsults had the means of observing was set down as an institution Juris Gentium, or rule of the Law common to all Nations. A vast number of other observances were scrutinised with the same result. Some common characteristic wag discovered in all of them, which had a common object, and this characteristic was classed in the Jus Gentium. The Jus Gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes. The circumstances of the origin of the Jus Gen- tium are probably a sufficient safeguard against the mistake of suj^posing that the Koman lawyers had any special respect for it. It was the fruit in part of their disdain for all foreign law, and in part of their disinclination to s^ive the foreigner the a-dvan- tage of their own indigenous Jus Civile. It is true that we, at the present day, should probably take a very different view of the Jus Gentium, if we were performing the operation which was effected by the Roman jurisconsults. We should attach some vague superiority or precedence to the element which we had thus discerned underlying and pervading so great a vai'iety of usage. We should have a sort of respect for rules and principles so universal. Per- haps we should speak of the common ingredient as Digitized by Microsoft® CHAP. in. LAW OF JTATIOIJS. 49 being of the essence of the transaction into which it entered, and should stigmatise the remaining app;i- ratus of ceremony, which varied in different commu- nities, as adventitious and accidental. Or it may be, we should, infer that the races which we were comparing at once obeyed a great system of com- mon institutions of which the Jus Gentium was the reproduction, and that the complicated usages of separate commonwealths wei-e only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. But the results to which modern ideas conduct the observer are, as nearly as possible, the reverse of those which were instinctively V:)rought home to the primitive Roman. What we respect or admire, he disliked or regarded with jealous dread. The parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consid- eration as accidental and transitory ; the solemn gestures of the mancipation ; the nicely adjusted questions and answers of the verbal contract; the endless formalities of pleading and procedure. The Jus Gentium was merely a system forced on,his at- tention bya^litical nece^ssity. He loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. A. complete revolution in his ideas was requii-ed be- fore it could challenge his respect, but so complete was it when it did occur, that the true reason why our modern estimate of the Jus Gentium differs from 3 Digitized by Microsoft® 50 LAW OF XATURE. chap, iti that wliicli has just been desci'il)ed, is that both modern jurisprudence and modern philosophy have inherited the matured views of the later juriscon- sults on this subject. There did come a time when, from an ignoble appendage of the Jus Civile, th Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. This crisis ar- rived when the Greek theory of a Law of Nature was applied to the practical Roman administi-ation of the Law common to all Nations. The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law of Nations seen in the light of a peculiar theory. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian, with the propensity' to distinguish charac- teristic of a lawyer, but the language of Gains, a much higher authority, and the passage quoted be- fore from the Institutes, leave no room for doubt that the expressions were practically convertible The difference between them was entirely historical, and no distinction in essence could ever be estab- lished between them. It is almost unnecessary to add that the confusion between Jus Gentium, or Law common to all nations, and international law is en- tirely modern. The classical expression for inter- national law is Jus Feciale, or the law of negotiation and diplomacy. It is, however, unquestionable that indistinct impressions as- to the meaning of Jus Gentium had considerable share in producing the Digitized by Microsoft® ^TiAP. 111. KATLTwE. 51 moderii theory that the relations of independent states are governed by the Law of Nature. It becomes necessary to investigate the Greek conceptions of Nature and her law. The word utes which are constantly offered to the over- shadowing claims of the Law of Nature. It was not to anything resembling philanthropy, but t > their sense of simplicity and harmony — of what they significantly termed " elegance " — that the Roman jurisconsults freely surrendered themselves. The coincidence of their labours with those which a more precise philosophy would have counselled has been part of the good fortune of mankind. Turning to the modern history of the law of na- ture, we find it easier to convince ourselves of the vastness of its influence than to pronounce confi- dently whether that influence has been exerted for good or for evil. The doctrines and institutions Digitized by Microsoft® onAp. IV. THE rRE^^OH LAWYEES, 77 which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of Natural Law is the source of almost all the special ideas as to law, politics, and society which France during the last hundred years has been the instrument of diffusing over the western world. The part played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large. It was not in- deed in France, but in Ital}'', that the juridical science of modern Europe took its rise,, but of the schools founded by emissaries of the Italian universities in all parts of the continent, and attempted (though vainly) to be set up. in our island, that established in France produced the greatest effect on the for- tunes of the country. The lawyers of France imme- diately formed a strict alliance with the kings of the houses of Capet and Valois, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the sword, that the French monarchy at last grew together out of the agglomeration of provinces and dependencies. The enormous advantage which their understandii\g with the lawyers conferred on the French kings in the prosecution of their struggle with the greal? feuda- tories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in Eui-ope far down into the middle ages Digitized by Microsoft® 78 HISTORY OF LAW OF NATUEE. chap, it There Avas, in the first place, a great enthusiasm foi generalisation and a curious admiration for all gen- eral propositions, and consequently, in the field of Jaw, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. Such general formu- las it was, of course, not difficult for practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity. There was, however, another cause which added yet more considerably to the lawyers' power. At the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. For the most part, the peremptory preface, Ita scriptum est^ seems to have been sufficient to silence all objections. Where a mind of our own day would jealously scrutinise the formula Avhich had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter-proposition from the Pandects or the Canon Law. It is extremely necessaiy to bear in mind the uncertainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of Digitized by Microsoft® OHAP. IT THE FRENCH LAWYERS. * 79 the light which it sheds on several curious historical problems. The motives of the author of the Forged Decretals and his extraordinary success are rendered more intelligible by it. And, to take a phenomenon of smaller interest, it assists us, though only partially to understand the plagiarisms of Bracton. That an English writer of the time of Henry III. should have been able to put off on his countrymen as a com- pendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus Juris, and that he should have ventured on this experiment in a country where the systematic study of the Roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all consideration of the source whence they were derived. When the kings of France had brought their long struggle for supremacy to a successful close, an epoch which may be placed roughly at the accession of the branch of Valois-Angoulerae to the throne, the situation of the French jurists was peculiar, and continued to be so down to the outbreak of the revolution. On the one hand, they formed the best instructed and nearly the most powerful class in the nation. They had made good their footing as a privileged order by the side of the feudal aristoc- Digitized by Microsoft® 80 HISTOET OF LAW OF NATURE. chap, it racy, and they had assured their influence by an organisation which dif;tributed their profession over France in great chartered corporations possessing large defined powers and still larger indefinite claims. In all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers through- out Eui-ope. Their juridical tact, their ease of ex- pression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the op- posite poles of Cujas and Montesquieu, of D'Agues- seau and Dumoulin. But, on the other hand, the system of laws which they had to administer stood iu striking contrast with the habits of mind which they had cultivated. The France which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant juris- prudence beyond every other country in Europe. One great division ran through the country and separated it into Pays du Droit Ecrit and Pays du Droit Coutiimier^ the first acknowledging the wi'it- ten Roman law as the basis of their jurisprudence, tlie last admitting it only so far as it supplied gen- eral forms of expression, and courses of juiidical reasoning, which wei-e reconcileable with the local usages. The sections thus formed were again vari ously subdivided. In the Pays du Droit Coutu Digitized by Microsoft® CHAP. IV. THE FEEJS'On LAWYERS. 81 mier province differed from province, county from '-ounty, municipality from municipality, in the nature of its customs. In the Pays du Droit Ecrit the stratum of feudal rules which overlay the Roman law was of the most miscellaneous composition. No such confusion as this ever existed in England. In Germany it did exist, but was too much in hai'mony with the deep political and religious divisions of the country to be lamented or even felt. It was the special peculiarity of France that an extraordinai-y diversity of laws continued without sensible altera- tion while the central authority- of the monarchy was constantly strengthening itself, while rapid ap- proaches were being made to complete administra- tive unity, and while a fervid national spirit had been developed among the people. The contrast was one which fructified in many serious results, and. among them we must rank the effect which it pro- duced on the minds of the French lawyers. Their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. With the keenest sense and the fullest recognition of those perfections of juris- pi'udence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually invested French law were ineradica- ble ; and in practice they often resisted the reforma- tion of abuses with an obstinacy which was not shown by many among their less enlightened coun- trymen. But there was a way to reconcile these 6 Digitized by Microsoft® 82 HISTORY OF LAW OF NATURE. chap. iv. contradictions. They became passionate enthusiasts for Natural Law. The Law of Nature overleapt all provincial and municipal boundaries ; it disregarded all distinctions between noble and burgess, between burgess and peasant ; it gave the most exalted place to lucidity, simplicity, and system ; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative techni- cality. Natural law may be said to have become the common law of France, or, at all events, the admission of its dignity and claims was the one tenet which all . French practitioners alike sub- scribed to. The language of the prae-revolution- ary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the Cus- toms, who often made it their duty to speak dis- paragingly of the pure Roman law, speak even more fervidly of Nature and her rules than the civilians who professed an exclusive respect for the Digest and the Code. DumouHn, the highest of all authorities on old French Customary Law, has some extravagant passages on the Law of Nature ; and his panegyrics have a peculiar rhetorical turn which indicates a considerable departure from the caution of the Komau jurisconsults. The hypothesis of a Natural Law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transfor- mation which it more recently underwent, its weak- Digitized by Microsoft® OHAP. IV. ROUSSEAU. 83 est parts rose to the level of its strongest in the esteem of its supporters. The eighteenth century was half over when the most critical period in the history of Natural Law was reached. Had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession, there would possibly have been an abatement of the respect which it commanded ; for by this time the Msprii des Lois had appeared. Bearing in some exaggera- tions the. marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny, yet show- ing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of Montesquieu, with all its defects, still proceeded on that Historical Method before which the Law of Nature has never maintained its footing for an in- stant. Its influence on thought ought to have been as great as its general popularity ; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to de stroy passed suddenly from the forum to the street, and became the kej^-note of controversies far more exciting than are ever agitated in the courts or the schools. The person who launched it on its new career was that remarkable man who, without learn- ing, with few virtues, and with no strength of char- acter, has nevertheless stamped himself ineifaceably on history by the force of a vivid imagination, and Digitized by Microsoft® 84 HISTORY OF LAW OF NATUEE. chap, iv by the help of a genuine and burning love for his fel low-men, for which much will always have to be for- given him. We have never seen in our own genera- tion — indeed the world has not seen more than once or twice in all the course of history — a literature which has exercised such prodigious influence ovei the minds of men, over every cast and shade of in- tellect, as that which emanated from Rousseau be- tween 1749 and 1762. It was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by Bayle, and in part by our own Locke, and consummated by Voltaire ; and besides the superiority which every constructive effort will always enjoy over one that is merely de- structive, it possessed the immense advantage of ap- pearing amid an all but universal scepticism as to the soundness of all foregone knowledge in matters speculative. Now, in all the speculations of Rous- seau, the central figure, whether arrayed in an Eng- lish dress as the signatary of a social compact, or simply stripped naked of all historical qualities, is uniformly Man, in a supposed state of nature. Every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection ; every transformation of society which would give it a closer resemblance to the world over which the creature of Nature reigned, is ad- mirable and worthy to be effected at any apparent cost. The theory is still that of the Roman law Digitized by Microsoft® oHAP. IV. THEORIES OE ROUSSEAU. 86 yers, for in the phantasmagoria with which the Natui'al Condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which possessed such charms for th3 jurisconsult ; but the theory is, as it were, turned up« side down. It is not the Law of Nature, hut the State of Nature, which is now the primary subject of contemplation. The Roman had conceived that by careful observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. Rousseau's belief was that a perfect social order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual con- dition of the world and wholly unlike it. The great difference between the views is that one bit- terly and broadly condemns the present for its uu- likeness to the ideal past ; while the other, assuming the pi'esent to be as necessary as the past, does not affect to disregard or censure it. It is not worth our while to analyse with any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. It still possesses singular fasci- nation for the looser thinkers of every country, and is no doubt the parent, more or less remote, of al- most all the prepossessions which impede the em- ployment of the Historical Method of inquiry, but Digitized by Microsoft® 86 HISTORY OF LAW OF NATUEE. ohap. iv. its discredit with the higher minds of our day ia deep enough to astonish those who are familiar with the extraordinaiy vitality of speculative error. I'erhaps the question most fi-equently asked nowa- days is not "what is the value of these opinions, but what were the causes which gave them such over- shadowing prominence a hundred years ago. The answer is, I conceive, a simple one. The study which in the last century would best have corrected the misapprehensions into which an exclusive atten- tion to legal antiquities is apt to betray was the study of religion. But Greek religion, as then un- derstood, was dissipated in imaginative myths. The Oriental religions, if noticed at all, appeared to be lost in vain cosmogonies. There was but one body of primitive records which was worth studying — the early history of the Jews. But resort to this was prevented by the prejudices of the time. One of the few characteristics which the school of Rous- seau had in common with the school of Voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the Hebrew race. It is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after Moses were not divinely dic- tated, uor even that they were codified at a later date than that attributed to them, but that they and the entire Pentateuch were a gratuitous forgery, ex- ecuted after the i-eturn from the Captivity. Debar- red, therefore, from one chief security against specu Digitized by Microsoft® CHAP. IT. THEORIES OF EOUSSEAU. 87 lative delusion, the philosophers of France, m theit eagerness to escape from what they deemed a super stition of the priests, flnng themselves headlong into a superstition of the lawyers. But though the philosophy founded on the hypo- thesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popular- ity, or power. I believe, as I have said, that it is still the great antagonist of the Historical Method; and whenever (religious objections apart) any mind is seen to resist, or contemn that mode of investiga- tion, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. It is chiefly, however, by allying themselves with political and social tendencies that the doctrines of Nature and her law have preserved their energy. Some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form. Thej^ visibly enter largely into the ideas which constantly radiate from France over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. The value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise Digitized by Microsoft® 88 HISTOEY OF LAW OF KATURE. chap, i v. to discuss it. Looking back, however, to tlie period at which the theory of the state of nature acquired the maximum of political importance, there are few who M'ill deny that it helped most powerfully to bring about the grosser disappointments of which the first French revolution was fertile. It gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive law, im- patience of experience, and the preference of a pri- ori to all other reasoning. In proportion too as this j)hilosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. It is surprising to note how many of the Sopliismes Anarcliiques which Dumont published for Bentham, and which embody Ben- tham's exposure of errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the principal eras of the Revolution. The appeals to the Law and State of Nature become thicker as the times grow darker. There is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. There cannot, I conceive, be any question that to the assumption of the Law Natural we owe the doctrine of the fundamental equality of human beings. That " all Digitized by Microsoft® CHAP. IT. EQUALITY OF MEN. 89 men are equal " is one of a large number of legal provisions whicli, in progress of time, have become political. The Roman jurisconsults of the Anto- nine era lay down that " omnes homines natur^ sequales sunt," but in their eyes this is a strictly ju- ridical axiom. They intend to affirm that under the hypothetical Law of Nature, and in so far as positive law approximates to it, the arbitrary dis- tinctions which the Roman Civil Law maintained between classes of persons cease to have a legal ex- istence. The rule was one of considerable impor- tance to the Roman practitioner, who required to be reminded that, wherever Roman jurisprudence was assumed to confoi-m itself exactly to the code of Nature, there was no difference in the contem- plation of the Roman tribunals between citizen and foreigner, between freeman and slave. Agnate aud Cognate. The jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type ; nor did they apparently believe that the world would ever see human society completely assimilated to the economy of nature. But when the doctrine of hu man equality makes its appearance in a modern dress it has evidently clothed itself with a new shade of meaning. Where the Roman jurisconsult had written " aequales sunt," meaning exactly what he said, the modem civilian wrote " all men are equal " in the sense of " all men ought to be equal." Digitized by Microsoft® 90 HISTORY or LAW OF NATURE. onAr. tv The peculiar Eoman idea that natural la^v coexisted with civil law and gradually absorbed it, had evident- ly been lost sight of, or had become unintelligible, and the words which had at most conveyed a theory concerning the origin, composition and develop- ment of human institutions, were beginning to ex- press the sense of a gi-eat standing wrong suffered by mankind. As early as the beginning of the fourteenth century, the cun-ent language concerning the birth-state of men, though visibly intended to be identical with that of Ulpian and his contempo- raries has assumed an altogether different form and meaning. The preamble to the celebrated ordi- nance of King Louis Hutin, enfranchising the serfs of the royal domains, would have sounded strange- ly to Roman ears. " Whereas, according to natu- ral law, everybody ought to be born free ; and by some usages and customs which, from long antiqui- ty, have been introduced and kept until now in our realm, and peradventure by reason of the misdeeds of their predecessors, many persons of our common people have fallen into servitude, therefore. We," ■kc. This is the enunciation not of a legal rule but of a political dogma ; and from this time the equali- ty of men is spoken of by the French lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. Like all other deductions from the hy pothesis of a Law Natural, and like the belief itself in a La^v of Nature, it was languidly a» Digitized by Microsoft® OHA.P. IV. DECLARATION 01 INDEPENDENCE, 91 sented to and suffered to have little influence on opinion and practice until it passed out of the pos- session of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. With them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. It is probable, , however, that the power which it ultimately ac- quired over the events of 1789 was not entirely owing to its popularity in France, for in the middle of the century it passed over to America. The American lawyers of the time, and particularly those of Virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their English contemporaries in including much which could only have been derived from the legal literature of continental Europe. A very few glances at the writings of Jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in Fi'ance, and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists which led him and the other colonial lawyers who guided the course of events in America to join the specially French assumption that " all men are born equal " with the assumption, more familiar to Englishmen, that all men are born free, in the very first lines of their Declaration of Independence. The passage was one of great importance to the history of the doctrine before us. The American lawyers, in thus Digitized by Microsoft® 92 HISTORY OF LAW OF NATURE. chap, rv promiueutly and emphatically affirming the funda- mental equality of human beings, gave an impulse- to political movements in their OAvn country, and in a less degree in Great Britain, which is far from having yet spent itself; but beside this they re- turned the dogma they had adopted to its home in France, endowed with vastly greater energy and enjoying much greater claims on general reception and respect. Even the more cautious politicians of the first Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind ; and of all the " principles of 1789 " it is the one which has been least strenuously assailed, which has most thor- oughly leavened modern opinion, and which prom- ises to modify most deeply the constitution of so- cieties and the politics of states. The grandest function of the Law of Nature was discharged in giving birth to modern International Law^ and to the modern Law of War, but this part of its effects must here be dismissed with considera- tion very unequal to its importance. V Among the postulates which form the founda- tion of International Law, or of so much of it as re- tains the figure which it received from its original architects, there are two or three of preeminent im- portance. The firat of all is expressed in the posi- tion that there is a determinable Law of Nature. Grotius and his successors took the assumjotion directly from the Romans, but they differed widely Digitized by Microsoft® cuAP. IT, INTERNATIONAL LAW. 9J from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The ambition of almost every Publicist' who has flour- ished since the revival of letters has been to provide new and more manageable definitions of Natuia and of her law, and it is indisputable that the con- ception in passing through the long series of writers on Public Law has gathered round it a large accre- tion, consisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. Yet it is a remark- able proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the Roman lawyers without questioning or reviewing them. Setting aside the Conventional or Treaty Law of Nations, it is surprising how Jarge a part of the system is made up of pure Roman laAV. Whereve]" there is a doctrine of the jurisconsults affirmed by them to be in harmony with the Jus Gentium, the Publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists, the mode of thought is still " mixed." In studying these writers, the great Digitized by Microsoft® 94 HISTORY OF LAW OF NATURE. chap. it. difficulty is always to discover whether they are discussing law or morality — whether the state of international relations they describe is actual or ideal — whether they lay down that which is, or that which, in their opinion, ought to be. The assumption that Natural Law is binding on states inter se is the next in rank of those which underlie International Law. A series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science, and at first sight it seems a direct' inference from the teach- ing of the Komans. The civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of units were acknowledged to obey no common sovereign or political superior they were thrown back on the ulteiior behests of the Law Natural. States are such units ; the hy- pothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. The alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsults abhorred. Thei'e is cei-tainly apparent reason for thinking that if the mind of a Roman lawyer rested on any sphere from which civil law was banished, it would instantly fil] Digitized by Microsoft® oiiAP. IT. INTEEyATIONAL LAW. 95 the void witli the ordinances of Nature. It is nevei safe, however, to assume that conclusions, howevei certain and immediate in our own eyes, were ac tually drawn at any period of history. No passage has ever been adduced from the remains of Roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths ; and we cannot but see that to citizens of the Roman empire, who regarded their sovereign's dominions as conterminous with civilization, the equal subjec- tion of states to the Law of Nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. The truth appears to be that modern International Law, undoubted as is its descent from Roman law, is only connected with it by an irregular filiation. The early modern inter- preters of the jurisprudence of Rome, misconceiving the meaning of Jus Gentium, assumed without hesi tation that the Romans had bequeathed to them a system of rules for the adjustment of international transactions. This "Law of Nations" was at first an authority which had formidable competitors to strive with, and the condition of Europe was long such as to preclude its universal reception. Grad- ually, however, the western world arranged itself in a form more favourable to the theory of the civilians ; circumstances destroyed the credit of rival doctrines ; and at last, at a peculiarly felici- tous conjuncture, Ayala and Grotius were able to Digitized by Microsoft® 96 HISTORY OF LAV OF NATURE. chap. iv. ol)tain for it the entliusiastic assent of Europe, an assent wliicli has been over and over again renewed in every variety of solera n engagement. The great men to whom its triumph is chiefly owing attempt- ed, it need scarcely be said, to place it on an entire- ly new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supj)0sed. Having adopted from the Antonine jurisconsults the position that the Jus Gentium and the Jus Naturae were identical, Grotius, with his immediate predecessors and his immediate suc- cessors, attributed to the Law of Nature an author- ity which would never jjerhaps have been claimed for it, if " Law of Nations " had not in that age been an ambiguous expression. They laid down unreser^•edly that Natui'al Law is the code of states, and thus put in operation a process which has con- tinued almost doAvn "to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unas- sisted contemplation of the conception of Nature. There is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the societj' of nations is governed by Natural Law, the atoms which compose it must be absolutely equal. Men under the sceptre of Nature are alJ Digitized by Microsoft® OHAP. IT. INTEENATIONAL LAW. 61 equal, and accordingly commonwealtlis are equal if the international state be one of nature. The pro- position that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each suc- cessive age. It is a doctrine which probably would never have obtained a secure footing at all if Inter- national Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters. On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions made to International Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman/ Jus Gentium. Acquisition of territory has always ,been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the Roman law which treats of the modes of acquiring property jure gentium. These modes of acquisition were obtained by the elder juriscon- sults, as I have attempted to explain, by abstract- ing a common ingredient from the usages observed to prevail among the various tribes surrounding Rome ; and, having been classed on account of their origin in the " law common to all nations," they 7 Digitized by Microsoft® S8 HISTORY or LAW OF NATUEE. chap, it, were thouglit by the later lawyers to fit in, on tie score of their simplicity, with the more recent con- ception of a Law Natural. They thus made their way into the modern Law of Nations, and the re- sult is that those parts of the international system which refer to dominion^ its nature, its limitations, the modes of acquiring and securing it, are pure Eonian Property Law — so much, that is to say, of the Roman Law of Property as the Antonine juris- consults imagined to exhibit a certain congruity with the natural state. In order that these chap- ters of International Law may be capable of appli- cation, it is necessary that sovereigns should be re- lated to each other like the members of a group of Roman proprietors. This is another of the postu- lates which lie at the threshold of the International Code, and it is also one which could not possibly have been subscribed to during the first centuries of modern European history. It is resolvable int ) the double proposition that " sovereignty is terri- torial," i. e. that it is always associated with the proprietorship of a limited portion of the earth's surface, and that " sovereigns inter se are to be deemed not paramount, but absolute owners of the state's territory. Many contemporary writers on Internationl Law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being ];eadily reasoned out in every stage of modern civilisation. But this assumption, Digitized by Microsoft® CHAP. IV. INTERNATIONAL LAW. 99 while it conceals some real defects of the inter- national theory, is altogether untenable so far as regards a large part of modern history. It is not true that the authority of the Jus Gentium in the concerns of nations was always uncontradicted ; on the contrary, it had to struggle long against tho claims of several competing systems. It is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the Roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. An old order of things, and of views founded on it, had to decay — a new Europe, and an apparatus of new notions congenial to it, had to spring up — before two of the chiefest postulates of International Law could be universally con- ceded. It is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was enter- tained as that of '■'■territorial sovereignty T Sove- reignty was not associated with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the shadow of Imperial Rome as to have forgotten that distribu- tion of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equal- ity of national rights. After the subsidence of the Digitized by Microsoft® 100 HI8T0ET OF LAW OF NATUEE. ceap. iv. barbarian irruptions, the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed the form of what may be called "^WJe-sovereignfy." The Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were masters, of course, of the territories which they occupied, and to which some of them had given a geographical appellation ; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. They appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamp- ed for the time upon the soil which afforded them sustenance. Part of Transalpine Gaul, with part of Germany, had now become the country de facto oc- cupied by the Franks — it was France ; but the Mero- vingian line of chieftains, the descendants of Clovis, were not Kings of France, they were Kings of the Franks. Territorial titles were not unknown, but they seem at first to have come into use only as a convenient mode of designating the ruler of & por- tion of the tribe's possessions ; the king of a tvlwle tribe was king of his people, not of his people's lands. The alternative to this peculiar notion of sovereignty appears to have been — and this is the important point — ^the idea of universal dominion. When a monarch departed from the special relation of chief to clansmen, and became solicitous, for pur- Digitized by Microsoft® 'S>J^^7>. CHAP. IV. TERRITORIAL SOVEREIGNTY. poses of his own, to invest himself with a nove] form of sovereignty, the precedent which suggested itself for his adoption was the domination of the Emperors of Rome. To parody a common quota- tion, he became " aut CcBsar aut nuUus.'''' Either he pretended to the full prerogative of the Byzantine Emperor, or he had no political status. In our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the pec/ple^ instead of the territory. Thus Ave have Emperors and Kings of the French, and a King of the Belgians. At the pe- riod of which we have been speaking, under similar circumstances, a different alternative presented itself. The chieftain who would no longer call himself King of the tiibe must claim to be Emperor of the world. Thus, when the hereditary Mayors of the Palace had ceased to compromise with the mon- archs they had long since virtually dethroned, they soon became unwilling to call themselves merely Kings of the Franks, a title which belonged to the displaced Merovings ; but they could not style themselves Kings of France, for such a designation, though apparently not unknown, was not a title of dignity. Accordingly they came forward as aspirants to universal empire. Their motive has been greatly misapprehended. It has been taken for granted by recent French writers that Charle- magne was far before his age, quite as much in the character of his designs as. in the energy with //iTT^ Digitized by Microsoft® 103 HISTORY OF LAW OF NATURE. chap, it, which he prosecuted them. Whether it be true or not that anybody is at any time before his age, it is certainly true that Charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic idea of his age permitted him to follow. Of his intellectual emi- nence there cannot be a question, but it is proved by his acts and not by his theory. The speculative universality of sovereignty long continued to be associated with the Imperial throne, and indeed was never thoroughly disso- ciated from it so long as the empire of Germany lasted. Territorial sovereignty — the view which connects sovereignty with the possession of a lim- ited portion of the earth's surface — was distinctly an ofEshoot, though a tardy one, of feudalism. This might have been expected aj)riori, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land. Whatever be the proper view of its origin and legal nature, the best mode of vividly picturing to ourselves the feudal organisa- tion is to begin with the basis ; to consider the relation of the tenant to the patch of soil which created and limited his services — and then to mount up, through narrowing circles of super- feudation, till we approximate to the apex of the system. Where that summit exactly was dui'ing the later portion of the dark ages it is not easy to decide. Probably, wherever the conception of tribe sovereignty has really decayed, the topmost point Digitized by Microsoft® CHAP. IT. TERRITORIAL SOVEREIGNTY. 103 was always assigned to the supposed successor of the Caesars of the "West. But before long, when the actual sphere of imperial aiithority had im- mensely contracted, and when the emperors had concentrated the scanty remains of their power upon Germany and North Italy, the highest feudal superiors in all the outlying pcn-tions of the former Cai'lovingian empire found themselves practically without a supreme head. Gradually they habit- uated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence ; but there are many symptoms that this change was not quite easily accomplished ; and, indeed, to the impression that in the nature of things there must necessarily be a culminating domination somewhere, we may, no doubt, I'efer the increasing tendency to attribute secular supe- riority to the See of Rome. The completion of the first stage in the revolution of opinion is marked, of course, by the accession of the Capetian dynasty in France. Before that epoch arrived, several of the holders of the gi-eat territorial fiefs into which the Carlovingian empire was now split up, had begun to call themselves Kings, instead of Dukes or Counts ; but the important change occurred when the feudal prince of a limited territory sur- rounding Paris, usurped from the earlier house their dynastic title. Kings of the French. Hugues Capet and his descendants were kings in quite a new sense, sovereigns standing in the same relation to the soil of Fi'ance as the baron to his estate, the Digitized by Microsoft® 104 HISTORY OF LAW OF NATURE. chap. it. tenant to his freehold ; and the old tribal appella- tion, though long retained in. the official Latin style of the reigning house, passed rapidly, in the vernacular, into Kings of France. The form of the monarchy in. France had visible effects in has tening changes which were elsewhere proceeding in the same direction. The kingship of our Anglo Saxon regal houses was midway between the chief- tainship of a tribe and a territorial supremacy ; but the superiority of the Norman monarchs, imi- tated from that of the King of France, was dis- tinctly a territorial sovereignty. Evei'y subsequent dominion which was established or consolidated was formed on the latter model Spain, Naples, and the principalities founded on the ruins of municipal freedoin in Italy, were all under rulers whose sovereignty was territorial. Few things, I may add, are more curious than the gradual lapse of the Venetians from one view to the other. At the commencement of its foreign conquests, the re- public regarded itself as an antitype of the Roman commonwealth, governing a number of subject provinces. Move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in Italy and the ^gean. During the period through which the popular ideas on the subject of sovereignty were under- going this remarkable change, the system which stood in the place of what we now call Interna- tional Law was heterogeneous in form and incon- Digitized by Microsoft® CHAP. IT. INTERNATIONAL LAW. 105 sistent in the principles to whicli it appealed. Over so much of Europe as was comprised in the Romano-German empire, the connection of the con- federate states was regulated by the complex and as yet incomplete mechanism of the Imperial con stitution; and, surprising as it may seem to us, it was a favorite notion of German lawyers that the relations of commonwealths, whether inside or out- side the empire, ought to be regulated not by the (Tus Gentiuyn^ but by the pure Roman jurispru- dence, of which Caesar was still the centre. This doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently ; but substantially, through the rest of Europe feudal subordinations furnished a sub- stitute for a public law ; and when those were undetermined or ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the Church. It is certain, however, that both feudal and ecclesiastical influ- ences were rapidly decaying during the fifteenth, and even the fourteenth century ; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old prin- ciples, the views afterwards harmonized and con- solidated by Ayala and Grotius were making con- siderable progress, though it was silent and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of international relati6poL OVT€ "iefJLKTTeS. " They have neither assemblies for consultation nor themistes, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another." These lines are applied to the Cyclops, and it may not perhaps be an altogether fanciful idea when I suggest that the Cyclops is Homer's type of an alien and less advanced civilisa- tion ; for the almost physical loathing which a primitive community feels for men of widely differ- ent manners from its own usually expresses itself by describing them as monsters, such as giants, oi Digitized by Microsoft® CHAP. T. PRIMITIVE SOCIETY. 121 even (which is almost always the case in Oriental mythology) as demons. However that may be, the verses condense in themselves the sura of the hints which are given us by legal antiquities. Men are first seen distributed in perfectly insulated groups held together by obedience to the parent. Law is the parent's word, but it is not yet in the condition of those themistes which were analysed in the first chapter of this work. "When we go forward to the state of society in which these early legal concep- tions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. The next question is, what is the nature of this - union and the degree of intimacy which it involves ? It is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjee- tiu'e. It is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggregation of families. The contrast may be most forcibly expressed by| saying that the unit of an ancient society was the Family, of a modern society the Individual. We must be prepared to find in ancient law all the con- Digitized by Microsoft® 122 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v sequences of this difference. It is so framed as to be adjusted to a system of small independent cor- porations. It is therefore scanty, because it is sup- plemented by the despotic commands of the heads of households. It is ceremonious, because the transactions to which it pays regard resemble inter national concerns much more than the quick play of intercourse between individuals. Above all it has a peculiarity of which the full importance can- not be shown at present. It takes a view of life wholly unlike any which appears in developed jurisprudence. Corporations never die, and accord- ingly primitive law considers the entities with which it deals, i. e. the patriarchal or family groups, iJ as perpetual and inextinguishable. This view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present them- selves. The moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. If the community sins, its guilt is much more than the sum of the^ offences committed by its members ; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. If, on the other hand, the individual is conspicuously guilty, it is his children, his kins- ' folk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. It thus happens jhat the ideas of moral responsibility and retribu- Digitized by Microsoft® DHAP. V. PRIMITIVE SOCIETY AND ANCIENT LAW. 123 tion often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to pun- ishment indefinite, the primitive mind is not per- plexed by the questions which become troublesome as soon as the individual is conceived as altoo-ether separate fi'om the group. One step in the transition from the ancient and simple view of the matter to the theological or metaphjsical explanation of later days is marked by the early Greek notion of an in- herited curse. The bequest received by his pos- terity from the original criminal was not a liability to punishment, but a liability to the commission of fresh offences which drew with them a condign retribution ; and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. It would be a very simple explanation of the origin of society if we could base a general conclu- sion on the hint furnished us by the Scriptural ex- ample already adverted to, and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. In most of the Greek states and in Rome there long remained the vestiges of an ascending series of groups out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them, and they are so described to us that we can Digitized by Microsoft® 124 PRIMITIVE SOCIETY AND ANCIEKT LAW. chap, v scarcely help conceiving them as a system "of concen- tric circles which have gradually expanded from the same point. The elementary group is the Family;-- connected by common subjection to the highest male , ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tiibe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications, and to lay down that the com- monwealth is a collection of persons united by common descent from the progenitor of an original family ? Of this we may at least be certain, that all ancient societies regarded themselves as having pro- ceeded from one original stock, and even laboured under an incapacity foi' comprehending any reason except this for their holding together in political union. The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished M'hen some other principle — such as that, for in- stance of local contiguity — establishes itself for the first time as the basis of common political action. It may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on comm the Greek states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many valuable illustrations, or to the Celtic clan associations, or to that strange social organisa- tion of the Sclavonic Russians and Poles which has only lately attracted notice, everywhere we discover ' traces of passages in their history when men of alien ' descent were admitted to, and amalgamated with, the original brotherhood. Adverting to Rome singly, we perceive that the primary group, the Family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the oi-iginal Tribes and concei'ning a large addition to the Houses made by one of the early kings. The composition of the state uniformly as- sumed to be natural, was nevertheless known to. be in great measure artificial. This conflict between belief or theory and notorious fact is at first sight extremely perplexing ; but what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society. The earliest and most extensively employed of legal fictions was that which permitted family relations to be created arti- ficially, and there is none to which I conceive man- Digitized by Microsoft® 326 PEIMITIVE SOCIETY AND AlsCIENT LAW. chap. > kind to be more deeply indebted. If it had nevei existed, I do not see how any one of the primitive groups, whatever were their nature, could have ab- sorbed another, or on what terms any two of them could have combined, except those of absolute supe- riority on one side and absolute subjection on the other. No doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals com- prised in the coalescing groups shall vote or act together according to local propinquity ; but the idea that a number of persons should exercise politi- cal rights in common simply because they happened to live within the same topographical limits was ut- terly strange and monstrous to primitive antiquity. The expedient which in those times commanded fa- vour was that the incoming population shovild feig7i themselves to be descended from the same stock as the people on whom they were engrafted ; and it is precisely the good faith of this fiction, and the close- ness with which it seeriied to imitate reality, that we cannot now hope to understand. One circum- stance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowl- edging and consecrating their association by com- mon sacrifices. Strangers amalgamated with the brothel hood were doubtless admitted to these sacri Digitized by Microsoft® OHAP. V. ARISTOCRACIES. 127 fices ; and whea that was once done, we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. The conclusion then which is suggested by the evi- dence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. An in- definite number of causes may have shattered the primitive groups, but wherever their ingredients recombined, it was on the model or principle of an association of kindred. Whatever tvere the fact, all thought, language, and law adjusted themselves to the assumption. But though all this seems to me to be established with reference to the communities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful Legal Fictions. At some point of time — probably as soon as they felt themselves strong enough to resist extrinsic pressure — all these states ceased to recruit themselves by factitious extensions of consanguinity. They neces- sarily, therefore, became Aristocracies, in all cases where a fresh population from any cause collected arounl them which could put in no claim to com- munity of origin. Their sternness in maintaining the central principle of a system under which po- litical rights were attainable on no terms whatever except connexion in blood, real or artificial, taught Digitized by Microsoft® 128 PRIMITIVE SOCIETT AND AKCIENT LA^. chap v their inferiors another principle, wliich proved to be endowed with a far higher measure of vitality. This was the principle of local contiguity^ now recog- nised everywhere as the condition of community in ])()litical functions. A new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and de- throned. The Family then is the type of an archaic soci- ety in all the modifications which it was capable of assuming ; liut the family hei'e spoken of is not ex- actly the family as undeictood by a modern. In order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. AVe must look on the family as constantly enlarged by the absorption of stran- gers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reali- ty of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connexion. On the other hand, the pei-sons theo- retically amalgamated into a family by their common descent are practically held together by common obe- dience to their highest living ascendant, the father, grandfather, or great-grandfather. The patriarchal authoritv of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or as- sumed fact) of its having sprung from his loins; Digitized by Microsoft® ruAP. V. THE AKOIENT FAMILY. 129 and hence we must understand that if there be any persons who, however truly mcluded in the brother- hood by virtue of their blood-relationship, have nevertheless de facto withdrawn themselves from the empire of its ruler, they are always, in the be- ginnings of law, considered as lost to the family. It is this patriarchal aggregate — the modern family thus cut down on one side and extended on the other — which meets us on the threshold of primitive jurisprudence. Older probably than the State, the Tribe, and the House, it left traces of itself on pri- vate law long after the House and the Tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of States. It will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, I think, as the ti-ue source of many of their most important and most durable characteris- tics. At the outset, the peculiarities of law iu its most ancient state lead us irresistibly to the conclu- sion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout Europe. There are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition ; but in communities more fortunately cir- cumstanced the fabric of jurisprudence fell gradu- ally to pieces, and if we carefully observe the disin- 9 Digitized by Microsoft® 130 PRIMITIVE SOCIETY AKD ANCIENT LAW. chap, v tegration wp shall perceive that it took place prin- cipally in those portions of each system which were most deeply affected by the primitive conception of the family. In one all-important instance, that of the Eoman law, the change was effected so slowl}', that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. And, in pursuing this last inquiry, we need not suf- fer ourselves to be stopped by the imaginary bai-rier which separates the modern from the ancient world. For one effect of that mixture of refined Roman law with primitive barbaric usage, which is known to na by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the Roman woi-ld, so that the decom- position which had seemed to be over commenced again, and to some extent is still proceeding. On a few systems of law the family organisa tion of the earliest society has left a plain and broaa mark in the life-long authority of the Father or other ancestor over the person and property of his descendants, an authority which • we may conve- niently call by its later Roman name of Patria Po- testas. No feature of the rudimentary associations of mankind is deposed to by a gi-eater amount of evidence than this, and yet none seems to have dis- appeared so generally and so rapidly from the usages of advancing communities. Gains, writing under the Antonines, describes the institution as Digitized by Microsoft® OEAP. T. THE PATPJA POTEST AS. 131 distinctively Roman. It is true, that liad lie glanced across the Rhine or the Danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen ex amples of patriarchal power in its crudest form and in the far East a branch of the same ethnical stock from which the Romans sprang was repeating their Patria Potestas in some of its most technical incidents. But among the races understood to be comprised within the Roman empire, Gains could find none which exhibited an institution resembling the Roman " Power of the Father," except only the Asiatic Galatse. There are reasons, indeed, as it seems to me, why the direct authority of the ances- tor should, in the greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their earliest state. The im- plicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages ; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. Hence, when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine the Patria Potestas to the cases where its possessor is actually skilful and strong. When we obtain our first glimpse of organised Digitized by Microsoft® 132 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. -v Hellenic society, it seems as if supereminent wisdom would keep alive the father's power in persons whose bodily strength had decayed ; but the relar tions of Ulysses and Laertes in the Odyssey appeal to show that, where extraordinary valour and sa^ gacity were united in the son, the father in the de- crepitude of age was deposed from the headship of the family. In the mature Greek jurisprudence, the rule advances a few steps on the practice hint- ed at in the Homeric literature ; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in European codes, to the nonage or minority of the children, or, in other words, to the period during Avhich their mental and physical inferiority may always be presumed. The Roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the com- monwealth may require, preserves both the prime- val institution and the natural limitation to which I conceive it to have been subject. In every rela- tion of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or Son under Power, was as free as his father. It was a maxim of Roman jurispm- ilence that the Patria Potestas did not extend to the Jus Publicum. Father and son voted together in the city, and fought side by side in the field ; indeed, the son, as general, might happen to com Digitized by Microsoft® CHAP. V. THE PATEIA POTESTAS. 133 mand the father, or, as magistrate, decide on his contracts and punish his delinquencies. But in all the relations created by Private Law, the son lived under a domestic despotism which, considering the severity it retained to the last, and the number of centuries through which it endured, constitutes one of the strangest problems in legal history. The Patria Potestas of the Romans, which is necessarily our type of the primeval paternal au- thority, is equally difficult to understand as an in- stitution of civilized life, whether we consider its incidence on the person or its effects on property. It is to be regretted that a chasm which exists in its history cannot be more completely filled. So far as regards the person, the parent, when our infor- mation commences, has over his children the jus vitcB necisque, the .power of life and death, and a fortiori of uncontrolled corporal chastisement ; he can modify their personal condition at pleasure ; he can give a wife to his son ; he can give his daugh- ter in marriage ; he can divorce his children of either sex ; he can transfer them to another family by adoption ; and he can sell them. Late in the Imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. The unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate ; the privilege of dictating marriage has declined into a condition- al veto ; the liberty of selling has been virtually Digitized by Microsoft® X 134 PRIMITIVE S001ET1 AXD Ai^CIENT LAW. cnAP. ■» abolished, and adoption itself, destined to lose al most all its ancient importance in the reformed sys- tem of Justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. In short, we are bought very close to the verge of the ideas which have at length pre- vailed in the modern world. But between these widely distant epochs there is an interval of ob- scurity, and we can only guess at the causes which permitted the Patria Potestas to last as long as it did by rendering it more tolerable than it appears. The active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. We can readily persuade our selves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. Dur- ing the earlier history, however, such cases of prac- tical emancipation would be rare compared with those which must have been created by the constant wars of the Roman republic. The military tribune and the private soldier who were in the field three quarters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master ; and all these avenues of escape tended constantly to multiply themselves. Victories led to conquests, conquests to occupations ; Digitized by Microsoft® cnAP. V. THE PATKIA POTESTAS. 13fi the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. Each step in advance was a call for the expatriation of more Roman citizens and a fresh draft on the blood of the failing Latin race. We may infer, 1 think, that a strong sentiment in favour of the relaxation of the Patria Potestas had become fixed by the time that the pacification of the world commenced on the establishment of the Empire. The first serious blows at the ancient institution are attiibuted to the earlier Csesars, and some isolated interferences of Trajan and Hadrian seem to have prepared the ground for a series of express enact- ments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. The older mode of getting rid of the Potestas, by effecting a triple sale of the son's person, is evi- dence, 1 may remark, of a very early feeling against the unnecessary prolongation of the powers. The rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive Roman. But even before the publication of the Twelve Tables it had been turned, by the ingenuity of the juriscon Bults, into an expedient for destroying the parental Digitized by Microsoft® 136 PKIMITIVE SOOIETx AND ANCIENT LAW. chap, v authority wherever the father desired that it should cease. { Many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are douhtless among those which do not lie upon the face of history. We cannot tell how far public opinion may have paralysed an au- ■ thority which the law conferred, or how far natural affection may have rendered it endui'able. But though the powers over the person may have been latterly nominal, the whole tenour of the extant Roman jurisprudence suggests that the father's rights over the soto^s jyroperty were always exercised without scruple to the full extent to which they were sanctioned by law. There is nothing to as- tonish us in the latitude of these rights when they first show themselves. The ancient law of Rome forbade the Children under Power to hold property apart from their parent, or (we should rather say) never contemplated the possibility of their claiming a separate ownership. The father was entitled to take the whole of the son's acquisitions, and to en- joy the benefit, of his contracts without being en- tangled in any compensating liability. So much as this we should expect from the constitution of the earliest Roman society, for we can hardly form a aotion of the primitive family group unless we sup- pose that its members brought their earnings of all kinds into the common stock while they were un- able to bind it by improvident individual engage Digitized by Microsoft® CHAP. T. THE PATRIA POTEST AS. 1S7 ments. The true enigma of the Patria Potestas does not reside here, but in the slowness with which these proprietary privileges of the parent were cur- tailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. No innovation of any Mud was attempted till the first years of the Empire, when the acquisitions of soldiers on ser- vice were withdrawn from the operation of the Patria Potestas, doubtless as part of the reward of the armies which had overthrown the free common- wealth. Three centuries afterwards the same im- munity was extended to the earnings of persons who were in the civil employment of the state. Both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. A certain qualified and dependent ownership had always been recognised by the Ro- man law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts, and the special name of this permissive property, Peculium, was ap- plied to the acquisitions newly relieved from Patria Potestas, which were called in the case of soldiers Castrense Peculium, and Quasi-castrense Peculium in the case of civil servants. Other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient prin- ciple. Shortly after the introduction of the Quasi Digitized by Microsoft® 138 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v castrense Peculium, Constantine tlie Great took away the father's absolute control over property whicli Ms cMldren had inherited from their moth- ers, and reduced it to a usufruct, or life-interest. A few more changes of slight importance followed in the Western Empire, but the furthest point reached was in the East, under Justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoying their produce for the period of his life. Even this, the utmost relaxation of the Roman Patria Potestas, left it far ampler and severer than any analogous insti- tution of the modern world. The earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the em- pire, and notably the nations of Sclavonic oiigin, which exhibited a Patria Potestas at all resembling that which was described in the Pandects and the Code. All the Germanic immigrants seem to have recognised a corporate union of the family under the mund, or authority of a patriarchal chief; but his powers are obviously only the relics of a de cayed Patria Potestas, and fell far short of those enjoyed by the Roman father. The Franks are particularly mentioned as not having the Roman institution, and accordingly the old French lawyers, even when most busily engaged iu filling the in- terstices of barbarous custom with rules of Roman law, were obliged to protect themselves against the Digitized by Microsoft® OHAP. V THE PATRIA POTESTAS. 139 intrusion of the Potestas by the express maxim, Piiyssance de pere en France n^a lieu. The te- nacity of the Romans in maintaining this relic of their most ancient condition is in itself remai'kable, but it is less remarkable than the diffusion of the Potestas over the whole of a civilisation from which it had once disappeared. While the Castrense Pe- culium constituted as yet the sole exception to the father s power over property, and while his power over his children's persons was still extensive, the Roman citizenship, and with it the Patria Potestas, were spreading into every corner of the Empire. Every African or Spaniard, every Gaul, Briton, or Jew, who received this honour by gift, purchase, or inheritance, placed himself under the Roman Law of Persons, and, though our authorities intimate that children born before the acquisition of citi- zenship could not be brought under Power against their will, children born after it and all ulterior de- scendants were on the ordinaiy footing of a Roman flliu-s familias. It does not fall within the province of this treatise to examine the mechanism of the later Roman society, but I may be permitted to re- mark that there is little foundation for the opinion which represents the constitution of Antoninus Caracalla^ conferring Roman citizenship on the whole of his subjects as a measure of small import- ance. However we may interpret it, it must have enormously enlarged the sphere of the Patria Po- testas, and it seems to me that the tightening ot Digitized by Microsoft® 140 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. t family relations wMcli it effected is an agency which ought to he kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. Before this branch of our subject is dismissed, it should be observed that the Paterfamilias was an- swerable for the delicts (or torts') of his Sons under Power. He was similarly liable for the torts of his slaves ; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. The re- sponsibility thus incurred on behalf of sons, coupled with the mutual incapacity of Parent and Child under Power to sue one another, has seemed to some jurists to be best explained by the assump- tion of a " unity of person " between the Paterfa- milias and the Filiusfamilias. In the Chapter on 'Successions I shall attempt to show in what sense, and to what extent, this " unity " can be accepted as a reality. I can only say at present that these responsibilities of the Paterfamilias, and other legal phenomena which will be discussed hereafter, ap- pear to me to point at certain duties of the primi- tive Patriarchal chieftain which balanced his rights. I conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this representa- tive ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. The difficulty is to throw our- selves out of our habitual associations sufficiently Digitized by Microsoft® OHAP. V. THE PATKIA POTESTAS. 1« for conceiving the nature of his obligation> It was not a legal duty, for law had not yet penetrated into the precincts of the Family. To call it moral is perhaps to anticipate the ideas belonging to a later stage of mental development ; but the expres- sion " moral obligation " is significant enough for our purpose, if we understand by it a duty semi- consciously followed and enforced rather by instinct and habit than by definite sanctions. The Patria Potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. The proof of its for- mer universality is therefore incomplete so long as we consider it by itself ; but the demonstration may be carried much further by examining other depart- ments of ancient law which depend on it ultimately, but not by a thread of connexion visible in all its parts or to all eyes. Let us turn for example to Kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. Here again it will be convenient to employ the Roman terms. Agnatic and Cognatic relationship. Cognatic relationship is simply the conception of kinship familiar to modern ideas ; it is the relationship arising through common descent from the same pair of married per sons, whether the descent be traced through males or females. Agnatic relationship is something very different : it excludes a number of persons whom we in our day should certainly consider of kin to Digitized by Microsoft® 142 PKmiTIVE SOCIETT AND ANCIENT LAW. chap, v OUTS: elves, and it includes many more wLom we should never reckon among our kindred. It is in truth the connexion existing between the members of the Family, conceived as it was in the most an- cient times. The limits of this connexion are far from conterminous with those of modern relation- ship. Cognates then are all those persons who can trace their blood to a single ancestor and ances- tress ; or, if we take the strict technical meaning of the word in Roman law, they are all who trace their blood to the legitimate mamage of a common pair. " Cognation " is therefore a relative term, and the degree of connexion m blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. If we be- gin with the marriage of father and mother, Cogna- tion will only express the relationship of brothers and sisters ; if we take that of the grandfather and grandmother, then uncles, aunts, and their descend- ants will also be included in the notion of Cogna- tion, and following the same process a larger num- ber of Cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. All this is easily understood by a modem ; but who are the Agnates ? In the first place, they are all the Cognates who trace their connexion exclusively through males. A table of Cognates is, of course, formed by taking each lineal ancestor in turn and including all his Digitized by Microsoft® OHAr. V. AGNATION AND COGNATION. 148 descendants of both sexes in the tabular view ; if then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female and pursue that par- ticular branch or ramification no further, all who remain after the descendants of women have been excluded are Agnates, and their connexion together is Agnatic Relationship. I dwell a little on the process which is practically followed in separating them from the Cognates, because it explains a me- morable legal maxim, " Mulier est finis familiae " — ■ a woman is the terminus of the family. A female name closes the branch or twig of the genealogy in which it occurs. None of the descendants of a fe- male are included in the primitive notion of family relationship. If the system of archaic law at which we are looking be one which admits Adoption, we must add to the Agnates thus obtained all persons, male or female, who have been brought into the Family by the artificial extension of its boundaries. But the descendants of such persons will only be Ag- nates, if they satisfy the conditions which have just been described. What then is the reason of this arbitrary inclu- sion and. exclusion ? Why should a conception of Kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so nar- row as to shut out the descendants of a female member ? To solve these questions, we must recur Digitized by Microsoft® 144 PRIMITIVE SOCIETY AND ANCIEXT LAW. oniP. t to the Patria Potestas. The foundation of Agna^ tion is not the marriage of Father and Mother, but the authority of the Father. All persons are Ag- natically connected together who are under the same Paternal Power, or who have been under it, or AA'ho might have been under it if their lineal an- cestor had lived long enough to exercise his empire. In truth, in the primitive view, Relationship is ex- actly limited by Patria Potestas. Where the Po- testas begins. Kinship begins ; and therefore adop- tive relatives are among the kindred. Where the Potestas ends, Kinship ends ; so that a son emanci- pated by his father loses all rights of Agnation. And hei-e we have the reason why the descendants of females are outside the limits of archaic kinship. If a woman died unmanned, she could have no le- gitimate descendants. If she married, her children fell under the Patria Potestas, not of her Father, but of her PIusl)aud, and thus were lost to her own family. It is obvious that the organisation of primi- tive societies would have been confounded, if men had called themselves relati^-es of their mother's rel- atives. The inference would have been that a per- son might be subject to two distinct Patriae Potes- tates ; but distinct Fatrise Potestates implied dis- tinct jurisdictions, so that anybody amenable to two of them at the same time would have lived under two different dispensations. As long as the Family was an imperium in imperio, a community within the commonwealth, governed by its own in- Digitized by Microsoft® CHAP. T. THE PARENTAL POWERS. 145 stitutions of wMcli tlie parent was tlie source, tlie limitation of relationship to tlie Agnates was a nec- essary security against a conflict of laws in the domestic forum. The Parental Powers proper are extinguished by the death of the Parent, but Agnation is as it were a mould which retains their imprint after they have ceased to exist. Hence comes the interest of Agna- tion for the inquirer into the history of jurispru- dence. The powers themselves are discernible in comparatively few monuments of ancient law, but Agnatic Relationship, which implies their former existence, is discoverable almost everywhere. There are few indigenous bodies of law belonging to com- munities of the Indo-European stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to Ag- nation. In Hindoo law, for example, which is satu- rated with the primitive notions of family depend- ency, kinship is entirely Agnatic, and I am in- formed that in Hindoo genealogies the names of women are generally omitted altogether. The same view of relationship pervades so much of the laws of the races who overran the Roman Empire as ap- peals to have really formed part of their primitive usage, and we may suspect that it would have per- petuated itself even more than it has in modem European jurisprudence, if it had not been for the vast influence of the later Roman law on modern thought. The Praetors early laid hold on Cogna- 10 Digitized by Microsoft® 146 PPwIMITIVE SOCIETY AXD AXCIEXT LAW. chap, v tion as the natural form of kinship, and spared no pains in purifying their system from the older con- ception. Their ideas have descended to us, but still traces of Agnation are to be seen in many of the modern rules of succession after death. The exclu sion of females and their children from govern- mental functions, commonly attributed to the usage of the Salian Franks, has certainly an agnatic origin, being descended from the ancient German rule of succession to allodial property. In Agnation too is to be sought the explanation of that extraordi- nary rule of English Law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. In the Customs of Normandy, the rule applies to uterine brothers only, that is, to brothers by the same mother but not by the same father ; and, limited in this way, it is a strict deduction from the system of Ag- nation, under which uterine brothers are no rela tions at all to one another. When it was trans planted to England, the English judges, who had no clue to its principle, interpreted it as a general pro- hibition against the succession of the half-blood, and extended it to consanguineous brothers, that is to sons of the same father by different wives. In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the ex- clusion of the half-blood. Digitized by Microsoft® OHAP. T. GUABDIAXSHIP OF WOMEN". 147 It may be shown, I think, that the Family, as held together by the Patria Potestas, is the nidus out of which the entire Law of Persons has germi- nated. Of all the chapters of that Law the most important is that which is concerned with the status of Females. It has just been stated that Primitive Jurisprudence, though it does not allow a Woman to communicate any rights of Agnation to her descendants, includes herself nevertheless in the Agnatic bond. Indeed, the relation of a female to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. "We have several times laid down that early law takes notice of Families only ; this is the same thing as saying that it only takes notice of persons exercising Patria Potestas, and ac- cordingly the only principle on which it enfran- chises a son or grandson at the death of his Parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of Parental Powers. But a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. There is therefore a peculiar con- trivance of archaic jurisprudence for retaining her in the bondage of the Family for life. This is the institution known to the oldest Koman law as the Perpetual Tutelage of Women, under which a Fe- male, though relieved from her Parent's authority by his decease, continues subject through life to her Digitized by Microsoft® 148 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. t, nearest male relations, or to Ler Father's nominees, as her Guardians. Perpetual Guardianship is ob- viously neither more nor less than an artificial pro- longation of the Patria Potestas, when for other purposes it has been dissolved. In India, the sys- tem survives in absolute completeness, and its oper- ation is so strict that a Hindoo Mother frequently becomes the ward of her own sons. Even in Eu- rope, the laws of the Scandinavian nations respect- ing women preserved it until quite recently. The iavaders of the Western Empire had it universally among their indigenous usages, and indeed their ideas on the subject of Guardianship, in all its forms, were among the most retrogressive of those which they introduced into the Western world. But from the mature Roman jurisprudence it had entirely disappeared. We should know almost nothing about it, if we had only the compilations of Justinian to consult ; but the discovery of the manuscript of Gains discloses it to us at a most in- teresting epoch, just when it had fallen into com- plete discredit and was verging on extinction. The great jurisconsult himself scouts the popular apolo- gy offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expe- dients, some of them displaying extraordinary in- genuity, which the Roman lawyers had devised for enabling Women to defeat the ancient rules. Led by their theoiy of Natural Law, the jurisconsults Digitized by Microsoft® OHAP. V. ANCIENT ROMAN MARRIAGE. 149 had evidently at this time assumed the equality of the sexes as a principle of their code of equity. The restrictions which they attacked were, it is to be observed, restrictions on the disposition of prop- erty, for which the assent of the woman's guardians was still formally required. Control of her per- son was apparently quite obsolete. Ancient law subordinates the woman to her blood-relations, while a prime phenomenon of mod- ern jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins far back in the annals of Rome. An» ciently, there were three modes in which marriage might be contracted according to Roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. By the religious marriage or Confarreation ; by the higher form of civil marriage, which was called Coemption ; and by the lower form, which was termed Usus, the Husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them ? Not as Husband^ but as Father. By the Confarreation, Coemption, and Usus, the woman passed in manum viri, that is, in law she became the Daughter of her husband. She was included in his Patria Potestas. She in- curred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. Digitized by Microsoft® 150 PRIMITIVE SOCIETY AXD AyCIEXT LAW. chap, t All her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. These tkree ancient forms of marriage fell, however, grad- ually into disuse, so that, at the most splendid pe- riod of Roman greatness, they had almost entirely given place to a fashion of wedlock — old apparent- ly, but not hitherto considered reputable — which was founded on a modification of the lower form of civil mamage. Without explaining the techni- cal mechanism of the institution now generally pop- ular, I may describe it as amounting in law to little more than a temporary deposit of the woman by her family. The rights of the family remained un- impaired, and the lady continued in the tutelage of guardians whom her • parents had appointed and whose privileges of control overrode, in many ma- terial respects, the inferior authority of her hus- band. The consequence was that the situation of the Eoman female, whether married or unmarried became one of great personal and proprietary inde- pendence, for the tendency of the later law, as I have already hinted, was to reduce the power of the guardian to a nullity, while the form of mar- riage in fashion conferred on the husband no com- pensating superiority. But Christianity tended somewhat from the very first to narrow this re- markable liberty. Led at first by justifiable dis- relish for the loose practice of the decaying heathen world, but afterwards hurried on by a passion of Digitized by Microsoft® DHAP. y CONDITION OF WOMEN 151 asceticism, tlie professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the Western world has seen. The latest Koman law, so far as it is touched by the Consti- tutions of the Christian Emperors, bears soma marks of a reaction against the liberal doctrines o; the great Antonine jurisconsults. And the prev- alent state of religious sentiment may explain why it is that modern jurisprudence, forged in the fur- nace of barbarian conquest, and formed by the fu- sion of Roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. During the troubled era which begins modern history, and while the laws of the Ger- manic and Sclavonic immigrants remained super- posed like a separate layer above the Roman juris- prudence of their provincial subjects, the women of the dominant races are seen everywhere under various forms of archaic guardianship, and the hus- band who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. When we move onwai-ds, and the code of the middle ages has been formed by the amalgamation of the two sys- tems, the law relating to women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far ti-iuraphant that unmariied females are generally (though there are local excep- Digitized by Microsoft® 152 PRIMITIVE SOCIETY AND ANCIEKT LAW. chap. v. (ions to the rule) relieved from the bondage of the family ; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital char- acter the powers which had once belonged to his wife's male kindred, the only difierence being that he no longer purchases his privileges. At this point therefore the modern law of Western and Southern Europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. It was very long before the subordination entailed on the other sex by marriage was sensibly diminished. The principal and most powerful solvent of the revived barbarism of Europe was always the codified juris- prudence of Justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. It covertly but most efficaciously under- mined the customs which it pretended merely to in- terpret. But the Chapter of law relating to mar- ried women was for the most part read by the light, not of Roman, but of Canon Law, which in no one particular departs so widely from the spuit of the secular jurisprudence as in the view it takes of the relations created by marriage. This was in part inevitable, since no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law, but the proprie- Digitized by Microsoft® CHAP. V. CONDITION OF WOMEN. 153 tary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by the tendency of their doctrines to keep alive and consolidate the former, that the expositors of the Canon Law have deeply injured civilisatiou. There are many vestiges of a struggle between the secular and ecclesiastical principles, but the Canon Law nearly everywhere prevailed. In some of the French provinces, married women, of a rank below nobility, obtained all the powers of dealing with property which Roman jurisprudence had allowed, and this local law has been largely followed by the Code Napoleon ; but the state of the Scottish law shows that scrupulous deference to the doctrines of the Eoman jurisconsults did not always extend to mitigating the disabilities of wives. The systems however which are least indulgent to married women are invariably those which have followed the Canon Law exclusively, or those which, from the lateness of their contact with European civilisa- tion, have never had their archaisms weeded out. The Danish and Swedish laws, harsh for many cen- turies to all females, are still much less favourable to wives than the generality of Continental codes. And yet more stringent in the proprietary inca- pacities it imposes is the English Common Law, which borrows far the greatest number of its funda- mental principles from the jurisprudence of the Canonists. Indeed, the part of the Common Law which prescribes the legal situation of married Digitized by Microsoft® 154 PRIMITIVE SOCIETY AND ANCIENT LAW. ouai'. v women may serve to give an Englishman clear no- tions of tlie great institution wMcli has been the principal subject of this chapter. I do not know how the operation and nature of the ancient Patria Potostas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of th-e wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties and remedies. The distance between the eldest and latest Roman law on the subject of Children under Power may be considered as equiv- alent to the difference between the Common Law and the jurisprudence of the Court of Chancery in the rules which they respectively apply to wives. If we were to lose sight of the true oi'igin of Guardianship in both its forms, and were to employ the common language on these topics, we should find ourselves remarking that, while the Tutelage of Women is an instance in which systems of ar- chaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down f. r the Guardianship of Male Orphans are an ex- ample of a fault in precisely the opposite du-ection. Such systems terminate the Tutelage of Males at an extraordinary early period. Under the ancient Roman law, which may be taken as their type, the Bon who w'li^ delivered from Patria Potestas by tlie Digitized by Microsoft® CHAP. T. GUARDIANSHIP OF ORPHANS. 155 death of Ms Father or Grandfather remained under guardianship till an epoch which for general pur poses may be described as arriving with his fifteenth year ; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprie- tary independence. The period of minority ap- pears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. But, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. Neither the one nor the other of them was based on the slightest consideration of public or private convenience. The guardianship of male orphans was no more de- signed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. The reason why the death of the father ~) delivered the son fi-om the bondage of the family ] was the son's capacity for becoming himself the^ head of a new family and the founder of a new2 Patria Potestas ; no such capacity was possessed by? the woman, and therefore she was never enfranchised.' Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the semblance of subordination to the family of the Parent, up to the time when the child was supposed capable of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare Digitized by Microsoft® 15G JfRIMITlVE SOCIETY AXD AJs'CIENT LAW. chap. v. physical manliood. It ended with puberty, for the rigour of the theory demanded that it should be so. Inasmuch, however, as it did not profess to con- duct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience ; and this the Romans seem to have discovered at a very early stage of their social progress. One of the very oldest monuments of Roman legislation is the Lex LcBtoria or Plmtoria, which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called Curatores^ whose sanction was required to validate their acts or contracts. The twenty-sixth year of the young man's age was the limit of this statutory supervision ; and it is excl usively with reference to the age of twenty-five that the terms "majority" and " minority " are employed in Roman law. Pu- pilage or wardsMp in modern jurisprudence has adjusted itself with tolerable regularity to the sim- ple principle of protection to the imroaturity of youth both bodily and mental. It has its natural termination with years of discretion. But for pro- tection against physical weakness and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct both in theory and design. The idoas attendant on both are com- bined in the modern idea of guardianship. The Law of Persons contains but one other chapter which can be usefally cited for our present Digitized by Microsoft® CHAP. T. MASTER AND SLAVE. 151 purpose. The legal rules by wMcli systems of ma- ture jurisprudence regulate the connexion of Master and Slave, present no very distinct traces of the original condition common to ancient societies. But there are reasons for this exception. There seems to be something in the institution of Slavery which has at all times either shocked or perplexed man- kind, however little habituated to reflection, and •however slightly advanced in the cultivation of its moral instincts. The compunction which ancient communities almost unconsciously experienced ap- pears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. Very early in their history the Greeks explained the institution as grounded on the intel/, lectual inferiority of certain races and their conse^ quent natural aptitude for the servile condition. The Romans, in a spirit equally characteristic, de- rived it from a supposed agreement between the victor and the vanquished in which the first stipu- lated for the perpetual services of his foe ; and the other gained in consideration the life which he had legitimately forfeited. Such theories were not only unsound but plainly unequal to the case for which they ajflfected to account. Still they exercised pow- erful influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement of the Slave. And they naturally tended to put out of sight the Digitized by Microsoft® 158 PEIMITIVE SOCIETY AXD AXOIENT LAW. chap. t. relation in which servitude had originally stood to the rest of the domestic system. The relation, though not clearly exhibited, is casually indicated in many parts of the primitive law, and more par- ticularly in the typical system — that of ancient Rome. Much industry and much learning have been be- stowed in the United States of America on the question whether the Slave was in the early stages of society a recognised member of the Family. There is a sense in which an affirmative answer must certainly be given. It is clear, from the testi- mony both of ancient law and of many primeval liistories, that the Slave might under certain con- ditions be made the Heir, or Universal Successor, of the Master, and this significant faculty, as I shall explain in the Chapter on Succession, implies that the government and representation of the Family might, in a particular state of circumstances, de- volve on the bondman. It seems, however, to be assumed in the American arguments on the subject that, if we allow Slavery to have been a primitive Family institution, the ackno^vledgment is pregnant with an admission of the moral defensibility of Negro-servitude at the present moment. What then is meant by saying that the Slave was oi'igi- nally included in the Familj^ ? Not that his situa- tion may not have been the fruit of the coarsest motives which can actuate man. The simple wish to use the bodily powers of another person as a Digitized by Microsoft® rnAP. V. SLAVERY. 159 means of ministering to one's own ease or pleasure is doubtless tlie foundation of Slavery, and as old as human nature. When we speak of the Slave as anciently included in the Family, we intend to aS' sert nothing as to the motives of those who brought him into it or kept him there ; we merely imply that the tie which bound him to his master was re- garded as one of the same general character with that which united every other member of the group to his chieftain. This consequence is, in fact, carried in the general assertion already made that the primitive ideas of mankind were unequal to com- pi'ehending any basis of the connexion inter se of individuals, apart from the relations of family. The Family consisted primarily of those who belonged to it by consanguinity, and next of those who had been engrafted on it by adoption ; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the Slaves. The born and the adopted sub- jects of the chief were raised above the Slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own ; but that the in- feriority of the Slave was not such as to place him outside the pale of the Family, or such as to de- grade him to the footing of inanimate property, is clearly proved, I think, by the many traces which remain of his ancient capacity for inheritance in the last resort. It would, of course, be unsafe in the Digitized by Microsoft® 160 PRIMITIYE SOCIETY AND ANCIENT LAW. chap, v higliest degree to hazard conjectures liow far the lot of the Slave was mitigated, in the beginnings of so- ciety, by having a definite place reserved to him in the empire of the Father. It is, perhaps, more probable that the son was practically assimilated to the Slave, than that the Slave shared any of the tenderness which in later times was shown to the son. But it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. The point of view from which jurisprudence regards the Slave is always of great importance to him. The Koman law was arrested ia its growing tendency to look upon him more and more as an article of property b} the theory of the Law of Nature ; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply aflt'ected by Roman jurisprudence, the servile condition is never intolerably wretched There is a great deal of evidence that in those American States which have taken the highly Ro- manised code of Louisiana as the basis of their ju- risprudence, the lot and prospects of the Negro-pop ulation were better in man}- material respects, until the letter of the fundamental law Avas overlaid by recent statutoiy enactments passed under the in- fluence of panic, than under institutions founded on Digitized by Microsoft® OHAP. V. ANCIENT LAW. 16] the Englisli Common Law, whicli, as recently inter preted, has no true place for the Slave, and can only therefore regard him as a chattel. We have now examined all parts of the ancient Law of Persons which fall within the scope of this heatise, and the result of the inquiry is, I trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. The Civil laws of States first make their appearance as the Themistes of a patriarchal sovereign, and we can now see that these Themistes are probably only a developed form of the iri-esponsible commands which, in a still earlier condition of the race, the head of each isolated household may have addressed to his wives, his children, and his slaves. But, even after the State has been organised, the law? have still an extremely limited application. Wheth- er they retain their primitive character as Themis- tes, or whether they advance to the condition of Customs or Codified Texts, they are binding not on individuals, but on Families. Ancient jurispru- dence, if a perhaps deceptive comparison may be employed, may be likened to International Law, filling nothing, as it were, except the interstices be- tween the gi'eat groups which are the atoms of so ciety. In a community so situated, the legislation of assemblies and the jurisdiction of Courts react only to the heads of families, and to every other in dividual the rule of conduct is the law of his home, of which his Parent is the legislator. But the 11 Digitized by Microsoft® 162 PRIMITIVE SOCIETY AND ANCIENT LAW. cdap. v, sphere of civil law, small at first, tends steadily to enlarge itself. The agents of legal change, Fictions, Ecpity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domesti Digitized by Microsoft® 161 PEIMITIVE SOCIETY AND ANCIENT LAW. chap, t tractual i-elation of the servant to his master. The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist ; from her coming of age to her marriage all the relations she may form are re- lations of contract. So too the status of the Son under Power has no true place in the law of mod- ern European societies. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract gives its legal validi- ty. The apparent exceptions are exceptions of that stamp which illustrate the rule. The child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. The great majority of Jurists are constant to the 2:)rinciple that the classes of persons just mentioned are subject to extrinsic control on the single ground that thej^ do not possess the faculty of forming a judgment on their own interests ; in other words, that they are wanting in the first essential of an en- gagement by Contract. The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficientlj^ ascertained. All the forms, of Status taken notice of in the Law of Peisons wen Digitized by Microsoft® CHAP. T. MOVEMENT FROM STATUS TO CONTRACT. 165 derived from, and to some extent are still coloured by, the powers and privileges anciently I'esiding in the Family. If then we employ Status, agreeably with the usage of the best writers, to siguify these personal conditions only, and avoid applying the term to such conditions as are the immediate or re- mote result of agreement, we may say that the move- ment of the progressive societies has hitherto been a movement yroTO Status to Oontraot. Digitized by Microsoft® CHAPTER VI TES EARLY HISTOBT OF TESTAMENTARY SUCCESSION. If an attempt were made to demonstrate in England the superiority of the historical method of investiga- tion to the modes of inquiry concerning Jurispru- dence which are in fashion among us, no department of Law would better serve as an example than Tes- taments or Wills. Its capabilities it owes to its great length and great continuity. At the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form ; while here, at the other extremity of its line of progress, we are in the midst of legal no- tions which are nothing more than those same con- ceptions disguised by the phraseology and by the habits of thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which foi-ra part of our every-day mental stock can really stand in need of analysis and examination. The growth Digitized by Microsoft® CHAP. VI. TESTAMENTARY LAW. 167 of the Law of Wills between these extreme points can be traced with remarkable distinctness. It was much less interrupted at the epoch of the birth of feudalism, than the history of most other branches of Law. It is, indeed, true that as regards all prov- inces of jurisprudence, the break caused by the division between ancient and modern history, or in other words by the dissolution of the Roman empire, has been very greatly exaggerated. Indolence hag disinclined many writers to be at the pains of look- ing for threads of connexion entangled and ob- scured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in pa- tience and industry, have been misled by i dle pride in the legal system of their country, and by conse- quent unwillingness to confess its obligations to the jurisprudence of Rome, But these unfavourable influences have had comparatively little effect on the province of Testamentary Law. The barbarians were confessedly strangers to any such conception as that of a "Will. The best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats and in their subsequent settle- ments on the edge of the Roman Empire. But soon after they became mixed with the population of the Roman provinces they appropriated from the Imperial jurisprudence the conception of a Will, at 6rst in part, and afterwards in all its integrity The influence of the Church had much to do with Digitized by Microsoft® 168 INFLUENTCE OF THE CnORCH. chap, vi this rapid assimilation. The ecclesiastical power had very early succeeded to those privileges of cus- tody and registration of Testaments which several of the heathen temples had enjoyed; and even thu3 early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. Hence it is that the decrees of the eai'liest Provincial Councils perpetually contain ana- themas against those who deny the sanctity of Wills. Here, in England, Church influence was certainly chief among the causes which by universal acknowl- edgment have prevented that discontinuity in the history of Testamentary Law which is sometimes believed to exist in the history of other provinces of Jurisprudence. The jurisdiction over one class of Wills was deles^ated to the Ecclesiastical Courts, which applied to them, though not always intelli- gently, the principles of Roman jurisprudence; and, though neither the Courts of Common Law nor the Court of Chancery owned any positive obligation to follow the Ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. The English law of testamentaiy succession to personal- ty has become a modified form of the dispensation under which the inheritances of Roman citizens were administered. It is not difficult to point out the extreme dif- ference of the conclusions forced on us by the histo- rical treatment of the subject, from those to which Digitized by Microsoft® CHA.P. 71. ANCIENT WILLS. 169 we are conducted when, without the help of history, we merely strive to analyse owv prima facie Irapres sions. I suppose there is nobody who, starting iVoin the popular or even the legal conception of a Will, would not imagine that certain qualities are necessa- rily attached to it. He would say, for example, that a "Will necessarily takes effect at death only, — that il is secret, not known as a matter of course to persons taking interests under its provisions, — that it is revo • cable, i. e. always capable of being superseded by a now act of testation. Yet I shall be able to show that there was a time when none of these characteris- tics belonged to a Will. The Testaments from which our Wills are directly descended at first took effect immediately on their execution ; they were not se- cret ; they were not revocable. Few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written in- tentions control the posthumous disposition of his goods. Testaments very slowly and gradually ga- thered around them the qualities I have mentioned ; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except eo far as they have affected the history of law. At a time when legal theories were more abund- ant than at present, — theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown Digitized by Microsoft® iro NATURAL RIGHT OF TESTATION. chap, /i to ourselves, in whicli notliing like a generalisation ia aspired to, and law is regarded as a mere empirical pursuit — ^it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a Will, by saying that they were natural to it, or, as the phrase would run in full, attached to it by the Law of Nature. Nobody, I imagine, would affect to maintain such a doctrine, when once it was ascertained that all these charac- teristics had tbeir origin within historical memory ; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of express- ion which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by men- tioning a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the Law of Nature. Their teaching, though all persons may not at once see the connexion, is in sub- stance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. And every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its I'ationale of this department of law, treats succession ex testamenfo as the mode of devolution which the projDerty of de- ceased persons ought primarily to follow, and then Digitized by Microsoft® CHAP. VI. NATURAL EIGHT OF TESTATION. 17J proceeds to account for succession ab intestato as the incidental provision of the lawgiver for the dis- charge of a function which was only left unperform- ed through the neglect or misfortune of the deceased proprietor. These opinions are only expanded forms of the more compendious doctrine that Testamen- tary disposition is an institution of the Law of Na- ture. It is certainly never quite safe to pi-onounce dogmatically as to the range of association embraced by modern minds, when they reflect on Nature and her Law ; but I believe that most persons, who af- firm that the Testamentary Power is of Natural Law, may be taken to imply eithgr that, ^a matt er o f fact, it is univers al, or_tbat^nations are promp ted to^sa nction it b yLaB.^.onginal_njstiiict_agd ^impulse. With respect to the first of these positions, I think that, when explicitly set forth, it can never be se- riously contended for in an age which has seen the severe restraints imposed on the Testamentary Pow- er by the Code Napoleon, and has witnessed the steady multiplication of systems for which the French codes have served as a model. kTo the se- cond assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and I venture to affirm generally that, in all indi- genous societies, a condition of jurisprudence in which Testamentary privileges are oiot allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of Digitized by Microsoft® 72 NATURE OF A WILL. chap, tl estriction to override the claims of his kindred in lood. The conception of a Will or Testament cannot be onsidered by itself. It is a member, and not the rst, of a series of conceptions. In itself a Wiiris imply the instrument by which the intention of the jstator is declared. It must be clear, I think, that efore such an instrument takes its turn for discus- on, there are several preliminary points to be ex- mined — as for example, what is it, what sort of ght or interest, which passes from a dead man on is decease ? to whom and in what form does it pass 1 nd how came it that the dead were allowed to con- 'ol the posthumous disposition of their property ? 'hrown into technical language, the dependence of le various conceptions which contribute to the nc/- on of a Will is thus expressed. A Will or Testa- lent is an insti-ument by which the devolution of Q inheritance is prescribed. Inheritance is a forii f universal succession. A universal succession is a iccession to a univers itas jiiris, or university of ghts and duties. Inverting this order we have lorefore to inquire what is a universitas juris ; 'hat is a universal succession ; what is the form of niversal succession which is called an inheritance ? L.nd there are also two further questions, indepen- ent to some extent of the points I have mooted, ut demanding solution before the subject of Wills an be exhausted. These are, how came an inheri- mce to be controlled in any case by the testator's Digitized by Microsoft® OHAP. Ti. UNIVERSITAS JURIS. 173 volition, and what is the nature of the insti-ument by which it came to be controlled ? The first question relates to the universitas juris j that is, a university (or bundle) of rights and duties. A v/niversita-s juris is a collection of rights and du*' ties united by the single circumstance of their having belonged at one time to some one person. It is, as it were, the legal clothing of some given individual. It is not formed by grouping together any rights and any duties. It can only be constituted by taking all the rights and all the duties of a particular person. The tie which connects a number of rights of pro- perty, rights of waj", rights to legacies, duties of specific performance, debts, obligations to compensate wrongs — which so connects all these legal privileges and duties together as to constitute them a universi- tas juris^ is the fact of their having attached to some individual capable of exercising them. With- out this fact there is no university of rights and duties. The expression universitas ju/ris is not clas- sical, but for the notion jurisprudence is exclusively "indebted to Roman law ; nor is it at all difficult to seize. We must endeavour to collect under one con- ception the whole set of legal relations in which each one of us stands to the rest of the world. These, whatever be their character and composition, make up together a universitas juris ; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. Our duties may Digitized by Microsoft® 174 UNIVERSAL SUOOESSIOK obap. ti ovei'balance our rights. A man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. But for all that, the entire group of rights and duties which centres in him is not the less a " juris universitas." We come next to a " universal succession." A juniv ^sal succession is a succ ession to a universitas juris. It occurs when one man is invested with the ' legal clothing of another, becoming at the same mo- ment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect, the devolution must take place uno ictv^ as the jurists phrase it. It is of course possible to conceive one man acquiring the whole of the rights and duties of another at differ- ent periods, as for example by successive purchases ; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. But though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. In order that tl^ere may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the same vaovanTii and in virtue of the sa7ne legal capacity in the recipient. The notion of a universal succession, like that of a jui'is universitas, is permanent in jurisprudence, though in the English legal system it is obscured by the great variety of Digitized by Microsoft® CHAP. VI. THE UNIVERSAL SUCCESSOR. 175 capacities ia which rights are acquired, and, above all, by the distinction between the two great prov- inces of English property, "realty" and "personal- ty." The succession of an assignee in bankruptcy I to the entire property of the bankrupt is, however, / a universal succession, though as the assignee only pays debts to the extent of the assets this is only a \'' modified form of the primary notion. Were it com- mon among us for persons to take assignments of all a man's property on condition of paying all hia debts, such transfers would exactly resemble the uni- versal successions known to the oldest Roman Law, When a Roman citizen adrogated a son, i. e. took a I man, not already under Patria Potestas, as his adop- tive child, he succeeded universally to the adoptive child's estate, i. e. he took all the property and be- came liable for all the obligations. Several other forms of universal succession appear in the primitive Roman Law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, Hsereditas or In- heritance. I nheritance was, a unive iaa l su& eessii3n pcciirring at a de^th . The universal successor was Ha^res or Heir. He stepped at once into all the rights and all the duties of the dead man. He was instantly clothed with his entire legal person, and I need scarcely add that the special character of the Hseres remained the same, whether he was named by a Will or whether he took on an Intestacy. The / term Haeres is no more emphatically used of the 1 Digitized by Microsoft® 176 THE HEIR. chap. vi. 1 Intestate thau of the Testamentary Heir, for tlie manner in which a man became Haeres had nothing to do with the legal character he sustained. The dead man's universal successor, however he became so, whether by Will or by Intestacy, was his Heir. But the heir was not necessarily a single person. A group of persons, considered in law as a sin- gle unit, might succeed as co-Jieirs to the Inheri- tance. Let me now quote the usual Roman definition of an Inheritance. The reader will be in a position to appreciate the full force of the separate terms. S^ ''7. (JiH(Breditas est successio in tiniversiim jus quod d^- -t^ " ■>»'< /vJ£ functus liabuit ( '' an inheritance is a succession to . ,.iA,ftU\' the entire legal position of a deceased man "). The notion was that though the physical person of the deceased had perished, his legal personality survived and descended unimpaired on his Heir or Co-heirs, in whom his identity (so far as the law was con- cerned) was continued. Our own law, in constitut- ing the Executor or Administrator the representa- tive of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated ; but, although it illustrates, it does not explain it. The view of even the later Koman Law required a closeness of correspondence between the position of the deceased and of his Heir which is no feature of an English representa- tion ; and in the primitive jurisprudence everything turned on the continuity of succession. Unless Digitized by Microsoft® onAP. VI. PRIMITIVE SOCIETY. 177 provision was made in the will for the instant devo- lution of the testator's rights and duties on the Heir or Co-heirs, the testament lost all its effect. In modern Testamentary jurisprudence, as in the later Roman law, the object of first importance is the execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was the bestowal of the Universal Suc- cession. One of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. Yet that without the second of them the first would never have come into being is as certain as any proposi- tion of the kind can be. In order to solve this apparent paradox, and to bring into greater clearness the train of ideas which I have been endeavouring to indicate, I must bor- row the results of the inquiry which was attempted in the earlier portion of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are regarded and treated, not as individuals, but always as members of a particular group. Everybody is first a citizen, and then, as a citizen, he is a member of his order — of an aristocracy or a democracy, of an order of patricians or plebeians ; or in those societies which an unhappy fate has afflicted with a special perver- sion in their course of development, of a caste. Next, he is a member of a gens, house, or clan ; and lastly, he is a member of his family. This last was 12 Digitized by Microsoft® 178 THE PEIMITIVE FAMILY. chap, vi the narro\7est and most personal relation in which he stood ; nor, paradoxical as it may seem, was he ever regarded as himself, as a distinct individual. His individuality was swallowed up in his family. I repeat the definition of a primitive society given ( before. It has for its units, not individuals, but groups of men united by the reality or the fiction of blood-relationship. It is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. Contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly dis- tinct from the rest, each absolutely controlled by the prerogative of a single monarch. But though the Patriarch, for we must not yet call him the Pater-familias, had rights thus extensive, it is im- possible to doubt that he lay under an equal ampli tude of obligations. If he governed the family, fW was for its behoof. If he was lord of its posses- sions, he held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. The Family, in fact, was a Corporation ; and he was its representative or, we might almost say, its Public officer. He enjoyed rights and stood under duties, but the rights and duties were, in the contempla- tion of his fellow-citizens and in the eye of the law, Digitized by Microsoft® CHAP. Ti. THE FAMILY A CORPORATION. 179 quite as nmcli those of tlie collective body as his own. Let us consider for a moment, the effect whicli would be produced by the death of such u representative. In the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be a perfectly immaterial event. The person representing the collective body of the family and primarily responsible to municipal juris- diction would bear a different name ; and that would be all. The rights and obligations which attached to the deceased head of the house would attach, witliout breach of continuity, to his succes- sor ; for, in point of fact, they would be the rights and obligations of the family, and the family had the distinctive characteristic of a corpoi-ation — that it never died. Creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. All rights available to the family would be as available after the demise of the headship as before it — except that the Corporation would be obliged — if indeed lan- guage so precise and technical can be properly used of these early times — would be obliged to sue under a slightly modified name. The history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted — by what insensible gradations the relation of man Digitized by Microsoft® 180 FAMILIES AND INDIVIDUALS. ohap. vi to man substituted itself for the i-elatiou of tlie in dividual to Ms family and of families to each other The point now to be attended to is that even wheu the I'evolution had apparently quite accomplished itself, even when the magistrate had in great meas- ure assumed the place of the Pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities re- mained shaped by the influence of the obsolete privileges and coloured in every part by their reflec- tion. There seems little question that the devolu- tion of the Universitas Juris, so strenuously in- sisted upon by the Roman Law as the first condi- tion of a testamentary or intestate succession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, tliough with that newer phase it had no true or proper connection. It seems, in truth, that the pro- longation of a man's legal existence in his heir, or ' in a group of co-heirs, is neither more nor less than a characteristic of the family transferred by a fiction to iJie individual. Succession in corporations is necessarily universal, and the.family was a corpora- tion. Corporations_neyer_dgr*<5^he decease of in- dividual members makes no difl^erence to the collec- tive existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem Digitized by Microsoft® OUAP. Ti. COEPORATIOSS SOLE. ISl to have been transferred to tlie individual citLzeu His physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which in its corporate character was not of course liable to physical extinction. I observe that not a few continental jurists have ' much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examininij. Much liofht is cast upon it by a fiction in our own system with which all lawyers are familiar. English lawyers classify corporations as Corporations aggregate and Corpora- tions sole. A Corporation aggregate is a true cor- poration, but a Corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a Cor- poration. I need hardly cite the King or the Par- son of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed witb the leading attribute of Corporations — Perpetuity. Digitized by Microsoft® 182 OOEPOPvATIONS SOLE. chap, vt Now in the older theory of Roman Law the indi vidua! bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole, we shall not only realize the full concej^tion of an in- heritance, but have constantly at command the clue to the assumption in which it originated. It is an 1 axiom with us that the King never dies, being] a Corporation sole. His capacities are instantly filled by his successor, and the continuity of domin- ion is not deemed to have been interrupted. With the Romans it seemed an equally simple and natural process, to eliminate the fact of death from the devo- lution of rights and obligations. The testator lived on in his heir or in the group of his co-heirs. He was in law the same person with them, and if any one in his testamentary dispositions had even con- structively violated the principle which united his actual and his posthumous existence, the law re- jected the defective instrument, and gave the in- heritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. When a Roman citizen died intestate or leavinc; no valid Will, his descendants or kindred became Digitized by Microsoft® SHAP. VI. INTESTATE SUCCESSIOK ISJ Ills heirs according to a scale whicli will be present- ly described. The person or class of persons who succeeded did not simply represent the deceased, but, in conformity with the theory just delineated, they continued his civil life, his legal existence. The same results followed when the order of suc- cession was determined by a Will, but the theory of the identity between the dead man and his heirs was certainly much older tha,n any form of Testa- ment or phase of Testamentary jurisprudence. This indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject — whether wills would. ever have come into being at all if it had not been for these remarkable ideas connected with uni- versal succession. Testamentary law is the applica- tion of a principle which may be explained on a va- riety of philosophical hypotheses as plausible as they are gratuitous ; it is interwoven with every part of modern society, and it is defensible on the broadest grounds of general expediency. But the warning can neve r be too often r epeated, that the grand source of mistake in questions of jurispru- dence is the impression that those reasons which actuate us at the present moment, in the main tenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated^ It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might Digitized by Microsoft® 184 SUCCESSION' TO THE FAMILY. chap. vi. almost say confounded, with the theory of a man's posthumous existence in the person of his heir. The conception of a universal succession, finnly as it has taken root in jurisprudence, has not or* curred spontaneously to the framers of every body of lavi^s. Wherever it is novp found, it may l»e | shown to have descended from Roman law; and with it have come down a host of legal rules on the subject of Testaments and Testamentary gifts, which modern practitioners apply without discerning their relation to the parent theory. But, in the pure Roman jurisprudence, the principle that a man lives on in his Heir — the elimination, if we may so speak, of the fact of death — is too obviously for mistake the centre round -svhich the whole Law of Testa- mentary and Intestate succession is circling. The unflinching sternness of the Roman law in enforcing compliance with the governing theory would in it- self suggest that the theory grew out of something in the primitive constitution of Roman society ; but we may push the proof a good way beyond the presumption. It happens that several technical ex- pressions, dating from the earliest institutions of Wills at Rome, have been accidentally preserved to us. We have in Gains the formula of investiture by which the universal successor was created. We have the ancient name by which the person after- wards called Heir was at first designated. We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary Digitized by Microsoft® OHAP. VI. ORIGINAL OBJECT OF WILLS. 188 po'wer was expressly recognised, and the clauses / regulating Intestate Succession have also been pre- served. All these archaic phrases have one salient peculiarity. They indicate that what passed from the Testator to the Heir was the Family^ that is, the aggregate of rights and duties contained in the Patria Potestas and growing out of it. The ma- terial property is in three instances not mentioned at all ; in two others, it is visibly named as an adjunct or appendage of the Family. The original Will or Testament was therefore an instrument, or (for it was probably not at first in writing) a pro- ceeding by which the d evolution of the Famnl/tiyi^ ^ regulate d- It was a mode^ of declaring who was, to have th e chieftainship , in successioiLJo-th ^ Testato r. When Wills are u nderstoo d to have this for their original_objeet, we see at once how it is thatjthey came to be connected with one of the most curious relics of ancient religion and law, the sacra, or Family Rites. These sacra were the Roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. They are the sacrifices and ceremonies | by which the brotherhood of the family is commem-| orated, the pledge and the witness of its perpetuity. Whatever be their nature, — whether it be true oi not that in all cases they are the worship of some mythical ancestor, — they are everywhere employed to attest the sacredness of the family relation ; and therefore they acquire prominent significance and Digitized by Microsoft® 186 THE HINDOO SACRA. chap. v£ importance, whenever the continuous existence of the Family is endangered by a change in the person of its chief. Accordingly, we hear most about them in connection with demises of domestic sovereignty. Among the Hindoos, the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. If the rites are not properly performed or not performed by the proper person, no relation is considered as established be- tween the deceased and anybody surviving him ; the Law of Succession does not apply, and nobody can inherit the property. Every great event in the life of a Hindoo seems to be regarded as leading up to and bearing upon these solemnities. If he mar- ries, it is to have children who may celebrate them after his death ; if he has no children, he lies under the strongest obligation to adopt them from another family, " with a view," writes the Hindoo doctor, " to the funeral cake, the water, and the solemn sacrifice." The sphere preserved to the Roman sacra in the time of Cicero, was not less in extent. It embraced Inheritances and Adoptions. No Adoption was allowed to take place without due provision for the sacra of the family from which the \ adoptive son was transferred, and no Testament was allowed to distribute an Inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. The differences be- tween the Roman law at this epoch, when we obtain our last glimpse of the sacra, and the existing Hin- Digitized by Microsoft® 31IAP. VI. EOMAN AND HIKDOO SACRA. 187 doo system, are most instructive. Among tlie Hin- doos, the religious element in law has acquired a complete predominance. Family sacrifices have be- come the keystone of all the Law of Persons and much of the Law of Things. They have even re- ceived a monstrous extension, for it is a plausible opinion that the selfimmolation of the widow at hei husband's funeral, a practice continued to his- torical times by the Hindoos, and commemorated in the traditions of several Indo-European races, was an addition grafted on the primitive sacva under the influence of the impression, which always accom- panies the idea of sacrifice, that human blood is the most precious of all o_blaii©ns. With the Romans, on the contrary, the legal obligation and the re- ligious duty have ceased to be blended. The neces- sity of solemnising the sacra forms no part of the theory of civil law, but they are under the separate jurisdiction of the College of Pontiffs, The letters of Cicero to Atticus, which are full of allusions to them, leave no doubt that they constituted an in- tolerable burden on Inheritances ; but the point of ■ development at which law breaks away from reli- gion has been passed, and we are prepared for their entire disappearance from the later jurisprudence. ' In Hindoo law there is no such thing as a true Win. The place filled by Wills is occupied by Adoptions. We can now see the relation of the Testamentary Power to the Faculty of Adoption, and the reason why the exercise of either of them Digitized by Microsoft® 138 WILLS AKD ADOPTIONS. chap, vi could call up a peculiar solicitude for tlie perform ance of the sacra. Botli a Will and an Adoption threaten a distortion of the ordinary course of Fam- ily descent, but they are obviously contrivances for preventing the descent being wholly interrupted when there is no succession of kindred to carrv it on. Of the two expedients Adoption, the factitious creation of blood-relationship, is the only one which has suggested itself to the greater part of archaic societies. The Hindoos have indeed advanced one point on what was doubtless the antique practice, bj^ allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of Bengal some faint traces of the Testa- mentary powers. But to the R omans belongs pre-j eminently the credit of inventing the Will, the in-l stitution which, next to the Contract, has exercised] the greatest influence in transforming human so- ciety. We must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. It was at first not a mode of distributing a dead man's goods, but one among several ways of transferring the representation of the household to a new chief. The goods desceni no doubt to the Heir, but that is only because tha government of the family carries with it in its devo- lution the power of disposing of the common stock. We are very far as yet from that stage in the his- tory of Wills, in which they become powerful instru- ments in modifying society through the stimulus Digitized by Microsoft® OHAP. 7L ROMAN" IDEAS OF SUCCESSION". 189 they give to the circulation of property aud the plasticity they produce in proprietary rights, No such consequences as these appear in fact to have been associated vs^ith the Testamentary power even by the latest Roman lawyers. It will be found that Wills were never looked upon in the Roman community as a contrivance for parting Property and the Family, or for creating a variety of miscel- laneous interests, but rather as a means of making a better provision for the members of a household! than could be secured through the rules of Intestate | succession. We may suspect indeed that the asso- ciations of a Roman with the practice of will-mak- ing were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had something to do with the singular laxity of Roman notions as to the inherit- ance of sovereignty. It is impossible not to see that the succession of the early Roman Emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such Princes as Theo- dosius or Justinian to style themselves Caesar and Augustus. When the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth 3entury considered doubtful, that Intestate Inheri- 1 tance is a more ancient institution than Testamen Digitized by Microsoft® 190 EAEITY OF TESTAMENTARY POWER, chap, ti, tary Saccession. As soon as this is settled, a ques- tion of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthu- mous distribution of property. The difficulty of deciding the point arises from the rarity of Testa mentary power in archaic communities. It is doubt- ful whether a true power of testation was known to any original society except the Roman. Rudi- mentary forms of it occur here and there, but most of them are not exempt from the suspicion of a Roman origin. The Athenian Will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate Testament. As to the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian JjjCy j conquerors of imperial Rome, they are almost cer- i^' tainly Roman. The most penetrating German crit- icism has recently been directed to these leges JBav- harorum^ the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed fi'om the laws of the Romans. In the course of this pro- cess, one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a Will. Whatever testamentary law exists, has been taken from Roman jurisprudence. Similarly^ the rudimentary Testament which (as I am inform- Digitized by Microsoft® CHAP. VI. PRIMITIVE OPERATION OF WILLS. 191 ed) the Eabbinical Jewish law provides for, liaa been attribiited to contact with the Romans. The only form of testament, not belonging to a Roman or Hellenic society, which can reasonably be sup- posed indigenous, is that recognised by the usages of the province of Bengal ; and the testament of Bengal is only a rudimentary Will. The evidence, however, such as it is, seems to point to the conclusion that Testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. Thus, when Athenian citi- zens were empowered for the first time by the Laws of Solon to execute Testaments, they_w;ere^ forbidden to disinherit their direct male descen- dants. So, too, the Will of Bengal is only per- mitted to govern the succession so far as it is con- sistent with certain oveniding claims of the family. Again, the original institutions of the Jews having provided nowhere for the privileges of Testator- ship, the later Rabbinical jurisprudence, which pre- tends to suply the casus omissi of the Mosaic law, allows the power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant, and point in the same direction. It is the pecaliar- ty of most of these German laws, in the only shape Digitized by Microsoft® 192 OLD GERMANIC WILLS. chap, vl in whicL wc know ttem, that, besides tlie allod or domain of eacli household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of being disposed of by testa- ment, but it is scarcely capable of being alienated . by conveyance inter vivos. The ancient German law, like the Hindoo jurisprudence, makes the male children co-proprietors with their fatherTanS^ tne endowment of tlie° family cannot be parted with ex- cept by the consent of all its members. But the other sorts of property, of more modern origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. Women and the descendants of women succeed to them, ob- viously on the principle that they lie outside the sacred precinct of the Agnatic brotherhood. Now. it is on these last descriptions of property, and on these only, that the Testaments borrowed from Rome were at first allowed to operate. These few indications may serve to lend addi- tional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of Roman wills. We have it stated on abundant authority that Testaments, during the primitive period of the -Roman State, Digitized by Microsoft® CHAP. VI. THE COMITIA CALATA. 193 were executed in the Comitia Calata, that is, in the Coniitia Curiata, or Parliament of the Patrician Burghers of Rome, when assembled for Private Business, This mode of execution has been the source of the assertion, handed_dQ.wxi by one- gen- I eration of civi lians to another, that every Will at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceed- ings of the ancient assembly. The proper key to the story concerning the execution of Wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of intestate succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the Edictal Law of the Praetor, to the following effect : — First, the sui or direct descendants who had never been emancipated succeeded. On the failure of the sui, the Nearest Agnate came into their place, that is, the nearest person or class of the kindred who was or might have been under the same Patria Potestas with the deceased. The third and last degree came next, in which the inheritance devolved on the gen- tiles, that is, on the collective members of the dead man's gens or House. The House, I have explained already, was a fictitious extension of the family, consisting of all Roman Patrician citizens who bore the same name, and who on the ground of bearing 13 Digitized by Microsoft® 194 JUEISDICTI0J7 OF TOE COMITIA. oh&p. tt. the same name, were supposed to be descended from a common ancestor. Now the Patrician As- sembly called the Comitia Curiata was a Legisla- ture in which Gentes or Houses were exclusively represented. It was a repi'esentative assembly of the Roman people, constituted on the assumption that the constituent unit of the state was the Gens. This being so, the inference seems inevitable, that the cognisance of Wills by the Comitia was con- nected with the rights of the Gentiles, and was in- tended to secure them in their privilege of ultimate inheritance. The whole apparent anomaly is re- moved, if we suppose that a Testament could only be made when the testator had no gentiles discov- erable, or when they waived their claims, and that every Testament was submitted to the Genei\al As- sembly of the Koman Gentes, in order that those aggrieved by its dispositions might put their veto Sipon it if they pleased, or by allowing it to pa s might be presumed to have renounced their rever- sion. It is possible that on the eve of the publicar tion of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier, however, to indicate the meaning and origin of the jurisdic- tion confided to the Comitia Calata, than to trace its gradual development or progressive decay. The Testament to which the pedigree of all modern Wills may be traced is not, however, the Testament executed in the Calata Comitia, biit Digitized by Microsoft® onAP. VI. PLEBEIAN "WILLS. 195 anotter Testament designed to conapete with it and destined to supersede it. The historical importance of this early Roman Will, and the light it casts on much of ancient thought, will excuse me for de- scribing it at some length. When the Testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great Roman institutions, it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim, Plebs Gentem non Jiabet, " a Plebeian cannot be a member of a house," was entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly, and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was not represented. Whatever be the true view, a form of Testament came into use, which has all the characteristics of a i contrivance intended to evade some distasteful ob- ligation. The Will in question was a conveyance* inter vivos, a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have permitted such an alienation, but when the transaction was intended to have a posthumous effect, there may have been Digitized by Microsoft® 196 THE PLEBEIAN WILL. chap. ti. disputes whether it was valid for Testamentary purposes without the formal assent of the Patrician Parliament. If a difference of opinion existed on the point between the two classes of the Roman population, it was extinguished, with many other sources of heartburning, by the great Decemviral compromise. The text of the Twelve Tables is still extant which says, '■'■Pater familia-s uti de pecunia tutelave rei su{ property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was piractically but one distinction left standing of all those which had been known to the western world — the distinction between laud and goods, immoveables and moveables. Externally this distinction was the same with that which Eoman law had finally accepted, but the law of the middle ages differed from that of Eome in distinctly con- sidering immoveable property to be more dignified than moveable. Yet this one samjJe is enough to show the importance of the class of expedients to which it belongs. In all the countries governed by systems ba.sed on the French codes, that is, through much the greatest part of the Continent of Europe, the law of moveables, which was al ways Eoman law, has superseded and annulled the feudal law of land England is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be added, is the only considerable European countiy in which the separation of moveables from immovea- bles has been somewhat disturbed Viy the same in- fluences which caused the ancient classifications to depart from the only (me which is countenanced by nature. In the main, the English distinction has been between land and goods ; but a certain class of goods have gone as heir-looms with the land, and a Digitized by Microsoft® CHAP. vm. PRESCKIPTIOIir. 275 certain description of interests in land have from historical causes been i-anked with personalty. This is not the only instance in which English jui'ispru dence, standing apart fi-om the main current of legal modification, has reproduced phenomena of archaic law. I proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those which are of great antiquity. On one of them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very in- fancy of legal science. There is no principle in all law which the moderns, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the Romans as Usucapion, and which has descended to modern jurisprudence under the name of Prescription. It was a positive rule of the oldest Roman law, a rule older than the Twelve Tables, that commodities which had been uninterruptedly possessed for a certain period became the property of the possessor. The period of possession was ex- ceedingly short — one or two years, according to the nature of the commodities — and in historical times Digitized by Microsoft® 276 INFLUENCE OF CANON LAW. chap. vm. Usucapion was only allowed to operate when posses- sion had commenced in a particular way ; but T think it likely that at a less advanced epoch posses- sion was converted into ownership under conditions even less severe than we read of in our authorities. As I have said before, I am far from asserting that ths respect of men for cle facto possession is a phe- nomenon which jurisprudence can account for by itself, but it is very necessary to remark that primi- tive societies, in adopting the principle of Usuca- pion, were not beset with any of the speculative doubts and hesitations which have impeded its re- ception among the moderns. Prescriptions were viewed by the modern lawyers, first with repug- nance, afterwards with reluctant approval. In sev- eral countries, including our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some preceding reign ; nor was it till the middle ages had finally closed, and James the First had ascended the throne of England, that we obtained a true statute of limi- tation of a very imperfect kind. This tardiness in copying one of the most famous chapters of Roman law, which was no doubt constantly read by the majority of European lawyers, the modern world owes to the influence of the Canon Law. The ecclesiastical customs out of which the Canon Law grew, concerned as they were with sacred or quasi- Digitized by Microsoft® CHAP. Tui. INFLUENCE OF CANON LAW. 271 sacred interests, very naturally regarded the pi'ivi- leges which they conferred as incapable of being lost through disuse however prolonged ; and in ac- cordance with this view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against Prescriptions. It was the fate of the Canon Law, when held up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles. It gave to the bodies of custom which were formed throughout Europe far fewer express rules than did the Roman law, but then it seems to have communicated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus pro- duced progressively gained strength as each system was developed. One of the dispositions it produced was a disrelish for Prescriptions ; but I do not know that this prejudice would have operated as power- fully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever tui-n actual legislation might take, a right^ how long soever neglected, was in point of fact indestructible. The remains of this state of feeling still exist. Wherever the philoso- phy of law is earnestly discussed, questions respect- mg the speculative basis of Prescription are always hotly disputed ; and it is still a point of the greatest interest in France and Germany, whether a person who has been out of possession for a series of years is deprived of his ownership as a penalty for hia Digitized by Microsoft® 278 ROMAN USUCAPION". chap, tiil neglect, or loses it through the summary interposi- tion of the law in its desire to have a firds litium. But no such scruples troubled the mind of early Roman society. Their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. What was the exact tenor of the rule of Usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. In order to have the benefit of Usucapion, it was necessary that the adverse pos- session should have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the property, and it was further required that the commodity should have been transferred to him by some mode of alienation which, however unequal to conferring a complete title in the particular case, was at least recognised by the law. In the case thei'efore of a Mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a Tra- dition or Delivery, the vice of the title would be cured by Usucapion in two years at most. I know nothing in the practice of the Romans which testifies so strongly to their legal genius as the use which they made of the Usucapion. The diflSculties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of Digitized by Microsoft® OHAP. vui. COLLUSIVE RECO'V'EEIES. 279 England. Owing to tlie complexity of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. But Usucapion, as manip- ulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were again rapidly cemented together with the briefest possible delay. Usucapion did not lose its advanta- ges till the reforms of Justinian. But as soon as law and equity had been completely fused, and when Mancipation ceased to be the Roman conveyance, there was no further necessity for the ancient con- trivance, and Usucapion, with its periods of time considerably lengthened, became the Prescription which has at length been adopted by nearly all systems of modern law. I pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in Eng- lish legal history, was of immemorial antiquity in Roman law ; such indeed is its apparent age that Bome German civilians, not sufficiently aware of the light thrown on the subject by the analogies of English law, have thought it even older than the Mancipation. I speak of the Cessio in Jure, a col- lusive recovery, in a Court of Law, of property Bought to be conveyed. The plaintiff claimed the Digitized by Microsoft® 280 COLLUSIVE REOOYERLES. oniP. Tin. subject of this proceeding n^ith tlie ordinary formg of a litigation; the defendant made default; and the commodity was of course adjudged to the plain- tiff. I need scarcely remind the English lawyer thai this expedient suggested itself to our forefathers, and produced those famous Fines and Recoveries which did so much to undo the harshest trammels of the feudal land-law. The Roman and English contrivances have very much in common, and illus- trate each other most instructively, but there is this difference between them, that the object of the English lawyers was to remove complications already introduced into the title, while the Roman jui-iscon- suits sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. The device is in fact one which suggests itself as soon as Courts of Law are in steady operation, but are nevertheless still under the empire of primitive notions. In an advanced state of legal opinion, tribunals regard collusive litigation as an abuse of their procedure ; but there has always been a time when, if their forms were scrupulously complied with, they never dreamed of looking further. The influence of Courts of Law and of their procedure upon property has been most extensive, but the subject is too large for the dimensions of this treatise, and would cairy us further down the course of legal history than is consistent with its Bcheme. It is desirable, however, to mention, that Digitized by Microsoft® OKAP. vm. PROPERTY AND POSSESSION". 281 to this influence we must attribute the importance of the. distinction between Property and Possession — not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so — ■ but the extraordinary importance which the distinc- tion has obtained in the philosophy of the law. Few educated persons are so little versed in legal litera- ture as not to have heard that the language of the Koman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the solution which he dis- covered for the enigma. Possession, in fact, when employed by the Roman lawyers, appears to have contracted a shade of .meaning not easily accounted for. The word, as appears from its etymologj^, must have originally denoted physical contact or physical contact resumeable at pleasure ; but as actually used, without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled vith the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived that for this anomaly there could only be a histori- cal origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere pos- sessors, but then they were possessors intending to Digitized by Microsoft® 282 PROPERTY AND POSSESSION. ouiP. Tin. keej) their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the les- sees of Church lands. Admitting that in theory they were the tenants-at-will of the state, they con- tended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. The asso- ciation of this claim with the Patrician tenancies, permanently influenced the sense of " possession.'' Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threat- ened with disturbance, were the Possessory Inter- dicts, summary processes of Roman law which were either expressly devised by the Praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be understood that everyl^ody who possessed prop- erty as Ids own had the power of demanding the [oterdicts, and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr. John Austin pointed out, exactly re- produced itself in English law. Proprietors, domini, began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formal- Digitized by Microsoft® CHAP. vm. LAW AND EQUITY. 283 ities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. The liberty con ceded to persons who were not true Possessors, but Ownei"s, to vindicate their rights by possessoiy remedies, though it may have been at first a boon, had ultimately the effect of seriously deteiiorating both English and Roman jurisprLulence. The Ro- man law owes to it those subtleties on the subject of Possession which have done so much to discredit it, while English law, after the actions which it ap- propriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacri- ficed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. Legal tribunals have also poweifully assisted to shape and modify conceptions of proprietary right })y means of the distinction between Law and Equity, which alwaj's makes its fii'st appearance aa a distinction between jurisdictions. Equitable prop- erty in England is simply property held under the Digitized by Microsoft® 284 EQUITABLE PEOPEETY. chap. Tin jurisdiction of the Court of Chancery. At Rome the Praetor's Edict introduced its novel principles in the guise of a promise that under certain circum stances a particular action or a particular plea would be granted ; and, accordingly, the property in lonis, or Equitable Property, of Roman law was property exclusively protected by remedies which had their source in the Edict. The mechanism by which equi- table rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. With us their independence is secured by the Injunction of the Court of Chancery, Since however Law and Equity, while not as yet consolidated, were administered under the Roman system by the same Court, nothing like the Injunc- tion was required, and the Magistrate took the sim- pler course of i-efusing to grant to the Civil Law Owner those actions and pleas by which alone he could obtain the property that belonged in equity to another. But the practical operation of both systems was nearly the same. Both, by means of a distinction in procedure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recog- nised by the whole law. In this way, the Roman Praetor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usuca- pion. Similarly he in time recognised an ownership in the Mortgagee, who had at first been a mere Digitized by Microsoft® eH.»p.vin. FEUDAL VIEW OF OWITERSHIP. 285 "bailee" or depositaiy, and in the Emphyteuta, or tenant of land which was subject to a fixed per- petual rent. Following a parallel line of progress, the English Court of Chancery created a special proprietorship for the Mortgagor, foi- the Cestui que Trust, foi- the Married Woman who had the advantage of a particular kind of settlement, and for the Purchaser who had not yet acquired a com- plete legal ownership. All these are examples in which forms of proprietary right, distinctly new, were recognised and preserved. But indirectly Property has been affected in a thousand ways by equity, both in England and at Rome. Into what- ever corner of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. When in the preceding pages I have spoken of certain ancient legal distinc- tions and expedients as having powerfully affected the history of ownership, I must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improve- ment infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. But to describe the influence of Equity on Own- ership would be to- write its history down to our own days. I have alluded to it principally because several esteemed contemporary vpriters have thought that in the Roman severance of Equitable from Le- Digitized by Microsoft® 286 ROMAN AND BAEBAEIAN LAW. chap, viu gal property we have the clue to that difference m the couception of Ownership, which apparently dis- tinguishes the law of the middle ages from the law of the Roman Empire. The leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief coexisting with the inferior property or estate of the tenant. Now, this duplication of pro- prietary right looks, it is urged, extremely like a generalised form of the Roman distribution of rights over property into Quiritarian or legal, and (to use a word of late origin) Bonitarian or equitable. Gains himself observes upon the splitting of domin- ion into two parts as a singularity of Roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. Justinian, it is true, reconsolidated dominion into one, but then it was the partially reformed system of the Western Empnre, and not Justinian's jurispru- dence, with which the barbarians were in contact during so many centuries. While they remained poised on the edge of the Empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. In favour of this theory, it must at all events be admitted that the element of Roman law in the various bodies of barbarian cus- tom has been very imperfectly examined. The erro- neous or insufficient theories which have served to explain Feudalism resemble each other in their ten- dency to draw off attention from this particular in- Digitized by Microsoft® OHAP. Tin. ROMAN AND BAEBAETAN LAW. 28V gredient in its texture. The older investigators, who have been mostly followed in this country, attached an exclusive importance to the circum stances of the turbulent period during which the Feudal system grew to maturity ; and in later timea a new source of error has been added to those already existing, in that pride of nationality which has led German writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the Roman world. One or two English inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too ex- clusively for analogies in the compilations of Justi- nian, or from confining their attention to the com- pendia of Roman law which are found appended to some of the extant barbarian codes. But, if Roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of Justinian, and before the preparation of these compendia. It was not the reformed and purified jurisprudence of Jus- tinian, but the undigested system which prevailed in the Western Empire, and which the Eastern Corpus Juris never succeeded in displacing, that I conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. The change must be supposed to have taken place before the Germanic tribes had distinctly appropriated, as conquerors, Digitized by Microsoft® 283 EOMAN AST) BAEBAEIAN LAW. chap, vra any portion of the Roman dominions, and thei-efore long before Germanic monarchs had ordered brevia ries of Roman law to be drawn up for the use of their Roman subjects. The necessity for some such hypothesis will be felt by everybody who can appre- ciate the difference between archaic and developed law. Rude as are the Leges Barharorum which re- main to us, they are not rude enough to satisfy the theory of their purely barbarous origin ; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. If we can once persuade ourselves that a considerable element of debased Roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. The German law of the conquerors and the Roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. It is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood Roman rules, and that it was the foreign ingredient which enabled them to coalesce with a Roman jurisprudence that had already rece- ded somewhat from the comparative finish which it had acquired under the Western Emperors. But, though all this must be allowed, there are several considerations which render it unlikely that Digitized by Microsoft® CHAP. Tin. THE EMPHYTEUSIS. 289 the feudal form of ownership was directly suggested by the Roman duplication of doraainial rights. The distinction between legal and equitable property strikes one as a subtlety little likely to be appreciate*! by barbarians ; and, moreover, it can scarcely be un- derstood unless Coui'ts of Law ai-e contemplated in regular operation. But the strongest reason against this theory is the existence in Roman law of a form of property — a creation of Equity, it is true — which supplies a much simpler explanation of the transi- tion from one set of ideas to the other. This is the Emphyteusis, upon which the Fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bring- ing feudal ownership into the world. The truth is that the Emphyteusis, not probably as yet known by its Greek designation, marks one stage in a cur- rent of ideas which led ultimately to feudalism. The fii'st mention in Roman history of estates larger than could be farmed by a Paterfamilias, with his house- hold of sons and slaves, occurs when we come to the holdings of the Roman patricians. These great pro- prietors appear to have had no idea of any system of farming by free, tenants. Their latifundia seem to have been universally cultivated by slave-gangs, nnder bailiffs who were themselves slaves or freed men ; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them \}a%pe(yalium of the better and trustiei- sort, who thus acquired a kind 19 Digitized by Microsoft® 2a0 SYSTEMS OF TENANCY. ch4P. thi of interost in the efficiency of theii' labour. Tliis system was, however, especially disadvantageous to one class of estated proprietors, the Municipalities. Functionaries in Italy were changed with the ra- pidity which often surprises us in the administration of Rome herself; so that the superintendence of a large landed domain by an Italian corporation must have been excessively imperfect. Accordingly, we are told that with the municipalities began the prac- tice of letting out agri vectigules^ that is, of leasing land for a pei'petuity to a free tenant, at a fixed rent, and under certain conditions. The plan was afterwards extensively imitated by individual pro- prietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the Praetor as having himself a qualified proprietorship, which in time be- came known as an Emphyteusis. From this point the history of tenure parts into two branches. In the course of that long period during which our records of the Roman Empii'e are most incomplete, the slave-gangs of the great Roman families became transformed into the colonic whose origin and situa- tion constitute one of the obscurest questions in all history. We may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers ; and that they prove the richer classes of the Roman Empire to have become aware of the increased value which landed property obtains when the cultivator has an Digitized by Microsoft® CHAP. viii. THE COLONI. 291 interest m the produce of the land. We know that their servitude was predial ; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in ren- dering to him a fixed portion of the annual crop. "We know further that they survived all the muta- tions of society in the ancient and modern worlds. Though included in the lower courses of the feudal structure, they continued in many countries to ren- der to the landlord precisely the same dues which they had paid to the Roman dominu-s^ and from a particular class among them, the coloni medietarii, who reserved half the produce for the owner, are descended the metayer tenantry, who still conduct the cultivation of the soil in almost all the South of Europe. On the other hand, the Emphyteusis, if we may so interpret the allusions to it in the Corpus Juris^ became a favorite and l")eneficial modification of property ; and it may be conjectured that wher- ever free farmers existed, it was this tenure which regulated their interest in the land. The Prsetor, as has been said, treated the Eraphyteuta as a true proprietor. When ejected, he was allowed to rein- state himself by a Real Action, the distinctive badge of proprietary right, and he was protected from dis- turbance by the author of his lease so long as the canon, or quit-rent, was punctually paid. But at the same time it must not be supposed that the ownership of the author of the lease was either ex- tinct or dormant. It was kept alive by a power of Digitized by Microsoft® 292 ORIGIN' OF TENURE. chap, via re-entry on non-payment of the rent, a right of pre- emption in case of sale, and a certain control over the mode of cultivation. We have, therefore, in the Emphyteusis a striking example of the double own- ership which characterised feudal property, and one, moreover, which is much simpler ftnd much more easily imitated than the juxtaposition of legal and equitable rights. The history of the Roman tenure does not end, however, at this point. We have clear evidence that between the great fortresses which, disposed along the line of the Rhine and Danube, long secured the frontier of the Empire against its barbarian neighbours, there extended a succession of strips of land, the agri limitrophi^ which vs^ere occupied by veteran soldiers of the Ro- man army on the terms of an Emphyteusis. There was a double ownership. The Roman State was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. In fact, a sort of garrison-duty, under a system closely re- sembling that of the military colonies on the Austro- Turkish border, had taken the place of the quit-rent which was the service of the ordinary Emphyteuta. It seems impossible to doubt that this was the pre- cedent copied by the barbarian monarchs who founded feudalism. It had been within their view tor some hundred years, and many of the veterans who guarded the border were, it is to be remem- Digitized by Microsoft® cnAP. fill. FEUDAL SEEVIOES. 293 bered, themselves of barbarian extraction, who probably spoke the Germanic tongues. Not only does the proximity of so easily followed a model ex- plain whence the Frankish and Lombard Sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain ; but it perhaps explains the tendency which immediately showed itself in the Benefices to become hereditary, for an Emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee. It is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were cei-tainly not rendered by the Emphyteuta. The duty of respect and gratitude to the feudal superior, the obligation to assist in en- dowing his daughter and equipping his son, the lia- bility to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of Patron and Freedman under Koman law, that is, of quondam- master and quondam-slave. But then it is known that the earliest beneficiaries were the personal com panions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first at- tended by some shade of servile debasement. The Digitized by Microsoft® 294, FEUDAL SERVICES. chap, vm pei'son who ministered to tBe Sovereign in his Court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. Digitized by Microsoft® CHAPTER IX. THE EABLT MISTOBT OF CONTRACT. TiiEEE are few general propositions concerning tlie age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by Contract. Some of the phenomena on which this proposition rests are among those most fre- quently singled out for notice, for comment, and for eulogy, i Not many of us are so uDobservant as not to perceivejthat in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention ; and indeed several of the few excep- tions which remain to this rule are constantly de- nounced with passionate indignation. The point, for instance, which i> really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not Digitized by Microsoft® 295 OONTRAOT AND POLITICAL ECOITOMY. chap. ix. belong to by-gone institntions, and whether the only relation between employer and labourer which com- mends itself to modern morality be not a relation de- termined exclusively by contract. The recognition of this difference between past ages and the present enters into the verv essence of the most famous con- temporary speculations. It is certain that the science of Political Economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that Imperative Law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty nevei- allowed to them till recently. The bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their ef- forts are ordinarily directed to enlai'ging the province of Contract and to curtailing that of Imperative Law, [except so far as law is necessary to enforce the per- formance of Contracts. The impulse given by think- ers who are under the influence of these ideas is be- ginning to be very strongly felt in the Western \vorld. Legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth ; and the law even of the least advanced communities tends more and more to become a mere surface-stratum, having under it an ever-changing as- Digitized by Microsoft® nHAi>. IX, CURRENT OPINIONS AS TO CONTRACT. 297 semblage of contractual rules witli which it rarely in- terferes except to compel compliance with a few fun- damental principles, or unless it be called in to pun- ish the violation of good faith. Social inquiries, so far as they depend on the con- sideration of legal phenomena, are in so backward a condition that we need not be surprised at not find- ing these truths recognised in the commonplaces which pass current concerning the progress of so- ciety. These commonplaces answer much more to our prejudices than to our convictions. The strong disinclination of most men to regard morality as ad- vancing seems to be especially powerful when the virtues on which Contract depends are in question, and many of us have an almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. From time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the pe- riod at which they were observed, and astonishing from their complication as well shocking from crimi- nality. But the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. It is the gonfidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that if colossal examples of dishonesty occur, there is no Digitized by Microsoft® 298 THEFT AKD BREACH OF TRUST. chap. li surer conclusion than that scrupulous honesty is dis* played in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity. If we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of Contract but on the law of Crime, we must be careful that we read it aright. The only form of dishonesty treated of in the most ancient Roman law is Theft. At the mo- ment at which I write, the newest chapter in the Eng- lish criminal law is one which attempts to prescribe punishment for the frauds of Ti'ustees. The proper inference from this contrast is not that the primitive Romans practised a higher moi'ality than ourselves. We should rather say that, in the interval between their day and ours, morality had advanced from a very rude to a highly refined conception — ^from view- ing the rights of property as exclusively sacred, to looking upon the rights growing out of the niei-e unilateral reposal of confidence as entitled to the protection of the penal law. The definite theories of jurists are scarcely nearer the truth in this point than the opinions of the mul- titude. To begin with the views of the Roman law- yers, we find them inconsistent with the true history of moral and legal progress. One class of contracts, in which the plighted faith of the contracting par- ties was the only material ingredient, they specifically denominated Contracts ^wi? gentium^ and tliough these contracts were undoubtedly the latest born Digitized by Microsoft® CHAP. IS. THEORIES OF COXTEACT. 299 into the Eoman system, the expression emploj'ed implies, if a definite meaning be extracted from it, that they were more ancient than ceiiain other forms of engagement treated of in Roman law, in which the neglect of a mei'e technical formality was as fatal to the obligation as misunderstanding or deceit. But then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the Present ; nor was it until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought that a " Contract of the Law of Na- tions'' came to be distinctly looked upon as a Conti-act known to man in a state of Nature. Rousseau adopted both the judicial and the popular erroi'. In the Dis- sertation on the effects of Art and Science upon Morals, the first of his works which attracted atten- tion and the one in which he states most unreserved- ly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient Persians are repeatedly pointed out as ti-aits of primi- tive innocence which have been gradually obliterat- ed by civilisation ; and at a later period he found a basis for all his speculations in the doctrine of an original Social Contract. The Social Conti-act or Compact is the most systematic form which has ever been assumed by the error we are discussing. It is a theory which, though nursed into importance by political passions, derived all its sap from the specu- lations of lawyers. True it certainly is that the fa- Digitized by Microsoft® 300 THEORIES OF CONTRACT. cuk^.ts. mous Englishmen, for whom it had fii"st had attrao tion, valued it chiefly for its political serviceableness, but, as I shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseo- logy. Nor were the English authors of the theory blind to that speculative amplitude which recom- mended it so strongly to the Frenchmen who in- herited it from them. Their writings show they perceived that it could be made to account for all social, quite as well as for all political phenomena. They had observed the fact, ali-eady striking in their day, that of the positive rules obeyed by men, the greater pai-t were created by Contract, the lesser by imperative Law. But they were ignorant or care- less of the historical relation of these two consti- tuents of jurisprudence. It was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of eluding the doctrines which claimed a divine parentage for Imperative Law, that they devised the theory that all Law had its origin in Contract. In another stage of thought, they would have been satisfied to leave their theory in the con- dition of an ingenious hypothesis or a convenient verbal formula. But that age was under the domin- ion of legal superstitions. The State of Xature had been talked about till it had ceased to be regai-ded as paradoxical, and hence it seemed easy to give a fal- lacious i-eality and definiteness to the contractual ori- Digitized by Microsoft® CHAP. IX. ANALYSIS OF SOOIAX PHENOMENA. 301 gin of Law by insisting on the Social Compact as a historical fact. Our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellec- tual state to which they belong, and partly by al- most ceasing to theorise on such subjects altogether. The favorite occupation of active minds at the pre- sent moment, and the one which answers to the speculations of our forefethers on the origin of the social state, is the analysis of societj' as it exists and moves before our eyes; but, through omitting to call in the assistance of history, this analysis too often de- generates into an idle exercise of curiosity, and is es- pecially apt to incapacitate the inquirer for compre- hending states of society which differ considerably from that to which he is accustomed. The mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of sup- posing that every wheel or bolt in the modern social machine had its counterpart in more rudimentary -so- cieties. Such impressions ramify very widely, and masque themselves very subtly, in historical works written in the modern fashion ; but I find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of Montesquieu concerning the Troglodytes, inserted in the Letin^es Persane-s. The Troglodytes were a people who systematically violated their Con- tracts, and so perished utterly. If the story bears the moral which its author intended, and is employ- Digitized by Microsoft® 803 MONTESQUIEU'S APOLOGUE. cnAP. a. ed to expose an anti-social heresy by vrhicb this cen- tury and the last have been threatened, it is most un- exceptionable ; but if the inference be obtained from it that society could not possibly hold together with- out attaching a sacredness to promises and agi-ee- ments which should be on something like a par with the respect that is paid to them by a mature civili- sation, it involves an error so grave as to be fatal to all sound understanding of legal history. The fact is that the Troglodytes have flourished and founded- powerful states with very small attention to the ob- ligations of Contract. The point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. The rules which he obeys are derived first from the sta- tion into which he is born, and next from the im- perative commands addressed to him by the chief of the household of which he forms a part. Such a sys- tem leaves the very smallest room for Contract. The members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disre- gard the engagements by which any one of its sub- ordinate membei-s has attempted to bind it. Family, it is true, may contract with family, and chieftain with chieftain, but the transaction is one of the same na- ture, and encumbered by as many formalities, as the alienation of property, and the disregard of one iota of the performance is fatal to the obligation. The Digitized by Microsoft® CHAP. IX. EARLY NOTIONS OF CONTEAOTS. 808 positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. Neither Ancient Law nor any other source of evidence discloses to us society entirely destitute of the conception of Contract. But the conception, when it first shows itself, is obviously rudimentary. No trustworthy primitive record can he read with- out perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly de- veloped, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. In the Homeric literature, for instance, the deceitful cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestoi', the constancy of Hector, and the gallantry of Achilles. Ancient law is still more suggestive of the distance which separates the crude form of Contract from its maturity. At first, nothing is seen like the interposition of law to compel the per- formance of a promise. That which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. Not only are the formalities of equal importance with the promise itself, but they are, if anything, of greater importance ; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be transfei-red to the words and ges- tui'es of the accompanying performance. No pledge Digitized by Microsoft® 304 ANCIENT CONTRACTS. chap. ix. is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accni'ately proceeded with, it is of no avail to plead that the promise was made under duress or deception. The transmutation of this ancient view into the familiar notion of a Contract is plainly seen in the history of jurisprudence. First one or two steps in the ceremonial are dispensed with ; then the others are simplified or permitted to be neglected on certain conditions ; lastly, a few specific contracts are separated from the rest and allowed to be entered into without foi'm, the selected contracts being those on which tire activity and energy of social intercourse depend. Slowly, but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. Such a mental engage- ment, signified through external acts, the Eomans / called a Pact or Convention ; and when the Conven- tion has once been conceived as the nucleus of a Contract, it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. Forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. The idea of a Contract is fully developed, or, to employ the Roman phrase, Conti'acts are absoi'bed in Pacts. The histor}^ of this course of change in Roman law is exceedingly instructive. At the earliest dawn Digitized by Microsoft® OHAP. IX. EARLY EOMAiT CONTRACTS. 305 of the jurisprudence, the term in use for a Contract was one which is very familiar to the students of historical Latinity. It was nexnra^ and the parties to the contract were said to be nexi^ expressions which must be carefully attended to on account of the singular durableness of the metaphor on. which they are founded. The notion that persons under a contractual engagement are connected together by a strong bond or chain^ continued till the last to influence the Roman jurisprudence of Contract ; and flowing thence it has mixed itself with modern ideas. What then was involved in this nexum or bond ? A definition which has descended to us from one of the Latin antiquarians describes nexum as omne quod geritur per ces et libram^ " every transaction with the copper and the balance," and these words have occasioned a good deal of perplexity. The copper and the balance are the well-known accompaniments of the Mancipation, the ancient solemnity described in a former chapter, by which the right of owner- ship in the highest form of Koman Property was transferred from one person to another. Mancipa- tion was a conveyance^ and hence has aiisen the difficulty, for the definition thus cited appears to confound Contracts and Conveyances, which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. The jns in re, right in rem, right " availing against all the world," or Proprietary Right, is sharply distin* guished by the analyst of mature jurisprudence from 20 Digitized by Microsoft® 8C6 SPECIALISING PROL'ESS IN ANCIENT LAW. chap. ix. the jus ad ram^ right in personam^ light ''availing against a single individual or group,"' or Obligation. IsTovv Conveyances transfer Proprietary Kights, Con- tracts create Obligations — how then can the two be included under the same name or same general con- ception ? This, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development, the faculty of distin- guishing in speculation ideas which are blended in practice. We have indications not to be mistaken of a state of social affairs in which Conveyances and Contracts were practicallj'- confounded ; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. It may here be observed that we know enough of ancient Roman law to give some idea of the moda of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurispru- dence. The change which they undergo appears to be a change from general to special ; or, as we might otherwise express it, the ancient conceptions and the ancient terras are subjected to a process of gradual specialisation. An ancientkgal^conception con^esj)onds_not_to_one_but_Jo^^^ ceptions. An ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. If, however, Digitized by Microsoft® CHAP. IX. SPEOIALISIJSTG PROCESS IN AXOIENT LAW. 307 we take up the histoiy of Juvlsprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves, and that the old general names are giving way to special appellations. The old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. So too the old technical name remains, but it discharges only one of the functions which it once performed. We may exemplify this phenomenon in various ways. Patri- archal Power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. The Power exercised by the ancestor was the same whether it was exercised over the family or the ma- terial property — over flocks, herds, slaves, children, or wife. We cannot be absolutely certain of its old Roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of power into which the word mxinus enters, that the ancient general term was manus. But, when Roman law has advanced a little, both the name and the idea have become specialised. Power is discriminated, both in word and in concep- tion, according to the object over which it is exerted. Exercised over material commodities or slaves, it has become dominium — over children it is Potestas ' — over free persons whose services have been made away to another by their own ancestor, it is man- dpium — over a wife, it is still manus. The old Digitized by Microsoft® 303 THE XEXUM. omr. ix word, it will be porceived, has not altogether fallen into desuetude, but is confined to one vei-y special exercise of the authority it had formerly denoted. This example will enable us to comprehend the nature of the historical alliance between Contracts and Conveyances. There seems to have been one solemn, ceremonial at first for all solemn transactions, and its name at Rome appears to have been nexum. Precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a contract. But we have not very far to move onwards before we come to a period at whicli the notion of a Contract has disengaged itself fi-om the notion of a Convey- ance. A double change has thus taken place. The transaction " with the copper and the balance," when intended to have for its office the transfer of prop- erty, is known by the new and special name of Mancipation. The ancient Nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. When two or three legal conceptions are spoken of as anciently blended in one, it is not intended to imply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. The reason why one legal conception continues so long to cover sev eral conceptions, and one technical phrase to do instead of several, is doubtless that practical changes Digitized by Microsoft® CHAP. IX. CHANGES IS THE NEXUM. 309 are accoiBplished in the law of primitive societies lono' before men see occasion to notice or name them. Though I have said that Patriarchal Power was not at first distinguished according to the ob- jects over which it was exercised, I feel sure that Power over Children was the root of the old con- ception of Power; and I cannot doubt that the earliest use of the Nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property. It is likely that a veiy slight perversion of the N^exum from its original functions first gave rise to its em- ployment in Contracts, and that the very slightnesa of the change long prevented its being appreciated or noticed. The old name remained because men had not become conscious that they wanted a new one ; the old notion clung to the mind because no- body had seen reason to be at the pains of examin- ing it. We have had the process clearly exemplified in the history of Testaments. A Will was at first a simple conveyance of Property. It was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the useless encum- brance of the nominal mancipation, and consented to care for nothing in the Will but the expressed Intentions of the Testator. It is unfortunate that we cannot track the early history of Contracts with Digitized by Microsoft® SIO CHAXGES m TOE XEXUM. tniAP. ix tlie same absolute confidence as the early history of Wills, but we are not quite without hints that cop tracts first showed themselves through the nexiim being put to a new use and afterwards obtained recognition as distinct transactions through the im portant practical consequences of the experiment. There is some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for ready money as the normal type" of the Nexum. The seller brought the property of which he intended to dispose — a slave, for example — the purchaser attended with the rough ingots of copper which served for money — and an indispensa- ble assistant, the libripen-s, presented himself with a pair of scales. The slave with certain fixed formal- ities was handed over to the vendee — the copper was weighed })y the lihripens and passed to the ven- dor. So long as the business lasted it was a nexum^ and the parties were nexi ; but the moment it was completed, the nexum ended, and the vendor and purchaser ceased to beai- the name derived from their momentary relation. But now, let us move a step onward in commercial history. Suppose the slave transferred, but the money not paid. In thai case the nexum is finished, so far as the seller is con- cerned, and when he has once handed over his prop- erty, he is no longer nexus ; but, in regard to the purchaser, the nexum continues. The transaction, as to his part of it, is incomplete, and he is still con- sidered to be nexus. It follows, therefore, that the Digitized by Microsoft® CHAP. IX. CONVEYANCES AND CONTEAOTS. 311 same term described the conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase- money. We may still go forward, and picture to ourselves a proceeding wholly foi-raal, in which nothing is handed over and nothing \r3i\A. ; we are brought at once to a transaction indicative of much higher commercial activity, an executory Contract of Sale. If it be true that, both in the popular and in the professional view, a Qontract was long regarded as an incomplete Oonveyance^ the truth has importance for mauy reasons. The speculations of the last cen- tury concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive society property was nothing, and obliga- tion everything ; " and it will now be seen that, if the proposition were reversed, it would be nearer , the reality. On the other hand, considered histori- cally, the primitive association of Conveyances and Contracts explains something which often strikes the scholar and jurist as singularly enigmatical, I mean the extraordinary and uniform seveiity of very ancient systems of law to debtors^ and the extrava^ gant powers which they lodge with creditors. When once we understand that the nexum was artificially prolonged to give time to the debtor, we can bettei comprehend his position in the eye of the public and of the law His indebtedness was doubtless regarded as an anomaly, and suspense of payment Digitized by Microsoft® 812 CONVEYANCES AND CONTRACTS. chap. ix. in genei-al as an artifice and a distortion of strict rule. Tne } er-on who had duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour ; and nothing would seem Imore natural than to arm him with stringent facili- ties for enforcing the completion of a proceeding which, of strict right, ought never to have been ex- tended or deferred. IS^exum, therefore, which originally signified a Conveyance of property, came insensibly to denote a Contract also, and ultimately so constant became the associatio i between this word and the notion of a Contract, that a special term, Mancipium or Man- cipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred. Contracts are therefore now severed from Conveyances, and the first stage in their . history is accomplished, but still they are far enough from that epoch of their development when the promise of the contractor has a higher sacredness than the formalities with which it is coupled. In attempting to indicate the character of the changes passed through in this interval, it is necessary to treS' pass a little on a subject which lies properly beyond the range of these pages, the analysis of Agreement effected by the Roman jurisconsults. Of this analy- sis, the most beautiful monument of their sagacity, I need not say more than that it is based on the theoretical sepai'ation of the Obligation from the Convention or Pact, Bentham and Mr. Austin have Digitized by Microsoft® CHAP. IX. ROMAN ANALYSIS OF AGEEEMENT. 31S laid down that the " two main essentials of a con tract are these : first, a signification by the promis- ing party of his intention to do the acts or to observe the forbearances which he promises to do oi- to ol - serve. Secondly, a signification by the promisee that he expects the promising party will fulfil the prof ferred promise." This is virtually identical with the doctrine of the Roman lawyers, but then, in their view, the result of these " significations " was not a Contract, but a Convention or Pact. A Pact was the utmost product of the engagements of indi- viduals agreeing among themselves, and it distinctly fell short of a Contract. Whether it ultimately be- came a Contract depended on the question whether the law annexed an Obligation to it. A Contract was a Pact (or Convention) ^Zm,? an Obligation. So long as the Pact remained unclothed with the Obli- gation, it was called nude or naked. What was an Obligation ? It is defined by the Roman lawyers as " Juris vinculum, quo necessitate adstringimur alicujus solvendse rei." This definition connects the Obligation with the Nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar conception. The obligation is the " bond " or " chain," with which the law joins together per- sons or groups of persons, in consequence of certain voluntary acts. The acts which have the effect of attracting an Obligation are chiefly those classed under the heads of Contract and Delict, of Agrcse- Digitized by Microsoft® 81 4 OBLIGATION. en ^ f . ix inent aud Wrong ; but a variety of other acts have a similar consequence which are not capable of be- ing comprised in an exact classification. It is to be remarked, however, that the Pact does not draw to itself the Obligation in consequence of any moral necessity ; it is the law which annexes it in the pleni- tude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modern interpreters of the Civil Law who had moral or metaphysical theories of their own to support. The image of a vinculum juris colours and pervades every pai't of the Eoman law of Contract and Delict. The law bound the parties together, and the chain could only be un- done by the process called solutio^ an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent. The con- sistency with which the figurative image was allowed to present itself, explains an otherwise puzzling pe- culiai'ity of Roman legal phraseology, the fact that " Obligation " signifies rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. The Romans kept, in fact, the entire pictui-e of the " legal chain " before their eyes, and regarded one end of it no more and no \ess than the other. In the developed Roman law, the Convention, as soon as it was completed, was, in almost all cases, at once crowned with the Obligation, and so became a Contract ; and this was the result to which contract- Digitized by Microsoft® OHAP. IX. CONVENTION AND OONTEAOT. 315 law was surely tending. But for the purpose of this inquiry, we must attend particularly to the inter mediate stage — that in which something more than a perfect agreement was required to attract the 01> ligation. This epoch is synchronous with the period at which the famous Roman classification of Con- tracts into four sorts — the Verbal, the Literal, the Real, and the Consensual — had come into use, and during which these four orders of Contract consti- tuted the only descriptions of engagement which the law would enforce. The meaning of the fourfold dis- tribution is readily understood as soon as we appre* hend the theory which severed the Obligation from the Convention. Each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contract- ing parties. In the Verbal Contract, as soon as the Convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. In the Literal Contract, an entry in a ledger or table-book had the effect of clothing the Convention with the Obligation, and the same result followed, in the case of the Real Contract, from the delivery of the Res or Thing which was the subject of the preliminary engagement. The Contracting parties came, in short, to an understanding in each case ; but, if they went no further, they were not obliged to one another, and could not compel performance or ask redress for a breach of faith. But let them comply with certain prescribed formalities, and the Digitized by Microsoft® 816 KOMA^r CONTRACTS. chap, ix Contract was immediately complete, taking its name from the pai-ticular form wbich it had suited thera to adopt. The exceptions to this practice will be noticed presently. I have enumerated the four Contracts in theii historical order, which order, however, the Roman Institutional writers did not invariably follow. There can be no doubt that the Verbal Contract was the most ancient of the four, and that it is the eldest known descendant of the primitive Nexum. Several sjDecies of Verbal Contract were anciently in use, but the most important of all, and the only one treated of by our authorities, was effected by means of a stipulation^ that is, a Question and Answer ; a ques- tion addressed by the person who exacted the promise, and an answer given by the person who made it. This question and answer constituted the additional ingredient which, as I have just explained, was de- manded by the primitive notion over and above tha mere agreement of the persons interested. They formed the agency by which the Obligation was an- nexed. The old Nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain uniting the contracting parties, and this has become the OV)ligation. It has further trans- mitted the notion of a ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into the Stipulation. The con- version of the solemn conveyance, which was the prominent feature of the original Nexum, into a Digitized by Microsoft® CHAP. IX. THE VERBAL OONTEAOT. 311 mere question and answer, would be more of a mys- tery than it is if we had not the analogous history of Roman Testaments to enlighten us. Looking at that history, we can understand how the formal con- veyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omit- ted altogether. As then the question and answer of the Stipulation were unquestionably the ISTexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical term. It would be a mistake to consider them exclusively re- commending themselves to the older Roman lawyers through their usefulness in furnishing persons med- itating an agreement with an opportunity for consid- eration and reflection. It is not to be disputed that they had a value of this kind, which was gradu- ally recognised ; but there is proof that their function in respect to Contracts was at first formal and cere- monial in the statement of authorities, that not every question and answer was of old sufficient to consti tute a Stipulation, but only a question and answer couched in technical phraseology specially appro- priated to the particular occasion. But although it is essential for the proper appre- ciation of the history of contract-law that the Stipu- lation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. The Verbal Digitized by Microsoft® 318 CONVENIENCE OF VERBAL CONTEACT. chap, u Contract, though it had lost much of its ancient im poi'tance, survived to the latest period of Eoman jurisprudence ; and we may take it for granted that no institution of Koman law had so extended a lon- gevity unless it served some practical advantage. I observe in an English writer some expressions of surprise that the Romans even of the earliest times wei'e content with so meagre a protection against haste and irreflection. But on examining the Stipu- lation closely, and remembei-ing that we have to do with a state of society in which written evidence was not easily procurable, I think we must admit that this Question and Answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious ex- pedient. It was the 2)romisee who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the jjroinisor. " Do you promise that you will de- liver me such and such a slave, at such and such a place, on such and such a day ? " "I do promise." Xow, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. With us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. In old Roman law, another step was absolutely required ; it was necessary for the Digitized by Microsoft® cuAP. IX. OOXYEKIENOE OF VERBAL CONTRACT. 319 promis(3e, after the agreement had been made, to sum up all its terms in a solemn interrogation ; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial — not of the promise, which was not in itself bind ing. How great a difference this seemingly insig- nificant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in Roman jurisprudence, one of whose first stumbling- blocks is almost universally created by it. When we in English have occasion, in mentioning a con- tract, to connect it for convenience' sake with one of the parties, — for example, if we wished to speak generally of a contractor, — it is always the promise/" at whom our words are pointing. But the general language of Eoraan law takes a different turn ; it always regai-ds the contract, if we may so speak, from the point of view of the promisee ; in speaking of a party to a contract, it is always the Stipulator, the person who asks the question, who is primarily alluded to. But the serviceableuess of the stipula-^ tion is most vividly illustrated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes are read down in which these passages occur (ex. gra. Plautus, Pseu' dolus ^ Act I. sc. 1 ; Act IV. sc. 6 ; Trinummus^ Act V. sc. 2), it will be perceived how effectually the at- tention of the person meditating the promise must have been arrested by the question, and how ample Digitized by Microsoft® 320 THE LITERAL CONTRACT. chap ix was the opportunity for withdrawal from an im- provident undertaking. In the Literal or Written Contract, the formal act by which an Obligation was superinduced on the Convention, was an entry of the sura due, where it could be specifically ascertained, on the debit side of a ledgei-. The explanation of this contract turns on a point of Roman domestic mannei-s, the syste- matic character and exceeding regularity of book- keeping in ancient times. There are several minor difficulties of old Roman law, as, for example, the nature of the Slave's Peculium, which are only cleared up when we recollect that a Roman house- hold consisted of a number of persons strictly ac- countable to its head, and that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger. There are some obscu- lities, however, in the descriptions we have received of the Literal Contract, the fact being that the habit of keeping books ceased to be universal in later times, and the expression " Literal Conti-act," came to signify a form of engagement entirely diffei-ent from that originally understood. We are not, there- fore, in a position to say, with respect to the primi- tive Literal Contract, whether the obligation was created by a sim.ple entry on the part of the creditor, or whether the consent of the debtor or a correspond- ent entry in his own books was necessary to give it legal effect. The essential point is however estab- Digitized by Microsoft® onip. IX. THE REAL CONTRACT. 321 lished, that, in tbe case of this Contract, all formal ities were dispensed with on a condition being com plied with. This is another step downwards in tho history of contract-law. The Conti-act which stands next in historical succession, the Real Contract, shows a great advance in ethical conceptions. Whenever any agreement had for its object the delivery of a specific thing — and this is the case with the large majority of simple engagements — the Obligation was drawn down as soon as the delivery had actually taken place. Such a result must have involved a serious innovation on the oldest ideas of Contract; for doubtless, in the primitive times, when a contracting partjj- had neg- lected to clothe his agreement in a stipulation, noth- ing done in pursuance of the agreement would be recognised by the law. A person who had paid over money on loan would be unable to sue for its repayment unless he had formally stipulated for it. But, in the Real Contract, performance on one side is allowed to impose a legal duty on the other — ■ evidently on ethical grounds. For the first time then moral considerations appear as an ingredient in Contract-law, and the Real Contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to Roman domestic habits. We -now reach the fourth class, or Consensual Contracts, the most interesting and important of all. Four specified Contracts were distinguished by this 21 Digitized by Microsoft® 322 THE COSTSENSUAL CONTRACTS. chap, ix name : Mandatum, i. e. Commi&sion or Agency ; So- cietas or Partnership ; Emtio Venditio or Sale ; and Locatio Conductio or Letting and Hiring. A few pages back, after stating that a Contract consisted of a Pact or Convention to which an Obligation had been superadded, I spoke of certain acts or formali- ties by which the law permitted the Obligation to be attracted to the Pact. I used this language on account of the advantage of a general expression, but it is not sti-ictly correct unless it be understood to include the negative as well as the positive. For, in truth, the peculiarity of these Consensual Con- tracts is that no formalities are I'equired to create them out of the Pact. Much that is indefensible, and much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted that in them the con-sent of the Pai'ties is more emphatically given than in any other species of agreement. But the term Consensual merely in dicates that the Obligation is here annexed at once to the Consensus. The Consensus, or mutual assent of the parties, is the final and crowning ingredient in the Convention, and it is the special characteristic of agreements falling under one of the four heads of Sale, Partnership, Agency, and Hiring, that, as soon as the assent of the parties has supplied this ingredient, there is at once a Contract. The Con- sensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the Digitized by Microsoft® OHAP. rs. THE OONSENSUj*:;. CONTRACTS. 323 Res or Thing, by the Verba stipulationis, and by the Zdterw or wi'itten entry in a ledgei'. Consensual is therefore a term which does not involve the slight" est anoaialy, but is exactly analogous to Real, Verbal, and Literal. In the intercourse of life the commonest and most important of all the contracts are unquestiona- bly the four styled Consensual. The larger part of the collective existence of every community is con- sumed in transactions of buying and selling, of let' ting and hiring, of alliances between men for pur- poses of business, of delegation of business from one man to another; and this is no doubt the considera- tion which led the Romans, as it has led most socie- ties, to relieve these transactions from technical incumbrance, to abstain as much as possible from clogging the most efScient springs of social move- ment. Such motives were not of course confined to Rome, and the commerce of the Romans with their neighbours must have given them abundant oppor- tunities- for observing that the contracts before ua tended everywhere to become Gonsensual^ obliga- tory on the mere signification of mutual assent. Hence, following their usual practice, they distin- guished these contracts as contracts Juris Gentium. Yet I do not think that they were so named at a very early period. The first notions of a Jns Gen- tium may have been deposited in the minds of the Roman lawyers long before the appointment of a Praetor Peregrinus, but it would only be through Digitized by Microsoft® 824 THE COSSEis'SUAL OOI^TKAOTS. chap, u extensive and regular trad 3 that they would bo familiarised with the contractual system of other Italian communities, and such a trade would scarcely attain considerable proportions before Italy had been thoroughly pacified, and the supremacy of Home conclusively assured. Although, however, there is strong probability that the Consensual Con- tracts were the latest-boru into the Roman system, and though it is likely that the qualification, Juris Gentium.^ stamps the recency of their origin, yet this very expression, which attributes them to the " Law of Nations," has in modern times produced the notion of their extreme antiquity. For, when the " Law of Nations " had been converted into the " Law of Nature," it seemed to be implied that the Consensual Contracts were the tj^pe of the agree- ments most congenial to the natural state ; and hence arose the singular belief that the younger the civili- sation, the simpler must be its forms of contract. The Consensual Conti-acts, it will be observed, were extremely limited in number. But it cannot be doubted that they constituted the stage in the history of Contract-law from which all modern con- ceptions of contract took their stai't. The motion of the will which constitutes agreement was now completely insulated, and became the subject of sep- arate contemplation ; forms were entirely elimina- ted from the notion of contract, and external acts were only regai'ded as symbols of the internal act of volition The Consensual Contracts had, more- Digitized by Microsoft® CHAP. IX. NATURAL AND CIVIL OBLIGATIONS. 32.1 over, been classed in the Jus Grentium, and it was long before this classification drew with it the infer- ence that they were the species of agreement which represented the engagements approved of by Nature and included in her code. This point once reached, we ai'e prepared for several celebrated doctrines and distinctions of the Roman lawyers. One of them is the distinction between Natural and Civil Obliga- tions. When a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a natural obligation, even though he had omitted some necessary formality, and even though through some technical impediment he was devoid of the formal capacity for making a valid contract. The law (and this is what the distinc- . tion implies) would not enforce the obligation, but it did not absolutely refuse to recognise it ; and nat- ural oUigations- differed in many respects from obli- gations which were merely null and void, more par- ticularly in the cii'cumstance that they could be civilly confirmed, if the capacity for contract were subsequently acquired. Another very peculiar doc- trine of the jurisconsults could not have had its ori- gin earlier than the period at which the Convention was severed from the technical ingredients of Con- tract. They taught that though nothing but a Con- tract could be the foundation of an action^ a mei-e Pact or Convention could be the basis of &plea. It followed from this, that though nobody could sue ^ upon an agreement which he had not taken the pre- Digitized by Microsoft® 326 CHANGES IN OONTEACT-LAW. chap, is caution to mature into a Contract by complying with the proper forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a coun- ter-agreement which had never got beyond the state of a simple convention. An action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. The doctrine j ust stated indicates the hesitation of the Praetors in making their advances towards the greatest of their innovations. Their theory of Nat- ural law must have led them to look with especial favour on the Consensual Contracts and on those Pacts or Conventions of which the Consensual Con- tracts were only particular instances ; but they did not at once venture on extending to all Conventions the liberty of the Consensual Contracts. They took advantage of that special superintendence over pro- cedure which had been confided to them since the first beginnings of Roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulte- rior stages of the proceeding. But when they had proceeded thus far, it was inevitable that they should proceed farther. The revolution of the ancient law of Contract was consummated when the Praetor of some one year announced in his Edict that he would grant equitable actions upon Pacts which had never been matured at all into Contracts, provided only that the Pacts in question had been founded on a Digitized by Microsoft® ona.p. IX. PROGRESS OF CONTRAOT-LAW. 827 consideration (causa). Pacts of this sort are always enforced under the advanced Roman jurisprudence. The principle is merely the principle of the Consen sual Contract carried to its proper consequence; and, in fact, if the technical language of the Romans had been as plastic as their legal theories, these Pacts enforced by the Praetor would have been styled new Contracts, new Consensual Contracts. Legal phraseology is. however, the part of the law which is the last to alter, and the Pacts equitably enforced continued to be designated simply Praeto- rian Pacts. It will be remarked that unless there wei'e consideration for the Pact, it would continue mbde so far as the new jurisprudence was concerned ; in order to give it effect, it would be necessary to convert it by a stipulation into a Verbal Contract. The extreme importance of this history of Coa tract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. It gives a complete account of the march of ideas fi'oni one great land- mark of jurisprudence to another. We begin with the Nexum, in which a Contract and a Conveyance are blended, and in which the formalities which ac- company the agreement are even more important than the agreement itself From the Nexum we pass to the Stipulation, which is a simplified form of the older ceremonial. The Literal Contract comes next, and here all formalities are waived, if proof of the agreement can be supplied from the rigid Digitized by Microsoft® 328 PEOGRESS OF OOIv"TEAOT-LAW. chap. ix. observances of a Roman household. In the Real Contract a moral duty is for the first time recognised, and persons Avho have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. Lastly, the Consensual Contracts emerge, in which the men- tal attitude of the contractors is solely regarded, and external circumstances have no title to notice except as evidence of the inward undertaking. It is of course uncertain how far this progress of Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the sub- ject of Contract. The Contract-law of all other ancient societies but the Roman is either too scanty to furnish information, or else is entirely lost ; and modern jurisprudence is so thoroughly leavened with the Roman notions that it furnishes us with no con trasts or parallels from which instruction can be gleaned. From the absence, however, of everything violent, marvellous, or unintelligible in the changes I have described, it may be reasonably believed that the history of Ancient Roman Contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. But it is only up to a certain point that the progress of Roman law can be taken to represent the progress of other systems of jui'isprudence. The theory of Natural law is exclusively Roman. The notion of the vhiculum juris ^ so far as my knowledge extends, is exclusively Roman. The many peculiarities of Digitized by Microsoft® CHAP. IX. INFLUENCE OE EOMAN CONTE ACT-LAW. 329 the mature Roman law of Contract and Delict whicl are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. These later legal conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world. I know nothing more wonderful than the variety of sciences to which Roman law, Roman Contract- law more particularly, has contributed modes of thought, courses of reasoning, and a technical lan- guage. Of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physics, which has not been filtered through Roman jurisprudence. The science of pure Metaphysics had, indeed, rather a Greek than a Roman parentage, but Politics, Moral Philosophy, and even Theology, found in Roman law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished into ma- turity. For the purpose of accounting for this phe- nomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it hag been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. It is enough to remark, that, Digitized by Microsoft® 830 STATE OF THOUGHT IN THE EMPIRE, chap. a. when the philosophical interests of the Eastern and Western worlds were separated, the founders of Western thought belonged to a society which spoke Latin and reflected in Latin. But in the Western provinces the only language which retained sufficient precision for philosophical purposes was the lan- guage of Roman law, which by a singular fortune had preserved nearly all the purity of the Augustan age, while vernacular Latin was degenerating into a dialect of portentous barbarism. And if Roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. For at least three centuries, philosophy and science were without a home in the West ; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of Roman subjects, the phraseology employed in these ardent inquiries was exclusively Greek, and their theatre was the Eastern half of the Empire. Some- times, indeed, the conclusions of the Eastern dispu- tants became so imj)ortant that every man's assent to them, or dissent from them, had to be recorded, and then the West was introduced to the results of Eastern controversy, which it generally acquiesced in without interest and without resistance. Mean- while, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of Digitized by Microsoft® OHAP. IX. EASTERN AND WESTERN IDEAS. 331 the Western provinces. To the cultivated citizen of Africa, of Spain, of Gaul, and of Northern Italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philoso phy and science. So far then fi'om there being a:.y- thing mysterious in the palpably legal complexion of the earliest efforts of Western thought, it would rather be astonishing if it had assumed any other hue. I can only express my surprise at the scanti- ness of the attention which has been given to the difference between Western ideas and Eastern, be- tween Western theology and Eastern, caused by the presence of a new ingredient. It is precisely be- cause the influence of jurisprudence begins to be powerful that the foundation of Constantinople and the subsequent separation of the Western empire from the Eastern, are epochs in philosophical history. But continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from Ro- man law are mingled up with their every-day ideas. Englishmen, on the other hand, are blind to it through the monstrous ignorance to which they con- demn themselves of the most plentiful source of the stream of modern knowledge, of the one intellectual result of the Roman civilisation. At the same time, an Englishman, who will be at the pains to familiar- ise himself with the classical Roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a Digitized by Microsoft® 832 QUASI-CONTRACT. chap, jx better judge than a Fj'enchman or German of the value of the assertions I have ventured to make. Anybody who knows what Roman jurisprudence is as actually practised by the Romans, and who will observe in what characteristics the earliest Western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had be- gun to pervade and govern speculation. The part of Koman law which has had most ex- tensive influence on foreign subjects of inquiry has been the law of Obligation, or, what comes neai-ly to the same thing, of Contract and Delict. The Romans themselves were not unaware of the offices which the copious and malleable terminology belong- ing to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct quasi in such expressions as Quasi-Contract and Quasi-Delict. " Quasi," so used, is exclusively a term of classification. It has been usual with English critics to identify the quasi-con- tracts with implied contracts, but this is an error, for implied contracts are true contracts, which quasi- contracts are not. In implied contracts, acts and circumstances are the symbols of the same ingre- dients which are symbolised, in express contracts, by words ; and whether a man employs one set of symbols or the other must be a matter of indiffer* ence so far as concerns the theory of agreement. But a Quasi-Contract is not a contract at all. Th'e Digitized by Microsoft® CHAP. re. QUASI-CONTRACT. 833 commonest sample of the class is the relation sub- sisting between two persons, one of whom has paid money to the other through mistake. The law, consulting the interests of morality, imposes an ob- ligation on the receiver to refund, but the very na' ture of the transaction indicates that it is not a contract, inasmuch as the Convention, the most essential ingredient of Contract, is wanting. This word " quasi," prefixed to a term of Roman law, im- plies that the conception to which it serves as an index is connected wifli the conception with which the comparison is instituted by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the same, or that they be- long to the same genus. On the contrary, it nega- tives the notion of an identity between them ; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other, and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. It has been shrewdly remarked, that the confu- sion between Implied Contracts, which are true contracts, and Qaasi-Contracts, which are not con- tracts at all, has much in common with the famous error wl ich attributed political rights and duties to an Original Compact between the governed and the governoi'. Long before this theory had clothed itself in definite shape, the phraseology of Roman Digitized by Microsoft® 334 THE SOCIAL COMPACT. chap, ix contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. While the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience — maxims which pi-e- tended to have had their origin in the New Testar ment, but which were really derived from indelible recollections of the Caesarian despotism — the con- sciousness of coi-relative rights possessed by the governed would have been entirely without the means of expression if the Roman law of Obliga- tion had not supplied a language capable of shadow- ing forth an idea which was as yet imperfectly developed. The antagonism between the privileges of kings and their duties to their subjects was never, I believe, lost sight of since Western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudal- ism effectually controlled by express customs the exorbitant theoretical pretensions of most European sovereigns. It is notorious, however, that as soon as the decay of the Feudal System had thrown the mediaeval constitutions out of working order, and when the Reformation had discredited the authority of the Pope, the doctrine of the divine right of Kings rose immediately into an importance which had never before attended it. The vogue which it obtained entailed still more constant resort to the phraseology of Roman law, and a controversy which Digitized by Microsoft® cHAt. IX. POLITICS AND ROMAN LAW. 333 had originally worn a theological asjject assumed more and more the air of a legal disputation. A phenomenon then appeared which has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority rounded itself into the definite doctrine of Filmer, the phrase- ology, borrowed from the Law of Contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in English and afterwards, and more particu- larly, in French hands, expanded into a comprehen- sive explanation of all the phenomena of society and law. But the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic termi' nology. The Roman jurisprudence of Contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of " quasi-contract." It had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. The doct]-ine of an Oi-iginal Compact can never be put higher than it is placed by Dr. Whewell, when he suggests that, though unsound, " it may be a convenient form for the expression of moral truths." The extensive employment of legal language on Digitized by Microsoft® 836 ETHICS AND ROMAN LAW. ohap. ix political subjects ])reviously to the invention of the Original Compact, and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of Roman jurisprudence. Of their plenti- fulness in Moi-al Philosophy a rather different expla- nation must be given, inasmuch as ethical writings have laid Koman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. In speaking of moral philosophy as extraordinarily indebted to Roman jurisprudence, I must be understood to intend moral philosophy as understood previously to the break in its history effected by Kant, that is, as the science of the rules governing human conduct, of their proper interpre- tation and of the limitations to which they are sub- ject. Since the rise of the Critical Philosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in the casuistry still cultivated by Roman Catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that there is a single contemporary Eng- lish writer, with the exception of Dr. Whewell, who understands moral jahiloso^Dhy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more im- portant consideration than the rules themselves. So Digitized by Microsoft® CHAP. 7X. ETHICS AND ROMAN LAW. 337 long, however, as etWcal science had to do with the practical regimen of conduct, it was more or less saturated with Roman law. Like all the great sub- jects- of modern thought, it was originally incorpora- ted with theology. The science of Moral Theology, as it was at first called, and as it is still designated by the Roman Catholic divines, was undoubtedly constructed, to the full knowledge of its authors, by taking principles of conduct from the system of the Church, and by using the language and methods of jurisprudence for their expression and expansion. While this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of thought, should communicate its colour to the thought itself. The tinge received through con- tact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, I think, that the Law of Contract, based as it is on the complete reciprocity and indis- soluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have ex- clusively viewed a moral obligation as the public duty of a citizen in the Civitas Dei. But the amount of Roman Law in moral theology becomes -sensibly smaller at the time of its cultivation by the great Spanish moralists. Moi-al theology, developed by the juridical method of doctor commenting on doctor, provided itself with a jjhraseology of its own, and Aristotelian peculiarities of reasoning and expres 22 Digitized by Microsoft® 338 MORAL PIIILOSOPnT. chap. ix. sion, iuihibed doubtless in great part from the Dis- putations on Morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conver- sant with the Eoman law. If the credit of th.^ Spanish school of moral theologians had continued, the juridical ingredient in ethical science would have been insignificant, but the use made of their conclu- sions by the next generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral Theology, degraded into Casuistry, lost all interest for the leaders of Euro- pean speculation ; and the new science of Moral Philosophy, which was entirely in the hands of the Protestants, swerved greatly aside from the path which the moral theologians had followed. The effect was vastly to increase the influence of Roman law on ethical inquiry. " Shortly * after the Reformation, we find two great schools of thought dividing this class of sub- jects between them. The most influential of the two was at first the sect or school known to us as the Casuists, all of them in spiritual communion with the Roman Catholic Church, and nearly all of them affiliated to one or other of her religious orders. On the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise De Jure Belli el *The passage qaoted is transcribed, with sliglit alterations, frf>ni a paper contributed by the author to the Cambridge Essays for 1856. Digitized by Microsoft® CHAP. Tx. GROiroS AXD niS SCnOOL. 389 Pa^d-s^ Hngo Gi'otius. Almost all of the Litter wei'e adherents of the Eeformation ; and though it cannot be said that they were formally and avowedly at conflict with the Casuists, the origin and object of their system were nevertheless essentially different from those of Casuistry. It is necessary to call at- tention to this difference, because it involves the question of the influence of Roman law on that de- partment of thought with which both systems are concerned. The book of Grotius, though it touches questions of pure Ethics in every page, and though it is the parent immediate or remote of innume- rable volumes of formal morality, is not, as is well known, a professed treatise on Moral Philosophy ; it is an attempt to determine the Law of Nature, or Natural Law, Now, without entering upon the question, whether the conception of a Law Natural be not exclusively a creation of the Roman jurisco"!- suits, we may lay down that, even on the admission of Grotius himself, the dicta of the Roman jurispru dence as to what parts of known positive law must be taken to be parts of the Law of Nature, are, if not infallible, to be received at all events with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation, and this connection rendered inevitable — what tht; legal training of the writer would perhaps have en- tailed without it — the free employment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must Digitized by Microsoft® 840 CASUISTRY. chap, ix sometimes conceal the sense, and almost always tha force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand, Casuistry bor- rows little from Roman law, and the views of mo- rality contended for have nothing whatever in com- mon with the undertaking of Grotius. All that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had its origin in the distinction between Mortal and Venial sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. The fate of this experiment is matter of ordinary history. We know that the distinc- tions of Casuistry, by enabling the priesthood, to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and generals, unheard of in the ages before the Reformation, and did really con- tribute largely to that great i-eaction which checked and narrowed the first successes of Protestantism. But beginning in the attempt, not to establish, but Digitized by Microsoft® OHAP. IX. CASUISTRY. 341 to evade — not to discover a principle, but to escape a postulate — not to settle the nature of right and wrong, but to determine what was not wrong of a particular nature, — Casuistry went on with its dex- terous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. The blow, long pending, was finally sti'uck in the Provincial Letters of Pascal, and since the appearance of those memorable Papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical science was thus left at the exclusive command of the writei'3 who followed Grotius ; and it still exhibits in an ex- traordinary degree the traces of that entanglement with Roman law which is sometimes imputed as a faul", and sometimes the highest of its recommenda- tions, to the Grotian theory. Many inquirers since Grotius's day have modified his principles, and many, of course, since the rise of the critical philosophy, have quite deserted them ; but even those who have depai'ted most widely from his fundamental assump- tions Lave inherited much of his method of state- ment, of his train of thought, and of his mode of illustration ; and these have little meaning and no point to the person ignorant of Roman jurispru- dence." Digitized by Microsoft® 342 METAPHYSICS AKD ROMAIT LAW. chap, ix I have already said that, with the exception of the physical sciences, there is no walk of knowledge which has been so slightly affected by Koman law as Metaphysics. The reason is that discussion on metaphysical subjects has always been conducted in Greek, first in pure Greek, and afterwards in a dia- lect of Latin expressly constructed to give expression to Greek concei)tions. The modern languages have only been fitted to metaphysical inquiries by adopt- ing this Latin dialect, or by imitating the process which was originally followed in its formation. The source of the phraseology which has been always employed for metaphysical discussion in modern times was the Latin translations of Aristotle, in which, whether derived or not from Arabic versions, the plan of the translator was not to seek for analo- gous expressions in any part of Latin literature, but to construct anew fi'om Latin roots a set of phrases equal to the expression of Greek philosophical ideas. Over such a process the terminology of Roman law can have exercised little influence ; at most, a few Latin law terms in a transmuted shape have made their way into metaphysical language. At the same time it is worthy of remark that whenever the prob- lems of metaphysics are those which have been most strongly agitated in Western Europe, the thought, if not the language, betrays a legal parentage. Few things in the history of speculation are more im- pressive than the fact that no Greek-speaking people has ever felt itself seriously perplexed by the great Digitized by Microsoft® ojiAp. IX. THEOLOGY AND EOMAN LAW. 343 question of Free-will and Necessity. I do not pre- tend to ofFe)' any summary explanation of this, but it does not seem an irrelevant suggestion that neither the Greeks, nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. Legal science is a Roman creation, and the problem of Free-will arises when we contemplate a metaj)hysical concep- tion under a legal aspect. How came it to be a question whether invariable sequence was identical with necessary connection ? I can only say that the tendency of Roman law, which became stronger as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a tendency most markedly exemplified in the defini- tion of Obligation which I have repeatedly cited, " Juris vinculum quo necessitate adstringimur alicu- jus solvendse rei." But the problem of Free-will was theological be- fore it became philosophical, and, if its terms have been affected by jurisprudence, it will be because Jurisprudence has made itself felt in Theology. The great point of inquiry which is here suggested has never been satisfactorily elucidated. What has to be determined, is whether jurisprudence has ever served as the medium through which theological principles have been viewed ; whether, by supplying a peculiar language, a peculiar mode of reasoning and a pecu- liar solution of many of the problems of life, it has ever opened new channels in which theological spec- Digitized by Microsoft® 844 GREEK AND LATIN CnUECHES. onip. ix Illation could flow out and expand itself. For the purpose of giving an answer it is necessary to recol- lect what is already agreed upon by the best writers as to the intellectual food which theology first assi- milated. It is conceded on all sides that the earliest language of the Chi-istian Church was Greek, and that the problems to which it first addressed itself were those foi- which Greek philosophy in its later forms had pi'epared the way. Greek metaphysical literature contained the sole stock of woi-ds and , ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the Divine Pei-sons, the Divine Substance, and the Divine Natures. The Latin Ian guage and the meagre Latin philosophy were quite unequal to the undertaking, and accordingly the Western or Latin speaking provinces of the Empire adopted the conclusions of the East without disput- ing or reviewing them. " Latin Christianity, " says Dean Milman, " accepted the creed which its naiTow and barren vocabulary could hardly express in ade- quate terras. Yet, throughout, the adhesion of Rome and the West was a passive acquiescence in the dog- matic system which had been wrought out by the profounder theology of the Eastern divines, rather than a vigorous and original examination on her part of those mysteries. The Latin Church was the scholar as well as the loyal partisan of Athanasius." But when the separation of East and West became wider, and the Latin-speaking Western Empire began to Digitized by Microsoft® 1HAP. IX. PROBLEMS OF WESTERN CHURCH. 845 live with an intellectual life of its own, its deference to the East was all at once exchanged for the agita- tion of a nnmber of questions entirely foreign to Eastern speculation. " While Greek theology ( Mil- man, Latin Christianity^ Prefiice, 5 ) went on defi- ning with still more exquisite subtlety the Godhead and the nature of Christ " — " while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community " — the Western Church threw itself with passionate ardour into a new order of disputes, the same which from those days to this have never lost their intei'est for any family of mankind at any time included in the Latin communion. The nature of Sin and its transmis- sion by inheritance — the debt owed by man and its vicarious satisfaction — the necessity and sufficiency of the Atonement — above all the apparent antago- nism between Free-will and the Divine Providence — these were points which the West began to debate as ardently as ever the East had discussed the arti- cles of its more special creed. Why is it then that on the two sides" of the line which divides the Greek- speaking from the Latin-speaking provinces there lie two classes of theological problems so strikingly dif ferent from one another? The historians of the Church have come close upon the solution when they remark that the new pi-oblems were more '' practi- cal," less absolutely speculative, than those which had torn Eastern Christianity asunder, but none of them, so far as I am aware, has quite reached it. 1 Digitized by Microsoft® 3i0 ROMAN LAW IN THE WEST, chap, ix affirm without hesitation that the difference between the two theological systems is accounted for by the fact that, in passing from the East to the "West, theo- logical peculation had passed fi'om a climate of Greek metaphysics to a climate of Roman law. For some centuries before these controversies rose into over- whelming importance, all the intellectual activity of the Western Romans had been expended on juris- prudence exclusively. They had been occupied in applying a peculiar set of princij^les to all combina- tions in which the circumstances of life are capable of being arranged. No foreign pursuit or taste call- ed off their attention from this engrossing occupa- tion, and for carrying it on they possessed a vocabu- lary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on conduct more or less verified by experience, and a rigid moral philosophy. It was impossible that they should not select from the questions indicated by the Christian records those which had some affinity with the or- der of speculations to whifch they were accustomed, and that their manner of dealing with them should borrow something from their forensic habits. Al- most eveiybody who has knowledge enough of Ro- man law to appreciate the Roman penal system, the Roman theory of the obligations established by Con- tract or Delict, the Roman view of Debts and of the modes of incurring, extinguishing, and transmitting them, the Roman notion of the continuance of indi- vidual existeucee by Universal Succession, may be Digitized by Microsoft® CHAP. IX. THEOLOGY AND ROMAN LAW. Sil trusted to say whence arose the frame of mind to which the problems of Western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the descrip- tion of reasoning employed in their solution. It must only be recollected that the Roman law which had worked itself into Western thought was neither the archaic system of the ancient city, nor the prun- ed and curtailed jurisprudence of the Byzantine Em- perors ; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes by the name of Modern Civil Law. I only speak of that philosophy of jurisprudence, wrought out by the great juridical thinkers of the Antonine age, which may still be partially reproduced from the Pandects of Justinian, a system to which few faults can be attributed ex- cept perhaps that it aimed at a higher degree of ele- gance, certainty, and precision than human affairs will permit to the limits within which human laws seek to confine them. It is a singular result of that ignorance of Roman law which Englishmen readily confess, and of which they are sometimes not ashamed to boast, that many English writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the Roman empire. It has been constantly asserted, as unhesitatingly as if there were no temerity in ad- vancing the proposition, that from the close of the Digitized by Microsoft® 848 GREEK AI7D LATIN-SPEAKCTG PKOVINCES. chai--. ix Augustan era to the general awakening of interest on the p;jints of the Christian faith, the mental ener- gies of the civilised world were smitten with a para- lysis. Now there are two subjects of thought — thi only two perhaps with the exception of physics, science — which are able to give employment to al the powers and capacities which the mind possesses One of them is Metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself ; the other is Law, which is as extensive as the concerns of mankind. It happens that, during the very period indicated, the Greek-speaking provinces were devoted to one, the Latin-speaking provinces to the other, of these studies. I say nothing of the fruits of speculation in Alexandria and the East, but I confidently affirm that Rome and the West had an occupation in hand fully capable of compensating them for the absence of every other mental exercise, and I add that the results achieved, so far as W3 know them, wei'e not unworthy of the continuous and exclusive labor bestowed on producing them. Nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals Law is capable of absorbing, but a layman has no difficulty in com- prehending why it was that an unusual share of the collective intellect of Rome was engrossed by juris- prudence. " The proficiency* of a given communi- * Ocmbridge Essays, 1856 Digitized by Microsoft® OHAi. IX. CAUSES OF IMPROVEMENT IN" ROMAN LAW. 348 ty in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry ; and the chief of these are the proportion of the national intellect devoted to it, and the length of time during which it is so devoted. Now, a com- bination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of Rome through the entire space between the Twelve Tables and the severance of the two Empires. — and that not irregularly or at intervals, but in steadily increasing force and constantly augmenting number. We should reflect that the earliest intellectual exer- cise to which a young nation devotes itself is the study of its laws. As soon as the mind mates its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. The popularity of the pursuit on which all the ener- gies of the young commonwealth are bent is at the outset unbounded ; but it ceases in time. The mo- nopoly of mind by law is broken down. The crowd- at the morning audience of the great Roman juriscon- sult lessens. The students are counted Ity hundreds instead of thousands in the English Inns of Court, Art, Literature, Science, and Politics, claim their share of the national intellect ; and the practice of jurisprudence is confined within the circle of a profes- sion, never indeed limited or insignificant, but at- tracted as much by tho rewards as by the intrinsic Digitized by Microsoft® 350 CAUSES OF IMPROVEMEKT IN ROMAN LAW. chap, is recoraraendatioiis of their science. This succession of changes exhibited itself evenmore strikingly in Rome than in England. To the close of the Eepublic the law was the sole field for all ability except the special talent of a capacity for generalship. But a new stage of intellectual progress began with the Au- gustan age, as it did with our own Elizabethan era. We all know what were its achieyements in poetry and prose ; but there are some indications, it should be remarked, that, besides its efflorescence in orna- mental literature, it was on the eve of throwing out new aptitudes for conquest in physical science. Here, however, is the point at which the history of mind in the Roman States ceases to be parallel to the routes which mental progress has since then pursued. The brief sjjan of Roman literature, strictly so called, was suddenly closed under a variety of influences, which though they may partially be traced, it would be im proper in this place to analyse. Ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the Ro mans despised philosophy and poetry as the toys of a childish race. Of what nature were the external in- ducemeuts which, duiing the Imperial period, tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by consider- ing the option which was practically before him in the choice of a profession. He might become s teacher of I'hetoric, a commander of frontier-posts, or Digitized by Microsoft® CHAP. IX. KOMAN LAW TN THE EAST. 351 a professional writer of j)anegyrics. The only other walk of active life which was open to him was the practice of the law. Through tJiat lay the approach to wealth, to fame, to office, to the council-chamber of the monarch — it may be to the very throne itself. The premium on the study of jurisprudence was Bo enormous that thei-e were schools of law in every part of the Empire, even in the very domain of Metaphysics. But, though the transfer of the seat of empire to Bj^zantium gave a perceptible impetus to its cultivation in the East, jurisprudence never dethroned the pursuits which there competed with it. Its language was Latin, an exotic dialect in the Eastern half of the Empire. It is only of the West that we can lay down that law was not only the mental food of the ambitious and aspiring, but the sole aliment of all intellectual activity. Greek phi- losophy had never been more than a transient fash- ionable taste with the educated class of Rome itself, and when the new Eastern capital had been created, and the Empire subsequently divided into two, the divorce of the Western provinces from Greek spec- ulation, and their exclusive devotion to jurispru- dence, became more decided than ever. As soon then as they ceased to sit at the feet of the Greeks and began to ponder out a theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. It is certain that this substratum of law in Western the- ology lies exceedingly deep. A new set of Greek Digitized by Microsoft® 852 ROMAN LAW IN WESTERN THEOLOGY, chap, ix tlieories, the Aristotelian philosophy, made theii way aftei'wards into the West, and almost entirely buried its indigenous doctrines. But when at the Reformation it partiall}'^ shook itself free from their influence, it instantly supplied their place with Law. It is diiScult to say whether the religious system of Calvin oi* the religious system of the Arminians has the more markedly legal character. The vast influence of this specific jurisprudence of Contract produced by the Romans upon the cor- responding department of modern Law belongs rather to the history of mature jurisprutlence than to a treatise like the present. It did not make itself felt till the school of Bologna founded the legal science of modern Europe. But the fact that the Romans, before their Empire fell, had so fully de- veloped the conception of Contract becomes of im- portance at a much earlier period than this. Feu- dalism, I have repeatedly asserted, was a compound of archaic barbarian usage with Roman law; no other explanation of it is tenable, or even intelligi- ble. The earliest social forms of the feudal pei-iod differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. A Fief was an organically complete brotherhood of associates whose proprietary and personal rights were inexti-icably blended together. It had much in common with an Indian YillauG Com- munity and much in common with a Highland clan. But still it presents some phenomena which we nevei Digitized by Microsoft® OHAP. IX. OONTRAOT-LAW AND FEUDALISM. 85£ find in the associations which are spontaneously formed by beginners in civilisation. True archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct ; and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. But the earliest feudal communities were neither bound togethei- by mere sentiment nor recruited by a fiction. The tie which united them was Contract, and they obtained new associates by contracting with them. The relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by commendation or infeudation came to a distinct understanding as to the conditions on which he was to be admitted. It is therefore the sphere occupied in them by Con- tract which principally distinguishes the feudal in- stitutions from the unadulterated usages of primitive races. The lord had many of the characteristics of a patriarchal chieftain, but his prerogative was lim- ited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. Hence flow the chief diiferences which forbid us to class the feudal societies with true archaic communities. They were much more durable and much more various ; more durable, because express rules are less de- structible than instinctive habits, and more various, 23 Digitized by Microsoft® 85i OONTEACT-LAW AND FEUDALISM. ctrAP. a because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. This last consideration may serve to indicate how greatly the vulgar opinions curreu among us as to the origin of modern society stand in need of revision. It is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the Germanic races, and it is often contrasted with the dull routine of the Roman Empire. The truth is that the Empire bequeathed to modern society the legal conception to which all this irregularity is attribu- table ; if the customs and institutions of barbarians have one characteristic more striking than another it is their extreme uniformity. Digitized by Microsoft® CHAPTER X. THE EARLY EISTOBT OF DELICT AND CRIME. The Teutonic Codes, including those of our Angla Saxon ancestors, are the only bodies of archaic secu- lar law which have come down to us in such a state that we can form an exact notion of their original dimensions. Although the extant fragments of Roman and Hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise mag- nitude or of the proportion of their parts to each other. But still on the whole all the known collec- tions of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The proportion of criminal to civil law is exceedingly different. In the German codes, the civil part of the law has trifling dimen- sions as compared with the criminal. The traditions which speak of the sanguinary penalties inflicted by the code of Draco seem to indicate that it had the same characteristic. lu the Twelve Tables alone, Digitized by Microsoft® 856 PEKAL LAW IN ANCIENT CODES. chap, x produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence ; but the relative amount of space given to the modes of redressing wrong, though not enormous, appears to have been large. It may be laid down, I think, that the more archaic the code, the fuller and the minuter is its penal legis- lation. The phenomenon has often been observed and has been explained, no doubt to a great extent correctly, by the violence habitual to the communi- ties which for the first time reduced their laws to writing. The legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. I imagine, how- ever, that this account is not quite complete. It should be recollected that the comparative barren- ness of civil law in archaic collections is consistent with those other characteristics of ancient jurispru- dence which have been discussed in this treatise. Nine-tenths of the civil part of the law practised by civilised societies are made up of the Law of Persons, of the Law of Property and of Inheritance, and oi the Law of Contract. But it is plain that all these provinces of jurisprudence must shrink within nar- rower boundaries, the nearer we make pur approaches to the infancy of social brotherhood. The Law of Persons, which is nothing else than the Law of Status, will be resti'icted to the scantiest limits as long as all forms of status are merged in common Bubjeotion to Paternal Power, as long as the Wife Digitized by Microsoft® nHAP. X. CRIMES AND WRONGS. 551 has no rights against her Husband, the Son none against his Father, and the infant Ward none against the Agnates who are his Guardians. Similarly, the rules relating to Property and Succession can never be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed iuside its circle. But the greatest gap in ancient civil law will always be caused by the absence of Contract, which some archaic codes do not mention at all, while others significantly attest the immatu- rity of the moral notions on which Contract depends by supplying its place with an elaborate jurispru- dence of Oaths. There are no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand why the modern relation of criminal law to civil should be inverted in ancient codes. I have spoken of primitive jurisprudence as giving to criminal law a prioiity unknown in a later ao-e. The expression has been used for convenience, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. All civilised systems agi'ee in drawing a distinction between offences against the State or Community and offences against the Indi- vidual, and the two classes of injuries, thus kept apart, I may here, without pretending that the tei'ms have always been employed consistently in jurisprv Digitized by Microsoft® 858 CRIMES AND WEONGS. ohap. x, dence, call Crimes and "Wrongs, crimina and ddictcL Now the i^enal Law of ancient communities is not the law of Crimes ; it is the law of AVrongs, or, to use the English technical word, of Torts. The per son injured proceeds against the wrong-doer by an I ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. If the Commentaries of Gains be opened at the place where the writer treats of the penal jurisprudence founded on the Twelve Tables, it will be seen that at the head of the civil wrongs recognised by the Roman law stood Furtum or Theft. Offences which we are accustomed to regard exclusively as crimes are ex- clusively treated as torts^ and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, Hbel and slander. All alike gave rise to an Obligation or vinculum juris, and were all requited by a payment of monej'. This peculiarity, however, is most strongly brought out in the consolidated Laws of the Germanic tribes. Without an exception they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensa- tion for minor injuries. " Under Anglo-Saxon law," writes Mr. Kemble (^Anglo-Saxons, i. 17Y), "a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace ; the sum being aggravated according to Digitized by Microsoft® -niAP. X. CRIMES AND SINS. S59 adventitious circumstances." These compositions are evidently regarded as a valuable source of in- come ; highly complex rules regulate the title to them and the responsibility for them ; and, as I have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. If therefore the criterion of a delict, wrong^ or tOJ'thQ that the person who suffers it, and not the State, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of Tort. Torts then are copiously enlarged upon in primi- tive jurisprudence. It must be added that Sins are known to it also. Of the Teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by Christian legislatoi-s. But it is also true that the non-Christian bodies of ar- chaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as be- ing violations of divine jurisprudence and commands. The law administered at Athens by the Senate of Areopagus was probably a special religious code, and at Home, apparently from a very early period, the Pontifical jurisprudence punished adultery, sacrilege, and perhaps murder. There were therefore in the Athenian and in the Roman States laws punishing Digitized by Microsoft® 860 COI^'CEPTION OF CEIME. chap. x. sins. There were also laws punishing torts. The con- ception of offence against God produced the first class of ordinances ; the conception of offence against one's neighbour produced the second ; but the idea of of fence against the State or aggregate community did not at first produce a true criminal jurispi'udence. Yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the State was wanting in any primitive society. It seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. At all events, when the Roman community conceived itself to be injured, the analogy of a personal wrong re- ceived was carried out to its consequences with abso- lute literalness, and the State avenged itself by a sino'le act on the individual wronsr-doer. The result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legisla- ture. And this is the earliest conception of a crimen or Crime — an act involving such high issues that the State, instead of leaving its cognisance to the civil tribunal or the religious court, directed a special law or privilegium against the perpetrator. Every indictment therefore took the form of a bill of pains and penalties, and the trial of a criminal was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed con- ditions. Consequently, both for the reason that the Digitized by Microsoft® CHAP. X. AXOIEXT CONCEPTION OF CRIME. 861 tribunal dispensing justice was the sovereign State itself, and also for the reason that no classification of the acts prescribed or forbidden was possible, there, was not at this epoch any Law of crimes, any criminal jurisprudence. The procedure was identi- cal with the forms of passing an ordinary statute ; it was set in motion by the same persons and conduct ed with precisely the same solemnities. And it is to be observed that, when a regular criminal law with an apparatus of Courts and officers for its administra- tion had afterwards come into being, the old pro- cedure, as might be supposed from its confoi-mity with theory, still in strictness remained practicable ; and, much as resort to such an expedient was dis- credited, the people of Rome always retained the power of punishing by a special law offences against its majesty. The classical scholar does not require to be reminded that in exactly the same manner the Athenian Bill of Pains and Penalties, or tiaayytXia, survived the establishment of regular tribunals. It is known too that when the freemen of the Teutonic races assembled for legislation, they also claimed au- thority to punish oflPences of peculiar blackness or perpetrated by criminals of exalted station. Of this nature was the criminal jurisdiction of the Anglo- Saxon Witenagemot. It may be thought that the difference which I have asserted to exist between the ancient and mod- ern view of penal law has only a verbal existence. The community, it may be said, besides interposing Digitized by Microsoft® 362 ANCIENT PROCEDUEE. chap, x to punisli crimes legislatively, has from the earliest times iaterfered by its tribunals to compel the wrong- doer to compound for his wrong, and if it does this, it must always have supposed that in some way it ■was injured through his offence. But, however rig- orous this inference may seem to us now a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injuiy to the community had to do with the earliest interferences of the State through its tribunals^ is shown by the curious circumstance that in the origi- nal administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by pei'sons who were disputing, but who afterwards suffered their quarrel to be appeased. The magistrate care- fully simulated the demeanour of a private arbitrator casually called in. In order to show that this statement is not a mere fanciful conceit, I will produce the evidence on which it rests. Veiy far the most ancient judicial proceeding known to us is the Legis Actio Sacra- menti of the Romans, out of which all the later Ro- man law of Actions may be proved to have grown. Gains carefully describes its ceremonial. Unmeaning and grotesque as it appears at first sight, a little at tention enables us to decipher and interpret it. The subject of litigation is supposed to be in Court. If it is moveable, it is actually there. If it be immoveable, a fragment or sample of it is brough t Digitized by Microsoft® 0H4.P. X. TEE ROMAN LEGIS ACTIO. 363 ia its place ; land, for instance, is represented by a clod, a house by a single brick. In tlie example selected by Gains, the suit is for a slave. The pro- ceeding begins by the plaintiff's advancing with a rod, which as Gains expressly tells, symbolised a spear. He lays hold of the slave and asserts a right to him with the words, " Hunc ego hominem ex Jure Quiritium meum esse dico secwndum suam causam sicut dixi ; " and then saying, " Ecce tihi Vindictam imposui^ " he touches him with the spear. The defen- dant goes thi'ough the same series of acts and gestures. On this the Praetor intervenes, and bids the litigants relax their hold, '' Mittite artibo homi- nem. " They obey, and the plaintiff demands from the defendant the reason of his interference, " Pas- ttdo anne dicas qua ex causa vindicaveris,^'' a ques- tion which is replied to by a fresh assertion of right, " Jus peregi sicut vindictam imposui.''"' On this, the first claimant offers to stake a sum of money, called a Sacramentum, on the justice of his own case, " Quando tu injuria provocasti^ J) ceris Sacramento teprovoco^ " and the defendant, in the phrase, " Sim- iliter ego te^" accepts the wager. The subsequent proceedings were no longer of a formal kind, but it is to be observed, that the Praetor took security for the Sacramentum, which always went into the coffers of the State. Such was the necessary preface of every ancient Koman suit. It is impossible, I think, to refuse as- sent to the suggestion of those who see in it a dra- Digitized by Microsoft® 364 ANCIENT SUIT IN HOMER. chap, i matizatiou of the origin of Justice. Two armed men are wrangling about some disputed property. The Praetor, vir pietnte gravis, happens to be going by and interposes to stop the contest. The disputants state their case to him, and agree that he shall arbi trate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as a remuneration for his trouble and loss of time. This interpretation would be less plausible than it is, were it not that, by a sui-prising coincidence, the ceremony described by Gains as the imperative course of proceeding in a Legis Actio is substantially the same with one of the two subjects which the God Hephaestus is de- scribed by Homer as moulding into the First Com- partment of the Shield of Achilles. In the Homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but about the composition for a homicide. One person asserts that he has paid it, the other that he has never received it. The point of detail, however, which stamps the picture as the counterpart of the archaic Roman practice is the re- ward designed for the judges. Two talents of gold lie in the middle, to be given to him who shall ex- plain the grounds of the decision most to the satis- faction of the audience. The magnitude of this sum as compared with the trifling amount of the Sacra- mentum seems to me indicative of the difference be- tween fluctuating usage ard usage consolidated into Digitized by Microsoft® unA X. ANOIiayT VIEW OF PROOEDUEE. 866 law. The scene introduced bj^ the poet as a striking and characteristic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the reg- ular, ordinary formalities of a lawsuit. It is natur;A therefore that in the Legis Actio the remuneration of the Judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a num- ber of arbitrators by popular acclamation, it should, be paid as a matter of course to the State which the Praetor represents. But that the incidents described, so vividly by Homer, and by Gains with even more than the usual crudity of technical language, have substantially the same meaning, I cannot doubt ; and, in confirmation of this view it may be added that many observers of the earliest judicial usages of mod- ern Europe have remarked that the fines inflicted by Courts on o&enders were or\g'ma\\y .sacramenta. The State did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. Mr. KemVjle expressly assigns this charac- ter to the Anglo-Saxon hannum ov fredum. Ancient law furnishes other proofs that the ear- liest administrators of justice simulated the probablo acts of persons engaged in a privata quarrel. In settling the damages to be a'^'arded, they took ss their guide the measure ol vengeance likely to be exacted by an aggrieved person under the circunr- Digitized by Microsoft® 366 OLD EOMAN LAW OF THEFT. chat, s stances of the case. This is the true explanation of the vei-y different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. Some strange exemplifications of this peculiarity are sup plied by the old Roman law of Theft, The Laws of the Twelve Tables seem to have divided Thefts into Manifest and Non-Manifest, and to have allotted extraordinarily different penalties to the offence ac- cording as it fell under one head or the other. The Manifest Thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods ; the Twelve Tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the property. The Non-Manifest Thief was he who was detected under any other cir- cumstances than those described ; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. In Gaius's day the excessive severity of the Twelve Ta- bles to the Manifest Thief had naturally been much mitigated, but the law still maintained the old princi- ple by mulcting him in fourfold the value of the stolen goods, while the Non-Manifest Thief still continued to pay merely the double. The ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punish- ment when his blood was hot from that with which Digitized by Microsoft® CHAP. X. ANCIENT MEASURE OF PUXlSiliffiNT. 361 he would be satisfied when the Thief was detected after a considerable interval ; and to this calculation the legal scale of penalties was adjusted. The prin- ciple is precisely the same as that followed in the Anglo-Saxon and other Germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from an^ body who kills him after the pursuit has been intermitted. These archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. The modern administrator of justice has confessedly one of his hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. It is always easy to say that a man is guilty of man- slaughter, larceny, or bigamy, but it is often mosi difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. There is hardly anj perplexity in casuistry, or in the analysis of motiv- which we may not be called upon to confront, it we attempt to settle such a point with precision ; and accordingly the law of our day shows an in- ci easing tendency to abstain as much as possible from laying down positive rules on the subject. In France the jury is left to decide whether the offence which it finds committed has been attended by ex- tenuating circumstances; in England, a nearly un- Digitized by Microsoft® 368 TRUE CRIMINAL JURISPRUDEN'CE. chap, a. bounded latitude in the selection of punisliiueuts is now allowed to the judge; while all States have in reserve an ultimate remedy for the miscarriages of law iu the Prerogative of Pardon, universally lodged with the Chief Mac^i^trate. It is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were per- suaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the prob- able rise and fall of his passions in fixing their scale of punishment. I wish it could be said that their method of legislation is quite extinct. There are, however, sevei-al modern systems of law which, in cases of graver wrong, admit the fact of the wrong- doer having been taken in the act to be pleaded in justification of inordinate punishment inflicted on him by the sufferer — an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. Nothing, I have said, can be simpler than the considei'ations which ultimately led ancient societies to the formation of a true criminal jurisprudence. The State conceived itself to be wronged, and the Popular Assembly struck straight at the offender tvith the same movement which accompanied its legislative action. It is further true of the ancient world — though not precisely of the modern, as I sshall have occasion to point out — that the earliest criminal tribunals were merelv subdivisions, or coui- Digitized by Microsoft® OHAP. X. CRIMINAL JDRISDICTION OF LEGISLATEJEE. 3(19 mittees, of the legislature. This, at all events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. The primitive penal law of Athens entrusted the castigation of offences partly to the A.rchons, who seem to have punished them as torU^ and partly to tha Senate of Areopagus, which pun- ished them as sitis. Both jurisdictions were sub- stantially transferred in the end to the Helisea, the High Court of Popular Justice, and the functions of the Archons and the Areopagus became either merely ministerial or quite insignificant. But " He- lisea" is only an old word for Assembly ; the Helisea of classical times was simply the Popular Assembly convened for judicial purposes, and the famous Dikasteries of Athens were only its subdivisions or panels. The corresponding changes which occurred at Rome are still more easily interpreted, because the Romans confined their experiments to the penal law, and did not, like the Athenians, construct pop- ular courts with a civil as well as a criminal juris- di/'tion. The history of Roman criminal jurispru- dence begins with the Old Judicia Populi, at which the Kings are said to have presided. These were simply solemn trials of great offenders under legis- lative forms. It seems, however, that from an early period the Comitia had occasionally delegated its criminal jurisdiction to a Qusestio or Commission, which bore much the same relation to the Assembly 24 Digitized by Microsoft® S7o TEE QU^STIONES. chap, x which a Committee of the House of Commons beai-s to the House itself, except that the Roman Commis- sioners or Quaestores did not merely report to the Comitia, hut exercised all powers which that body was itself in the habit of exercising, even to thi passing sentence on the Accused. A Qua3stio of this sort was only appointed to try a particulai offender, but there was nothing to prevent two or three Qusestiones sitting at the same time ; and it is probable that several of them were appointed simul- taneously, when several grave cases of wrong to the community had occurred together. There are also indications that now and then these Qusestiones ap- proached the character of our Standing Conimittees, in that they were appointed periodically, and with- out waiting for occasion to arise in the commission of some serious crime. The old Quaestores Parri- cidii, who are mentioned in connection with transac- tions of very ancient date, as being deputed to try (or, as some take it, to aearch out and try) all oases of parricide and inurdei', seem to have been appointed regularly every year ; and the Duumviri Perduel- lionis, or Commission of Two for trial of violent injury to the Commonwealth, are also believed by most writers to have been named periodically. The delegations of power to these latter functionaries bring us some way forwards. Instead of being ap pointed when and as state-offences were committed, they had a general, though a temporary jurisdiction over such ap miglit be perpetrated. Our proximity Digitized by Microsoft® CHAP. X. Qi:.ESTIOyES PERPETU^. 371 to a regular ciiminal jurisprudence is also indicated by the general terms "Parricidium" and "Perduel- lio," which mark the approach to something like a classification of crimes. The true criminal law did not however come into existence till the year B.C. 149, when L. Cal- purnius Piso carried the statute known as the Lex Calpurnia de Repetundis. The law applied to casep Repetundarum Pecuniarum, that is, claims by Pro- vincials to recover monies improperly received by a Governor-General, but the great and permanenj importance of this statute arose from its establish ing the first Qusestio Perpetua. A Qusestio Perpetua was a Permanent Commission as opposed to those which were occasional and to those which were tem- porary. It was a regular criminal tribunal, whose existence dated fi-om the passing of the statute cre- ating it and continued till another statute should pass abolishing it. Its members were not specially nominated, as were the members of the older Quses- tiones, but provision was made in the law consti- tuting it for selecting from particular classes the judges who were to officiate, and for renewing them in conformity with definite rules. The offences of which it took cognisance were also expressly named and defined in this statute, and the new Qusestio had authority to try and sentence all persons in future whose acts should fall under the definitions of crime supplied by the law. It was therefore a Digitized by Microsoft® 373 HISTORY OF CRIMINAL LAW. cnAP. x. regular criminal judicature, administering a true criminal jurisprudence. The primitive history of criminal law divides itself therefore into four stages. Understanding that the conception of Crime^ as distinguished from that of Wrong or Tort and from that of Sin^ in- volves the idea of injury to the State or collective community, we first find that the commonwealth, in literal conformity with the conception, itself intti-- posed directly, and by isolated acts, to a-^'-enge itself on the author of the evil which it had suffered. This is the point fi'om which we start ; each indict- ment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punish- ment. A -second step is accomplished when the mul- tiplicity of crimes compels the legislature to delegate its powers to particular Quaestiones or Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the par- ticular offender. Yet another movement is made wlien the legislature, instead of waiting for the al- leged commission of a crime as the occasion of ap- pointing a Quaestio, peiiodicallj^ nominates Com- missioners like the Quaestores Parricidii and the Duumviri Perduellionis, on the chance of certain classes of crimes being committed, and in the expec- tation that they will be perpetrated. The last stage is reached when the Quaestiones from being periodical or occasional become permanent Benches Digitized by Microsoft® OKAP. s. THE QUiESTIONES PEEPETTJ^. 378 or Chambers — when the judges, instead of bising named in the particular law nominating the Cora- mission, are directed to be chosen through all future time in a particular way and from a particular class — and when cei'tain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties appropriated to each description. If the Qusestiones Perpetuae had had a longer history, they would doubtless have come to be re- garded as a distinct institution, and their relation to the Comitia would have seemed no closer than the connection of our own Courts of Law with the Sovereign, who is theoretically the fountain of jus- tice. But the Imperial despotism destroyed them before their origin had been completely forgotten and so long as they lasted, these Permanent Com- missions were looked upon by the Romans as the mere depositaries of a delegated power. The cogni- sance of ci'imes was considered a natural attribute of the legislature, and the mind of the citizen never ceased to be carried, back from the Qusestiones to the Comitia which had deputed them to put into exercise some of its own inalienable functions. The view which regarded the Qusestiones, even when they became permanent, as mere Committees of the Pofiular Assembly — as bodies which only ministered to a higher authority — had some important legal consequences which left their mark on the criminal law to the very latest period. One immediate result Digitized by Microsoft® 874 THEORY OP THE QC^STIOXES. chap, x was that the Comltia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the Qusestiones had been established. Though the legislature had consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow that it surrendered them. Tlie Comitia and the Qusestiones went on trying and punishing offenders side by side ; and any unusual outburst of popular indignation was sure, until the extinction of the Republic, to call down upon its object an indictment before the Assembly of the Tribes. One of the most remarkable peculiarities of the institutions of the Republic is also traceable to this dependance of the Qusestiones on the Comitia. The disappearance of the punishment of Death from the penal system of Republican Rome used to be a very favorite topic with the writers of the last century, who were perpetually using it to point some theory of the Roman character or of modern social economy. The reason which can be confidently assigned for it stamps it as pui-ely fortuitous. Of the three forms which the Roman legislature successively assumed, one, it is well known — the Comitia Centuriata — was exclusively taken to represent the State as embodied for military operations. The Assembly of the Cen- turies, therefore, had all powers which may be sup posed to be propei-ly lodged with a General com manding an army, and, among them, it had authority to subject all offenders to the same correction to Digitized by Microsoft® oiiAP. X. PUNISHMEKT OF DEATH. 3T? which a soldier rendered himself liable by breaches of discipline. The Comitia Centuriata could there- fore inflict capital punishment. Not so, however, the Comitia Curiata or Comitia Tributa. They were fettered on this point by the sacredness with which the person of a Roman citizen, inside the walls of the eity, was invested by religion and law; and, with respect to the last of them, the Comitia Tributa, we know for certain that it became a fixed principle that ihe Assembly of the Tribes could at most impose a fine. So long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the Centuries and of the Tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties; but then it hap- pened that the more democratic assembly, that of the Tribes, almost entirely superseded the others, and became the ordinary legislature of the later Repub- lic. Now the decline of the Republic was exactly the period during which the Qusestiones Perpetuaa were established, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with death. It followed that the Permanent Judicial Commissions, holding a delegated authoi'ity, were cii'- cnmscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them. They could do nothing which the A-Ssembly of the tiibes could not have done ; and, aa Digitized by Microsoft® o76 PUjriSHMENT OF DEATH. chap, x the Assembly could not sentence to death, the Qua3S tiones were equally incompetent to award capital punishment. The anomaly thus resulting was not viewed in ancient times with anything like the favour which it has attracted among the moderns, and in deed, while it is questionable whether the Roman character was at all the better for it, it is certain thai the Roman Constitution was a great deal the worse. Like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in cer- tain stages of the civilising process. There is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all pe> nal law. Without it, the community neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. The incompetence of the Roman Tribunals to pass sentence of death led distinctly and directly to those frightful Revolution- ary intervals, known as the Proscriptions, during which all law was formally suspended simply because party violence could find no other avenue to the ven- geance for which it was thirsting. No cause contrib- uted so powei'fuUy to the decay of political capacity in the Roman people as this periodical abeyance of the laws ; and, when it had once been resorted to, we need not hesitate to assert that the ruin of Roman liberty became merely a question of time. If the practice of the Tribunals had afforded an adequate Digitized by Microsoft® OHiP. X. RESULTS TRACEABLE TO THE QU^STIOKES. 877 vent for popular passion, the forms of judicial pro- cedure would no doubt have been as flagrantly per- verted as with us in the reigns of the later Stuarts, but national character would not have suffered as deeply as it did, nor would the stability of Eomar institutions have been as seriously enfeebled. I will mention two more singularities of the Ro- man Criminal System which were produced by the same theory of judicial authority. They are, the ex- treme multiplicity of the Roman criminal tribunals, and the capricious and anomalous classification of crimes which characterised Roman penal jurispru- dence throughout its entire history. Every Qucestio^ it has been said, whether Perpetual or otherwise, had its origin in a distinct statute. From the law which created it, it derived its authority ; it rigo rously observed the limits which its charter pre- scribed to it, and touched no form of criminality which that charter did not expressly define. As then the statutes which constituted the various Quaestionea were all called forth by particular emergencies, each of them being in fact passed to punish a class of acta which the circumstances of the time rendered par- ticularly odious or particularly dangerous, these en- actments made not the slightest reference to each other, and were connected by no common principle. Twenty or thirty different criminal laws were in ex istence together, with exactly the same number of Qusestiones to administer them ; nor was any attempt made during the Republic to fuse these distinct ju- Digitized by Microsoft® 878 RESULTS TRACEABLE TO THE QUiESTIONES. chap, x dicial bodies into one, or to give symmetry to the piw visions of the statutes which apjDointed them and defined their duties. The state of the Roman crimi- nal jurisdiction at this period, exhibited some resem- blance to the administration of civil remedies in England at the time when the English Courts of Common Law had not as yet introduced those ficti- tious averments into their wi-its which enabled them to trespass on each other's peculiar province. Like the Qusestiones, the Courts of Queen's Bench, Com- mon Pleas, and Exchequer, were all theoretical emanations from a higher authority, and each enter- tained a special class of cases supposed to be com- mitted to it by the fountain of its jurisdiction ; but then the Koman. Qusestiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under the cognisance of each Qusestio, than to distinguish between the pi'o- vinces of the three Courts in Westmnister Hall. The difficulty of drawing exact lines between the spheres of the different Qusestiones made the multi- plicity of Roman tribunals something more than a mere inconvenience ; for we read with astonishment that when it was not immediately clear under what genei-al description a man's alleged offence ranged themselves, he might be indicted at once, or suc- cessively before several different Commissions, on the chance of some of them declaring itself compe- tent to convict him ; and, although conviction by one Qusestio ousted the jurisdiction of the rest, acquittal Digitized by Microsoft® CHAP. X. CLASSIFICATIONS OF CRIMES. 379 by one of them could not -be pleaded to an accusa- tion before another. This was directly contrary to the rule of the Roman civil law ; and we may be sure that a people so sensitive as the Romans to anomalies (or, as their significant phrase was, to inelegancies) in jurisprudence, would not long have tolerated it, had not the melancholy history of the Qusestiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. The Empe rors soon abolished this multiplicity and conflict of jurisdiction ; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the Courts. The classifications of crimes which are con- tained even in the Corpus Juris of Justinian are re- markably capricious. Each Qasestio had, in fact, confined itself to the crimes committed to its cogni- sance by its charter. These crimes, however, were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. They had not therefore anything necessarily in common ; but the fact of their constituting the particular subject-matter of trials before a particular Qusestio impressed itself nat- urally on the iiublic attention, and so inveterate did the association become between the offences men- tioned in the same statute that, even when formal attempts were made by Sylla and by the Emperor Augustus to consolidate the Roman ciiminal law, the Digitized by Microsoft® 380 LATER LAW OF CRIMES. chap, x legislator preserved the old gi-ouping. The Statntea of Sylla and Augustus were the foundatiou of the penal jurisprudence of the Empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. I need only give 3 single example in the fact that perjury was alwajs classed with ciutti'^.g and wounding and with poison- ing^ no doubt because a law of Sylla, the Lex Cor- nelia de Sicariis et Veneficis, had given jurisdiction over all these three forms of crime to the same Per- manent Commission. It seems too that this capricious grouping of crimes affected the vernacular speech of the Romans. People naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list, which doubtless gave its style to the Law Court deputed to try them all. All the offences tried by the Qusestio De Adulteriia would thus be called Adultery. I have dwelt on the history and characteristics of the Roman Qusestiones because the formation of a criminal jurisprudence is nowhere else so instructive- ly exemplified. The last Qusestiones were added by the Emperor Augustus, and from that time the Ro- mans may be said to have had a tolerably complete criminal law. Concurrently with its growth, the an- alogous process had gone on, which I have called the conversion of Wrongs into Crimes, for, though the Roman legislatui-e did not extinguish the civil rem- edy for the more heinous offences, it offered the suf- ferer a redress which he was sure to prefer. Still, Digitized by Microsoft® CHAP. s.. LATER LAW OF CRIMES. 381 even after Augustus had completed his legislation, several offences continued to be regarded as Wrongs, which modern societies look upon exclusively a» crimes; nor did they become criminally punishable till some late but uncertain date, at which the laM I legan to take notice of a new description of offence? called in the Digest crimina extraordinaria. These were doubtless a class of acts which the theory of Roman jurisprudence treated merely as wrongs ; but the growing sense of the majesty of society revolted from their entailing nothing woi'se on their perpetra- tor than the payment of money damages, and accord- ingly the injured person seems to have been permit- ted if he pleased, to pursue them as crimes extra ordi- nem, that is, by a mode of redress departing in some respect or other from the ordinary procedure. From the period at which these crimina extraordinaria were first recognised, the list of crimes in the Ro- man Rtates must have been as long as in any com- munity of the modern world. It is unnecessary to describe with any minuteness the mode of administering criminal justice under the Roman Empire, but it is to be noted that both its theory and practice have had powerful effect on modern society. The Emperors did not immediately abolish the Qusestiones, and at first they committed an extensive criminal jurisdiction to the Senate, in which, however servile it might show itself in fact, the Emperor was no more nominally than a Senator like *he rest. But some sort of collateral criminal Digitized by Microsoft® / 333 SOVEREIGN THE EOTJKTAIN OF JUSTICE. chap, x jurisdiction had been claimed hy the Prince from the first ; and this, as recollections of the free common- wealth decayed, tended steadily to gain at the ex pense of the old tribunals. Gradually the punish- ^iieut of crimes was transferred to magistrates directly nominated by the Emperor, and the privileges of the Senate passed to the Imperial Privy Council, which also became a Court of ultimate criminal ap- peal. Under these influences the doctrine, familiar to the moderns, insensibly shaped itself that the Sovereign is the fountain of all Justice and the de- positary of all Grace. It was not so much the fruit of increasing adulation and servility as of the central- isation of the Empire which had by this time per- fected itself The theory of criminal justice had, in fact, worked round almost to the point from which it started. It had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand ; and it ended in the doctrine that the chastisement of crimes belonged in an especial m anner to the Sovereign as represent- ative and jaan datqr yof b[s people . The new view differed from the old one chiefly in the air of awful- ness and majesty which the guardianship of justice appeared to throw around the pei-son of the Sove- • reign. This later Roman view of the Sovereign's rela- tion to justice certainly assisted in saving modern societies from the necessity of travelling throuo-h the series of changes which I have illustrated by the Digitized by Microsoft® CKAP. X. MODERN HISTORY OF CRIMES. 383 history of the Qusestioues. In the primitive law of almost all the i-aces which have peopled Western Europe there are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of freemen ; and there are some States — Scotland is said to be one of them — in which the parentage of the existing judicature can be traced up to a Committee of the legislative body. But the development of the criminal law was universally hastened by two causes, the memory of the Roman Empire and the influence of the Church. On the one hand traditions of the majesty of the Caesars, pei'petuated by the temporary ascendency of the House of Charlemagne, were surrounding Sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired, and were com- municating to the pettiest feudal potentate the char- acter of guardian of society and representative of the State. On the other hand, the Church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of Scripture which speak with approval of the powers of punishment committed to the civil magistrate. The New Tes tanient was appealed to as proving that secular rulers exist for the terror of evil-doers; the Old Testament, as laying down that " whoso sheddeth man's blood, by man shall his blood be shed.'" Ihere can be no doubt, I imagine, that modern ideas ou the subject of crime are based upon two assurap Digitized by Microsoft® 384 DOCTRIira: OF THE CHURCH AS TO CRIMES, cka?. x. tlons contended for by the Church in the Dai'li A-ges — first, that each feudal ruler, in his degree, might be assimilated to the Roman Magistrates spoken of by Saint Paul ; and next, that the of fences which he v/as to chastise were those selected for prohibition in the Mosaic Commandments, or I'ather such of them as the Church did not reserve to her own cognisance. HeT-esy, supposed to be in- cluded in the First and Second Commandments, Adultery and Perjury were ecclesiastical offences, and the Church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. At the same time, she taught that murder and robbery, with their various modifications, were un- der the jurisdiction of civil rulers, not as an accident of their position, but by the express ordinance of God. There is a passage in the writings of King Alfred (Kemble, ii. 209) which brings out into remarkable clearness the sti'uggle of the various ideas that pre- vailed in his day a> to the origin of criminal juris- diction. It will be seen that Alfred attributes it partly to tl"'~ authority of the Church and partly to that of the Witan, while he expressly claims for treason against the lo]'d the same immunity from ordinary rules which the Roman Law of Majestas nad assigned to treason against the Csesar. " After this it happened," he writes, " that many nations received the faith of Christ, and there were rasmy Digitized by Microsoft® OHAP. X. KIKu ALFKKD ON CKIMINAL JURISDICTIUJN . Shfi synods assembled throughout the earth, and among the English i-ace also after they had received the faith of Christ, both of holy bishops and of their exalted Witan. They then ordained that, out of that mercy which Christ had taught, secular lords, •A^ith theii- leave, might without sin take for every misdeed the hot in money which they ordained ; ex- cept in cases of treason against a lord, to which they dared not assign any mercy because Almighty God adjudged none to them that despised Him, nor did Christ adjudge any to them which sold Him to death ; and He commanded that a lord should be loved like Himself.'" Digitized by Microsoft® Digitized by Microsoft® 11^ DEX. ADOPTION. Adoption, fiction or. 126. ■ influence of the satra gentilicia on the law of, 6, 26. in Hindoo law, 188. Adprehensio ; or assumption of sove- reign power in a newly discovered country, 241.