fa C.I Cornell University Library K 230.C58P8 Practical jurisprudence :a comment on Au 3 1924 017 569 264 QJnrttf U Slam ^rlynol ICibtaty The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017569264 PEACTICAL JURISPEUDENCE, A COMMENT ON AUSTIN. SonDon: C. J. CLAY AND SONS, CAMBEIDGE TJNIVEESITY PBESS WAREHOUSE, AND STEVENS AND SONS, LIMITED, 119 AND 120, CHANCERY LANE, LAW PUBLISHEES and BOOKSELLEKS. ffismiitiSBe: DEIGHTON, BELL AND CO. leipjifl : F. A. BEOCKHAUS. latfa Borft: MACMILLAN A2ST) CO. PRACTICAL JURISPHUDENCE, A COMMENT ON AUSTIN. BY E^ Cr'ci.AEK, LL.D, BEGIUS PROFESSOR OP CIVIL LAW IN THE niHTERSITT OE CAMBRIDGE ; ALSO OF Lincoln's inn, bakrister-at-law. GCambrttrge : AT THE TUSriVEESITY PRESS. 1883 The rights of translation and reproduction are reserved. aCambtilJgJ: FEINTED BY C. J. CLAY, M.A. U SON, AT THE 0NITEESITY PEES3. DEDICATED SIE HENRY S. MAINE, K.C.S.I., LL.D., E.RS., rOEBIGN ASSOCIATE MEMBEK OE THE INSTITUTE OE EEANCE. -C. J. CONTENTS. INTKODUCTION. Jurisprudence. Uses of the Mstorical study of Eoman Law. Historical and Analytical Jurists. Sclieme of the present volume. Books referred to. pp. 1—10 PART I. pp. 11—195. THE DEPIlflTION AND ORIGIN OF LAW. OHAPTEE I. Unconscious definition as shewn in early names of law. . pp. 11 — 15 CHAPTER II. Early names of Law : Eoman. Jus not jussuni. True derivation oijus. Early usage of jus. Judex and judicare. Summary. Jura. Jus =iigh.t. Derivation of Jt«s= right. Justus. PP- 16 — 28 CHAPTER III. Early names of Law : Eoman (continued). Lex. Derivation of lex. Lex puHica, legare, lex mancipi. Summaxj a.a to lex andi lex jpublica. Lex = body of law. . . PP. 29—40 CHAPTER IV. Early names of Law : Greek. Antiquity of Hellenic literature, e^/us. ed/uiTTes. Summary. dUi] in early usage. Derivation of SUij. vd/^os or vo/jUis. Conclusion. PP- ^1 — 58 CONTENTS. CHAPTEE V. Early names of Law : Teutonic. Moeso-Gothio : Witoth. Early EngUsh laws, ce, domas, asetnissa. a. Dom. Dom-boc. Domas and difiurres. Law, lagu, laga. Lagu, "Common law." Common law bom. folc-riht. Modern meanings of " common law." Conclusion. . . pp. 59 — 76 CHAPTER VI. Early names of Law: Eight and Wrong. Austin's Eight and Wrong. Blackstone. Derivation of Bight. Eelation of Eight to rex, &c. Derivation of Wrong, (fee. Eight and Wrong. Summary. Droit and Tort. Eight = Law. pp. 77—89 CHAPTER VII. Unconscious definition : Summary. Pervading idea of Law. Austin's Eight and Law .pp. 90 — 94 CHAPTER VIII. Definitions of Law. Unsatisfactory character of Definitions. Chrysippus. Demosthenes. Papinian, Bracton, Plato, Aristotle. Cicero. Modern defi- nitions. Grotius. Hohbes. Austin. . . . pp. 95 — 105 CHAPTER IX. Definition : Law as a rule of human conduct. Blackstone. Montes- quieu. Hooker. Austin. Ulpian. Generality of a rule. Capito. Black- stone. Austin . . pp. 106 — 114 CHAPTER X. Definition : Law as to the motive for obedience. An ulterior motive to action. Motive, what? The Law of Nature. Austin's Law of Nature. Philosophical Law of Nature. Paulus. Modern Emotional Intuitionism. Grotius. Hobbes. Blackstone. Bentham's Physical Sanctions. Utilita- rianism. Summary pp. 115 — 126 CHAPTER XL Definition : Law as to its Sanction. Grotius' Voluntary law. Grotius compared with Hobbes and Blackstone. Law of God not law in the ordinary sense. Positive law, what? Sanction not remuneratory. Explanation of the term Sanction. Conclusion pp. 127 — 134 CONTENTS. IX CHAPTER XII. Definition : Austin. Law proper, positive, and strictly so called. Positive moral rules proper and improper. Conclusion. . . -pp. 135 — 140 CHAPTER XIII. Law, as between tlie Elements of a State. State or Nation. The Social Contract : Grotius, Hobbes. The Family. From Family to Gens. Anstia's subordinate political society. General course of national or political associa- tion. First common rules of conduct. The popular Assembly. The Council and Judges. Sir H. Maine. ... ... pp. 141 — 156 CHAPTER XIV. Law, as between the Members of a, State. What constitutes a State? Sovereignty of all impossible. Sovereign not necessarily sole. Sovereignty not primary or original. Analysts' definition good, for a fully formed State. Origia of Legislation. Subdivision of Sovereignty. Definition of a State. The objection to Austin's definition of Law. Customary and Constitutional Law. Blaokstone's Municipal Law. Conclusion. "Civil" or Municipal Law. Ambiguous meaning of " Sovereign." ... pp. 157 — 176 CHAPTER XV. Law, as between States. International Law Ancient and Modern. Amphictionies. Fetiales. Jus Gentium. Name of International Law. Public and Private International Law. Law or not Law. Hobbes. Grotius. Blaokstone. Austin on International Law. Practical sanctions of International Law PP. 177—187 CHAPTER XVI. Definition of Law: Conclusion. The general object of Law. The Sanc- tion of Opinion. Locke. Law in and between States. "Laws" of Honour and Fashion PP- 188-195 CONTENTS. PART II., pp. 196—394. THE POEM OF LAW. CHAPTER I. Source, Mode and Form. Austin's Sources and Modes. Written and Unwritten Law. The "Modes in which Law begins and ends." Form of Law pp. 196—201 CHAPTER II. Statute Law. English Statutes. Faults of classification by " Sources." 1. "Source" properly legislative. 2. Legislation by a judicial "Source." Conclusion. Austin's Statute Law. Actual Enactment. Publication. Promulgation. ... . . . . pp. 202—213 CHAPTER III. Case-Law : its general character, history and authority. Case or "ju- diciary" Law. Authority of Case-Law with the Bomans. Cicero. Digest. Imperial Constitutions. Blackstone on the Eescripts. Authority of modern Case-Law . . pp. 214 — 226 CHAPTER IV. Special Characteristics of Case-Law: the Grounds of Judicial Decision. Hale's Constituents of the Common Law. Application of existing rules. Interpretation Authoritative or Doctrinal. Mode and means of Interpreta- tion. Context. Ratio Legis. Intrinsic Merit. Spurious Interpretation. Austin on Spurious Interpretation. Its history. The term Equity as applied to Interpretation. The "Eeason of the thing" or Equity. Pre- cedents pp. 227 — 246 CHAPTER V. Special characteristics of Case-Law: the AppHoation of a Precedent. Austin's Judiciary Law. Practical application of Precedents.. Cessante ratione legis, cessat lex ipsa. Analogy. Competition of opposite ana- logies pp. 247—252 CONTENTS. XI CHAPTER VI. Case-Law : its advantages and disadvantages. The makers of Judiciary- Law. Manner in -wHch Judiciary Law is made. Ex post facto Legislation. Character of Judiciary Law when made. TJnoertaiaty. Voluminousness. Partial development of Case-Law. The advantages of Case-Law. pp. 253—265 CHAPTER VII. Text-book Law : Jus Scriptum and Jtis non Scriptum. Contents of Text- Books. Jus Scriptum, &c. Meaning of the antithesis according to Austin and German Jurists. Promulged and Unpromulged. Austin's literal meaning discussed. Conclusion pp. 266 — 272 CHAPTER VIII. Text-book Law : Roman Customary Law. Scanty information. Roman Theory. Instances of Roman Customary Law. Conclusion. pp. 273—281 CHAPTER IX. Text-book Law : Roman Prudentes. Distinction of Prudens and Pa- tronus. The Pontiffs the first Prudentes. The legis actiones. The old jus civile. The Prudentes as Professors. The Prudens as Jurum conditor. 'First actual text-books. The licensed Prudentes. Hadrian. Later licensed Prudentes. The Prudentes in the Digest pp. 282 — 299 CHAPTER X. Text-book Law : Early English Prudentes. The Conquest our starting- point. Glanville. The Laws of Edward, WiUiam and Henry. Glanville's Unwritten Law. Braoton. Eleta. Britton. Littleton. Staunforde. Listi- tutional works. Coke. Hale. Blaekstone. . . . pp. BOO — 315 CHAPTER XI. Text-book Law: English Customary Law. Theory. Customs general, particular, peculiar, and notorious. Disuse. Present English Customary Law pp. 316-323. CONTENTS. CHAPTER XII. Text-book Law : General Bemarks. Text-book Law "Unwritten." Jus moribus constitutum. Basis of Customary Law. Austin. Consensus uten- tium. What Customs are Law? Savigny. HoEand. Jtis a prudentibus compositum. " Singular " law. Modern Text-book writers, on International, Constitutional and " Magisterial " Law pp.324 — 339 CHAPTBE XIII. Jus Gentium and Equity : the Praetor's Edict. Jus Oentium. Savigny. Peregrini. Austin's jus gentium. The Praetor Urbanus. The second Praetor. Eirst issue of Annual Edicts. Arguments against a distinct second Edict. Edictum Perpetuum. Summary. .... pp. 3i0 — 352 CHAPTER XIV. The Eoman Jus Gentium. Lateness of the idea. Austin. Meaning of Gentium. Jus civile. Cicero's Jms Gentium. That of the classical jurists. Sum m ary pp. 353 — 363 CHAPTER XV. The Eoman Aequitas and the English Equity. Austin's Aeguitas. That of the Eomans. Later meanings of Aequitas and Equity. Aeguitas as Interpretation. Aequitas est laxamentum juris. Aequitas naturalis. Enghsh Equity . -pp. 364—379 CHAPTER XVI. Codification. Treatment of the subject. The end or object of Codifica- tion. The means to the end. All or none. A preliminary Digest. Jus moribus constitutum. Jus u. prudentibus compositum and Case-Law. The Code. Provision for the future. pp. 380 394 General Index pp. 395 — ^qO Index to Austin pp. 401 j.03 PRACTICAL JURISPRUDENCE; A COMMENT ON AUSTIN. INTEODUCTION. Jurisprudence may, for the purposes of this work, be briefly defined as the science of law in general. The name has sometimes been applied to the knowledge of a particular body or system of law : but Professor Holland' appears to be perfectly right in objecting to this application, and in conse- quently discarding the division of J urisprudence into general and particular. The meaning of the adjective practical, which, though not a perfectly satisfactory expression, has been employed for want of a better, will be seen from the first pages of Chapter I. Uses of the historical study of Roman Law. To some English students of Eoman Law, as perhaps to Englishmen in general, the only practical use of the study will at first sight appear to lie in the two facts, that many rules of the Corpus Juris have been, as was always acknowledged^ adopted into Continental Law, and that a few of such rules — more than was, until recent times, imagined — have been adopted into our own. Under this point of view, the attention will natu- 1 Jurisprudence, p. 9. C. J. 1 t INTRODUCTION, rally be directed, almost exclusively, to the results of Justi- nian's legislation, as constituting the only body of Roman Law known, in any extent, to its adopters into our modern systems. But it will soon be found that a thorough under- standing of the complicated organism, or rather the congeries of unorganised matter, which the Byzantine emperor has left us, is perfectly impossible ' without reference to an earlier stage — to a more logical developemeut of the whole and a more natural correlation of the parts, which were to some extent obscured by the arrangement of Justinian's compilers. Hence the value justly attached to Niebuhr's great discovery of the older Institutes of Gains: hence the continual attempts to reconstruct even a skeleton of the Praetor's Edict, out of the fragments scattered through the Digest. Again, the Edict itself was in the main an amplification of the Twelve Tables; while the Twelve Tables were a partial codification of customary law dating from the very commencement of the Eoman polity. For much of that customary law, too, which subsisted to the end in an uncodified form, we depend, as in the case of England, upon very general statements of Insti- tutional writers, needing to be helped out by such scanty record of form and procedure as has been incidentally pre- served in the works of historians or antiquaries. With a view, then, to the mere knowledge of the law as left by Jus- tinian, no study of that law per se can altogether dispense with the historical method, which traces each rule as far as possible from its original source. Such a method is no mere unpractical curiosity or dilettante antiquarianism, but a need- ful study of the elements composing that vast and vague structure whose fragments are built into every legislature of the civilised world. Thus much for Roman Law, as the source of rules actually existing at the present day: from which point of view, I must however admit that the utility of this study is less in INTRODUCTION. 3 England than it is in Scotland, in most of the Continental nations, and in several of our colonies. Into the latter sj'stems considerable portions of the Roman law (at least of the civil, as distinguished from the criminal, part) have been transferred without much alteration. With us, the generali- sations upon particular classes of cases, worked out before our eyes in the Digest, are models of practical good sense, so that the reasoning upon which they are based must be of use in similar circumstances. Not, however, being recognised as authoritative, they are but slightly employed by our text- writers and still less by our practising lawyers. Amongst the former, perhaps, an increasing deference to the dicta of the classical jurists is perceptible. But, on the whole, if individual rules in detail were all that we got from the study of Roman Law, it might be justly questioned si le jeio vaut la chandelle. By far the wider titility of the subject lies in its con- nexion with Jurisprudence, from which the study of Roman Law can never be separated without the greatest detriment to both ; coupled with which, that study is most profitable towards the acquisition of sound principles and clear ideas as to law in general. In order to such acquisition there appears to me to be, at the present time, special need of that historical method which I have just advocated. The bistorical school of modem jurists, dating from Savigny and Hugo, apparently arose by way of revolt against a previous philosophical school, whose members were repre- sented as cutting themselves adrift from experience, and pre- ferring the evolution of a system out of principles dependent merely on their own consciousness. The synthetic method, which starts from assumed first principles and prime agents, working down to what is, whether attributed with perfect justice or not to the particular philosophers of whom I speak, ■ has always had its adherents among the earlier jurists. Even 1—2 4 INTRODUCTION. the great work of Grotius is an instance of it; though Grotius generally endeavours to confirm his positions and conclusions by reference to historical fact. A later developement of this revolt against the synthetic method is to be found in our English Analytical jurists, who seek, instead of building up a structure from assumed first principles, to take law simply as it is, and to analyse the actually existing legal ideas and conceptions. Neither of the two principal analysts appears to me, speaking with great deference, satisfactorily to perform this task. For Bentham, his follower Austin claims the merit of belonging to the historical school. That this claim, however, is made in a somewhat narrow and negative sense of the words will be clear at once to any one who reads the passage in question ^ Bentham was, as Sir H. Maine has pointed out, before all things a legal reformer''; his view is less of law as it is, and much less of law as it has been, than of law as it ought to be. Of the good which has actually resulted from his speculations and suggestions it is scarcely possible to speak too highly. And yet the warmest admirers of those "Principles of Legis- lation'' will, I think, admit that their utility might have been greater had the course run by actual legislatures been better known to their author, and had not a hastiness of assumption, almost as dangerous as a, priori reasoning, too often usurped the place of historical enquiry. This blot is, in fact, so fully admitted by Bentham's great follower, that I need not here pursue the subject further, but will come at once to that fol- lower himself. After a life which had so little of the well-deserved success - Anstin, 39. p. 702. 2 Early History of Institutions, xii. p. 343. See a very clear statement of tlie difference, in Bentham's own -words, on two meanings of the word dglit. (Trait^s T. 2. p. 1. first paragraph of Ch. 1.) INTRODUCTION. 5 to balance so much disappointment and failure*, the work of the dead Austin is achieving results beyond what even he would have anticipated. It is undoubtedly forming a school of English jurists, possibly of English legislators also. It is the staple of jurisprudence in all our systems of legal educa- tion. Thus it comes to be read by numbers of ordinary students, apparently unable to digest such strong meat, who, neglecting the original authorities criticised by their teacher, start from his somewhat arbitrary dicta as statements of admitted fact — a treatment not more unfair to the earlier writers or injurious to the present students, than it is alien to Austin's own just and candid spirit^ Now the fault charged against Austin's Jurisprudence, as a text-book, by those of his admirers who venture to be critics as well, is this. If we accept his definition of law, his treatment of the subject has the perfect correctness of mathematical demonstration, and must therefore be always an admirable logical exercise. But, in that definition, Austin dwells so prominently upon the circumstances of legislation (or position), as to throw entirely into the shade those historical beginnings of law, which have obviously existed in all nations, as rules of human conduct, anterior to anything that can be reasonably spoken of or thought of as legislation at all. Practically, Austin considers political societies only at an advanced period of their exist- ence, and denies the name of law to that which has been keeping them together for ages, because it does not square with his own logical conception. Political societies, however, and their institutions do not grow up by mathematical principles nor are they governed ^ See Mrs Austin's dignified and touching memoir. Austin, Preface, pp. 1—22. 5 Instance, the pains which he took to ensure some general knowledge of Blackstone and Justinian by printing and distributing his "Tables," the extant part of which is contained, in recent editions of the Jurisprudence, at the end of the second volume, (pp. 952, 3 : 961, 2 : 1019—1021 ed. 3.) () INTRODUCTION. by logical rules. The genesis of law cannot but have some connexion even with its most matured and modern form : and, though it was not Austin's object to narrate the genesis of law, it is plain that very crude notions of it are often derived from his Jurisprudence. As a corrective to these notions, it may be of service to trace anywhere the continuous history of a purely national legislature ; particularly if the legislature have attracted general interest, from its intrinsic merit and enduring influence. In the case of Rome we have such a history: the history, fairly complete, of a gradually developed system, eminently free from foreign elements, undistorted by any sudden or violent change; the work of a nation among the most prac- tical and clear-headed, for ordinary business, that the world has ever known. The expedients and opinions of such a nation will obviously be of value, not only as a matter of legal history, but as precedents for other times in the prin- ciples of legislation, and as contributions to a clear view of practical law in general. It has therefore appeared to me that a brief historical view of Roman Law, with express reference to Jurisprudence, or the science of law in general, might not be without utility, even to the student whose principal object is a knowledge of English Law. Such a view, to start from the beginning in order of time, suggests the following familiar sub-divisions : — 1. The Regal period, the Decemviral legislation and the Formulary system. 2. The growth and contents of the Edict. 3. The Imperial legislation, ending with Justinian. Of these, the first and second are undoubtedly, in the present state of our literature, those which require the most attention. For their treatment, I have the materials already, to a great extent, collected, though a considerable time will be required for the arrangement of them, particularly in the case of the Edict. The third period has been repeatedly INTRODUCTION. 7 handled by writers of ability; so that it is not very material whether my powers enable me to enter on a subject to the knowledge of which I might add very little. Scheme of the present volume. A few words are neces- sary, as to the contents of the present volume. After working for some time at the directly historical view of my subject — of which work a small book styled " Early Roman Law, Regal Period" was the first instalment — I have found it absolutely necessary to enter, by way of preliminary, upon some of the more general questions of that science, in relation whereto legal history has its main use. The charge brought, in German controversy, against the historical school of jurists, has been that they live in the past, dwell exclusively upon that which was, and lose sight of that which ought to be. It was, as I have intimated, a still more serious fault, in their antagonists, which called the historical school into existence. But there is something in this charge of antiquarianism : and although, as I have attempted to shew above, the historical method is, per se, of great value for the understanding of the individual rules which have come down to us from the Romans ; yet, for its still greater value, in relation to Jurisprudence, it requires some addition, or rather some preface, to connect the present with the past, by establishing some community of ideas, and, as far as possible, some settled phraseology. I have mentioned, above, a false philosophical method. But there is a true philosophical method — so ably inaugurated by Sir Henry Maine, that any one may well hesitate to fol- low, hand passibus aequis. Its field is the consideration of historical fact bearing on law, but not of one period only, or of one nation. From the comparison of law here with law elsewhere, of law as it is with law as it has been, one result at least may be expected — that reformers will set out. 8 INTRODUCTION. armed with some practical knowledge, not with their own a priori speculations, in search of law as it ought to be. The enquiries, however, contained in the present volume hear less directly upon the future of Legislation than upon what I have put down above as the most substantial advan- tage to be derived by an Englishman from the study of Eoman Law — the acquisition, namely, of clear ideas upon law in general. In point of importance, this should indeed come first, as affecting not only those who may be actively engaged in legislation but a very much larger number. What is law, and how are we to define it? not as a matter of philosophical hypothesis but of practical fact — What have people in general meant, and what do they now mean, by this and synonymous terms ? is a question of interest, if not to every free man, certainly to every law student. The same may be said of an enquiry into the historical origin of law, and the modes in which it is made, or the forTn in which it comes down to us. Again, what subdivisions of an immense subject have been thought useful— upon what actual differences th.ej depend — what is the importance of those differences and the resultant value of the classifications depending upon them ? These are considerations of weight both to the student who wishes to know anything of his subject, to the practitioner who wishes to be anything beyond an empiric, and to the legislator who would base his work, not on mere benevolent impulse, but on wide views of future utility drawn from past experience. The above are the topics treated in this book. The first coincides generally with that portion of Austin's "Province of Jurisprudence Determined" (Lectt. 1 — 6), which belongs to Law as distinguished from Ethics", and a few scat- tered passages in his "Analysis of Pervading "Notions" « See the remarks of Sir Henry Maine, E. H. xii. pp. 369, 370. INTRODUCTION. 9 (Lectt. 12 — 27). The long (124 pages) and important Lec- ture 6, whicli contains the subject-matter of the apparently- omitted Lectures 7 — 11, enters largely into the question of the historical origin of law. And this question is so closely bound up, not only in Austin's reasoning but in the nature of things, with the definition of law, that I have been obliged, after originally adopting another arrangement, to take them together. The subject recurs, to a certain extent, in Austin's "Law in relation to its sources and the modes in which it begins and ends" (Lectt. 28 — 39). But my endeavour has been to treat this last-named portion of Austin as mainly bearing on the latter .part of the second topic mentioned above, i. e. the modes in which law is made and the form in which it comes down to us. The third topic — the sub- divisions of law — coincides with Austin's "Law considered with reference to its Purposes and the Subjects with whicli it is conversant" (Lectt. 40 — 57), and the first half of the "Analysis of Pervading Notions" so far as not already considered. Lectures 18 — 27 in the last-mentioned portion of Austin's work deal mainly with psychological questions of consciousness entering into the subject of legal responsi- bility, which I have endeavoured to treat in a separate book '. Into the more detailed consideration of particular rights and duties which occupies several of the lectures and fragments at the end of the " Jurisprudence " I do not propose to enter. After what has been said above, I need not disclaim any wish or expectation to supersede Austin. Indeed my object throughout has been rather to systematise and preserve what seemed best in former authors, than to add fresh views of my own. But some service may certainly be done, in the present one-sided study of English jurisprudence to which I have alluded, by setting forth, in full, the passages, from ' An Analysis of Criminal Liability. Cambridge University Press, 1880. 10 INTRODUCTIOX. other authorities, on whicli Austin comments, which are not always very easy to find, and which are accordingly, if my ex- perience as an examiner goes for anything, very seldom found. I have, finally, to express my thanks to Cambridge friends for many valuable suggestions and corrections — notably to Professors Cowell and Skeat. Unfortunately for me, the latter gentleman's admirable Etymological Dictionary had not appeared before the greater part of this book was in type. I have had a similar loss with regard to the new issue of Bosworth's Anglo-Saxon Dictionary. In the case of certain books of more than one edition, it may be useful to note that the following are those to which reference is made : Austin, Jurisprudence. 3rd ed. 1869. Bentliam, Traites de legislation. 2nd ed. 1820. Blaokstoue, Chitty's, with the original imaging printed in the margin. Bracton, paging of Tottell's edition. 15G9. Corssen, Aussprache, &c. 2nd ed. 18G8. Curtius, OrundzUge. 5th ed. 1879. Hale, History of the Common Law, and Analysis. Running- ton. 1779. Hobbes, Leviathan. 1651. Holland, Elements of Jurisprudence. 2nd ed. 1882. Maine, Ancient Law. 6th ed. 1874. ,, Early History of Institutions. 1st ed. 1875. „, Village Communities. 3rd ed. 1876. Markby, Elements of Law, &c. 2nd ed. 1874. Ortolan, Generalisation, Histoire, and Explication Historique des Instituts. 8th ed. 1870. Savigny, System des heutigen Rbmischen Eechts. 1840. Schleicher, Compendium. 2nd ed. 186G. Spence, Equitable Jurisdiction of the Court of Chancery. 1840. Teuffel, History of Roman literature. Wagner's translation. 1873. PAKT I. THE DEFINITION AND ORIGIN OF LAW. CHAPTER I. UNCONSCIOUS DEFINITION IN EARLY NAMES OF LAW. Unconscious definition, as shewn in early names of law. In opening one of the most brilliant and dramatic of all written dialogues, Plato puts into his master's mouth words, whose affected homeliness perhaps indicates some genuine speech of that strange original. " If there ever was a fellow," says Socrates, " who, in his talks with other fellows, wanted particularly to know exactly what he was talking about, I, you must know, am, or at least I believe I am, one of those fellows \" In this artless, innocent way we come to definitions and counter-definitions, to the discomfiture of the successive definers, and ultimately to the rejection of popular views upon the particular subject, the substitution of a moral rule, and one of the most splendid theories of a future life ever conceived by man. For the object of the Gorgias is clearly didactic; it is a sermon rather than an 1 Plato, Gorgias 453. B. iydi yap. ..ha. Some such rigmarole as the above always seemed to me the only true rendering of this queer disjointed sentence which I do not for a moment believe to be corrupt. 12 UNCONSCIOUS DEFINITION iavestigation ; for all its affected homeliness, it deals far more with exalted theory than with the actual facts of our every day world. In all definitions of practical matters there is some danger of doing unintentionally what Plato, of course, did intentionally — of straying from the ideas and meanings of ordinary men, in pursuit of what the definer conceives to be the more logical idea or the more correct meaning. Most prejudicial would such an error be in an account of law ; which, as a matter of history, is of course confined within what is and has been, not what, either morally or logically, ought to be ; which, as a matter of present existence, com- prises, among its main factors and ingredients, those very popular feelings, those very unscientific opinions, which are theoretically demolished by the dialectic of Plato, and prac- tically shaken by the analysis of Austin. The clearing of popular ideas — the discarding of any isolated notion obviously incongruous with those which it traditionally accompanies, is certainly desirable : still, in subjects not of speculation but of practice, to draw the tempting circle of a narrow logical definition will often be to exclude matter of indisputable reality and admitted utility. I wish, then, in defining, or leaving half-undefined, what we understand by the Eaglish wurd laiu, and certain corre- sponding terms in other languages, expressly to enquire what is and has been so understood by people in general: not merely by lawyers, and, still less, by philosophers and moral- ists. Upon that popular understanding rest in great measure the possibilities for the origination of law and the motives for obedience to it : so far as definitions express that popular understanding they appear to be valuable : beyond, there seems, I must confess, to me, little but idle hair-splitting or mischievous dogmatism. IN EAKLY NAMES OF LAW. 13 I use the expression, what is and has heen understood, advisedly, because an attempt to arrive at the popular under- standing, which is my object, by data exclusively modern, would certainly fail, for two reasons. First — the popular conception, the bundle of ideas con- nected by ordinary people with an old word, is not the work of any single generation but the growth of long time. In spite of the changes which such a conception generally undergoes, it is still a heritage of the past, and, without a reference to the past, some latent point is sure to escape us. Nor, in the second place, can we overlook a certain disturbing effect due to the modern attempts at strict or philosophical definition. The influence of these with the literary class, and with the more highly educated class of practical men, is very great; and, though I doubt whether they po.ssess the same permanence as the popular conception, they can certaiuly cast it into the shade, and appear, for their term of existence, to supersede it. We must, then, go back to a period preceding that of definitions, philosophical or juridical, if we wish to grasp the popular conception of law. We must avail ourselves of the unconscious definition involved in the use of the oldest and simplest names by which that conception has been expressed. These names, if we can get at their original meaning, will obviously preserve to us that property, which the men, who used the word, considered most important or most striking in the thing. An enquiry of this kind might be carried, with interest and profit, into the whole number of law- abiding peoples, past and present ; and, in proportion to its extent, would probably be the truth of the generalisation obtained. But so wide a treatment of the subject would be totally inconsistent with the space that can be devoted to it in the present work. I can only, therefore, take certain leading instances, drawn from languages within our own 1-i UNCONSCIOUS DEFINITION ethnological circle, particularly from the Latin language and from that of our own immediate ancestors. In considering these we have, over our predecessors, the great advantage of an immense advance in comparative philology, which has, within very recent times, grown to the position of an exact science — a science whose laws are quite sufficiently established to raise it above the popular distrust in which it is still unjustly held; whose aid is the most important that can be obtained for the solution of any historical problem belonging to a preliterary period. Some caution, however, is obviously necessary in availing ourselves of that aid. Etymology will give us, with some- thing approaching to certainty, the root, and therefore the general meaning, of the oldest and simplest names for law. But, that the original meaning of these names has in the course of time become considerably modified, is no pecu- liarity of law, as it is one of the commonest phenomena in all language of ordinary life. A signification originally general and simple becomes, sometimes specialised, sometimes complicated with other ideas quite foreign to the original one. The later meaning can be as distinctly proved by literary usage as the former can be inferred by comparative philology. Neither can possibly be ignored, and some of the most fallacious reasoning is based upon the Procrustean forcing of an old word within the narrow limits of what was undoubtedly its first sense. If, then, we wish to get a true idea of law, as ap- prehended by a people and unconsciously defined in their language, we must generally consider, not only the deriva- tional meaning of its national name, but also the concrete idea gathered round that name in the using. And to this latter idea we may sometimes be led, singularly enough, by obviously false and absurd derivations, if framed while the particular body of law was still a vital reality. The last IN EAELY NAMES OF LAW. 15 class of indicia, however, belong rather to the epoch of conscious definitions, on the proper use of which I have here a few words to say, before I come to the subject in detail. Definitions of law framed by mere philosophers have, doubtless, their- didactic uses, but are, for our present pur- pose, of little service. Their aim is usually, without disguise, the establishment of a moral, not the ascertainment of a fact. Many definitions occurring in Plato's dialogues, par- ticularly those which depend upon quasi-derivations, furnish a good example of what I- mean. Definitions, on the other hand, framed by more or less practical jurists, while they generally exclude some part of the popular conception, do undoubtedly furnish some key to it, because they are made with some reference to the professional view of an actual state of things. They may therefore well supplement and complete the information drawn from the literary usage and true derivational meaning of the words under our consideration. But these later- named sources of knowledge should, as it seems to me, occupy the first place. I shall therefore open the subject by considering the meaning of names for law, among the Romans, the Greeks, and our own Teutonic ancestors, pro- ceeding afterwards to deal with conscious or intended definitions. CHAPTER II. EARLY NAMES OF LAW : EOMAN. Jus not Jussum. In treating of law in general, d propos of Roman law in particular, we naturally come first to con- sider the ambiguous term jiis^. Here, recent philology does us yeoman's service at the very outset, in destroying an old derivation, tempting but false, which has, I think, something to do with the strengthening if not with the framing of a very questionable modern theory. The identification of jus with jussum, that which is com- manded, though not occurring, to my knowledge, in any good classical authority, has found favour with many writers old and new^. I cannot find this view anywhere adopted, in so many words, by Austin', but no one can help re- 1 I abandon, with regret, what I still believe to be the better spelling of the palatal and labial spirant {see Early Koman Law iv.). But I have found that j" and v" are more intelligible to ordinary law students, who are not invariably philologers. I am also greatly influenced by the example of good modern grammarians who adopt the modern j as well as the small v. ^ If the phrase ' quod populus ultimum jussisset, id jus ratumque esse ' attributed by Livy (9. 33) to Ap. Claudius Caecus, dates, as is not impossible, from the time of that great jurist, the father of Boman prose composition, a derivation of jus from jubeo may have had some vogue, at least among the Roman professional class, three hundred years before Christ. Ortolan (G^nfiral. § 8) and many others take jus = jussum, more from tradi- tion, doubtless, than investigation. Of such derivations as that u. Jovis nomine (Grotius Prolegg. § 12) I need not speak. Yet Huschke (' Sacramen- tum,' &c., pp. 373, 381) positively reproduces this. ' For it is not the same thing to say (Austin 18. p. 421. u. 68) ' Just is that which is jussum.' EARLY NAMES OF LAW: ROMAN. 17 cognising a clear result of it, under the prominence given to command in that author's definition of law. Now, the root oi jus — in fact, we may say, the word itself — is undoubtedly represented in the first syllable oijubeo and jussum; and the old formula of proposing a Eoman lex — Velitis, jubeatis, Quirites — may point to a derivation of jubeo from jus-hibeo, hold or take for jus. But, as jubeo and jus- sum, whatever be the proper derivation of the former, and whatever be its real relation to the latter, must both of them etymologically follow and not precede jus ; the original meaning oijus has to be determined on entirely independent grounds, and cannot, at least' on these, be identified with command^. True derivation of Jus. Modem etymologists agree in de- riving jus from the Indo-Germanic root, which appears in San- skrit as YU and YUJ, in Greek as ZT^, and in Latin as JTJ (pronounced YU). Its primary meaning is that oi joining, or putting one thing to another, which appears clearly enough in the two or three instances given below". From the Sanskrit form comes the old Vedic word yds and the Zend yaos. The * Corssen (Beitrage, 421) makes jaftcre come bomjus-hibere, and so mean " fiir Eecht halten, erklaren " ; to which derivation he adheres (Aussprache, &o. 2. 1027) in spite of the objections of Benfey {Jubeo und seine Verwandte, p. 44) who derives the word from jous and dJm, or dhaya, with change of dh into 6, making the meaning " als Eecht hinstellen"- Corssen ultimately , agrees with Benfey in taking an original juspsi or jouspsi as the foundation oijussi (locc. citt.). Jusstis is, according to Benfey (ib. p. 45) tromjoxispsus, according to Corssen from joustus (on which very questionable step see Eoby, Latin Grammar, 1. Iviii.), No theory of the perfect indicative and passive participle, that I have seen, is satisfactory to me. Corssen's deri- vation of the present tense is perhaps the best. But, in any case, no phi- lologer dreams of deriving j'tts from jmsum. = Here, as in many cases, Greek ^=DY,the D being 'parasitic'. Curtius, Grundziige, pp. 624—627. " Greek I'uyov, j^eiyvv/u, &c. ; Latin jugum, jungo, conjux, &o. ; Gothic yuk'; English yoke. C.J. 2 18 EAELY NAMES OF LAW: EOMAN. signification of these words, whose analogy to jus is evident at first sight, has been early contested : but Benfey, I think, suc- ceeds in shewing that all their usages may be reconciled with the idea of Fitness or the Fitting'- This is what he conceives to be the original meaning of the Latin jus, which Corssen, as I understand him, takes to express a simple hinding character^ The former idea is much the more clearly descended from that of the root YU, which expresses connexion rather than con- straint. And this meaning of jus, as " that which is fitting ", derives some additional support from expressions in the Vedic hymns, where yds may certainly be without difficulty translated "what is fitting or suitable' ". Goodness or acceptahleness is the idea expressed by two or three old Gothic words which appear to be derived from the same original root, and which bear a curious resemblance to the Latin JMs'°. Early usage of Jus. I pass now from derivation to the earliest actual usages of the word jtjs and its adverb or ablative case. The heartless verdict of the younger Africanus, upon his kinsman's murder, declared that Gracchus was slain jure"- The phrase comes from the Twelve Tables^^, where it is said of the killing of a nocturnal thief. In the technical phraseology of Roman legislature the question was said to be put and the ' Juheo und seine Verwandte, p. 13. 8 Beitrage, 421. Benfey wavers somewhat in this direction, ib. pp. 12, 24. " E.g. Eig Veda 3. 17. 8 and 4. 12. 5 where sani and yes are prayed for. Both words are of doubtful signification. It seems, however, probable that sam is a negative term meaning freedom from some evil, and yos a positive one meaning the presence of some good. ^'' msa, inferred from the comparative iusiza, "besser" : lusild, 'Anuehm- lichkeit ', Benfey, ib. p. 15. See Massmann (Ulfilas, p. 709) on Itts, Iusiza visan (Galatians 4. 1). Skeat (Moesogothic Glossary, p. 142) takes ius = light, easy. " Periocha Liv. 59, Jure caesum videri. 13 Macrobius, Sat. 1. 4. 19, Si nox furtum faxsit (Cujacius, ioi factum sit) si im ocoisit jure caesus esto. EARLY NAMES OF LAW: ROMAN. 19 statute enacted jure^^, the same adverb being applied to the making of a testament per aes et lihram in the very old formula used by the familiae emptor^\ "Lawfully" is, of course, the natural and obvious translation of jure in all these passages : but it "will also perfectly well bear the meaning " in a fitting, orderly or regular manner ". An undoubtedly old use of the nominative jus occurs in the two well-known passages from the Twelve Tables enacting that the terms of a man's testamentary disposition, and the terms of the oral declaration in a nexum and mancipium, are to be, or to be regarded as, jus — " ita jus esW^". That the word esto may be, in such cases, translated "let it be re- garded as"— not simply "let it be"— is, to my mind, clear from the old formula of predecemviral law paricidas esto", where, unless the word paricidas directly expresses some mode of punishment, esto must have the freer meaning here referred to. This phrase ita jus esto is in fact explained by Gaius^^ as directing that the acts-in-law specified should be regarded as valid, an explanation borne out by the occurrence of the word ratum (valid) as an almost synonymous expletive oi jus in a similar legal phrase of the last republican period". " Let it be regarded as orderly or regular" appears then, to me, to give an original signification for jus esto, which at once agrees with the derivation above accepted and passes easily into the ultimate practical meaning "let it he valid". So, if we seek an original meaning for jure, "let him be 13 Notae Probi. P. I. R. populumjare rogavit. P. Q. L S. populusque jure scivit. " Gaius 2. 104, quo tujure testamentum facere possis. 1^ Festus, Nuncupata, 'Miiller 173 (F), cum nexum faciei mancipiumque, uti lingua nuncupassit, ita jus esto. Gaius, 2. 224, idque lex xii. tabularum permittere videbatur qua cavetur ut, quod quisque de sua re testatus asset, id ratum haberetur Ms verbis uti legassit Suae res (sic), ita jus esto. 15 Festus, Parrici, Mailer 221 (P). See my Early Roman Law, p. 44. 1^ Lex Eubria (49 or 48 b.o.) line 20 jus ratumque esto. 20 EARLY NAMES OF LAW: EOMAN. regarded as fittingly or orderly put to death" gives good sense in the case of the nocturnal thief, whereas " in a binding manner '' would be absurd. Judex and Judicare. We are, as I have intimated, bound to go behind the obvious translations law and lawful, when we are enquiring what law originally meant. But it is clear that the word jus must have attained, at the time of the Twelve Tables or even earlier, besides its original and proper meaning, to a technical one verj' like our complex idea of law. The words judex and judicare occur in that Code and in formulae which may be still older. The judex of the Twelve Tables is most probably not to be identified with the Praetor's delegate in civil cases under the formulary system, but with the officers mentioned in the ancient words of summons to a meeting of the centuries^* — the two chief magistrates, namely, of the republic, whom we usually designate by their later style of consuls. Again the word judicare already occurs to express criminal jurisdiction^' in the formula for trial of treason ; a formula which is probably as old as the beginning of the republic, and is made out by our authorities to be older. The etymological composition of the words judex and judicare is clear enough. The second limb of the compound comes from the Aryan root of the Greek hecKvvvai and the German zeigen, which appears to have been narrowed, in the Latin dicere, from the meaning of indication generally'" to that of oral declaration. This may very possibly have arisen from its technical use in law Latin to express the magistrate's oral declaration of what was jus. ^* Varro, L. L. 6. 88. G. Calpurni, cos. dicit, voca ad conventionem omru:s Quirites hue ad me. Aceensus dioit sio : omnes Quirites ite ad. conven- tionem hue adjudices. 19 Livy, 1. 26. Dumnviri perduellionem judicent. '" Surviving in index and, I think, in die's causa, for form's sakp, for show. EARLY NAMES 01" LAW: ROMAN. 21 In accordance with what has been said above, upon the speedy development, or rather narrowing, oijus into a techni- cal term, we may take "declaration of the law" as a fair rendering of the idea conveyed by judex and judicare to very early, if not the very earliest, employers of those words. But, if any original and proper signification of the first syllable still subsisted, such signification in all probability was "that which is fitting, orderly, or regular ". The use of j us to designate the place where jus is declared or administered, dates from the Twelve Tables" and is so natural as to require no explanation. Being the name of the original court, it became the designation of principal, as distinguished from delegated, jurisdiction: though the de- legate judge, somewhat inconsistently, took the name of the principal one, when the latter assumed, or confined himself to, the styles oi praetor and consul. Summary. The meaning, then, of jus = law, as deter- mined, not merely by derivation, but by the uses of the word and of the words judex and judicare coexistent with it in the earliest times from which we have continuous phraseology surviving, seems to be what is fitting, orderly and regular, particularly what is declared to be so by a judge. We shall adhere at once to the sounder etymology of the forms and to the better interpretation of the technical expressions above cited, if we regard jus as matter of rule (that which is regular) admini^ered (but not made) by a magistrate: and this mean- ing continues applicable to the word so long as the word has any accurate meaning at all. Jura. It may be remarked, finally, that, in the early use of this the oldest Eoman term for law, there is no sign of plurality, which otherwise might, as in the case of the Greek difucrre^, incline us to identify the first Roman conception of law with that of a mass of individual judgments. , The 21 Si in jus vocat. Cicero de Legg. 2. 4. 9. Gellius 20. 1. 25, &o^ 22 EARLY NAMES OF LAW: EOMAN. few cases where jits (= law) occurs in the plural belong to later general literature, not to the decemviral period or to technical law language. Where the term appears to be used with any degree of accurate meaning, jura are distinguished from Ie(jes (statutes) as being said condi, an ambiguous word, but apparently signifying rather the putting into order of existing matter than the creation of new, or the imposition of either. It was specially the work of experts who wrote or delivered opinions on the old, or at least the non-statutory, law of Rome^^ These 2yrincipJes of old law appear to be intended wherever jwa are opposed to leges'^. Alone, the term is used with great laxity for almost any principles or rules which can be called laws in the widest and vaguest sense^'. But such uses throw little or no light upon the original signification o{jiis. Jus = right. I pass from the comparatively unimportant use oijura = rules or principles of law, to another use of jus, ^ In Plautus' Epidicus (184 B.C.) 1. 2. 109, hie poterit cavere reote jura qui et leges tenet, Jura might be suggested by the plural leges ; but in 3. 4. 89 of the same play, qui omnium Legum atque jurum fictor conditor cluet, jura would seem already to have an independent existence in connexion with the word condere. Here, as in Gaius' jura condere — said (1. 7) of the imperial prudentes — to put pre-existent viatter in order or sliape is a possible and perhaps the best meaning for condere. Livy, however, when he speaks (3. 33) of the decemviri being appointed ad condenda nova jura means by condere to found and, hj jura, statutes. Of the various lax expressions used by Pomponius, Dig. 1. 2. 2, fundaverunt (§ 39) is, I think, suggested by the more ordinary meaning of condere ; jura regere (§ 13) may be to regulate either legal relations (rights) or rules of law; in jura reddehant (§ 9) the meaning may be "dehvered rules of law," but more probably Jura simply=JMs (translate " administered justice"). 23 Horace, Ep. 1. 16. 40, 41, Vir bonus est quis? Qui consulta patrum qui leges juraque servat. -* Cicero pro Caecina, 12. 34 : 17. 49. 1 Off. 8. 26, &o. : Caesar, B. C. 1. 8J. 3. Sea too Just. Instt. 1. 2. 8, 11. EARLY NAMES OF LAW: ROMAN. 23 early established, both for singular and plural, in technical phraseology, though I do not know that it can be clearly made out in the preliterary period. The two meanings of the word — Law and Right — are familiar to us in the writings of the classical jurists, and a similar ambiguity has either descended from the Latin or arisen independently in most modern languages. Jus, diritto, derecho, droit and Recht, not only mean, law in general, as distinguished from an individual enactment, but they also mean, sometimes a particular right, as a faculty or power supported by law, sometimes right, or what is right, in general. If the historical order of these dpuble or treble meanings can be established and kept in view, they are of value as throwing light upon the original conception of fundamental juridical ideas: usually, they are a mere source of confusion. This last remark applies, I presume to think, even in the case of Grotius' Prolegomena and first chapter, where the reasoning would have been as strong, and the meaning much clearer, had the author throughout avoided that ambiguity, to which he does indeed advert, but of which he seems unconsciously to avail himself^^ A still stronger instance, from earlier times, is to be found in the most unsatisfactory farrago at the beginning of Justinian's Institutes, a passage mainly due to Ulpian^^ 25 See De Jure Belli ac Pacis, 1. 1. 3, 5, 9, for /us = justice, right, and law. -^ Just. Instt. 1. 1. pr., voluntas jus suumcuiquetribuendi. HereJMS = an individual's right or rights. lb. 1. 1. 1, Juris prudentia est divinarum atque humanarum rerum notitia, justi atque injusti soientia. Cf. 3, Juris praeoepta sunt haeo : honeste vivere, alterum non laedere, suum cuique tribuere. Ulpian Dig. 1. 1. 10 is the source of these two dicta, in which jus approximates to one form of the " law of nature " ; see below, p. 118. lb. 1. 1. 4, Jus (inferred from comparison with 3) ...publicum et privatum. B-erejus^the law of a particular country. lb. 1. 1. 2, Jura populi Bomani. Here jus = an individual law or rule of law. 24 EARLY NAMES OF LAW: ROMAN. So far, the ambiguity only really affects the general name and definition of law: it has been extended, among moderns, by its importation into the subdivisions of the subject, which ancient writers designated under the comparatively clear titles of jus personarum and jus rerum. These titles, ex- panded into plurals, probably by some admiring glossator, have led to our own Hale and Blackstone's "Rights of Per- sons," and still more unhappy "Rights of Things^'". What labyrinths of modem metaphysic may be struggled through, on the subject oi Recht, Austin is merciful enough merely to indicate. The confusion of thought referred to is well pointed out and cleared up in a note to his sixth lecture ^^ And, as the English language is now free from this confusion, there is an exceptional convenience in the use of the English term Law, whose two meanings, of individual statute and law in general, are easily kept asunder by the use of articles, while both are perfectly distinct from either that of a right in par- tioialars or right in general. Derivation of jus = right. The meaning of /us = right is, I think, taken by Benfey to arise directly from the original idea of that which is fitting^. What is fitting is right gene- rally, and what is fitting or right /or a?i individual is his right. Corssen never, to my knowledge, divides the ambiguous Recht, by which he translates jus, into its two significations. For my own part, while I would by no means reject the view of Benfey, I seem, as regards actual usage, to trace jus = right rather from the developed or specialised meaning of jus= law, through the medium oi procedure. The word jurgium was in the classical period applied to oral altercation as distinguished from blows™. So Cicero, ^ Hale, Analysis of the Law, § 1. Blaokstone, Comm. 1. 1. p. 122. ■■^^ Page 293, note y. 29 jy^jjeo und seine Verwandte, p. 12. ■'■' Jurgia proludunt, sed mox et pooula torques Saucius &c. Juvenal 5. 26. EARLY NAMES OF LAW: EOMAN. 25 commenting with a Blackstonian complacency on the phrase d jurgant, makes it a point of proper feeling and expression in the Decemviri that they do not speak of litigation— a. thing incredible between neighbours — but of jurgation". Varro shews that the two are the same, and Festus gives us at once the equation, Jurgatio = juris actio^^. The phrase, then, of the Twelve Tables, si jurgant, practically means "if they go to law ". The latter part of the word is on the better authority"' from agere. The first part, in spite of the later phrase lege agere, I am inclined to suppose Jus (ace.) not jure (abl.) because of a similar expression _/ws_/bct occurring in the form of mndicatio which it is quite possible may be older than the Twelve Tables"*. It is impossible to say whether "to do that which is regu- lar" or "to drive, set in motion, the law" is the original mean- ing oijus agere: I am inclined to the former for jus facere^^ But it is clear that from these phrases might very naturally come the idea of working or setting in motion such power of the worker (actor) as was in regular course, or supported by law: i.e. his right. This stage of meaning is, in fact, sup- posed by many good authorities to have been already reached ^' Cicero de Eep. 4 apud Nonium pp. 430, 431, Admiror neo rerum solum sed verborum etiam elegantiam. Si jurgant, inquit. Benevolorum concertatio, non lis inimicorum, jurgium dicitur. Jurgare igitur lei putat inter se vioinos, non litigare. 32 Varro, L. L. 7. 93, jurgio id est litibus. Festus (P) 103 (Miiller), Jurgatio, id est, juris actio. 33 The ieiiyation jvrg are = jure wrgere of Eutychius (2. 7 J is not worth much beyond shewing that this author probably considered jits in jurgare to be law, not right. 3* Ga. 4. 16, Jus feci sicut vindictam imposm. Fed (for the formerly accepted i^cre^i) is due to Studemund's recension. 3-5 I believe both the extended meaning of agere (see Martial Epig. 1. 80) and the narrowed meaning of dicere (above, p. 20), as compared with those of their Indo-European roots, to be due to Roman procedure. 23 EAELT NAMES OF LAW: EOMAN. in the formula of vindication above referred to, which they translate (in my opinion wrongly) "I have exercised a right." A good instance of ambiguity between jus = that which is regular or right, and jus = an individual's right, from the beginning of the literary period, is given below'^ It does not seem that jus = right can be much explained or accounted for by the later legal expressions sui juris and alieni juris. The meaning of control, which appears here, is at least as well derived from the signification established for jus, of power supported by law [right), as from Corssen's questionable one, of original constraint. Justus. A few words may be here added on the adjec- tive or participle jwsfes; less on account of any light which the explanation of that word throws on jus, than because of Austin's preposterous derivation oi Just from that which is commanded. I have collected his slightly inconsistent dicta on this subject in a note"". Etymologically, the dependence oi justness upon command is quite untenable. If there is a relationship of lineal descent between justum and jussum the former is the ancestor, the latter the descendant. This is '^ Plautus, Trinummus, 5. 2. 37. CA. jus hie orat [pleads what is light, for orat is not = posoit). LY. impetrabit, te advocate atq^ne arbitro. He Bhall obtain his rights, &c. ^^ Austin 18, p. 421. " To fulfil the duty which the command im- poses is jiist or right. That is to say, the party does the act, or the party observes the forbearance, which is jussum or directum by the author of the command," and, in the note, "Just is that which is jussum, the past participle oijubco." A man is, according to Austin, just who fulfils spontaneously that which is jussum or ordained : but the origin of the human quality or disposition called justice is traced in the main to fear of the evils by which our duties are sanctioned, some slight admixture being allowed of a perception of the utility of justice, Lect. 22, pp. 463, 4. In somewhat varied terms " that which is just conforms to a determinate la,w, justice being the conformity of a given object to the same or a similar measure," Lect. 6, p. 276, note s. (In this note it would almost seem that the idea of adjustment had been present to the author's mind.) EAELY NAMES OF LAW : ROMAN. 27 the order in wliicli jussum is derived by Corssen from jus, through a supposed intermediate verb Jousere or jousere^^. The intermediate appears somewhat unnecessary, by the side of /as and fast'us, nor am I aware of any etymological objec- tion to deriving Justus directly from jus, in the original signi- fication of regular. Such an original signification seems best to explain the somewhat puzzling use of Justus in the sense of full or complete which probably occurs in the Twelve Tables'^ and certainly in later Latin: it agrees entirely with justa meaning the ordinary rites of sepulture^". Conformity with rule may undoubtedly be predicated of most of the objects here described as just: btit it is rule as expressing regularity of occurrence, not command. Sometimes Justus appears to be taken from the de- veloped or specialised sense of j?ts ( = law), so as to be almost exactly equivalent to our lawful*^. How the word ultimately reached the wide and somewhat vague moral signification in which we know it, is difficult to say. It might be a question whether Greek theories of the philosopher's completeness, rendered by the Latin use oi Justus referred to above, may not have as much to do with the Latin moral justice, as the original idea of regularity and order, or the secondary one of law*"". But undoubtedly command does not enter into the ^ Beitrage, 422. I do not, however, believe that Justus could have become jussus, as I perfectly agree with Eoby's remarks (Latia Grammar, i. p. Iviii.) on the " stability" of st. See above, note 4. 39 The interval allowed the judgement debtor, for payment— jWicatts xxx dies justi sunto — quoted by Gellius (20. 1. 42). Gellius' own explanation that the justi dies are ajustitium, or interstice and cessation of law, may convey, like many such explanations, an independent fact, but has no derivational value. In justum iter (Caesar, B. C. 1. 2S), justa victoria (Cicero ad Fam. 2. 10. 2), and justa muri altitudo (Caesar, B. G. 7. 23) the notion oi complete may clearly come from that of regular. -"I E.g. Sallust, Jug. 11 : Caesar, B. G. 6. 18. ^1 E.g. Justa uxor, justae nuptiae, &o. ■'- What, for instance, h&s justice, in our sense, to do with the impervious- 28 EAP.LT NAMES OF LAW: EOMAN. question at all: that which is commanded being, as I have shewn, no etymological ancestor of that which is just, but a collateral relative in a lower degree from their common ancestor. ness of Horace's tenax propositi (Odd. 3. 2. 1), the whole of whose laudation cannot turn merely upon his tenacitas propositi ? On the other hand, this Justus is exactly the riXeos, in se ipso totus etc., in quern manca ruit semper fortuna. Id. Satt. 2. 7. 86, 88. CHAPTER III. EARLY NAMES OF LAW: ROMAN (CONTINUED). Lex. In considering the original meaning of lex, that is, the unconscious definition of the thing by those who first used the word, we must take some notice of a conscious definition, which throws light upon that original meaning, and, to my mind, decides the question between two conflicting derivations. C. Ateius Capito, the lawyer-courtier promoted by Au- gustus*, the rigid stickler for antiquity'', has left us a defini- tion of lex preserved in Gellius' Attic Nights', which is clearly the origin of those given by Gaius* and Justinian", and may fairly be taken to represent the constitutional tradition of Eome. 1 Tacitus, Ann. 3. 75, Consulatum ei adceleraverat Augustus ut Labeo- nem Antistium isdem artibua praecellentem dignatione ejus magistratus anteiret Labeo incorrupta libertate et ob id fama celebratior : Capitouis obsequium dominantibns magis probabatur. 2 Pomponius, Dig. 1. 2. 2. 47, Ateiua Capito in his quae ei tradita fuerant perseverabat : Labeo... plurima innovare instituit. ' Gellius, 10. 20, 2, Ateius Capito publici privatique juris peritissimus quid lex esset hisce verbis definivit : Lex, inquit, est generale jussum popuji aut plebis rogaute magistratu. * Gains 1. 3. 5 Just. Instt. 1. 2. 4. 30 EARLY NAMES OF LAW: KOMAN (CONTINUED). " A lex is a general command of the people or the plebs on question by a magistrate." What the generality of com- mand means -will be considered elsewhere^: the part of the definition, which bears most upon the original meaning of lex, is the mode in which lex is made. The fact, then, of lex being a command, necessarily in- volves some statement and expression to those whom the command is to bind. The fact of its being the command of a number (i.e. here, the people or plebs), as necessarily in- volves its statement to those hy whom it is made. This statement is, in fact, expressed by the final words of the definition, which speak of question put by the magistrate. There are well-known technical forms for that question and the alternative answers to it'. And the passing of leges on proposal to and acceptance by the people is matter of con- tinuous tradition and history from the foundation of Rome to the Empire. I shall not here enter into the question, which the above definition suggests, of actual identity between those who make the law and those who are to be bound by it : nor into the modern principle of representation, and Blackstone's doc- trine that a statute is published to a nation when it receives the assent of that nation's representatives ^ The circum- <* See below, pp. 111—113. ' T. Quinctius Crispinus cos. populum jure rogavit populusqve jure scirit, &c., is the beginoing of tbe Lex Quinctia de Aquaeductibus (9 b.c.) preserved by Prontinus (de Aquaed. 129). Gellius (5. 19. 9) gives a common form for arrogation (which was by enactment), Velitis juheatis uti, &e. Haec ita uti dixi ita vos, Quirites, rogo. The affirmative answer was uti rogas = aye. See Livy 6. 38. 5, Cum... uti rogas primae tribus dicerent. Uti rogas looks like an old phrase, though I cannot date its first usage. Neither this phrase nor antiquo (I reject) occurs in Probus' Notae. They are made coeval by Augustinus (de legibus, p. 34) who is Gerhard's authority for V. E. =uti rogas and A. = antiquo. The verb antiquare is common enough in Cicero and Livy. 8 Blaokstone, Comm. 1. 2, p. 185. Austin's treatment of this precious piece of reasoning (Lect. 29, p. 542) is certainly not altogether undeserved. EARLY NAMES OP LAW: ROMAN (CONTINUED). 31 Stance of public oral statement, and that in the way not of mere declaration by the magistrate but of proposal to the people, is the only point upon which I at present wish to rely in lex, and is a point which may be considered as fully established by all Roman authority, independently of deri- vation. Derivatian of lex. When therefore we come to deri- vation, I am disposed, against modern authority, to accept the old-fashioned etymology of this word, which connects it with legere and Xiyetv, rather than with ligare to bind^ The root-meaning of the two former words is to pick, or take things one after the other. Buttmann" has clearly shewn how from this comes, in Greek, through the notion of reckoning or enumerating, that of narration and ultimately of speech in general : an order of ideas which fiDds its parallel in the German zdhlen, erzahlen, and in the double meaning of our own words tell and toZe". In Latin the same original idea has arrived at the slightly varied one not of speaking but of reading. This cannot be an intrinsically difficult or unnatural transition, as we find, quite independently, the double meanings of 'pick up and read in the German lesen. There may however be a particular intermediate step traceable, in old military practice, at Rome. The legio, later known to us as a division of the Roman army, was no doubt originally the picking out of the m,en who were to serve^^. " Varro, L. h. 6. 66, Legere dictum qaod leguntur ab oculis litterae leges quae leotae et ad populom latae quas observet. Varro means selection, not reading, as is shewn by the context. See too Cicero de legibus, 1. 6. 19, Nos delectus vim in lege ponimus. For tlie other derivation {,ligare) see below, note 14. 1" LexUogus, \iyetv, &c. 11 Milton, L' Allegro, 67 : And every shepherd tells his tale Under the hawthorn in the dale. 12 Varro, L. L. 5. 87, Legio quod leguntur milites in dolectu. 32 EARLY NAMES OF LAW: ROMAN (CONTINUED). Both the thing and the name are probably as old as the Servian system, of which one of the primary features was, according to all our accounts, a muster-roll for military service''. A reading out from that roll is by no means an impossibility, and an association of the idea of such an act with that of selection would help towards the meaning of legere = read. Lex publica, legare, lex mancipi. Kef erring, for the other derivations of lex accepted by modern authors, to a note", I come now to consider whether the notion of read- ing is reconcileable, not only with the characteristic oi public declaration which we have recognised as essential in the Roman lex = law, but also with the early uses of the word lex itself. A very interesting expression, which has not attracted from commentators all the notice that its difficulty deserves, occurs in the form of will by purchase and sale, technically 13 Yarro connects the earliest Uffio with the three so-called Eomnlian tribes; L. L. 5. 89. '* Corssen (Ausspr. 1. 445) rejects the connexion of lex with X^eiK and legere, taking the first from LAG (in Skt. = anhaf ten, anheften) a coordinate form of which, LIG, is the origin of ligare, religio, &c. Curtius (Grundz. § 538, p. 364) holds that lex cannot mean speech, but favours Lottner's connexion of it with Norse Wg, English late and the Greek \ex- (see also Buttmann's Lexilogus, 'K^av, &a. § 9). Schleicher (Compendium, § 48, p. 87) must, I think, follow nearly the same order of ideas as myself for lex, when he connects it with lego, ich sammele, lese. To return to log, law and Xex- ; the original root of aU these is LAKH, which expresses the idea of lying down. I do not think lex comes from this root, though I prefer that derivation to Corssen's. The confusion of derivatives from LAG and LAKH is as old as the well-known examiner's catch (which would seem to have been intended as a sort of pun) about Proteus, Horn. Od. 4. 451, ev 5' 7}^4as Trpurrovs \^ye Kifretxiv ovbi rt 6vfi(^ wtaOrj ddXov elvac ^Tretra dt 'hiKTO Kal avrds, where Xif7e = reckoned; Xf'KTo=laid him down. EAELY NAMES OF LAW: ROMAN (CONTINUED). 38 described as by copper and balance {per aes et lihram). This form is evidently of great antiquity ; part, indeed, of its phraseology being best explained by a recognition of the original meaning {take) of the verb emere^^, though the specialised signification of purchase is undoubtedly of the essence of the transaction. That transaction takes place, as the purchaser declares, in order that the vendor (the tes- tator) may be enabled to make attestation of his wishes in a regular or lawful manner [jure), according to the lex puhlica^^ . Now to suppose, at the extremely early period to which this formula belongs, any subdivision of law, by reference to its subject-matter, into public and private, would be to antici- pate the age of Cicero. It is much more probable that the word puhlica expresses the mode of making, and that publica lex refers to the code of the Twelve Tables, or a particular enabling clause in that code, as distinguished from other leges of a private character. A further inference from this view, that the lex of the Twelve Tables was probably the first lex publica, will be considered shortly. At present I have to do with the terms of the enabling clause to which I refer. It runs thus : — " As a man shall have made a lex of (concerning) his property, so let it be regularly done (or valid)"'." The somewhat difficult construction of the geni- ^° Gaius 2. 104, familia pecuniaque tua endo mandatelam custodelamque meam...esto mihi empta. See Gneist's note, Syntagma (ed. 1880). Also Festus on emere (P) 76 (Miiller). '8 lb. quo tu jure testamentum facere possis secundum legem publicam. In translating testamentum as above I do not, of course, accept the absurd derivation testatio mentis (Just. Inst. 2. 10. pr.). " Gaius 2. 224, Uti legassit suae res ita jus esto. For the translation of ita jus esto see above, p. 19. The curious old genitive res is sufficiently justified by Polenaar in the Excursus on Gaius 2. 224 (Syntagma 2, pp. 337 340). See, too, Eoby's Latin Grammar, Part 1, § 357. Polenaar trans- poses jus and ita so as to make the genitive depend upon jus ; a change directly against the other three quotations of the same passage (Ulpian, Tit. 11 § 14: Pomponius, Dig. 50. 16. 120: Cicero de Inventione, 2. 50 § 148, C. J. S 34 EARLY NAMES OF LAW : ROMAN (CONTINUED). tive, indicated by this translation, can, I think, be fairly maintained '^ The meaning which I have here given to the verb legare is a natural one, in accordance with etymological analogy, and perfectly reconcileable with the later word legatus, signi- fying a deputy or ambassador, through the notion of giving a direction or commission". The verb and its neuter passive participle legatum were ultimately used, in law language, in special connexion with property left aivay from the heres, a fact which seems sufficiently accounted for when we consider that almost any disposition of property, other than the transfer in toto to him, must have been derogatory to his interests. That legare, however, in the Twelve Tables, had a wider signification is expressly stated by Pomponius^". What light that wider signification, of general testamentary whicli all read itajus esto as a distinct clause). The one preserved in Gains is believed by this commentator, with good reason, to contain the genuine text of the old law". " See, besides the last note, Paulus Dig. 23. 4. 20. 1, Legem enim suae rei dicit, a passage clearly referring to the clause of the Twelve Tables and justifying the connexion of legare = legem dicere with either a dative or a genitive of res. That it is rather the genitive would appear from the suae res of the Verona MS. of Gains (note 17). ^' For the analogy see stips, stipare : voce, vocare : merx, mercan : prex, prccari, &o. As to early Uterary use of legare, Plautus has legare negotium alicui to give a commission' (Casina 1. 1. 12) : Venus mi boo legavit "gave me this charge,'' Meroator 1. 1. (Prol.) 38. From this idea comes the passive of a person commissioned or sent on a mission (legatus...hinc...fm, Truculentus 1. 1. 73), not from the original root-meaning of legere (as Varro L. L. 6. 66, legati, quod ut publioe mittantur leguntur), which is, I think, shewn by the following passage. Continue Amphitruo delegit viros primorum principes ; Eos legat ; Telebois jubet sententiam ut dicat suam. Amphitruo 1. 1. 51. He first chooses, then commissions them: otherwise there is a tautology. °'' Dig. 50. 16. 120, Verbis legis xn tabularum his uti legassit suae rei itajus esto latissima potestas tributa videtur, et heredis institueudi et legata et libertates dandi, tutelas quocjue oonstituendi. EARLY NAMES OF LAW: ROMAN (CONTINUED). 35 disposition by making a.fe, throws upon the meaning of the latter word, I come next to consider". The form of will to which the legassit clause of the Twelve Tables referred was clearly that which survived the two older modes {calatis comitiis and in procinctu) — the will, above mentioned, by copper and balance {per aes et lihram) T— because Gaius speaks of the wide power of legaiio not as becoming obsolete, like the two older kinds of will, but as being modified by subsequent legislation''^ This will was, as everybody knows, effected through a sale by the testator of his whole property^^ in the mode of mancipation or rather mancipium. Gaius notes tw^o stages of it. In the older, the person to whom the property was sold was the general successor, and the special dispositions- intended by the testator were given as a commission to liim, apparently by oral declaration^*. I do not think that the legassit clause of the Twelve Tables refers to this procedure, because another clause is preserved to us, sufficient to give the oral declaration, in any mancipation, validity ^^ In the later stage of testamentum per aes et lihram the purchaser is not the general successor, but a mere conduit- pipe (a point, however, immaterial to our present investi- gation), and the special dispositions are declared by the ^' This reasoning of course involves the rejection of the view of Polenaar (Syntagma, 2. 339) that " legarc significabat olim a se mittere ". That view- depends upon secondary meanings of legatus and legatum, which can, as I have shewn, be otherwise accounted for. 22 Ga. 2. 224—228. 25 I shall not here enter into the questions raised by the strict meaning of familia. 2* Ga. 2. 102, amico... qui eum rogabat (Polenaar's excellent emendation of eurnque rogabat) quid ouique post mortem suam dari vellet. Cf. 103, et ob id ei mandabat testator quid cuique post mortem suam dari vellet. 25 Gum nexum faciei mancipiumque uti lingua jmncupassit ita jus esto. Festus (F) nuncupata (Miiller 173). 3,-2 86 EARLY NAMES OF LAW: ROMAN (CONTINUED). testator's oral reference to a written document in these words, termed the nuncupatio, or declaration aloud : " As is written in these waxed tablets so do I give, so do I direct {lego), so do I attest, and so do ye, Quirites (to the witnesses), give me your testimony^" ". I cannot assert positively, but I think there is good reason to believe, that this written document of the will per aes et libram was the first lex. And this juridical connexion of oral declaration with reference to a written document furnishes, I think, the necessary link between the law, the publica lex, or declaration to the people, and the established meaning of legere (read), without recourse to the Greek Xeyeuv (say). I. can see no improbability in supposing the existence of written wills, even at the date of the Twelve Tables : nor is it in the least degree unlikely that the public leges were read from a written document when they Avere proposed for the people's acceptance. A connexion of lex with mancipium, for non-testamentary purposes, does not appear in the Twelve Tables : and a bond or permanent obligation arising from certain forms of man- cipium, which, if Corssen's derivation of lex were correct", we should expect to be designated by the latter word, has its Decemviral name in nexum''". Lex, according to its later use in private legal transac- tions, means generally the terms or conditions, whether orally declared or written, under which a contract is entered into, but not, I think, the contract or obligation itself^'. ''^ Gaiua 2. 104, Deinde testator tabulas testamenti tenens ita dioit, Jiaec ita ut in his tahulis cerisque scripta sunt ita do ita lego ita testor itaqne vos Quirites testimonium mihi perhibetote; et hoc dicitur nuncupatio: nuncupare enim est palam nominare. -' From ligare (above, n. 14). ^^ Above, note 25. See, too, my Early Boman Law, pp. 110 — 112. ^ Cato, E. E. 145 : Oleam faoiundam hac lege oportet locare, &c. EARLY NAMES OF LAW: ROMAN (CONTINUED). 87 With Cicero the lex mancvpi is, or includes, a warranty of the property sold as free from encumbrance^". The lex of a building contract preserved in the Museum at Naples'" evidently embraces everything but the bare redemptio or taking of the contract. The emptiones occasionally discovered on tablets are apparently memoranda of cove- nants following or accompanying a conveyance. The name lex mancipi would very probably be applied to these docu- ments, though I do not, as in the case last cited, find the word occurring oa them^l The lex commissoria of Papinian and Ulpian was a proviso either avoiding a contract, or giving a power of sale, on non-payment of purchase or mort- gage money. But, on the whole, the private lex is something subsidiary, limitative or executory. It is not the main con- tract or emphatically the binding part of the transaction''^ Stinunary as to lex and lex publica. I venture, then, to reject Corssen's derivation and original meaning of lex, and, connecting this word with leffere, take the leges publicae, the leges par excellence, which constitute the statute law of Rome, to have been public or national declarations, most Plautus, Trinummus, 5. 2. 34 : Istao lege filiam tuam sponden' mi uxorem dari ? In a more general, or metaphorical, sense, Plautus, Merc. 1. 1. 4 : Ecastor lege dura vivunt mulieres, &o. Horace, Odd. 3. 3. 58: Sed bellicosis fata Quiritibus Hac lege dioo. As a general expression for the teiins of a contract lex occurs continually throughout the Digest. 3i> Cicero, de Oratore, 1. 39. 178, Cum...aedes...vendidisaet neque serrire quamdam earum aedium partem in mancipi lege dixisset. »i Bruns, Fontes Juris Eomani Antiqui, p. 139. 32 lb. pp. 137, 8. 3' So far, therefore, I am obliged, on further enquiry, to modify what I have said, while I accepted Corssen's derivation, in Early Roman Law, pp. 113, 116. 38 EAELY NAMES OF LAW: ROMAN (CONTINUED). probably read from a written document. I bave indicated above the inference which may fairly be drawn from the formula used by the familiae emptor, that the venerable code of the Twelve Tables was the first lex pitUica ; an inference which derives some slight support from the vague lang-uage in which Pomponius attributes a statutory foundation of Rome to that code''^ There are, both in this slipshod writer and in better authorities, statements of the enactment of earlier leges : but I shall endeavour to shew elsewhei-e that the expression is inaccurate. The rules of law represented to us as coming down from royal times, and styled by late authors Regiae leges, were in all probability the mere memo- randa of Kings or Pontiffs, preserved by their corporate suc- cessors, but never passed by way of enactment before the Roman people at all, and only published to them long after such rules were formulated, indeed after the commencement of actual statutory legislation. The republican leges of the pre-decemviral period were again, as I think I can shew, vaguely expressed constitu- tional compromises, between a privileged and a non-privi- leged order, the meaning of which was generally too miuch contested, in subsequent times, for us to suppose that their original language was either distinctly drawn up, clearly pro- mulgated, or publicly recorded. The real lex is a very different thing, and marks a great step in the developement of law. Now, for the first time in the Roman polity, beside the vague jus, dependent, for its fixity and its publicity, upon the will of the administrator and the occasion of litigation, we have the written rule, or at least the rule definitely stated to, and accepted by, those whom it is to govern. There is no reason to suspect the tra- '"* Dig. 1. 2. 2. 4, placuit... decern oonstitui viros per quoa...civitas fundaretur legibua. EARLY NAMES OF LAW: ROMAN (CONTINUED). 39 ditional connexion, with lex, of the formula Velitis juheatis, Qmrites ? And if the word juhere can be, in spite of some difficulties, identified as Corssen identifies it, with /us haberet to take or hold for jus, we have, on the one hand, a good explanation of juhere to command, and, on the other, a signi- ficant order of priority established between Jms and lex. The latter is not the oldest unconscious definition of law by the Eomans, but it indicates a drawing up of the matter in question, in a prospective form, whereas the old derivative connexions of jus merely indicate declaration by way of judicial decision. Historically, if the law of the Twelve Tables was the first lex {publico), it did in fact result from the partial adminis- tration, by a dominant order, of undefined custom. And we may remark that its traditional mode of enactment, from the outset, is the democratic one of consent, not the autocratic or theocratic one of imposition. Lex = body of law. Although there may be some doubt whether lex, in references to the Twelve Tables, means the whole code, which was passed as one, or the individual clause relating to the special matter regarding which the reference is made, this word in the general use of classical jurists only signifies an individual statute, not a body of law. Tlie latter signification is a late one, of which the first clear instance that I can find is in the title, lex Dei, of a comparison between the Mosaic and Roman law, written in the reio'n of Theodosius towards the close of the fourth cen- tury after Christ''. The descendants of lex in the different Romance languages— French hi, Italian legge, and, though not so clearly, Spanish %— often combine the two meauings. So the plural legum (abbreviated LL.), of the style used for a S3 For other instances see Savigny, Geschiehte, T. 1, u. 3, §§ 37, 38. 40 EARLY NAMES OF LAW: ROMAN (CONTINUED). Cambridge law degree, is still held by many authorities to have indicated two bodies of law, the civil and the '^ I have given elsewhere (Student's Guide to the University of Cam- bridge, pt. 5, pp. 39, 40) my reasons for believing that this term meant originally Roman ("Civil") Law, but has come to mean law generally, i.e. aU law studied at Cambridge. The translation " of laws, " though literal, is ambiguous and misleading. CHAPTER IV. EARLY NAMES OF LAAV : GREEK. Antiquity of Hellenic literature. The Hellenic race, though neither our juridical ancestors, as to a certain extent the Romans were, nor our natural ancestors, like the Teutonic nations, whom I shall consider last, furnish some illustrations of the present subject too interesting and significant to be entirely passed over. Of writings indeed directly juridical there is in Greek lite- rature, as compared with Roman, scarcely anything. Whether this be due to the ultimate political ascendancy of the one nation, or to the less legal tendency of the other, the fact remains. And, in the vast legacy of oratorical and philoso- phical works bequeathed us by Athens, the quotations from her ancient law appear to have been in general so much modernised that they are of comparatively small value for investigating the earliest characteristics of Attic or other Greek legislation. On the other hand, we have from the Hellenic race a very much older poetic literature than from the Italian. While Rome gives us little but a few frag- mentary legal phrases until the third century before Christ, we can test the meaning of Greek names for law in continu- ous poems of the sixth and seventh, or perhaps even an earlier date. It is not my intention to pursue this subject into much detail ; but a short investigation of what was 42 EARLY NAMES OF LAW: GREEK. meant by defjL.i<; SIktj and vopio^, in their earliest recorded usage, may be of service at least by way of illustration and analogy. 64(11,5. Leaving the absolute age of the Homeric, and the comparative age of the Homeric and Hesiodic, poems out of the question, I shall begin by considering a quotation from the former, which Sir H. Maine adduces, as probably marking the transition to a law-abiding period, and cer- tainly preserving some of the earliest Greek ideas of law. The Odyssey gives us an account of the roughest " patriarchal " government in the story of the Cyclopes who are all ddefiia-Toi as far as others are concerned, but each 6efii,aTevei over his own children and wives'. This verb, which evidently expresses the poet's idea of general authority in a political society, some German commentators conveniently translate " is lawgiver and judge ". " Rules over" is a more natural meaning than either of these, for def^iarevQ) when construed, as here, with the genitive. When predicated, elsewhere, of Minos with his sceptre of gold, OefjLicrrevovTa to the shades, its signification is rather judicial, for they are said to make suit to him about judgements or cases'. Authority and judgement then, are the two ideas for which we should look in the substantive from which dep-icnevu> is derived. The word Themistes (©eyttio-re?) is, I think, regarded 1 Od. 9. 105, 112, 114, 115, Ku/fXanrwl' 5' ^s yatav v'jr€p(pi.d\it)i' dde^lcrrctiv Toi(TLv 5' oijT ayopal ^ov\i]^jpoL oUre difxiare^, 6ep.L(7T€ijei dk ^Katrros Taidwv Tjd' dX^x^v oiJ5' a\\-fj\wv aKiyovcnv. See Maine, A. L. ch. 5, pp. 124, 5. 2 Od. 11. 56D, Xpiaeov (TKTJTrrpoy ^xo^^^ defiKTrevovra v^kv(T(jlv '■ij/xevov, ol 5^ pnv dp-ipl SiKas dpovro ILvo-kto.. EARLY NAMES OF LAW : GREEK. 43 as a plural of the original @e/AJ9, which is a divine agent suggesting judicial awards, by Sir H. Maine*. His conclu- sions as to the bearing upon early law of the group of words under consideration, may perhaps require a slight modification on philological grounds. Curtius* is appa- rently right in considering, with Meyer, Oe/Mia-Te^ not to be the plural of the original 6efj,K, which makes Oe/j.iSo'i and 0efj,i,To<; in the genitive, but a secondary formation, generally occurring in the plural, from an intermediate verb de/jLi^co, of which we have a trace in Pindar's 6efii,aa-a/j,evov; opyd';^, governing our tempers. Both the original forms are personified. In Hesiod @€/At9 (ace. @efj.i,v) is the sister of Memory, the wife of Zeus, the mother of Order, Justice and Peace". In Pindar ®6/j,i<; (©e/iiTO?) is the assessor of Zeus, who protects strangers, the saviour goddess — doubtless from such hospi- tality as that of Polyphemus — and the mother of the same three daughters, who are the basis of states, the stewards of prosperity to men'. A confusion of these guardian ' A. L. ch. 1, pp. 4, 5. * Grundziige, p. 536. ^ Pyth. 4. 141, Bookh. Booth translates "moribus ad juris normam castigatis," which is rather forced. 6 Hesiod, Theog. 135, Tala...T^Ke...Q^fj.Lv re Mvrjfiocrijvqv re. lb. 901—3, dsiuTepov TjydyeTo {Zeiis) XnrapTiv Q4(Xiv rj riKev"Qpas Edvo/J.l7]v re AIktjv re Kal Wpirjvrji' reOoKvlav air'' ^p7' dj/jetioufft KaraL6vj}To'i(n ^porolffi. ■> Pindar, 01. 8. 21, 22, iv6a Xiireipa Ai4s feWou Trdpedpos daKetrm Q^fXLS. Cf. 01. 9. 16, 17, where the daughter has the epithet dv {'OTrSevTa) Qi/Mis dvydrrip ri oi ^direipa \^\ayxev fieyaXido^ot Biivo/iia. 44 EARLY NAMES OF LAW : GREEK. spirits {wpai) with seasons of the year (wpat) need not delay us. However old, it appears to be the result of Greek etymologising and not part of the original concep- tion ^ The same goddess or guardian spirit is found, in the Homeric poems, under the (etymologically) later form of ©eVt? ^efiiara (from Befil^co), as a personification of order. She is to lead the banquet of the gods"; she summons them to an assembly'"; she seats and she breaks up the assemblies of men". I need not, however, pursue this subject further. Themis the thing must have been conceived before Thenns the person, and to themis the thing we may confine our atten- tion, only remembering that the personification clearly in- dicates the ideas of order and justice. The word ^e/^i? is undoubtedly derived, like the later 6eaii6 Sivre^ rh w&vra k.t.\. (Plato's deriva- tion aTrb...Tov 0e1v Crat. 397 B can scarcely be serious.) Curtius takes the word, if from OE at all, through an intermediate SES to ask or pray (p. 520 note *). The identity of debi with deus cannot be maintained, in spite of Asooli's recent speculations on the former word (Curtius, pp. 518, 9). " Curtius, p. 254 § 309. e4-ni.-i, Gesetz. " H. 2. 73; 9. 33, &c. rj d^/us ia-rl. Some editors retain the old read- ing rj. I much prefer Buttmann's view (Lexil. 104. 6) regarding i? as always agreeing with 6i/j.i.s in this phrase. 15 Od. 14. 56, fei;/', oS fi.01 B^/MS Io-t', oiS' el kukIciiv aiSev l\6ot, ^etvov aTLfiTjcrcLL' Trpbs yap At6s eicrti^ dirayres ^eipoi Te TTTWXo^ ^^• i« n. 16. 796, 7, irdpos ye /iiv oi Oi/us ^en lirirSKoiiOV ■n~q\riKa luaiveffBcu. kovI-qitlV. " See below, p. 48. Also Corssen, Ausspr. 2. 685, Gottliches Eecht als "Wort Gottes. Id. Beitriige 197, Gottliches Gebot. 46 EARLY NAMES OF LAW: GREEK. usage, but always, I think, proper usage, i. e. such as would be allowed by Heaven'". This is the meaning of ^e'/it? with the genitive also, which accordingly comes very near the signification of a right '^ Bearing this signification, ^6,at? will come often to be the subject of human judgements and may be not unnaturally applied to the administration of justice °° ; but it is not originally an individual judgement, human or divine. Where individual OifUTe^; are spoken of by Pindar, they are the antecedent ordinances of Zeus^\ So in a passage briefly quoted above, which I here give in full, the per- sonified ©e^t?, passing into the meaning of Justice or the administration of justice, is expressly said to be an institute (re^/xo?) of the immortal gods'^l 18 Hes. Op. et D. 137 (of sacrifice), Scut. 20 (of blood-revenge), " n. 9. 134, 77 eiixLS avdpilnruv iri\u. Od. 9- 269, SofTjs do)Tiv7jv tj re ^ebajy 6^p.ts iari. Cf. also Pind. Fr. 4, ov di/xtv odd^ SiKav ^eivuv vwep^aivovTeSf •wMcli appears to anticipate tlie idea of rights by human and by divine law. ^'> See the passage Pind. 01. 8. 21, quoted more fully below. In II. 11. 807, IVa a^' dyopr; re Bi/us re, Oi/jLK is not far from the Latin jus = court. « 01. 11. 25, dyi^va 3' i^alpcTov deltrat ^^^ires wpcrav Ai6s. The Scholiast's seems to me the best explanation of this difficult expres- sion. The empires Ai6s are the rules of the Olympian festival; in this instance the recurrence of its period. In Pyth. 4. 54, 55, tw pih iroKvxpia-tfi ttot' ip diipari | ^oi/Sos d/ivacrei eip,icrtTi.v, I am inclined to believe the first o- of BipLddiv an assimilated t from the longer formative root eepturT-. See below also Bockh on Fr. 204, 'De oraculis, ut Pyth. 4. 54.' 22 Pind. 01. 8. 21. 25, ^y&a ScJrei/3a At6s ^evLov EARLY NAMES OF LAW : GREEK. 47 QI|iiirT£s. The next step in etj'mological order is the verb Oefii^eiv, occurring only once and apparently meaning to order or regulate '•'^ From this verb comes 6efu<;, 6i- fjLiaTo<;. @efi(,crTe<; in the plural, which is far the commoner use of the word, appear to be ordinances, prospective orders, or principles of justice proceeding from Heaven and given as Heaven's commission to a king or judge^*, which a just judge does not forget^", but sifts out in or by straight judge- ments ^^ Savages like Polyphemus know neither the forms nor the principles of justice ^', and Ares knows not one of the latter'■^^ a unique singular which would scarcely occur except in a negative sentence, ©e'/iio-re? are also the pro- spective decrees of Heaven in the way of destiny^", and hence, vdpeSpos auKCLTai Oe'/xis ^s^x' av9pdjiTuv. 6 Ti yd.p ToKit Kal iroWg. jj4iiet (many a nicely balanced cause) dpdq. SiaKpiveiv ^pevl fj,yj Trapa. KaipSv dvtriraX^Sf redf^ds 34 tis dOavdrwv k.t.X, ^ Above, p. 43. '-^ Horn. n. 1. 238, Si/cao-jriXoi, oi re Biixiaras irpos Albs elpuarat. 2. 205, eh fiainXeis aic^irTphv t' rjii Bi/xiiTTas Xva. aipial ^acn.\ei-rj. 25 Hesiod, Tbeog. 235, 6, ovSk BeiunTiuv \ XtJOctm dXKa. BiKcua koI ijna Si/pea otSev. The genitive form here points to a nominative Se/iiaTai,. 2^ lb. 85, 6, diaKpivovra Biiaarm \ I8eiriis, e£o-p.o£, ee'in-o-res. The original ^e/it?, then, means that which is right, as appointed or ordained by Heaven. It difi'ers from fas because it comes to be adminis- tered by human tribunals, which fas does not : it resembles fas, in respect oi fas also being the word, i.e. command, of Heaven^^: whereas the fittingness or regularity expressed in jus implies no more than a human app^■oval^^ The meaning of Bea^o'i is the same as that of difjLK, except that the former is a particular or individual ordinance. The first Oea-fioi, too, are conceived as emanating from a divine source ; Demeter and Persephone are the Ordinance-bring- ers'*. The word is, however, also used of human ordi- nances : notably, at Athens, of the enactments attributed to Draco : never, I believe, oi judgements. 3» Find. Pyth. 4. 53, 54, rhv fih . . .^oL^os a^vacrei OifiKTatv. See above, note 21. Also Fr. 204, Ae\ re SlKri b' Wvvs O^fuffras. lb. 221, (tkoKloIs Si SUais Kplvacn Biixurras, Horn. II. 16. 387, &o. 36 Above, p. 22. 37 Hesiod Op. et D. a. 275, Kal vu SUijs iiraKOve ^li)s 5' i-n-iX-qSeo irAixtrav. b. 269, oitiv ^7) Kal TTji/Se dUriv jr6XiS ii/rlis iipyei. ' This sort of justice,' as in 39, ot ttjuSc SlKrjv iBiXovui, StKd[k7], for the straightest declaration of which the two talents are to be awarded, is either the judgement or the justice of the case^". Elsewhere in the Homeric poems, as in Pindar, hUrj bears all three meanings of judgement (including case), justice, and custom*" : nor can it be said that any one meaning has a defi- nite prevalence over the others. Derivation of SUt]. Curtius" apparently treats the mean- ing of Blkt) occurring in the adverbial accusative of tragedy (way) as the oldest, and gives, as a parallel for the derivation of way or custom from a root signifying to shew, the German weise from weisen. This would scarcely seem to be the order in priority of the two' German words, nor, indeed, 39 Horn. II. 18. 507, Kero 5' ap' ^v /j.4a'(roiai 8uoi xpi/coio raXavra T(^ SofjLev OS fxera roiai {yepovai] SLktjv WuvTara eiwoL. « a. n. 16. 541, 2, KeiTcni 'Zapin)bihv OS A.vKi7]P etpvTo blKrjai re koX aSivel' (^. Od. 11. 569 (above, n. 2): Pindar Pyth. 4. 152, dpbvos (p TTore JipyjdEtSas ^yKaBl^wv linroTCLLS eiiOvve Xaots SiKas. h. II. 16. 388, ^K Si SlKTjv eXao-wffi. Od. 14. 84, aWa SU-qv rlovtn {Beoi). Find. 01, 2. 18, iv dUif re Kal Trapa SUav. c. Od. 4. 690, where the way or custom may be the reverse ot justice, oi}T€ TLVa p^^as i^aiaiov o(h-e rt el-nuiif iv S-qntf, ij t' icrri Ukt) dduv §aai.\-qwv. Pind. Pyth. 2. 84, Xti^-oio SUav \!irodtiaou.at. ■"i Grundziige, p. 134 § 14. EARLY NAMES OF LAW : GREEK. 51 does Curtius expressly assert it to be so. Their connexion however is some argument by analogy for an independent derivation of Sikt] way, custom from the root AIK, shew*''. To begin with SiVt; = custom, and proceed through SUrj = judgement, to St'/ciy = justice, would be so consonant with my own views of the genesis of law, that I have repeatedly endeavoured to make out that order. But I cannot explain the absence of the first meaning from a poem of such an- tiquity, and so likely to contain the homely proverbial adverb Slktjv, as the Works and Days, probably our oldest Greek literature. With the Hellenic race, Judgement appears to be the earliest meaning of this derivative, both meaning and form coming clearly enough from the root of heUvvfii. Biktj is the shewing or declaration, originally of that which is 6efii<;, or ordained of Heaven ; a.s judicium is originally the shewing of that which is fitting, regular or orderly: while BUrj justice is obviously a secondary meaning flowing from this first one. BUr] way or mode, if from the same root as BIkyj judge- ment and justice, is an independent derivation, apparently of later date. vojjios or vo|i6s. I come last to a later and better known Greek word for law, but far more difficult to explain, than either ^e/it? or BUr]. The original meaning of vofiof is somewhat perplexed by the differently accentuated forms; these not being, as in the case of /Sto?, independent words from different roots, but offshoots from the same stem, perhaps arbitrarily separated. Gottling*' held that the only z/o/io? known to 'Homer' was the oxytone form, having the local or physical signification of <2 So the Vedio dig means way or usage : on Sm-q Curtius quotes the paraUel of diga Himmelsriehtung, from dig, zeigen. This however signifies merely ^offi* of heaven, i.e. quarter of the compass. See also Corssen 1. 380. « On Hesiod, Theog. 66. 4—2 52 EARLY NAMES OF LAW : GREEK. pasture, run, haunt. I think this is true. The same mean- ing may possibly be traced in Hesiod, but it is by no means unquestionable". The other meaning, luai/ of life, use or rule, is undoubted and frequent in Hesiod^. One passage, in which the word is coupled with hiaTaaa-eiv, might be urged to support the popular explanation (see below) of v6fio<; from vefjoo as some- thing dealt out or assigned^. But I think it will be seen that the same verb might equally well have been used of anything whatever, wherein man differs from beast : so that its use does not solve the difficulty, to which I shall return, shortly, how vofio'i, custom, can be that which is assigned. Pindar has one or two instances of vofi6<;, in the local sense"; many in a sense approaching (like some, of the pas- sages above quoted from Hesiod) to law, but, in general, « The 'pasture' of the cuttle-fish is, I think justly, considered an inter- polation by Gottling (Op. et D. 526). If Theogon. 66, 67 iravrav re vSfiovs Kal ijBea KeSva. adamToin be rightly explained, by the same author, doctrina physiologiae et naturae Deorum, it is at any rate quite different in meaning from the Homeric /xera 5' ijBea. Kal vo/ibv Xinroiv (II. 6. 511), where the vofids is pasture. The curious expression dxpe'^os d' itrTU iiriwv vofj.6s (Op. et D. 403) may mean run or range of words. It receives no light from the tiresome passage, where the phrase iir^oiv vofios recurs, in the 20th book of the Iliad (216 — 255), that being clearly a late addition. « E.g. Op. et D. 388, ovTos rot iredliiiv TrAerat vofjcos. Theog. 417, ^pdeLV UpcL KCi\cL Karh v6p.ov. « Op. et D. 275, Tovbe ycLp avdpwiroLtn vo^ov Siera^e 'Kpoviuiv IxOvTi /j.iii Kal 6ripal Kal oluvdis TrcTejjrats kadetv dW-riXovs eirel oil dtKTj ^arlv iv auroh' dvdpunrotai 5' ^5wkc 5lK-qv. *' 01. 7. 33, is dp.(j>tda\di> vofiois, 'in the ways of the Gods,' ahnost exactly equivalent to iv 8eoU. In Frag. 152, dWa 5i aXXois vofii/jia ff^irepa SideiKTai fmirTois, if Schneider's emendation, Si Ke^ra:, be correct, we have here the technical term of later language, which is generally held to be a virtual passive, in connexion with v6/j.os. Yet Kei/xat is really neuter, a fact not perhaps without bearing on the question whether vofios was originally custom or enactment. Compare Buttmann's (Lexil. 'AvqvoBcv, &c. § 25) con- nexion of Sitte with sitzen. « 01. 1. 101 : Pyth. 12. 23 : Fragm. 1G9. 5» Pyth. 1. 63. 5, 'TWiSos (TTddixat...ii> vofiois 'iKTiatr iSiXom Si... ...fieveiv Te&fiOLCTLV iv Alyifitou. 51 See particularly Pyth. 2. 86—88, ^s irdvra Si vSfiov eidvyXojtrtro^ avijp irpcxpipet Trapa TvpavviSi xaiTrorai' 6 \d[3po^ arparo^ X^Srav TToXiv ol aov(jiv S' oi) SLxo- Toi\ vopios 6 irdvTwv ^aaiXevs, Bvaj-Giv re Kal adavaruv^ d-yei (rules them), SiKaiQv rb ^latorarov (nr^pTorq, X^^P^- reKfiaipofiai lpyoi(7ii''BpaK\ios' iird Vrjpvova ^oas EARLY NAMES OF LAW : GREEK. 55 To the oppositioa of nature and custom or convention, I sball return hereafter. But the latter meaning is thoroughly established for v6fio Curtius, p. 385, § 585. 64 EARLY NAMES OF LAW: TEUTONIC. Uninterrupted course and long duration seem to be the original and proper signification of ce, if indeed its associa- tion with words signifying eternity will not almost justify us in translating it that which is from everlasting. Such an idea might not unnaturally connect itself with that of divine ordinance''^ but the latter does not seem to be expressed or directly denoted by the word. Our poetical expression aye ( = ever) is a closely related word to this oldest title for English customary law : and the German ehe, matri- mony, as the permanent or the lawful connexion, is probably from the same root^'. Dom, of course, corresponds to our English word doom, the narrower signification of which, however, is decidedly misleading as to this Saxon word. Once more we must go back to the Aryan root, in this case DHA, to set or appoint, from which come not only the Greek ^e/ii? but the word at present under our consideration, and its Gothic counter- part. The latter, dom-S, (of which the s is merely a sign of the nominative and has nothing to do with plurality) does not throw so much light upon the early name of law as has sometimes been considered^^ The word occurs but once, it is not quite certain whether in the literal or metaphorical sense 21 Drihtnes 33, law of the Lord, occurs continually in the A. S. version of the Gospels. -^ English forms corresponding to elie are not perfectly easy to trace. Schmid (Ges. 524, 528) shews reason to question any A. S. « in the sense of matrimony (see however GreinBibl. 2 p. CO. Jul. 297): but aeice, a wife, has authority. The modem English ewe, which led me a good deal astray, must not be confused with these words. It is A. S. eowe (Grein Gloss. 1. 262), Goth, awi, Lat. ovis, &c. &c. See Curtius fiis (p. 390, § 595). 23 Curtius, e.g. p. 254, § 309, after giving Gothic dom-s and Old High German tuom, both = judicium, added in his earlier edition " der geistigen Anwendung von eecr/ios Oder re-e-fw-s entspricht goth. dom-s." This last passage he now omits. EAELY NAMES OF LAW: TEUTONIC. 65 of judgement". The verb derived from it belongs rather to the latter, except when intensified or specialised by pre- fixes'*'; and in a case where the literal signification is required, another word is employed^. The Gothic dom-s is, therefore, too uncertain to illustrate the Anglo-Saxon or old English dom. Now the general literary meaning of dom, is, I must admit, the narrowed one oi judgement, and noithe wider one, which may be certainly predicated from its etymology, of setting or appointing. Words, moreover, derived from dom, such as dema, judge and deman, to judge, bear the specific signifi- cation. These are, however, secondary in order of time and etymology ; and to think of dom in the light of a modern case, as primarily and properly an adjudication on particular circumstances, secondarily a precedent, would give an incor- rect idea of the word, which, properly conceived, reflects some light upon ^e^ito-re?. Dom-boc The dom-hoc of our ancestors was not a volume of reports : it had nothing to do with actual cases, but was a table of model decisions — that is, practically, of prospective rules drawn with the minutest particularity, as intended to meet every possible case. This character of the book is quite clear when we look at the originals in Thorpe. King Edward the Elder, for instance, commands all the reeves to deem such just dooms as they know to be most righteous, and it in the doom-book stands'*'. The primaiy "^ Skeir. 2. 15 is the passage to which I refer. Ith Nasyands thana anawairthan dom is gasaihwands. The Saviour looking to His future judge- ment. ^ E.g. afdomyan, gadomyan. ^^ In John 16. 11, vepl di Kplireas on 6 Apxi^' tov Kofffiov tovtou Khpirai, the Gothic does not read bi dom, like the A.S. be dome, but bi staua, thatei sa reiks...afdomiths warth. 27 Badw. Procem. Thorpe 1. 158, thset ge deman swa rihte domas swa ge rihtoste cunnon and hit on thiere dom-beo stande. c. J. 5 66 EARLY NAMES OF LAW: TEUTONIC. object of the doom-book is the same as that of Burns' Justice. It was intended forjudges* and might have been styled Liber judicum quite as well as Liber judicialis"^. This last expression came from a translation of domas by judicia, occurring in the later laws, which does not, how- ever, at all narrow the signification of the original word. In the Latin version, for instance, of Athelstane's domas, the judicia, which are there said to be set or ordained, consist entirely of prospective regulations™. Most clear is th,e use of the word domas to express prospective or general rules, in Alfred's statement as to the domas which Almighty God spake to Moses, and which Moses was to set to the people''; where, whether Moses is treated as lawgiver or as judge, it is not as judge that he makes the dom, and, in either case, he only sets or appoints that which is set or appointed to himself before. Dom, in fact, comes to be indistinguishable from words of clear general ordination or consultation, asetnis^'' and ge- rwdnis ^'^. Domas and e^jiio-Tes. Domas then, rightly understood, ^ This is obyious from the passage beginning Of thlssum anum dome in MAh. xLix. Thorpe 1. p. 56 (Schmid Cap. 49, § 6, p. 66), although the judge- ment spoken of is metaphorical. 29 Spelman's translation of dom-boc (Glossarium, p. 176). I do not know his authority. s" J5thelst. iii. 1. Haeo sunt judicia, &c. 2. Ut observentur omnia judicia quae apud Greateleyam posita fuerunt, &o. Thorpe 1. 217, 8. '1 Jilfred. Int. xlix. Thorpe 1. 54. This sindon tha domas the se .Sllmihtiga God self sprsecende wass to Moyse. lb. XI. p. 46. This synt tha domas the thu him settan scealt. 32 At the head of the laws stand the words : ' ' This syndon tha domas the jEthelbirht cyning asette on Agustinus dsege." Thorpe 1. p. 2. Sohmid (Ges. XXX.) appears to think the Saxon a translation of older Latin. The legislation purports to date from before the death of Augustine in 614. The title is probably later than the text. 33 Geraidnis, .atheist. 5 pr. (Thorpe 1. 228) and .^thelred 5 pr. (ih. 304), seems exactly the Latin comultum. EARLY NAMES OF LAW : TEUTONIC. 67 come very near to 6e/iia-Te<;. In both, the original prospective setting appears rather to be had in view than the judicial administration. Neither are conceived as necessarily and universally published to the people at large, but this would practically be the result of courts to any extent multiplied and accessible. The 6efi(,(jTe<; moreover are, to the end, looked upon as principles inspired by Heaven : while the domas are in most cases special rules drawn by men. Com- pared with Latin words and ideas, the former are an imagined parcelment out of fas ; the latter answer almost exactly to those clauses from judicial handbooks which are known as the leges Regiae. Law, lagu, laga. Our English word law would, at the first blush, seem identical with lex, when we consider such Romance descendants of the latter as loi and ley. But, in fact, the etymological connexion of the words is of an extremely questionable character, as has been shewn above "*. The old form of law is a singular noun lagu, which, curiously enough, seems scarcely to have been of Anglo- Saxon original *^ Lagu is derived originally from the root LAKH^", from which come the old Norse plural log (translated ordinata), the Frisian laga, a law, and the modern Swedish lag, which is, in the neuter, stratum {layer, course, &c.), in the mas- culine law^''. An interesting survival of the first word above mentioned occurs in the Logber (law-hill) of Leg- ^ Above, ch. 3, u. 14 (p. 32). 3' The only instances, e. g. in Grein, are two compounds ealdor-lagu and feorh-lagu, of somewhat doubtful explanation, and which throw no light upon lagu law. 38 Whence the Gothic ligan and lagyan, Anglo-Saxon licgan and lecgan, modem German liegen and legen, our lie and lay, &o., all in the above order of priority. 3' Compounds of lag in the Heliand (old continental Saxon of the 9th century) are also mentioned by Schmid, p. 621, s. v. lagu. 6—2 68 EARLY NAMES OF LAW: TEUTONIC. herihwaite^ — probably the striking isolated hill at the northern end of Thirlmere — in the heart of the Norse settlement of Cumberland and Westmoi-eland. The modern expression " laying down the law/' would be quite misleading as etymological evidence. In fact, the Anglo-Saxon ordinances spea.k rather of uprearing lage (plural of lagu). But the point to be remarked in lagu is that its first meaning must have been intransitive, from the primary, and not passive from the secondary, verbal forms, with which it is connected. Lagu is that which lies or rests, not that which has been laid or set. It is accordingly com- pared by Vanicek with ol KeifLsvob vofioi (see above, p. 53 n. 48), and it undoubtedly suggests rather custom than ordi- nance. The first appearance which the root or stem of our word law makes in an English ordinance is in a compound form lahslit = law-breach, used to denote a penalty, in the domas of Edward the Elder and Guthrum the Younger, about the beginning of the tenth century. Certain offenders are to pay, wite among the English, and among the Danes lahslit, so that the latter clearly refers to a Danish penalty as distinguished from an English one'''. It is not till we come to the laws of Edgar, who died 975 A.D., that we have the actual word lagu, certain ap- parent previous occurrences being in all probability of later date^". " I will that secular rights stand among the Danes S8 Taylor's Words and Places, p. 314. s' B. and G. iii. Thorpe 1. 168. Gylde wite mid Englum and mid Denum lahslit. See note on p. 166 as to the date of these domas. *" E.g. the title, .^Ifredes laga Cyninges, of the second text of Alfred and Guthrum's peace (Thorpe 1. 152). The wergilds, Thorpe 1. 186 190 in which the Mercian law (singular) is referred to (be Mircna lage — on Mircna lage) are of uncertain date. The following passage, on Banks, Thorpe 1. 190 which speaks of the English laws (on Engla lagum) has a very late appear- EAELY NAMES OF LAW: TEUTONIC. 69 with as good laws as they best may choose. But with the English let that stand which I and my witan have added to the dooms of my forefathers"." In some passages these Danish laws might almost he rendered customs, but in the above quotation I think they have much the same prac- tical meaning as domas, i.e. model judgements, or pro- spective rules, from which the proper one is to be selected. The parallel to the Greek Kpiai'; of the 6efMa-Te8 ^thelred iii. 13 (Thorpe 1. 298), Infe oththe lage. ^ Eeotitudines singularum personarum. 1. Thegenes lagu. tr. Taini lex. Thorpe 1. 432, 3. The date of these Eeotitudines cannot be certainly assigned : the MS. is supposed to belong to the 10th century. '^ lead and lagu... he gethingthum. Thorpe 1. 190. That this curious document, ' Be gethingthum and lage,' is later than the time to which it refers is clear from the hwilum. ^^ The ordinance is made at Woodstock in the land of the Mercians (on Myreena lande) ; but it is made for the whole nation according to the law ol the English (eallon folcc.Eefter Engia lage). EARLY NAMES OF LAW: TEUTONIC. 71 Spelman, following Ranulphus Cestriensis, represents them to have been actually united into one common code (unam legem communem) by Edward the Confessor'", to which fact and title the same author traces the origin of our common law (Jus commune). Hale gives the explanation of Spelman the second place, preferring the view that common law is the general law of the land as distinguished from particular laws still by custom applicable to particular places and causes ; while Blackstone (whose authority however is merely Hale) follows Spelman '^ The fact, however, of the union or fusion referred to being ever expressly made is a very questionable one. In the "laws of Henry the First," of which the first two chapters were written before 1118, the remainder under Stephen (1135 — 1154), or early in the following reign^*; in the actual charter granted by Henry the First, in 1101; and in the so-called laws of William the Conqueror, a compilation perhaps dating from the same reign of Henry, we hear of the law (singular) of Edward °^ which looks somewhat like a consolidation. But, in the same leges Henrici primi a division into three parts is still stated to continue °'', of ^2 Glossarium, p. 358, Lex Anglorum, and p. 329, Jtts commune. ^2 Hale's History of the Common Law of England, c. 3. pp. 58, 59. Blackstone Int. 3. p. 67. Eeeve (Hist, of Englisli Law, oh. 1) adds nothing to our knowledge on the subject. ^* See Sohmid lxix. lxx. ^5 Leges Henrici Primi ii. 1. secundum lagam regis Edwardi. 4. lagam Edwardi regis vobis reddo. The latter clause is in the Charter of Liberties of 1101 (§ 13. Stubbs' Documents Illustrative of English History, p. 98). "Legem Edwardi regis" is given by Stubbs from the Textus Eoffensis, a MS. written under Henry I. of part of the law attributed to the Conqueror (§ 7 Stubbs, ib. p. 81). Thorpe, from a later MS., reads leges. (Will. c. iii. § siii. p. 493.) ^ Ib. vi. 2 (Thorpe 1. 512), legis etiam Anglice trina est particio. 72 EAELT NAMES OF LAW: TEUTONIC; which there are indications in the reappearance of lahslit in connexion with the Danes^', and elsewhere''^ The same triple division of law is maintained in the later part of the laws attributed to the Conqueror^'; while in the so-called laws of the Confessor himself — a document, however, written certainly after 1100'" — the subsisting dif- ferences of lew Anglorum and Denelaga are clearly stated"'. I am, therefore, on the whole inclined to doubt whether any consolidation, teal or imaginary, express or virtual (as the work of time), can explain the phrase common law; particularly if the triie of igin of that phrase can he traced to a time prior to the alleged consolidation by Edward. This phrase, as also the Latin lex communis, is appa- rently identical with the old French commun droit. The latter is spoken of in the Statute of Westminster the first, in the clear meaning of impartial justice as between indi- viduals^'. It reappears in Fleta as commuiiis justitia"^, and the signification is clearly recognised by Coke in his comment on the particular statute'^. Elsewhere, the same author identifies common right and common justice with the. common law of England^; but he again explains the ^' Leges Henrioi Primi xi. 11 (Thorpe 521). See above, u. 39. 58 lb. xiv. 3, 4 (Thorpe 1. 525) ; Ixvi. 5, 6 (Thoi-pe 1. 569). 59 I. 2, 3 (Thorpe 466, 468). I. 8 (Thorpe 470), &c. As to the relative date or authenticity of different parts of this compilation see Stubbs' " Docu- ments," p. 80. s" It is attributed by some to the author of the Dialogus de Soaecario, by some to Glanville himself. See Schmid lxxi. '^ Leges Eegis Edwardi Confessoris xii. (Thorpe 1. 447). xxvii. (Thorpe 1. 454). ^2 3 Edw. I. c. 1, que common droit soit fait a touts auxibien aux poors come aux riches sauns regard de nulluy. So read by Coke in 1 Inst. 142 a. In 2 Inst. p. 161, he reads droiture for droit. 63 Fleta, 1. c. 29 § 1. M Coke, 2 Inst. p. ICl. 6^ 1 Inst. 142 a, on the words ' of common right ' in Littleton. EAjaLT NAMES OP LAW: TEUTONIC. 73 latter, in a third passage, to be the most general and ancient law of the realm, as distinguished from particular (local) customs and statutes °°. The various interpretations of the phrase by Spelman, Hale and Blackstone, are given above (p. 71). Common law from folc-riht. These somewhat conflict- ing explanations may be to some extent reconciled by refer- ence to the term which several of our authorities (e. g. Spelman and Blackstone) identify with common law, and to the original of the clause in the Statute of "Westminster. That original clearly is an enactment in the laws of Edgar that every man be worthy ( = held worthy) of folc-riht, as well poor as rich"'. Folc-riht, which I find first men- tioned in the laws of Edward the Elder °^, and which is translated in the old Latin version jus publicum^, is fre- quently used in a sense so exactly equivalent to the un- compounded riht meaning legal right or simply law''", that the signification of the first half of the compound is lost sight of After some hesitation, caused by certain pas- sages which look rather as if folc-riht meant judgement in the people's court, I have come to the conclusion that the true signification of this term is the right or law " common ^ 1 Inst. 115 b. See too 113 a, end of § 169, on ' 'privat communem legem." ^' Eadgar 2. 1, io wiUe thset selo man sy fole-rihtes wyrthe ge earm ge eadig. Thorpe 1. 267, repeated in ^thelred yi. 8, Thorpe 1. 316, and Cnut, Secular 1, Thorpe 1. 376. ^ Eadweard pr. Ne wandiath for nanum thingum folc-riht to gereocanne. Fear not (to the reeves) on any account to pronounce folk-right. Thorpe 1. 158. «9 See jEthelred viii. 6. Thorpe 1. 888. !■» So Sohmid Gesetz, s. v. folc-riht. See Oaths, Thorpe 1. 178—80, where the litigant swears that he prosecutes his suit mid fullan folc-rihte with full folk-right (2), that the property is his own on folc-riht, by folk-right (8). In ^thelstan 23 (Thorpe 1. 212] mid folc-rihte uiiscyldig is simply legally guilt- ,8. n As to this ambiguity see above, p. 70. 74 EAHLT NAMES OF LAW: TEUTONIC. to all the people, as distinguished from those of particular classes ". It is perhaps not without significance that the expression folc-riht first occurs, so far as I can trace it, in a statutory enactment, under the somewhat underrated monarch (Ed- ward the Elder) to whom almost more than to his illus- trious father the first consolidation of the kingdom of Britain is due"- But the consolidation is, in the case of folc-riht, rather one, as it seems to me, of ranks or classes than of districts. Folc-riht then, commun droit, common right and common law, have running through them all the ambiguity, between right and law, which affected the Saxon riht and lagu, the French droit, and so many other juristic terms of similar signification — from which our modern right and law are happily free. Subject to this ambiguity, their meaning is, I presume to think, clear enough. They were what jurists call general, universal right, or the law of general, universal rights, as distinguished from the law or rights of special classes. Modern meanings of "common law." As then the idea, the name, and the thing itself descended in its first origin from the pre-Norman period ; and as that part of it which was really statutory ceased to be regarded as such under the new regime; common law came to be our ancient customary law and our customary law in general, as opposed to the only statutes henceforth recognised by ''■ E.g. the Thegenes lagu of the Eectitudines, Thorpe 1. 432 ; the thegen- riht of the 'Banks.' In the difacult passage as to the scale of wergilds onfolces folc-rihtes (sic) be Myrcna lage (Thorpe 1. 190), the compound seems to have the meaning of law generally, while the national character of the law is indicated by the repetition olfolces. '* Freeman's Norman Conquest, 1. p. 58. EARLY NAMES OF LAW: TEUTONIC. 75 our courts. As opposed to the comparatively modern " equitable" jurisdiction introduced by the Chancellors, com- mon law seems to mean simply the older body of rules, or those administered by the older courts'*. The rarer antithesis of common to criminal law arises obviously from the distinction of common pleas and pleas of the crown, which is as old as Magna Carta". Earlier, the two branches were called civil and criminal™. "Whether the true idea of the pleas of the crown was, that the sovereign was the plaintiff", or merely had a special jurisdiction'^ I cannot but think that the common pleas were those which were open to all subjects''^. Conclusion. Observance with our Gothic ancestors, in witoth; immemorial custom with our Saxon ancestors, in CB, appear to be their first ideas of law. In the case of the former our knowledge begins and ends with one literary work : in the case of the latter we can trace a developement of institutions and ideas not very dissimilar from that appearing in Greek phraseology. The prospective rules to guide judicial decision {domas) resemble the Greek OefiicTTe';, while the more general asetnissa may be compared with the OecTfioL The name which ■ has, with us moderns, supplanted the rest, the northern lagu, if treated, in England, as equivalent to the native dom, may have somewhat lost its original signification. But that signification must have been ^* Stephen's Blaokstone Int. § 3, ad finem. It is perhaps only as a Court of Equity that the ChanoeUor'a Court is later than the others. '5 Cap. 11, Communia plaoita non sequantur Ciiriam nostram. I do not know that the term Pleas of the Crown can be traced earlier than Britton. Hobbes, I find, gives the same explanation of Common Pleas. Leviathan, pt. 2, chap. 23, p. 125. 7« Glanville 1. 1. 77 See Hale, P. C. Prooemium. 78 Braeton 3. 5. fol. 105. " See contra. Coke on Magna Carta, cap. 11. 2 Inst. p. 22. 76 EARLY NAMES OF LAW: TEUTONIC. rather one of custom, than, as in the domas and 6e/j.i. DEFINITIONS OP LAW. 99 regulations, or any possible system whatever 'I There is, however, some interest to the jurist in this book from its containing the well-known definition of " equity " or reason- ahle modification^^ ; and its definite introduction of the old antithesis, between nature and convention, into justice itself, as an existing system". This antithesis re-appears, at least as a theoretical division of law, in the writings of some of the Roman jurists; and, with much more practical influence, in those of the modern school, until the re-action effected by the analysts'^ The express definition of i/o/^o? sometimes attributed to Aristotle"', is not his but the work of a political philosopher, Anaximenes, and either taken from the one which I have quoted above, under the name of Demosthenes, or that from this". Cicero's definitions of law general (though under the name of lex) — so far as they can be called definitions — are drawn from the Stoic philosophy. It is something eternal, constituted for the government of the universe by wise order and prohibition'*: it is the highest reason, implanted ^^ Axist. [Nic] Eth. 5.'1. 14- irpoffTarrei 5' 6 vo^s koX tcl rov dvdpeiov ^pyo. voictv K.T.X. For the true category to whicli this boot must be referred, see H. Jackson's edition, Introduction xxii — xxxii. 1' I, of course, differ toto caelo from Austin's view of " equity", as will be shewn more fally hereafter. The definition referred to is that in Eth. [Nic] 6. 10. 3, t6 iirteiKh SiKaiov fiev iartv ov rh Kara vop^ov 5e oKS^ i7rav6p6(ap.a yo/il/iov SiKatov. ^* Eth. [Nic] 5. 7. 1, tov de TroXtTiKou SiKaiov to jxev tpva-iKov ia-TL to de V0P'tK6v K.T.X. 15 See above, Int. p. 4. For notice of the antithesis, ch. 4. j p. 54, 55. 1' Bhet. ad Alex. 1. Bekker, p. 1420, 1. 25. 6 voiio^ iaHv us oTrXcDs elveiv X070S uipiaixivoi Ka6' 6/j.o\oylay KOiviiv ttoXcus fir/pvav ttus Sei wpaTTew iKaaTo,. 1' See above, note 3. The latest date ascertained for Anaximenes is that he accompanied Alexander in his wars (Suidas). Hypereides, the possible author of the first speech against Aristogeiton (pseudo-Demosthenic) died after Alexander in the same year with Demosthenes (322 b.c). 18 De legg. 2. 4. 8. Hanc igitur video sapientissimorum fuisse sententiam, 7—2 100 DEFINITIONS OF LAW. in natura, ordering what should be done and forbidding the contrary "; the government of nature, being due to the immortal gods™, who, as well as men, are subject to the law of right reason". On the law of nature I shall say no more at present, as that doctrine will be specially consi- dered hereafter (Chaps. IX. X.). Modern definitions. Of the hosts of modern definitions of law, many are mere echoes of those which I have cited; others are ideals suggested by the object and end of law, as conceived in the mind of the particular author ; others deal with ever-varying abstractions, of very little meaning or use in practical life^^. I therefore confine my remarks to a few of the best. To the account given of law by our own Blackstone close attention is necessary, if not for its own merits, yet from its bearing upon the counter definition, which is beginning to be widely accepted, of Blackstone's critic Austin, the chief of the modern analytic school. First, however, I must notice two celebrated theories of Somewhat earlier date, the former of which has still great weight among continental publicists, while the latter, beside having also attained con- siderable favour abroad, is clearly the foundation of all Austin's reasoning on the subject. legem neque hominum ingeuiis excogitatam neque scitum aliquod esse popu- lorum sed aeternum quiddam quod universum mundum regeret imperandi prohibendique sapientia. 1' De legg. 1. 6. 18. lex est ratio summa insita in natura, quae jubet ea quae faoienda sunt prohibetque contraria. "" lb. 1. 7. 21. deorum immortalium vi, natura, ratione, &e. (Bake's emendation for ut natura ratione, &o.) naturam omnem regi. ^ lb. 1. 7. 23, est igitur...liomini cum deo rationis societas. inter quos autem ratio inter eosdem etiam recta ratio communis est: quae cum sit lex, lege quoque consociati homines cum diis putandi sumus. -2 I fear I must place in this class the four last of those collected by Professdr Holland (Elements of Jurisprudence, chap. 2), even though they include the name of Savignj'. DEFINITIONS OF LAW. \ V 19] ^0^ V ^^ ^^\ Grotius. The special oV^ect proposed in th^^i?]^^ of Grotius may sometimes rather blind us as torte^ contents and scope; which are however pretty clearly indi- cated in the title De jure belli ac pads. That object un- doubtedly was, to dignify and strengthen by the name of law, such, rules of custom, for the conduct of nations towards each other, as could be inferred from the rare instances in the past — the almost rarer instances in the present''' — of any justice, any humanity, any deference in fact to a higher principle than momentary self-interest. In pursuit, however, of his object, Grotius touches upon most parts of the field of law as known in his time; and, at the outset, gives a brief definition, which seems to me to include most of the essen- tials of law in general. Of the ambiguous Latin jus he says that it is : 1st, Bight — id quod justum est — further defined to be tvhat is not repugnant to the nature of a community of rational beings^* '> 2nd (derived from the first) a right, i. e. a moral quality belonging to a person for the rightful enjoyment or perform- ance of something '^^ ; 3rd, the meaning with which we are at present concerned. Law, i.e. "A rule of moral actions obliging to that which is right^". By that which is right he means, not that which is commanded or in accordance ^ See tlie Prolegomena, particularly § 28. The book was dedicated to Lewis the 13th of Prance iu the year 1625, when the severities of the Emperor Ferdinand, in Bohemia, had already oocm'red, though not perhaps the worst atrocities of the 30 years' war. ^ De Jure, &a. 1. 1. § 3. Jus hie nihil aliud quam quod justum est signi- ficat, idque negante magis sensu quam aiente ut jus sit quod injustum non est, est autem injustum quod naturae societatis ratione utentium repugnat. 2^ lb. § 4. The subject of Eights (and Wrongs) is more fully treated below, under " Subdivisions of Law "- 2s lb. § 9. idem valet quod lex...regula aotuum moralium obligans ad id quod rectum est. 102 DEFINITIONS OF LAW. with any prescribed rule'''; nor merely that which is just (where however I cannot but think that he uses the word in a narrower sense than the id quod justvm est spoken of above) — but "the subject-matter of other virtues as well as justice'^". In fact he appears implicitly to recognise, in rectum, all the subject-matter of that moral approbation to which I adverted in my philological investigation of the meaning of right^. The word moral is not used by even Grotius with much clearness or uniformity of meaning. In the qualitas moralis of a right the adjective does not appear to mean anything more than non-m,atenal or non-physical^". That explanation will not suit the moral ctctioiis of the text. Elsewhere Grotius speaks of effects and operatioiis as determining the nature of moral matters''. And Puffendorf, probably with this last passage in view, defines moral actions to be volun- ta,7^y human actions considered with the imputation of their consequences in ordinary life '^ Thus much, I think, is clear — that Grotius meant by actus morales the voluntary conduct, or some part of the ^ See above, ch. 6, pp. 77, 81 ; also the defimtion of Hobbes at the end of the present chapter. 28 1. c. Diximus autem ad rectum obligans, non simpliciter ad justnm, quia jus hac notione nou ad solius justitiae qualem exposuimus sed et aliarum virtutum materiam pertinet. He goes on to mention a lax use of the word /usi in the general sense of virtuous, which has, I think, ceased in England, though un just stiU bears this meaning in French. 29 See above, ch. 6, pp. 81, 86. 2" See too the antithesis of Grotius, "in moraUbus ut in naturalibus" De Jure, &c. 2. 1. 5. 1. *i lb. 1. 3. 11. 2. rerum morahum natura ex operationibus eognoscitur. 32 Puffendorf De Jure Naturae et Gentium 1. 5. 1. Sunt autem actiones morales actiones hominis voluntariae cum imputatione suorum effectuum in vita communi speotatae. As to the imputaMlity (Puffendorf's imputativitas) of the ordinary (and therefore expectable) conseijuences of conduct, see my Analysis of Criminal Liability, p. 47. DEFINITIONS OF LAW. 103 voluntary conduct, of human agents able to take into account the consequences of their conduct. As to further limitation of the signification of moralis, I cannot find' any express statement in Grotius, though the impression left by his few usages of the word coincides with the following conclusion, based upon an independent consideration of its classical meaning. Moralis is of course a translation of the Greek ijdiKo';'^. It is therefore a late word in Latin, and must be taken, in meaning, to be determined partly by that of the Greek, perhaps still more by that of mores in the times of Cicero or shortly preceding him; Then^*, it would seem to me that mores meant a man's ways or customs, as determining his character and repute. If so, moralis points to a particular kind of general opinion, involving, as has been already said, the specific feeling of approbation or dis- approbation'''. I believe I might particularise further and say that the mores entering into the ideas of moral and viorality are such part of a man's voluntary conduct as is considered a subject of absolute praise or blame, i.e. praise or blame without conscious reference to any ulterior end'*. There, however, I must stop, as encroaching too much oq the province of Ethics. With the distinction, which Grotius goes on to make, of law into natural and voluntary, I am not at present concerned. But, as to his view of law in general, I would conclude by remarking : first, that it agrees exactly with the conclusions of philology in deducing Law from a prior re- 33 Coined by Cicero, de Fato 1. 1. 3^ I do not go back to earlier times. If mos is really derived from a root meaning to measure, it may from the first have signified the measure or standard of the man. In Plautus, however, the word mores generally means the qualities for which a man is liked or disliked. 35 See above, ch. 6, p. 86. 38 See Sidgwick's Methods of Ethics, Int. 1. § 4. Also Osiander on Grotius De Jure, &a. 1. 1. 9, actus... laudis atque vituperii...oapaces, qui proprie moralitati substernuntur. 104 DEFINITIONS OF LAW. cognition oi Might: second, that it does not necessarily include the idea of any determinate imposer, but is defined primarily by its practical results, i. e. as regulating human conduct. Hobbes. Upon the extremely clear and able chapter "of Civil Laws" in Hobbes' Leviathan" is really founded the greater part of Austin's criticism upon Blackstone, and his own definition, both of -which will be considered presently. " Law in general ", says Hobbes, " is not counsel but command; nor a command of any man to any man; but only of him whose command is addressed, to one for- merly obliged to obey him. And, as for Civil Law, it addeth only the name of the person commanding, which is Persona Civitatis, the Person of the Commonwealth." He therefore thus defines Civil Law : " Civil Law is to every subject those rules which the Commonwealth hath commanded him, by word, writing or any other sufficient sign of the will, to make use of for the distinction of right and wrong ; that is to say of luhat is contrary and what is not contrary to the rule^' ". The " Commonwealth " is, in the following para- graph, for legislative purposes, identified with, or rather replaced by, its representative the "Sovereign, be it an assembly or one man ". In these views, practically followed by Puffendorf , we see at once the origin of that definition which I presume most students of jurisprudence would just now give as an answer to the question. What is law ? Austin. "Law," according to Austin, "is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject'"'." 3' Chap. 26. I have used the English edition of 1651. 38 lb. p. 137. 3^ De Jure Naturae et Gentium 1. 6. His law of nature is therefore, like Austin's, in its origin a law of God. *» Austin 1. p. 89, &a. &o. DEFINITIONS OF LAW. 105 With the reasoning upon which this and other dicta, of the same author, are based, there is, if his postulates are borne in mind, no fault to be found. Nor can any one deny the great services rendered by Austin to Jurisprudence, in clearly marking off the province of that science, at once from all subjects which only resemble law by analogy, from all mere ideals of what law ought to he, and from all so- called accounts of law which depend on a priori assumptions. But, taken as Austin appears often to be taken, like a string of pellets or boluses of ultimate knowledge, I question whether this " simple and strict " sense, of law, can be considered satisfactory, either as the account of actual fact or as the enunciation of a desirable ideal. With the latter, indeed — with the question what opinions it is expedient that a future generation should hold about law — -I have not to deal, nor does Austin affect to do so. I only propose to enquire what it is that people in general have understood and in particular do now understand by law, as a practical working reality. Of the early days preceding conscious definition I have already spoken. As to later and present time, the best lines that I can find, on which to base my enquiry, are those of Blackstone's second section in the Introduction to his Commentaries — a short essay once very highly esteemed, but now known to too many only through Austin's quotations and criticisms. 1 shall, therefore, in the remaining part of what I have to say on the definition of law, follow Blackstone, so far as I can in his own order, eliminating all objects which his definition includes, but which are not practically included under the ordinary acceptation of the word law, in order that I may determine, with some degree of accuracy, what that accepta- tion really covers. CHAPTER IX. DEFINITION: LAW AS A EULE OF HUMAN CONDUCT. Blackstone. "The general signification of law", says Blackstone, "is a rule of action dictated hy some superior being ...but laws, in their more confined sense, in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct, &c."' To consider, first, the distinction to which our author himself calls attention ; the word human is intended to exclude such objects, metaphorically termed laws, as the laws of motion, the law of gravitation, the law of storms, the laws of inanimate matter generally, and the laws which are said to govern the action of animals other than man. Order, or a comparatively uniform sequence, is generally considered to be the common phenomenon in all these cases, such phenomenon being however attributed, by different schools, to different causes. The notion of law governing the whole universe appears most definitely in the Stoic philosophy^ It is not, I think, exactly that of the "laws" of modern science ; the old philoso- phers rather attributing animation and reason to matter, than speaking of inanimate matter as obedient to a rule. 1 Blackstone Int. § 2, p. 39. ^ Zeno, Diogenes Laertius 7. 1. 136 — 148. Cicero de Nat. Deorum 1. c. 14 ; see also the passages quoted above, pp. 99, 100, notes 18 — 21. DEFINITION: LAW, AS A RULE OF HUMAN CONDUCT. 107 Montesquieu in his first chapter' takes an equally exten- sive, and lax, view of law. I quote the passage, with due respect to so great a name : but I must certainly endorse the criticism of Helvetius as to the " feeble and obscure meta- physical reasoning" which pervades the whole of the first book of the Esprit des Lois. Hooker, in the first book of his Ecclesiastical Polity, classes, inter alia, " the rule of natural agents that work by simple necessity," "the rule of natural agents which work after a sort of their own accord as the beasts do/' and "the rule of voluntary agents on earth'' all under the name of Law*, as all matter of order, and all proceeding ultimately from one common author. There follows, shortly after, that well-known passage, which Hallam represents as "nothing else in substance " than one of Suarez, but which certainly must be stripped of half its ideas and all its poetry before it can be identified with what he quotes from that author. " Of Law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world ; all things in Heaven and earth do her homage, the very least as feeling her care, and the greatest as not ex- empted from her power''." This is scarcely to be disposed of in a single word as fustian", by any who either hold Hooker's first principle of a rational Author and Governor of the Universe, or believe him " Esprit des Lois, L. 1. oh. 1. " Les lois dans la signification la plus fitendue sent les rapports n^cessaires qui derivent de la nature des choses : et, dans ce sens tous les dtres ont leurs lois : la divinity a ses lois, le monde materiel a ses lois... les b^tes ont leurs lois, rhomme a ses lois." " Ce livre," says Helvetius, " est d'unemetaphysique faible et obscure. On n'y remonte nulle part a la vraie source des lois, qui est la nature de Thomme bien approfondie." * Hooker's Ecclesiastical Polity, 1. § 8. = lb. § 16 ad finem. See Hallam's Literature 3. ch. 4. p. 329. 6 Austin 5. p. 217. 108 definition: law, as a rule of human conduct. to have held that principle honestly and sincerely. Indeed, if Blackstone's chapter on "the Nature of Laws in General" may almost be said to have made Bentham and Austin into jurists by virtue of sheer repulsion', so Austin's somewhat unmeasured invective creates a natural revulsion against the analysts. Still, the difference is so diametrical between the volun- tary and the so-called necessary agent, that I cannot but admit Austin to have been perfectly right in refusing to call by the same name the law which governs the conduct o£the one, and the order which is observed in the other. In all the cases mentioned at the beginning of this section but the last (animals other than man), will, i.e. the option of obeying or disobeying, is clearly wanting. The " law which shall not be broken " given to the heavens^ is evidently contrasted by the Psalmist with laws for human conduct which can be and are broken. The same might be said of any order or sequence to which, as being, or at least believed to be, invariable, the name law has been metaphori- cally given. If the laws of political economy, as they have been generally held by the present English school, are true, general plenty cannot be produced by protection, any more than a stone can break the law of gravitation. This invariable obedience, owing to the absence of any will or any power to disobey — which therefore cannot truly be called obedience at all — is the real difference between the " laws '' of inanimate matter, or of such abstractions as cheapness, harmony, symmetry, and the laws regulating human conduct. Blackstone has indicated the difference, but not with sufficient clearness or emphasis'. It is very well put by ' Maine, Early History of Institutions, 13. p. 372. 8 Psalm 148. 6. (Prayer-boolc version.) " See his opening words on law in general, where the application BKFINITION: LAW, AS A RULE OF HUMAN CONDUCT. 109 Austin"", who shews that, as the analogy between the two cases is faint, it is only "by a decided metaphor that " laws " of inanimate matter are so called, and any argument, as to law proper, based upon such metaphor, is fallacious". I do not see that the wide use of the term law, to express invariable succession", in modern science, at all weakens Austin's objection, until modern science predicates, of the subject-matter of its "laws", a conscious motive to obedi- ence. Nor do I believe that, in the popular acceptance of the term, " Law " or " the Law " would be used, in reference to inanimate matter, or abstractions, except by an avowed metaphor. The word human at the same time excludes rules govern- ing the conduct of anirnals other than man. It would be satisfactory to point out some essential difference here also, like the want of will in the case of inanimate matter. But I do not find the task easy, without anticipating points of human law best reserved till a later period. The operations enumerated by Blackstone are, it is true, soon disposed of Animal nutrition, digestion, and secretion are, as he admits, independent of the will, and may therefore be left with the laws of "mere inactive matter" and " vegetable life''". But when we come to the conduct of animals themselves, as distinguished from the mere functions of their organs, we find it difficult to draw a certain line between their case and that of men. It would be obviously absurd to say that they have not will, nor is it by any means clear that we can deny them the possession of a reason, less in degree than our own, but similar in kind". of the term action to inanimate matter (p. 38)" is, to say the least, un- happy. 1" Austin 1. p. 90 : 5. p. 212. " lb. 5. pp. 172, 173, 214. 12 See however Maine's Early History of Institutions 1. c. in note 7. 13 Blackstone Int. § 2 p. 39. 1'' See Austin's admissions in note to page 212 Lecture 5. Blackstone 110 DEFINITION : LAW, AS A EULE OF HUMAN CONDUCT. There are before our eyes tiniformities of voluntary con- duct, in the case of domesticated animals, which strikingly suggest a similar motive to that which prompts human observ- ance of general rules. These phenomena are observable in the case of individuals, to which a certain personality of character is conceded by the most unobservant man who has ever possessed an intelligent dog. The facts, however, of which I have rather to speak, are those observed in whole races, or in the whole animal world. These are the few very primitive rules of conduct, mainly on matters connected with the preservation of respective species, which are usually recognised as " instinctive ", in human beings, and which apparently govern our actions and those of the "lower" animals in much the same manner. They have been designated by Ulpian in a well-known passage'^, the natural law, which nature has taught all animals. (His laiu of nature is entirely different from that of most other writers, of which I have spoken, and shall speak, elsewhere.) There are also clearly discernible, in the case of bees" and other animals, which may be called political or social, special rules bearing upon the good of the community, an end generally proposed, though not always, as a matter of history, main- tained, in human laws. The rules of conduct affecting whole races of animals, unlike the laws of inanimate matter to which I have previ- (Int. § 2, p. 39) denies animals other than man " the power either to think or to will". For a comparison of human will with that of the "lower" animals, see the Duke of Argyll's " Eeign of Law ", oh. 6. 1= Ulpian Dig. 1. 1. 1. 3. Jus naturale est, quod natura omnia animalia docuit : nam jus istud non humani generis proprium sed omnium animalium quae in terra quae in mari nascuntur, avium quoque, commune est. hinc descendit maris atque feminae oonjunctio, quam nos matrimonium appella - mus, hinc liberorum procreatio, hinc educatio. • " See the stock quotations, Virgil Georg. 4. 149—155; Shakespeare Hen. V. 1. 2. 182—204. &o., &c. DEFINITION : LAW, AS A BULE OF HUMAN CONDUCT. Ill ously adverted, can be, and are occasionally, disoheyed by individuals. It is usual, but not very satisfactory, to lay them all quietly aside under the general label of instinct, by which term, when thus vaguely used, I suppose very little more is meant than a motive which we cannot explain"- Austin's reason for excluding all such cases from the subject of law is mainly'* that the intelligence which prompts the obedience in question is "limited"; to which I would add that our knowledge about it is limited also. The motives'", or internal causes of action, in man, are known to us by per- sonal consciousness and mutual communication. The motives of other animals are and will possibly*" remain, to us, matter of pure inference and speculation. It would therefore seem unsafe in logic to reason at all from the one case to the other. In popular parlance and conception, with which, as I main- tain, practical jurisprudence has chiefly to do, there has never been any question of extending the name of laiv to the case of the " lower " animals. Generality of a rule. I must now pause, before consi- dering how the rules called law regulate human conduct, to enquire what is intended by a rule. When Capito defined lex to be generate jussum, what he expressed was, according to Gellius, its applicability to the case of all citizens — its general hearing, as distinguished from that of a privilegium, which latter dealt e.g. with the powers " Austin 5. 212. says generally "causes which we cannot explain "- See below oh. 10, p. 116 as to the more definite meaning of " instinct ". 18 Austin 5. 213 note and 215. 19 For a closer investigation of this word see below oh. 10, p. 116. 2» The uncertainty of this expression may be considered strange. Yet it is at least probable that the " lower " animals do reason and do impart some results of their reasoning to one another. "Whether an animal could be taught, by man, to make sounds indicative of certain external objects, and whether a practical means of communication could be developed, in a manner common to the two, from such sounds, is an interesting question. 112 definition: law, as a exile of human conduct. to be conferred upon Pompey, or the return of Cicero from ' banishment^\ The obligation upon all citizens was, no doubt, implied in the words populi jussum, &c., but not expressed in the definition. Blackstone must clearly have had this passage before him, but has, more suo, introduced a certain ambiguity into it, when he says, pursuing his definition of law : " It is a ride : not a transieat sudden order from a superior to or con- cerning a particular person ; but something permanent, uniform and universal. Therefore a particular act, ..to attaint Titius of high treason.. .is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason ; this has permanency, uni- formity and universality, and therefore is properly a rule^^". Austin's criticism on this passage^' is that Blackstone understands by the generality of law, as a 7'ule, distinguished from a particular command, obligation upon persons of a class but not obligation to actions of a class. The insertion of the words italicised {to or concerning), in the sentence first quoted above, does somewhat justify this charge, but I think it is nevertheless clear on the whole that Blackstone really meant a standing order as distinguished from an occasional one. Both the generalities mentioned by Austin appear to be contained in the usual conception of law. Out of the two, that of obligation upon all members of a class or number is the more likely to be tacitly assumed, and neither consciously 21 Aulus GeUius 10. 20. 3, 4. Ea deflaitio si probe facta est, neque de imperio Cn. Pompei, negue de reditu M. Ciceronis, neque de caede P. Clodi quaestio, neque alia id genus populi plebisve jussa leges vocari possunt. non sunt enim generalia jussa neque de universis civibus sed de singulis ooncepta; quo circa privilegia potius vooari debent &c. 22 Blackstone Int. § 2. p. 44. *' Austin 1. pp. 95, 97. DEFINITION : LAW, AS A RULE OF HUMAN CONDUCT. 113 adverted to, nor d fortiori expressed, except in early consti- tutional pacts or charters. There, of course, the levelling of a privileged with a non-privileged class is often the whole essence of the business^. But in the other cases, where it is not expressed, this generality, I think, always enters into the popular idea of law. That is, I question much if a rule, set to a person or persons individually determined, would amount to a law, as ordinarily conceived'^ In endeavouring, therefore, to frame a definition which shall express the popular idea of law, as the word rule does not in itself necessarily imply that generality of obligation (or incumbency of obligation) to which I now refer, I would slightly alter the first words of Blackstone's definition and read — instead of simply " a rule of human conduct '' — " a rule of conduct obtaining among a number or class of human beings." The question how such number or class is to be determined will be considered presently. The second generality, on the other hand, mentioned by Austin — obligation to a class of actions — does appear to be clearly implied in the use of the word rule, coupled with the word conduct, and will not, consequently, require further expression. A distinct and very important function of the word rule in this definition is next set forth by Blackstone. Rule is now treated by him as necessarily implying external command or injunctions^. The words of his text are obviously suggested ^ As in the Eoman statutes about the Plebiscita. 25 Austin, Leot. 1, p. 97, holds that it may. The case oi a privilegium conferring a right is, as he correctly shews, a matter of general obligation. Grotius (1. 1. 14) would seem to allow the name otjus (arctius patens) to the rules of a father or master. 26 "It is also called a rule to distinguish it from advice or counsel... counsel is only matter of persuasion, law is matter of injunction." "Law is a command directed to us," &c., &c. Blackstone, Int. § 2, pp. 44, 4.5. C. J. ^ 114 DEFINITIOK: LAW, AS A RULE OF HUMAN CONDUCT. by Hobbes ^' I shall not dwell here upon their inconsistency with Blackstone's subsequent definition of English common law^"; but shall consider them merely as introductory to a consideration of the manner in which or the means by which the rules that we call law do regulate voluntary human con- duct — in other words, of the motives for obedience to law. '" Above, p. 104. »» Int. § 3, pp. 64, 74. CHAPTER X. DEFINITION: LAW, AS TO THE MOTIVE FOR OBEDIENCE. An ulterior motive to action. Our definition of law is not yet close enough to exclude what hardly any one would call by the name. There are classes of voluntary human actions performed by any number of human beings — by all mankind — in obedience to the recurring calls of a common appetite or desire : others, where appetite or desire can scarcely be pre- dicated, which are attributed to human instinct. But we should not ordinarily say that men take their meals, or women rear their children, in obedience to law. What, then, is the differentia, which must be added to mere uniformity of human conduct, before we should talk of it as produced by law? That differentia is indicated to a certain extent, though not very clearly or fully, in Grotius' definition of law as a rule of moral actions, and Puffendorfs interpretation of moral as including a consideration of consequences. Under the word action, as here used, I include, of course, not only positive acts, but also conscious abstinence from action, "voluntary inaction" or "forbearance." These terms are sufficiently explained by Austin and elsewhere'. 1 Austin, 14, p. 377. For the distinction from omission, see 20, p. 438. Also my "Analysis of Criminal Liability," pp. 39, 42. I do not here include Austin's "internal acts," 14, p. 377 : 19, p. 433. "Analysis," pp. 22—24. 8—2 IIG DEFINITION : LAW, AS TO THE MOTIVE FOE OBEDIENCE. The differentia, then, of which I am in search, appears tp lie in the existence of an ulterior motive to action, whereas in the case of pure instinct, where that term is used with any definite meaning, there is supposed to be no conscious motive beyond the desire or propensity to perform the action itself I therefore use the expression ulterior motive to indicate some feeling or sentiment beyond or behind the mere desire for or propensity to any particular action, and ultimately causing that action. Where there are motives behind motives^, the ultimate one, or the one — to use a material metaphor — farthest hack in the mind, is the one which I intend. Motive, what? The motive, or feeling in the mind moving the agent to particular conduct, is often confused with a thing or state of things desired by him : but, as the two are rarely identical, this confusion is a very misleading one. In describing motive, I prefer to use these wide terms feeling or sentiment, because to call every motive, with Austin", a desire or wish — and d fortiori, to use the stronger terms appetite or aversion of Hobbes* — appears to me to be begging a psychological question which I do, not wish to beg^ I need not, indeed, enter into that question, as it will be found that the particular motive actually causing obedience to law, does come within Austin's terms. The law of nature. In the consideration, however, of this motive for obedience to law, as essential to the definition of law itself, I find myself obliged, very reluctantly, to travel somewhat into the region of ethics, into which Austin's ^ See "Analysis of Criminal Liability," p. 72. ^ See his definition of a motive, 18, p. 428. * lb. 429. Hobbes, "Leviathan," vi. p. 28. » Sidgwick ("Methods of Ethics" 3. 1, § 2, p. 179) defines motive "The conscious impulse to action, whether desire or aversion : " but I think he would admit something not strictly falling under either of these names in the "impulse to do right simply because it is right" which is analysed on the next page (180). DEFINITION : LAW, AS TO THE MOTIVE FOR OBEDIENCE. 117 digression, extending over his 2nd, 3rd, and 4th lectures, is so generally censured by jurists, and with which subject I am but imperfectly acquainted. Yet the motives for obedience to law can scarcely be discussed, without some ethical considerations; and it is in those motives alone that I can trace the difference between law, as it is ordinarily conceived, and the philosophical law of nature, when separated at once from the order of inanimate matter and from the mere animal instinct to which XJlpian gives that name. Austin's law of nature. I shall not follow Austin through the lectures referred to : partly, because they do appear to contain a certain amount of matter foreign to the subject of Jurisprudence, and a good deal of repetition; mainly, because the "law of nature" is not, as it seems to me, quite fairly treated in that bed of Procrustes, Austin's defini- tion of law. All his law being necessarily and universally the command of a lawgiver, the law of nature must be in its origin the law of God. It follows, then, that a great many factors, if I may so call them, which others treat as constituents or sources of the law of nature, are treated by Austin as indices to God's commands^ Such a treatment is perfectly consistent with his own view, but very imperfectly expresses the views either of the older philosophers, to whom the " law of nature " may be traced, or of the moderns who hold a somewhat similar theory'. Philosophical law of nature. There are certain rules of human conduct, which I may sufBciently indicate by such words as conscience, honour, rectitude, virtue, morality, » See Austin, 2, pp. 106, 7: 5, pp. 178—180. ' See e.g. pp. 102, 120 for Grotius' views on right and the law of nature. 118 DEFINITION : LAW, AS TO THE MOTIVE FOE OBEDIENCE. the existence of -which and their great practical influence upon the minds of men are obvious facts. "With the majority, I believe that a rigorous analysis of this influence would leave little beyond what I have indi- cated in speaking of the word moral, i.e. regard for the gene- ral opinion of their fellows. Into the further question, how that opinion comes to be formed — by the developement of first principles implanted in our nature, by inherited experi- ence of what is useful to a society, or by whatever other agency — I shall not here enter. For I have at present to consider the case of obedience, to the same rules, by a minority, but a minority of what have usually been considered the noblest minds : obedience inde- pendent of any conscious deference to the opinion of men or of any revelation, real or believed to be real, from God. These are evidently the rules referred to by Paulus as coming under one of the senses of jus, " when the name of jus is applied to that which is unchangeably fair and good, as is the jus naturale^." And to this law of nature — quite different from the instinct which we have just seen Ulpian define by that name — the latter author appears to refer when, in another passage, he says that the maxims of law are to live honeste, not to injure one's neighbour, to render to every one his own". The reference here seems to be to some philosophic standard of morality, though some of the words are curiously close upon Christian precept. I cannot attempt to translate the difficult word honestus, some of the meanings of which are given in a note'". ' Paulus, Digest 1. 1. 11. Cum id quod semper aequum ao bonum est jus dicitur, ut est jus naturale. For a stricter meaning of aequum see the chapter on that subject below. ^ Ulpian, Digest 1. 1. 10. Juris praecepta sunt haeo : honeste vivere, alteram non laedere, suum cuique tribuere. ^" In Plautus and Terence honestus seems to signify personal dignity or grace, which is the meaning in VirgU's honestum caput, Georg. 2, 392, DEFINITION : LAW, AS TO THE MOTIVE FOR OBEDIENCE. 119 The idea of a law everlasting, immutable, independent of all human legislation — to which, in fact, some innocent victim of human legislation appeals — has inspired the genius of Greek poetry to some of its noblest utterances". The ordainers of such a law, if it has anj^, are the elemental personifications of the universe"; and Greek philosophers speak of that law of nature which .commands what is right and forbids the contrary, as that right reason which pervades all things and is identical with God himself". An absolute and contemptuous indifference to immediate consequences generally characterises obedience to the rules of which I am speaking, as thus conceived. A divine approval or disapproval is sometimes regarded, but, in most cases where these views are expressed, the approval of the agent, by }mnself, is practically the only object — which can scarcely be called a consequence. Modern Emotional Intuitionism. Witii these views (Dryden's "honest face," in Alexander's Feast.,) Dignity, repute, whether of office {hotws) or otherwise, is the ordinary l5,ter use of. the word ; and "what- ever is of goodrepute" is its general signification in the Digest. Cicero ex- tends this meaning to what ought to be of good repute, from its agreement with the nature of man (cf. DeFinibus, 5. 21.60, omnishonoe, omnis admiratio, &c. with De Officiis, 1. 4, honestum, etiamsi a nullo laudetur, natura esse laudabile) . From the honestas (which I suppose is that of Ulpian), shewn in the last quo- tations, appear to come inter alia the special meaning of cha,stij.y in Shake- speare's Hamlet 3. 1, and the general signification of honorahleness in middle English (Skeat), diminished with us to little more than the mere negation of trickery or stealing. Shakespeare's fton«s*j/= liberality or good-fellowship (Timon 3. 1), seems to arise out of the old meaning of repute, with the cognate, idea of magnificence. ^^ See the fine speech of Antigone, oi yaprl iJ.oi...ii orov ' Austin, 0, r. 183. 5 ij. 28, p. 537, &c. &c. « Id. 5, pp. 184, 185. definition: Austin. 137 all laws obtaining in a political community and administered by its magistrates ; the mere fact of such administration constituting, in default of direct or avowed enactment, a judicial legislation, by the sovereign through subordinate political superiors'. There are indeed certain matters of avowed or formal enactment, of which Austin speaks as anomalous — statutes declaratory , repealing, and of imper- fect obligation^. But I think that he elsewhere shews the practically i^nperative character of the two former — as to declaratory laws, in his remarks upon them in lecture 37° ; as to repealing laws, in his fragment upon so-called Per- missive Legislation at the end of lecture 12'". With regard to laws imperfect, i. e. formally enacted but lacking an express sanction, which Austin properly distin- guishes from the imperfect, i. e. non-legal obligations of some moralists, he shews that the sanction is presumed in modern cases". The same was undoubtedly true of the instances possibly referred to in the fragmentary passage of Ulpian, which is the only authority of any value as to Roman imperfect laws^^. And I agree with Austin that all law ad- ministered by the magistrates of a community has necessarily an imperative character", though I deny its invariable pre- scription by the sovereign. Positive moral rules proper and improper. Rules which are imperative, and therefore spring from a determinate source — which are set by men to men, and are therefore positive — '■ Austin, 5, p. 204. 8 i\,, 219, 220. Also 1, pp. 100, 101. » p. 658. i» pp. 365, 6. See also Lect. 1, p. 101. The "PermissiTe Bill" of the present day is, of course, different from what Austin means by Permissive Law. That bill, if it became law, would, in a directly imperative mannei-, impose upon certain minorities a legal obligation to obey certain majorities. 11 See Austin, 1, pp. 101, 2. Also 5, pp. 174, 175, 184, 186. 12 The beginning of Ulpian's " Titles." I''' See the fragment referred to above (n. 10), especially the quotation from Falck. 138 DEFINITION : AUSTIN. may not be set, either directly or "circuitously ", by men as sovereign or politically superior. These rules, therefore, though they are law proper and positive, are not positive law as Austin has chosen to use this phrase when connected with the words "strictly so called". They pass with him, under the rather cumbrous style "positive moral rules, which are laws properly so called " ". But we must be careful to exclude from this class an}' such rules as are set in pursuance of legal rights residing in the subject authors, these rules being, in Austin's view, set " circuitously" by the sovereign. The laws of a club are, with Austin, positive moral rules properly called laws'^ as being imperatively imposed by a determinate body. If made by the members as private persons, and not in pursuance of a legal right, such rules are not positive law or law strictly so called. Lastly, there are rules of human conduct, positive, as set by men, but not emanating from a determinate author, there- fore not imperative, and therefore not law proper. These are the rules set or imposed by the general opinion of any class or society of persons. Such general opinion means "the opinion or sentiment, relating to certain conduct, which is held or felt by most of those who belong to a certain body"". The body itself may also be indeterminate, be- cause it consists of persons of a vague generic character, e.g. "gentlemen". But, whether this be so or not, the rules of conduct imposed by the opinion of an indeterminate majority are, in Austin's language and system, jyositive moral rules which are laws improperly so called ". The meaning of moral used in this and the last division, was probably taken by Austin from Bentham, who applies the term of moral sanction to " the pleasures or pains which " Austin, 5, pp. 174, 175, 184, 186. "^ ib_ p_ i87. "" lb. p. 193. Two or three words are here altered which I think must be incorrect. " lb. p. 187, &c. DEFINITION: AUSTIN. 139 may be expected from the action of our fellow men in virtue of their friendship or hatred, of their esteem or their con- tempt'^". Austin is at the pains to explain'" that by the terms moral and morality he does not intend consonance to the law of God, or general usefulness, nor does he express any approbation of his own. He, in fact, uses moral almost in the purely negative sense of " non-commanded bj' a sove- reign ™ ". Here he seems sometimes to lose sight of the positive notion of general or wide-spread approval and disapproval which, whether absolute or not, is I think, attached to the word m,oral and its opposite^', as those words are ordinarily used. It is surely only in a very technical and non-natural sense of the word that we can speak of the ru'es of a club as matter of morality, even with the qualii'ying term positive. And, while we might possibly treat with moral reprobation a breach of the laws of honour, I do not think the same could be said of a breach of the laws of fashion^". With his "positive moral rules which are laws impro- perly so called " Austin classes rules set only in the form of opinion or sentiment by a determinate body, which, though capable of signifying a wish and issuing a command in the matter in question, has not done so^'. In the case where the body is small, unimportance would, as Austin rightly says, prevent such rules from obtaining the name of laws''*. When the body is large, Austin seems to assume that its opinion cannot be truly universal". It is certainly difficidt to conceive any means of ascertaining the universality of the opinion, without something practically amounting to the sig- nificance of a wish that conduct of the kind should be pur- sued or forborne ; in which case there would be a working 18 Traites, Principes de Legislation, ch. 7, p. 44 (p. 28 of HQdreth's translation). '" Austin, 5, p. 200, note. 20 lb. p. 174. 21 See atove, p. 103. 22 gee Austin, 5, p. 187. 23 lb. 199. 24 lb. 198. 25 lb, 198, 199. 1*0 definition: Austin. efficiency of the rule quite equal ia effect to the command of Austin's " sovereign ". To Austin's last class ''positive moral rules which are laws improperly so called " clearly belong the " laws " of lionour, those of etiquette or fashion^; and with them the very "disparate" objects ■ — International Law, to which Austin gives the name of " Positive International Morality" ", and the Constitutional Law of a particular state ^^. Conclusion. These definitions of Austin are employed with perfect logical accuracy and somewhat wearisome repe- tition throughout the first and third parts of the Jurispru- dence. They appear to me, in spite of the high respect which every student must feel for their author, to ignore the historical commencement of law, to limit very disad- vantageously' the popular conception of it, and in particular to unduly depreciate two of its most useful branches — the Constitutional and the International. Of the popular conception of law I have already spoken, and have implicitly treated, to a certain extent, of its his- torical origin. I shall enquire a little more directly into the latter before I come to speak of the modes in which law is made, or the form in which it comes down to us. The enquiry proposed amounts practically to a consideration of law as classified hy the different arrangements of human beings whose conduct it has influenced — notabl}^ law, as between the elements of which a state is formed ; law, as between the members of a fully formed state; and law, as between entire states. In the course of this enquiry I must endeavour to define a state and sovereign, in tracing the origin of a truly legis- lative power : and shall then add, at the close of this part of my subject, the remaining observations which I have to make as to the definition of " municipal " law. ™ lb. p. 187. -i lb. pp. 177, 187. == Id. 6, pp. 270, 271. CHAPTER XIII. LAW, AS BETWEEN THE ELEMENTS OF A STATE. In considering the classes or arrangements of human beings among whom law obtains, we should not come at once to its present form in those classes which are known as states, but begin with the enquiry whether there is not what would reasonably and naturally be called law, before or during the formation of a state — at any rate, before the existence of any recognised supreme power. Sucli an enquiry is not, as some maintain, useless speculation, or merely a matter of past his- tory, because it will be found to deal with nales that undoubt- edly remain in existence after states are fully formed and sovereignty completely developed. State or nation. As a matter of terminology, the name of state seems preferable to that of nation, when we are seek- ing to arrive at the essential constituents of the thing. State in its original and literal meaning involves no theory at all, whereas nation involves the theory of common descent'. As, 1 "Wheaton, Elements, Pt. 1, ch. 2 (§ 17 Dana). " A state is also dis- tinguishable from a nation, since the former may be composed of different races of men, &c. " See also Halleck, International Law, &c. , ch. 3, § 2 ; and Calvo, Droit International, Liv. 2, § 29. "La nation marque un rapport de naissance, &c." The last author (with others) argues for the retention of the idea of common origin implied in nation. It seems to me, as in the double meanings oi jus, recht, &e., that, while the investigation of such double meanings has great value, as matter of historical enquiry, their reten- tion, in current terminology, leads to confusion and loose reasoning. 142 LAW, AS BETWEEN THE ELEMENTS OF A STATE. however, we are now mainly concerned with the origin of old states, and unity of race — or at least that unity of language and customs which is the most important result of unity of race — is almost universal in these cases, the occa- sional use of the word nation will not cause any very serious error. Austin's objections to the word state seem rather over-strained. A confusion with the different states or estates sometimes combined in a sovereign body is very easily avoided even in the few languages where the confusion is possible: and the word state is now pretty generally used in the sense of an entire political society, whether independent or not'''. The term political society, used by Austin, I have avoided, partly on account of its length, but more because I do not wish, by anticipation, either to accept or reject the different positions which its author has connected with this particular term. Those positions are, I may remark, rather, after Austin's fashion, by way of a ma7~k or test than of a complete account ; and, in particular, bear very little upon the origin of states, to which it seems to me that some attention ought to be paid. The Social Contract. The origin of states was long based, in theory, upon the well-known Social cont7-act, com- pact or convention. One of the earliest and most reasonable forms of this theory is to be found in Grotius; to the effect that, "those who had associated themselves with any body of men, or subjected themselves to any man or men, had either expressly promised, or must from the nature of the transac- tion be understood to have tacitly promised, that they would follow the ordinances of the majority of that body or of those in whose hands authority had been placed^ ". 2 See Austin's note p to Lect. 6, p. 249, especially oases 3 and 4. 5 Prolegg. § 15. Qui se coetui alicui aggregaverant aut homini homini- busque subjecerant, hi aut expresse promiserant aut ex negotii natura pro- LAW, AS BETWEEN THE ELEMENTS OF A STATE. 143 Hobbes, logically carrying out his theory of an original condition of war, postulates for his commonwealth : first, the union of a number of men or families large compared with the external enemies they may have to dread; second, that this number must, both for protection from enemies without and from one another within, be directed by one judgment and that continually*. For the latter purpose is required a somewhat different form of the social compact, which, in spite of Austin's objections to the theory in general, is very suitable to his view of law, and which is vigorously and em- phatically stated in the following famous passage. "This is more than consent or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man J authorise and give up the right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a commonwealth, in Latin civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortal God, to which we owe, under the Immortal God, our peace and de- fence^" It is not my intention to waste any time here on this once famous theory, which has been set forth by many authors of reputation, following rather the view of Grotius than that of Hobbes, but varying considerably from one another according misisse debebant intelligi, secuturos se i3 quod aut coetus pars major aut hi quibus delata potestas erat constituissent. According to Locke's version of the " original compact " we should read, in the latter part of this statement, simply the majority. Treatise 2, ch. 8. * Leviathan, c. 17, p. 86. 5 lb. p. 87. For a fine description of Leviathan as depicted on Hobbes' title-page see Whewell, Hist, of Moral Philosophy, Lect. 2, pp. 19—21. Hi LAW, AS BETWEEN THE ELEMENTS OF A STATE. to the different ends or aims of a state, wtiich they have re- cognised °. Where the different titles of compact, covenant or convention are preferred to contract, I presume the intention of the writers who avoid the last term is to shew that they do not consider the agreement in question legally enforceable. The Social contract or compact has long ceased to be regarded as a historical fact in anything but the vague sense of an implied mutual agreement, which is the value given it by Blackstone'. On the general subject I need do no more than refer to the criticisms of Austin and Maine*. I would merely call attention to what seems to me an erroneous assumption of Hobbes, on which Austin, in criticising that author, does not dwell. I mean the assumption of a sovereign or general central power as a necessary constituent, /ro??i the outset, in the formation of a state. For historical enquiry decidedly tends to shew that the sovereign, even in the wide sense given to the word by Austin, and a fortiori in the somewhat narrower sense here indicated by Hobbes, is of comparatively later development, being in fact the last con- stituent, in point of time, of a state proper. The family. Proceeding now to single out the simple ideas obviously essential to the complex one of a state, we may begin with the very elementary idea of plurality. The union of a number of individuals is clearly a necessarj^ con- dition in the conception of any society whatever, political or i:(therwise, and of course in that of any state, except perhaps to the mind of King Lewis the Fourteenth. Now there is a union of individuals which, of all human phenomena, may with mOst plausibility be traced to the ^ See Stephen's History of Englisli Thought in the 18th Century, ch. 10, §§ 8, 63, 64. ' Blackstone, Int. § 2, pp. 47, 48. 8 Austin, 6, pp. 287, 8, 307—335. Maine's Ancient Law, ch. vs.. pp. 308, 309. See also Mr Stephen's lOtli chapter above quoted (note 6), especially parts I. and v. LAW, AS BETWEEN THE ELEMENTS OF A STATE. 145 nature of things; being the effect of a distinct human peculiarity. Youthful helplessness or inability for self-support lasts much longer in the life of man than in that of any other animal. A certain permanence, therefore, of family association appears essential to the perpetuation of the species^. In speaking, however, of the family, I must take some steps in advance of the above very elementary position, and both here and elsewhere be understood as confining myself to a number of persons under one male head, and therefore as excluding any consideration of what is called polyandry. It is by no means impossible that the last-named condition, or, to speak more correctly, polygamy in the widest sense of the word, may have preceded the family, as we understand it, even in some of the Indo-European races. There are cer- tainly indications both in language and usage which have been considered to point to this as a general previous con- dition of the human race". And inferences to the same effect may perhaps be drawn, as to the inhabitants, from those very early dwellings of which we can trace remains, in the wilder parts of our own and other countries. We find an outer enclosure, not sufBcient indeed to contain the patri- archal associations of Genesis, but too large, or at least' too important, for the family in our modern sense; and, within this, a number of compartments much too small for the last- named purpose". I am inclined to think that the bygone inhabitants of these curious buildings, were most likely poly- gamous. But, as the monandrous family is a stage into which ^ Since writing the above, I find this argument, which I had overlooked, in Locke's Treatise of Civil Government, oh. 7, §§ 77—80. '" See on this subject Morgan's Ancient Society, Pt. 3. Growth of the Idea of the Family. 11 The instance which suggested this thought to me was the remarkable round building at Chysoyster near Penzance in Cornwall. See too Morgan I.e. p. 399. C. J. 10 146 LAW, AS BETWEEN THE ELEMENTS OP A STATE. all human races, with very few exceptions, have long entered : and is a stage which by far the majority of early usages and traditions, particularly in our own ethnic group, clearly as- sume to have been reached, we may fairly take the family in this sense as our starting-point '^ From family to gens. The next step, or at least the necessity for it, is not at first sight clear. It may be remembered that I have previously" urged, as a reason why the law of God would scarcely come under what is understood by Imu or the lavj, among ordinary people, the limited efficiency of the former or the comparatively small number over whom its influence, when entirely separate from any human sanction, extends. Somewhat similar is Austin's reason for refusing the name oi political society to one family or any small association of individuals, though they come precisely within his defi- nition. Austin here, with an unusual laxity, seems to rely mainly upon a dictum of Montesquieu, "la puissance politique comprend necessairement I'union de plusieurs families"," and urges, in support of this view the absurdity of a polity con- sisting of a single family of savages'". This last piece of reasoning — the questionable character of which is remarked upon by Sir H. Maine — is not, it should be observed, the mathematical reductio ad absurdum ending in an impossibility or a contradiction, but the mere avoidance of a difficulty by putting it in a ridiculous light. Moreover, a family, including under that name all the persons bearing obedience to the head, has often been, if there is any truth in our account of ^- See generally Maine on Abnormal Conceptions of KinsMp. Early- History of Institutions, 3, pp. 65 — 68. Also "Early Law and Custom," by the same author, eh. 7. " Above ch. 11, p. 131. " Esprit des Loix, L. 1, Ch. 3. ^' See Austin Lect. 6, p. 287 ; also Maine's criticism of Austin's view (Early History of Institutions, Lect. 13, p_). 378, 9). LAW, AS BETWEEN THE ELEMENTS OF A STATE. 147 patriarchal times, very considerable. The argument, therefore, based upon a limited scope of efficiency would, in such a case, not hold. Except as implying that there is something, beyond the mere family union, necessary to constitute a state, Montes- quieu's dictum has very little significance. In fact, his ob- ject, in the passage quoted, is not to define a state, but merely to meet an argument, now obsolete enough, that the monarchic is the proper type of all government, because the natural government of a family is monarchic. The enquiry, Why is not a family a state ? cannot cer- tainly be answered very satisfactorily, if any enquiry can, by d priori reasoning. To begin with, the family must, ex hy- pothesi, be conceived as separated from any state, and in that natural condition of which we have little or no record. All we can say is perhaps this. Very old institu- tions and traditions all over the world, point to the original family as consisting partly of slaves — who are then merely human chattels — partly of wives, who are but one step re- moved from the servile condition, — partly of children, grand- children, &c., all really descended from an existing common ancestor who is practically their despotic owner. Member- ship of the family thus conceived is, in its origin, involun- tary ; nor, in its continuance, is there enough element of will, as to the general conduct of its members, to constitute them a society or association. They have never enjoyed any in- dependence, even of an inchoate or potential character ; but are placed by the fact of acquisition or birth in a position of permanent subordination. In this dominion, strictly so called (= ownership), of the original patriarch, law is possible. He may, that is, govern by general rules. It is not, however, very probable, because he would have little interest in setting, or at least in ad- hering to, such rules. He would be more likely to govern 10—2 148 LAW, AS BETWEEN THE ELEMENTS OF A STATE. by means of occasional commands: his offspring and other dependents would merely vie in servility to these, until they could venture to brave his power or to escape from his neighbourhood. An individual dominion of this kind has no element of perpetuity, which is apparently the reason why Bentham'" refuses it the name of political society. Whatever means of continuing the single head be adopted — • simple primogeniture — selection of one female as wife or chief ■wife — selection of one child for birthright — a time must necessarily come when the different males, or at least male heads of descended families, do attain a comparative inde- pendence, and do associate, if they continue to associate, on terms which are to a certain extent voluntary. They no longer constitute a family proper but a gens". This association, which was very common, though not per- haps universal, among the Aryan nations, consisted, as it appears in history, of groups of families, connected by some tradition or name indicative of common descent, though not, at least to any great extent, ascertainably related. Well- l^nown instances are the Scotch clans, the Eoman gentes, the Greek yivr). At this point, however, I find myself proceeding to a more detailed enquiry into the forms and elements of po- litical association than can find room here. Such an enquiry has its proper place later in my proposed work, as an illus- tration by analogy of the formation of the Roman state or '^ As quoted by Austin 6, p. 240. See however the Fragment itself, ch. 1, § 13, note o (1 p. 264 of Bowring's Ed.). " The reasoning of Grotius on the " possible immortality " of a state (De Jure &c. 2. 9. 3) is extremely diflScult to foUow. Looking at the most significant of his many quotations in this section (Aristotle Pol. 3. 3. 6) I think he is spealcing of permanent /07"m (in HAb case political constitution) as opposed to changing matter : e.g. the old instance of a river, and the better modern one of a wave. LAW, AS BETWEEN THE ELEMENTS OF A STATE. 149 polity. At present I can merely give, in brief, the conclu- sions at which I have arrived. Austin's subordinate political society. Before doing so, I may perhaps return for a moment to the subject of the "considerable number" essential to Austin's state, because I would here mention, very briefly, what seems a somewhat gratuitous difficulty raised by him. A "subor- dinate political society," he says — e.g. an incorporation for public purposes — may consist of very few members, even of a single family". But, such a society as he is here alluding to being a totally different thing from a state, its possible smallness need never have been taken into account. The kind of association which Austin means is nothing more than a hoard or corporation; the case in his mind being possibly such as that of our late East India Company, to Wheaton's remarks on which I would here refer". They may not improbably have been suggested by Austin's very difiSculty about subordinate political societies, as their author was on terms of intimate association with the Austins in 1831 — 2. The point would scarcely have arisen had the expression state or polity been employed instead of inde- pendent political society. A newly-coined term often lets in difficulties which recognised language would have excluded. General course of national or political association. As the result of a somewhat lengthy comparison of the forms and elements of political association, I venture to sub- mit the following conclusions, based partly on philological grounds, partly on the examination of ancient traditions. The names of nations seldom, if ever, indicate descent from a real common ancestor. The stories of foundation are, in general, clearly late fables: while the curious and " Austin Leot. 6, pp. 239, 40. 19 Elements of International Law, 1. 2 (§ 17 Dana). 150 LAW, AS BETWEEN THE ELEMENTS OF A STATE." interesting recurrence of identical numbers, in early consti- tutional tradition, may be accounted for without the hypo- thesis of institution by one mind. The order of things appears rather to have been : — from the family to the gens, from the gens to the district, from the district to the people. The family furnishes an idea and a name both for po- litical units and for the association of those units into a whole: but we do not find it as a political unit itself; or rather, we always find it, at the earliest dawn of our his- torical knowledge, as part of a larger assemblage, whose ties are not those of blood — whose names, generic or individual, if they do indicate relationship, indicate it so vaguely and generally that we may often look upon them as conscious metaphors. At this primitive stage some authorities have, with much probability, traced remnants of a primary coalition of fami- lies for purely religious purposes, and a secondary union of these coalitions for general purposes of common action. This may be : but, as a matter of history, we always find the ultimate secular coalitions already formed, and often re- coalescing into larger ones. Mutual security and protection have obviously been a strong, if not the strongest, motive to the small original associations ; though the idea of security and protection was probably in most cases connected, at the outset, with that of the favour of some deity, won by a special cult. Classical names of places pointing in this di- rection will at once occur to the reader's mind : among the less familiar instances, which our own land can furnish, I may mention such as Thorsby, Baldersby, Friseton. Juxtaposition or local union, whether with absolute fixity of abode or not, appears to be an idea necessarily implied in most of the names by which Aryan peoples have described themselves as formed into larger associations than the family, real or fictitious. This is clearly the case where the names LAW, AS BETWEEN THE ELEMENTS OF A STATE. 151 include some generic term indicating, like -ton, a circum- scribed area, and also where they are names of an individual geographical locality : in other styles, e. g. such as indicate a host armed ia a peculiar manner, the above implication is not so clear. First common rules of conduct. I have remarked that, in the family proper, though law is perfectly possible, it is extremely improbable. But, in the first larger association of families, some rules of conduct, sanctioned by the displeasure of the community, become not only probable but almost inevitable. And this, whether there be, as is generally ob- served, the special bond of a common religion, or merely the necessary consequences of local contact. Such rules of conduct, then, which are, in either case, strictly and properly law, according to what I inaintain as the true meaning of the word, because enforced by human displeasure, must necessarily have arisen from a combination of families, though they may not have entered at all into the conscious objects of those who originally combined. Where- ever there is an association larger than a family, there, as it seems to me, must be law. This last conclusion which, as stated here, is somewhat a priori reasoning, is quite borne out by our philological investigation of the early names of law. Divine ordinance, primaeval antiquity, and usage or custom — such were the leading ideas at which we arrived. The first may be at any rate taken to have a negative signifi- cance, viz., that law does not originate by voluntary and con- scious human enactment. The two last speak for themselves. They are in accordance with that coalition theory of the origin of states, which is now I think generally accepted, and which has been briefly referred to above, as supported by philology and tradition. They agree with the theory of Savigny as to 152 LAW, AS BETWEEN THE ELEMENTS OF A STATE. original law, which he refers, in the somewhat vague language so much disliked by the analytical jurists, to the "common consciousness," the "life," the "organic developement" of a people™. And as T believe this view, however expressed, to be truer than that of the analysts, I shall now endeavour to indicate a historical connexion between the common conscious- ness and the common law of a state, different from the express or implied injunction by a sovereign or supreme power upon which the analysts insist. The popular assembly. In previous chapters it has been shewn how the first words bearing upon law, among certain of the Aryan nations, point to the declaration, by some indivi- dual or individuals, of what is regular, primceval, previously ordained by heaven, or simply good in the eyes of the people who use it. Between this declaration and the associations of families, into what I may venture to call the nascent state, a direct historical connexion has, in most cases, been traced, through the meetings of the latter. On the original constitution of these assemblies of the maiiy — which is the idea signified by a host of different names applied to the people, in this regard — little can be said with any certainty. There is, however, reason to believe them always composed exclusively of males, and generally of males who, if not heads of families themselves, were at least inde- pendent and not under any head of a familj^. Such an assembly then, as is here spoken of, was neces- sarily an aristocracy in Austin's wide or "generic" sense of the word — i.e. a body less than the whole community^'. This results at once from the exclusion of slaves, women and, probably, males under the head of a family. 2" See generally Sayigny's System des heutigen Eomisclien Eechts 1. 2. § 7. Allgemeine Entstehung des Eechts. Compare, on the other hand, Professor Holland's criticism of Savigny, Jurisprudence, ch. 5, pp. 50, 51. 21 Austin 6, pp. 243, 4 and note to. See also below, pp. 163, 4. LAW, AS BETWEEN THE ELEMENTS OF A STATE. 153 We generally find, moreover, growing up around the original families or the members of those families who retain their original position, an inferior class, excluded from those offices and privileges which are very early developed; though not, in all cases, from some sort of participation in the popular assembly. That assembly, however, even without an append- age of plebeians, has already all the essentials of Austin's sovereign number, or what has otherwise been called corporate sovereignty. And, for all the stages of custom or early law, which I am considering, there is evidently an ultimate sanc- tion in the assembly's approval or disapproval, whether the rule has been considered as depending on religion or merely on antiquity. But it is equally evident that what such a community first recognise as law, they do not recognise as matter of conscious position, either to themselves or to their subordinates. For our earliest phrases point invariably, as I have said, not to the establishment of rules but to the decla- ration of rules previously existing. The council and judges. By the side of the assembly we find, as an early if not a fundamental and universal condition of any considerable association of families, a smaller body or council of elders^". Amongst these, a still smaller number, often a single individual, administering common rules of con- duct sanctioned by the displeasure of the community or assembly. Accordingly Cicero, followed by Grotius, makes the primary special object, in the formation of a people or state, to be the enjoyment or administration oi justice^". It is 22 I need not quote the classical instances. In our own race, the earliest council is perhaps not identical with the witan, which may be a consequence of royalty (Stubbs' Constitutional History, i. § 51), but with the older "law- men " or sohoffen (ib. § 46). 23 Cicero de B. P. 1. 25. 39. "Popnlus (est)...coetus multitudinis juris con- sensu et utilitatis communione sociatns." Grotius de Jure &c., 1. 1. 14. "Est autem civitas coetus perfeotus liberorum hominum juris fruendi et communis utilitatis causa sociatus." Grotius found his quotation from the Bepublic in Augustine. 154 LAW, AS BETWEEN THE ELEMENTS OF A STATE. not necessary to multiply old authorities, for I do not think any conception of a state, ancient or modern, could by any possibility exclude this as a fundamental characteristic. I have spoken of common rules of conduct, without there- by intending any great amount of particularity. Still, the administration of custom, by any body smaller than the popular assembly (and therefore, in some degree, responsible to that assembly or the community at large), must necessarily lead to some amount of formularisation and tradition — and gradually, to a degree of continuity in the administrative body. It is not clear that it must lead to a general supreme authority or sovereignty ; and, in India, it does not appear to have done so. Historically, it would seem that the thing, and therefore, of course, the idea and name of the thing, are of later growth than the administrative office — that judges came before kings almost everywhere, as we are told they did with the Hebrew polity established in Palestine. Whether the judges were priests or not, is a matter which appears to differ in different peoples. Perhaps, where the religious element does not appear, we may only catch our first sight of the community, as has been suggested with regard to the Indian villages, at a second stage of developement. The lateness of our point of view probably accounts for another fact to be observed in the case of the Indian village communities, and which bears in a very direct manner upon Austin's definition of law. These small bodies have from time immemorial been under successive conquerors or their descendants, despotically ruling vast tracts of country. They cannot therefore, to anticipate a little, be called independent states; and Austin would logically deny them the name of political society at all. But it would be mere perverseness, for want of "position" by a sovereign, internal or external, to deny the name of law to the rules which have regulated the conduct of their members for so long, and which no prince, LAW, AS BETWEEN THE ELEMENTS OF A STATE. 15-5 however despotic, could conceivably to the Indian mind have altered'*. I have here referred to Sir Henry Maine's criticism of law as apprehended by Bentham and Austin. The same author, in his Village Communities writes as follows of the attempt to apply the definition of the same authorities to a still subsist- ing state of things. "Without the most violent forcing of language, it is impossible to apply these terms command, sovereign, obligation, sanction, right to the customary law under which the Indian village communities have lived for centuries, practically knowing no other law civilly obligatory. It would be altogether inappropriate to speak of a political superior commanding a particular course of action to the villagers. The council of -village elders does not command anything: it merely declares what has always been. I^or does it generally declare that which it believes some higher power to have commanded : those most entitled to speak on the subject deny that the natives of India necessarily require divine or political authority as the basis of their usages; their antiquity is by itself assumed to be a sufficient reason for obeying them. Nor, in the sense of the analytical jurists, is there right or duty in an Indian village community; a person aggrieved complains not of an individual wrong but of the disturbance of the order of the entire little society. More than all, customary law is not enforced by a sanction. In the almost inconceivable case of disobedience to the award of the village council, the sole punishment, or the sole certain pun- ishment, would appear to be universal disapprobation^"." Thanks to the waves of tyranny which have swept over it, checking its natural developements and changes, the Indian village community remains, a fossil system of what was pro- bably the early polity among Greeks, Eomans, and Teutons. 24 Maine, Early Hist, of Institutions, pp. 382, 390. 25 Lect. 4, p. 67. 156 LAW, AS BETWEEN THE ELEMENTS OF A STATE. In particular, it affords an excellent instance of the survival, under sovereigns after Austin's own heart, of rules long anterior to the sovereign's existence, entirely independent of the sovereign's authority. And the virtual sanction of those rules (although Sir Henry Maine refuses it the name, as used in the Austinian sense), is the ultimate sanction of all law — the displeasure of that human association in which the law obtains. CHAPTER XIV. LAW, AS BETWEEN THE MEMBERS OF A STATE. It has been stated that law, ia the natural and ordinary- sense of the word, has, with one Aryan race, long maintained an independent existence, among very small associations of families, though these have become subordinate to despotic princes : and that it may confidently be inferred to have existed in the early associations of families of Aryan race generally, under forms no nearer to sovereignty than that of declaratory judicial authority. Whether any of such asso- ciations would, at this stage, be called, in the same natural and ordinary sense, a state is, I think, questionable. What constitutes a state? Of the two practical cha- racteristics of a commonwealth insisted upon by Hobbes in the passage quoted above', the first pertains directly to the enquiry what amount of members constitutes a state ? This is, as I understand him, with Hobbes, little else than a matter of simple numerical proportion to neighbouring tribes : and it is possible to conceive — perhaps still possible to find — an early or barbarous condition of men for which his view is correct. But in far the majority of instances, both past and present, it is well pointed out by Austin^ that the mere proportion of intrinsic strength is not so much the criterion of a state's existence as its enjoyment of a considerable amount of independence — hardly any inde- pendence is absolute — in fact and practice. 1 Chap. 13, p. 143. " Austin 6, p. 241. 158 LAW, AS BETWEEN THE MEMBERS OF A STATE. Such an independence, then, by whatever causes pro- duced, if of a fairly established and permanent character, may, I think, be properly taken as the measure of power — which is, rather than any calculation of numbers, the real test — essential to such an association as we should consider a state. This independence appears to be indicated in the self-sufficiency for life of Aristotle'* which he however, I think, like Hobbes makes to depend on nuynher. The nega- tive side of the same idea, i. e. non-subservience to others, is implied, in the Greek historians and politicians, under the name of avTovofila and the like*. Now, for any durable existence of such an independence as I speak of whether resulting from intrinsic power or from the policy of others, it would seem that Hobbes' second cha- racteristic of a commonwealth is practically necessary, viz. that there be a general direction of the whole body by some common and permanent authority. Without such an au- thority there may be assemblies, there may be judicial declarations, there may be expeditions of the whole or part of the association : but any lasting relations or any definite existence of such an association, as a whole, in regard to other individuals or associations, are impossible. It is the condition of Israel under the occasional leadership of the judges : the elements of a state are there, but not the state. Sovereignty of all impossible. Hobbes proceeds, in treating of the several kinds of commonwealth, with one of those exhaustive enumerations, so common in older phi- losophy, which are rather formally faultless than practically ^ Politic. 3. 1. 12. irXrjdo^ 'iKavov irpos aurapKciav ^wtJs, i. e. simply tou ^v Svehen. See 1. 2. 8. and Gottling's note (p. 280). * Thucydides, 5. 18. avTov^/xov^ etvat /cat auToreXels Kal avroSiKovs Ka.1 mrSiv KoL rrjs 77;! t^! iavTuv. Translated by Grotina (De Jure 1. 3. 6), " Suis iitentes legibus judiciis magiatratibus." For the reason of his transposition of avToiiKos and auroreXij') ^^^ Poppo's note on Thue. 1. c. For a different, and, I think, wrong rendering of auVoSt/cos, Arnold on Thue. 1. c. LAW, AS BETWEEN THE MEMBERS OJ? A STATE. 159 useful, to describe the sovereign power as residing in one, or more, or all ". The extreme improbability, or rather the practical impossibility, of an independent political society governed by itself, i. e. by a sovereign body consisting of the whole community, is pointed out by Austin* on internal groimds. One unavoidable and universal reason is the phy- sical or natural incapacity of some members, whether we consider this as accounting for the almost invariable dis- franchisement of the female sex or not. The existence of a subject class or race, very common in early histories, though not of course essential to a state, is also incompatible with a sovereignty of all. Even in Greek states such as the Athenian, where inde- pendence ab extra, pointedly unconnected with any common, or at least single, head is so much insisted upon ', the case is really one of a very large sovereign number. The name of true citizen is only given to those who have a share in deliberative or judicial authority^, who are evidently implied to be less than the whole body. The same implication lies also in the assumption of a Kvpiov or authoritative part ' as necessarily entering into every form of state. Almost all these points of superiority enjoyed by part of an association over the remainder are probably to be dis- cerned more or less in the constituents of those original assemblies of which I spoke above as a necessary element in every nascent state. Such assemblies do not, however, ap- pear to be historically continuous or identical with the popular assembly of a state proper. The democratic form, for instance, » Leviathan Pt. 2, ch. 19, p. 94. « Austin 6, pp. 243, 4. ' Compare Euripides' Supplices, 404 — 8, with the speeches of the King and Chorus in Aeschylus' Supplices, 365 — 375. ^ Aristotle Politic. 3. 1. 12. ' lb. 3. 10. 1. TO Kvpiov. Jelf translates "ruling element," Stahr "hooh- ste Staatsgewalt," &c. In 2. 2. 2, the difference insisted upon between the constituents of a state appears to be rather in specific function than in power. Cf. 7, c. 9. 160 LAW, AS BETWEEN THE MEMBERS OF A STATE. of government upon which Athens plumed herself had been preceded by a close aristocracy, and that again by a monarchy, of whose historic character there is no reason to doubt. None, in fact, of the privileges or exclusions connected with the original assembly amount to general power exer- cised by a member or members of the superior class over • the rest of that class itself as well as over the subordinates. Such a power, however, has in practice been almost in- variably exercised in any body which we should call a state, and its genesis — the genesis of sovereignty — must be sought, as I have already intimated, not in internal, but in external needs'". Order and law may subsist among the elements of a state : foreign relations, peaceful or hostile, require some centralised authority. Sovereign not necessarily sole. The power of con- trolling the common action — that general authority of which I have spoken as necessarily implied in the conception of a state — has been attained to a different degree in different states and even at different periods of the same state. But it has become in so many cases, at some time or other — I believe from the exigencies of war — really or apparently centralised in an individual, that the term sovereign is popu- larly taken to mean an individual ruler or monarch". That, however, the term sovereign properly applies to a body as well as to an individual is clearly pointed out both by Hobbes and Austin 'I Sovereignty not primary or original. A more impor- 1° As an illustration I may remark that even in Athens the foreign rela- tions of the democracy continued to be under the permanent control of a body elective, it is true, but very small. See Grote's History of Greece, vol. 3, cb. 31, p. 116, on the aTpar-riyoi. " Derivationally sovereign (old French soverain) is simply the one over the others. Sovran appears to have come to our poets independently, through the Italian sovrano. The common original of all is the late-Latin superamcs. 12 Leviathan ch. 17, pp. 87, 88. Austin 6, p. 249, note p. LAW, AS BETWEEN THE MEMBERS OF A STATE. 161 tant error than this, which is one of mere nomenclature, arises from the following fact. The general authority now under consideration, though almost certainly later than the judicative power, has in most cases become developed and centralised so early that it has been treated as original, and what was possibly its origin has been considered merely one of its later subdivisions. Such a view, though false, as I believe, in history, has been doubtless, in a considerable degree, strengthened and con- firmed by the powerful genius of Hobbes, who makes out his one judgment or common general authority to have been ne- cessitated from the first, not merely by those minor occasions of mutual internal contact to which I have adverted above (p. 151), but by downright war, within and without, requiring such a power to impose law as command, not to administer it as custom, as well as to head the community against its external enemies. Analysts' definition good, for a fully formed state. This fundamental condition of war, at least between the primary elements which go to form a state, cannot be accepted as historically true. But for a clear view as to the salient characteristics of a state whsn fully formed, and for a terse expression of that view, Hobbes and his followers stand pre- eminent. Saving, therefore, the historical fact that law, comes certainly before the sovereign, and the judge almost certainly before the king, I willingly accept, as true of all associations arrived at the condition of states, Bentham's definition of a state or political society", with Austin's quali- fication, which will both be noticed shortly. As to the origin of states, some record of that centralisation of power to which I have adverted is perhaps preserved in the traditions of founders, whether real or fictitious persons, collecting scattered individuals and small associations, from indigenous races, like 1' Fragment on Government, oh. 1. § 10. Cited by Austin 6. p. 240. C. J. 11 162 LAW, AS BETWEEN THE MEMBERS OF A STATE. Komulus and Theseus, or taking their subjects bodily from settlement to settlement, like the Dorian conquerors of the Peloponnese, and the Saxon Heretogas. Origin of Legislation. It does not appear that the function of positive or conscious legislation, as distinguished from recognition of pre-existent custom, has been or could be exercised by a community or its assembly, until some sovereignty or central authority, of a comparatively small number, has been developed, whether the latter has con- tinued in subsequent existence or no. It is true that legislation proper is in many, if not in most cases, preceded by records of a quasi-legislative character — memoranda for judicial instruction, matter generally of procedure and detail, for the carrying out of broad rules recognised as pre-existent. But the full legislative power, or the power of laying down — and, by implication, enforcing — new rules of conduct, within an association, has been acquired gradually, and as I have said, subsequently to the developement of general authority resident in a small number. Not till a very late period does this power attain to the abolition of old law, which till then continues to be administered by the sovereign or sovereign's deputies. Subdivision of sovereignty. The general authority of which I have spoken as early centralised in the hands of a few, and often of one, has again almost universally come, in course of time, to be divided and practicalljr shared, whatever the constitutional theory, among a considerable number; beiag thus broken up into recognised departments or separate functions. Of these, the legislative is justly regarded as supreme", and is accordingly directly identified by Black- stone'^ with the sovereign power. The executive power (in- cluding the administration of law) he on the whole regards '^^ " So Hobbes, Leviathan ch. 19. p. 99. 15 Blackstone Int. § 2. p. 49. i« lb. LAW, AS BETWEEN THE MEMBERS OF A STATE. 168 as subordinate, though his language as to these divisions of power in the English constitution is somewhat contradictory". Defiaitiou of a state. I now come to the definition of a state or political society given by Bentham, to which I have, a short space back, referred ". "When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person or an assemblage of persons, of a known and certain description (whom we may call governor or governors), such persons altogether (subjects and governors), are said to be in a state of political society.*' And, in order, says Austin, to exclude from his definition such a society as the single family, the same author adds a second essential of political society — namely "that the society should be capable of indefinite duration'^." On this definition Austin remarks — that the definition, as not noticing the fact that the superior habitually obeyed must not be also himself habitually obedient to some one else, and as being therefore an inadequate definition of inde- pendent political society, is also an inadequate definition of political society in generaP'. Austin's criticism seems, at first sight, unjust. Why, it may be asked, can we not conceive the state with reference to its internal relations alone? Why can we not define a political society without defining an independent political society? I think he is right in the course he follows, though 1^ See Comm. 1. 2. p. 145. "With us, tMs supreme power is divided into two branches ; the one legislative, to wit, the parliament, consisting of King, Lords and Commons ; the other executive, consisting of the King alone. It vrill be the business of this chapter to consider the British parlia- ment ; in which the legislative power, and (of course) the supreme and absolute authority of the state is vested by our constitution.'' See Austin's criticism of this passage (without reference), on p. 255 (Leot. 6). IS See above, ch. 13. pp. 147, 148. 19 Austin 6. pp. 242, 258. 11—2 164 LAW, AS BETWEEN THE MEMBERS OF A STATE. wrong in the reason he gives. We cannot do so — not because the powers or rights of subordinate political superiors are merely emanations of sovereignty^" — which is simply the theory of philosopher or courtier : but because, in the ordinary sense of mankind, an association is not conceived of as a state until centralised under some single person, or a number of such character that it is possible for the representatives of other states to deal with it as an independent agent. Into the comparatively small number of the governors, which is perhaps implied in Bentham's employment of that expres- sion (instead oi governing body, or the like), I shall not enter further; nor into the delegation to them, of an authority which resides in, but is not exercised by, the whole com- munity. It is enough, for my present purpose, that there has been, in associations ordinarily and naturally called states, or by an equivalent name, a general authority collected in some body smaller than the whole association. The logi- cally correct meaning, in modem times, of sovereign^'-, and the description of different forms of government'^', as depending upon the composition of the governing body, are very well given by Austin. In referring to his account of them, as I do not now propose to enter into this more detailed part of Jurisprudence, the only caution which I think necessary is to call attention to the unusual sense which he calls the generic meaning of aristocracy ^^ I suppose this comes from Hobbes' classification of sovereignty as resident in one, all or a part'^. But, from the time of Aristotle to now, aristocracy has gene- rally been taken in Austin's specific sense, of a sovereign =» Austin 6. p. 273. 21 lb. 249 note ' sovereign '. 253 &o. See also above notes 11 and 12. 22 lb. 243. 249. 23 Austin 6. 244. " A number less than the number of the individuals composing the entire community.'' In fact Phocylides' iracTes T\y)v UpoK\4ovs is an aristocracy in this sense. 24 Leviathan Pt. 2. ch. 19. p. 94, also above p. 169. LAW, AS BETWEEN THE MEMBEES OF A STATE. 165 number whose proportion to the whole is smalP^ though the word in its original use probably indicated nothing but superior birth ^''. I may remark, also, that, for the definition of a state, some clearer exclusion of the mere family, and expression of local union or juxta-position, seems desirable besides the points insisted upon by Bentham and Austin. Fixity of abode would also be, I think, now regarded as essential to a state, but I should hesitate to deny the name to certain bodies of men in past time which had not that characteristic". If I might venture now, not so much to define a state, as to summarise the points hitherto established I should say that a state consists of a body or bodies, of human beings dwelling together but not memhers of the same family, in the habit of paying obedience to a person or assemblage of per- sons who are not in the habit of paying obedience to any other. The objection to Austin's definition of law. Why, it may at this point be asked, accepting Austin's defi- nition of the sovereign in a state, if not exactly his account of the state's origin, can we not proceed at once to adopt his definition of law, at least of law municipal (a term to be explained elsewhere), as the rules set by that sovereign to that state? For two reasons — first, because there are many- rules administered by the sovereign, or the sovereign's officer, in every state, which rules Austin admits to be law, but which can only by a forced use of language be spoken of as set by that sovereign : second, because there are some rules, of extreme importance, obtaining in every state, bearing upon the personality and powers of the sovereign's self, which 25 Austin 6. 245. See Aristotle Polit. 3. 7. 3. KaXeiv 5' eluBa/iev . . .ttiv (liovapxlav) rue oklyoiv jxiv TrXeioVuv S' ims dpitrTOKparlai'. 28 See Grote's excellent note, Hist, of Greece Pt. 2. ch. 9. last note. 27 See above p. 150 and Wheaton 1. 2. § 17 (Dana). 166 LAW, AS BETWEEN THE MEMBERS OF A STATE. are neither set nor administered by that sovereign, to which Austin therefore denies the name of law, but which are generally and reasonably known by that name. The first class to which I refer is that of customary law other than constitutional, on which I shall speak very briefly as I must return to the subject in a subsequent chapter. The difficulty in the way of Austin's definition here is, no doubt, mainly historical; but it has some practical bearing as well. To take an instance in point for the main object of my proposed work; law, if Austin's words are construed literally, can scarcely be said to have had any existence at Rome, before the Twelve Tables — a date when many rules had long been settled, which, to the end of the Eoman Empire, con- tinued to regulate the transfer and devolution of property, the personal relations of the family, and, generally, much of the subject-matter which we include under the heading "Common Law." And not in Rome alone but elsewhere, the stage in which every ancient corpus juris that we know has originated, may be thus excluded from the name of law. So long as customary rules continue to be merely enforced by public opinion, Austin does exclude them from that name^*. But, when the rule, unaltered in the slightest degree, has been applied by a judge, it then, to use Austin's expression, ema- nates as law from that judge, who assumes it as the basis of his decision^". If the judge is the sovereign, this is of course enactment by the sovereign directly: if not, it is enactment by the judge as the sovereign's deputy or subordinate. With the mode of enactment {judiciary or statutory) I am not now concerned; merely with the position that the rule emanates, in the form of law, from the sovereign, and has no existence, as law, before the judicial decision. Sir Henry Maine'" lays much stress upon the doctrine 28 Austin 30. p. 553 ; 5. p. 204. ^s la. 30. p. 554. 30 Early History of Institutions, ch. 13. p. 363. LAW, AS BETWEEN THE MEMBERS OF A STATE. 167 that "whatsoever the sovereign permits he commands," as essential to the reasoning by which Hobbes and Austin bring such bodies of rules as our "Common Law" under their system. The passage referred to in the former author'* is that "the will of the sovereign is signified by his silence." Austin does not appear to me to make much use of it, but to rely rather upon assumed early though unrecorded judicial decisions. Now it is, I think, true that (with the exception of the constitutional law which I shall consider directly), no rules of conduct in a state would be regarded as important and effi- cacious enough to come under the popular name law or the law, which were not administered by that state's magistrates, i.e. ultimately by its sovereign. Seeing, however, that many rules of the most extensive application, which are so admin- istered, have probably existed in some cases, prior to the existence of a sovereign or what can strictly be called a state, at all; and have been recognised as declared, not made, by judges, in the phraseology of most Aryan nations, as well as in the theory of our own English jurists'^ — I cannot perceive the gain of assuming a sort of transubstantiation, of which no one has ever been conscious, at a date which no one can fix, from the customary rule oi positive morality to the judiciary rule oi positive latv^^. That the sovereign, then, administers those early rules, to which I am now specially referring, is, as I have intimated, true, with a reasonable assumption of all administrative power as dependent on the sovereign, in all states. That the sovereign can abrogate such rules is true in modern states, though not perhaps in the states of antiquity. That the sovereign makes, or sets, such rules in the first instance is 31 I presume Leviathan, oh. 26. § 3. p. 138. 32 Blackstone Int. § 3. p. 69. '3 See the valuable remarks of Prof. Holland. Jurisprudence, pp. 48, 49. 168 LAW, AS BETWEEN THE MEMBERS OF A STATE. contrary alike to philology, history and legal tradition, all of which indicate an element of original approval or consent by the whole community °* A minor objection to Austin's account of law is his point- blank definition of it as coTnmand. In the modern enact- ments which are made most directly by the sovereign, among the multifarious provisions which advanced civilisation ren- ders necessary, it is often by no means easy to point out the command. But this is a mere matter of expression: in principle I agree with Austin that all law administered by the magistrates of a community has necessarily an imperative character. Some disadvantage, proceeding ultimately from the dis- pleasure of the community, can be shewn to attend the dis- regard of every part of that community's law. The apparent exception of permissive legislation is satisfactorily, though somewhat briefly, disposed of by Austin. A right conferred upon any part of the community, at their option, imposes, upon the remaining part, an obligation to regard that right, supported by some disadvantage consequent on disregard of it'^ Again, it is certainly not quite clear, at first sight, what is the disadvantage in mere restitution, ordered by a court, of property unlawfully acquired. This, however, though in itself simply the restoration of a previous state of things, is gener- ally attended with the payment of costs, which is loss. Where, in a doubtful case, costs are divided, the idea is clearly that neither party has broken the law, or incurred the displeasure, of the political society to which each belongs, but that they pay between them the expense of its officers' interference. ^ I say "in tlie first instance" because a great part, perhaps tlie greater part, of law originally customary usually becomes incorporated with matter of distinct conscious legislation. See Savigny's excellent remark on this sub- ject System, 1. 1. § 15. 35 Austin 12. pp. 365, 6, also above ch. 12. p. 137. LAW, AS BETWEEN THE MEMBERS OF A STATE. 16&- In all cases where an infraction of law does admittedly take place, it is visited by suffering or loss in some form, whence it is justly said that all laws are in some sense penal or criTninaV^. But it is when we come to the rules which determine the personality and the powers of the sovereign's self in each political society — to those constitutional maxims which cannot be refused the name of law by any practical mind — that we feel most strongly the disadvantages of Austin's fixed starting- point for all law. We have agreed to regard a state as an association en- joying externally a certain practical independence, and in- ternally under the control of some general authority. Now, in all cases except the rare and temporary monopoly, by a minority, of some peculiar material advantage, such general authority must depend upon the virtual consent of the bulk or majority of the association. That consent may be the- result of fear, or traditional respect, or religious belief, but it must be there or the authority cannot continue. So, in the middle ages (the instance alleged by Austin),, the rules of conduct enforced by the dominant aristocracy, and the general authority of that aristocracy, were probably against both the interest and the liking of the bulk of the people^'. But we must take it that they on the whole- agreed or consented to obey, unless we choose to regard them as in a continual state of actual insurrection, kept down through certain mental and material advantages en- joyed by the minority'^ 36 Stephen, General View of the Criminal haw of England, p. 1. See- also Austin 27. p. 522, as to sanction of nullity ; above oh. 11. p. 134, and my Analysis of Criminal Liability, p. 2. ^ Austin 30. p. 559 I think he here some-what confuses the people with the lower class who constituted the bulk of the people — a confusion, however, natural enough, and noticed by Saviguy, amongst others; System 1. 2. § 10.. S8 E.g. possession of the liorse, and the art of horsemanship, on which 170 LAW, AS BETWEEN THE MEMBERS OF A STATE. I would take a more modem instance, cited by the same author (Austin) — the powers of our own British parliament. They are made out by the admiring Blackstone to be as thorough as the most devout Austinian could desire for his omnipotent sovereign. "It can regulate or new-model the succession to the Crown — alter the established religion of the land — change and create afresh the constitution of the king- dom and of parliaments themselves — it can, in short, do any- thing that is not naturally impossible^'." All this is consistent with the view, noted above, of the legislative fanction constituting the primary and essential feature of sovereignty. When, however, we go a step further back, we find that Blackstone's sovereignty resides or is placed, apparently by some power external to the persons concerned, in this or that body of the particular state": with us, in the Parliament, on which the author's somewhat falsome encomium is well-known". By what right the several forms of government subsist (if we mean, by right, power), is not an enquiry so beside the question as Black- stone*^ considers it. " There are," says Austin, " in every or almost every inde- pendent political society, principles or maxims which the sovereign habitually observes, and which the bulk of the society, or the bulk of its influential members, regard with feelings of approbation... In case the sovereign ventured to deviate from a maxim of this kind, it would not and could not incur a legal paia or penalty, but it probably would incur censure, and might chance to meet with resistance, from the generality or bulk of the governed ^." Kingdley laid such stress (Ancien Regime, Leet. 1). Sole possession of Gunpowder would be a similar case, where possible. S9 Comm., 1. 2. p. 161. * Blackstone, Introduction, § 2. p. 49. « lb. 50, 51. 42 Hj. 4g ai finem. « Austin 6. p. 273. LAW, AS BETWEEN THE MEMBEES OF A STATE. 171 What is this but saying that, as to the powers and duties of the sovereign body itself (other than the entire association), the will or approval of the association at large ("the generality or bulk of the governed"), must be taken as an ultimate authority; its displeasure and the danger apprehended therefrom as an ultimate sanction? In the extreme instance fairly put by Austin^*, I apprehend that the conduct of the parliament would be called, and reasonably called, by all people, illegal. Locke carries the view here advanced so far as to main- tain a supreme power remaining in the people*^, which has also been expressly asserted in modern times ^. The theory of Locke is combated by Blackstone, mainly on the ground that an anarchy must result on any actual devolution of power to the people at large*'. This result depends rather on the assumption that all laws proceed from the sovereign, which is by no means true, and must fall with the sovereign, which is by no means certain. But I should only venture to accept Locke's theory in a very limited degree, i.e. that where there are rules, as to the sovereign power, clearly de- termined, and certain to be enforced by the bulk or gene- rality of those governed, such rules are justly called and considered law. Blackstone's Municipal Law. After what has been said, I need devote but very few final words to Blackstone's definition of municipal law — " a rule of civil conduct pre- scribed by the supreme power in a state, commanding what « Austin 6. 275. « Locke on Government, Bk. 2. ch. 13. § 149. * E.g. in the French Constitution of Nov. 4, 1848 (Markby's Elements of Law § 24. note 1). ^ Comm. 1. 2. pp. 161, 2. Compare the suggestion of a dormant anarchy, in cases of undecided constitutional law (Maine's Early History of Institutions, 13. p. 377). 172 LAW, AS BETWEEN THE MEMBERS OF A STATE. is right and prohibiting what is wrong*"!' The words muni- cipal and civil I shall explain directly. The words "com- manding what is right, &c." are either mere surplusage — rule, as Blackstone uses the word, implying them — or they falsely assume an agreement between all " civil " laws and a certain moral standard. Lastly, the words prescribed, &c. either assert, as actual, a notification to the persons among whom the rule is to obtain which is generally merely nominal; or they are identical with Austin's assertion that all law is set by the sovereign. Blackstone is, therefore, under the same difficulty as Austin with reference to con- stitutional law. As he, however, afterwards makes the whole body of customary law independent of the sovereign's en- actment ^°, constitutional law may come in, with the rest, for the benefit of this second thought, in spite of the " irre- sistible, absolute, uncontrolled authority of sovereignty^". Conclusion. I have now completed my statement of what appear to me the essentials in a state or political society, as ordinarily apprehended, and in the law of such a state, in the same popular sense. In criticising the defi- nitions of my predecessors, I have not forgotten their diffi- culties, which I cannot hope to have myself surmounted. Each successive definer of law, municipal or otherwise, must anticipate the addition of one more failure to those which have gone before. I can only say of the following that it is in accordance with my previous positions, and that they appear to me based upon facts. The law of a state is the aggregate of rules administered mediately or immediatelt/ by the state's supreme authority, or regulating the constitution and functions of that supreme au- thority itself: the ultimate sanction being, in both cases, dis- apjjroval by the bulk of the members of that state. ^" Blackstone Int. § 2. pp. 45, 46. *' lb. § .8. pp. 68. 74. 5" lb. § 2. p. 49. LAW, AS BETWEEN THE MEMBERS OF A STATE. 173 Civil or municipal law. With regard to the words civil and municipal, as applied to law, a very short explanation will suffice for the present occasion. The rules of conduct which obtain between members of the same state — the law which, to use the words of the Roman jurists, each people has set up for itself — the same jurists style civil, as being the special law of the individual civitas^^. Our modem expression municipal, as opposed to interna- tional law, depends apparently upon an analogy observed between the position of an individual civUised nation and an individual Roman borough town^^. Again, as the nation par excellence, so the Romans called their law the national or civil law^', under which title it is distinguished by us from the common, or really national law of England'*, and generally known as a subject of study among modern nations. The further use of civil as a subdi- vision of the Roman law itself, and the distinction of civil and criminal, will be noticed elsewhere. Ambiguous meaning of Sovereign. The present ap- pears to be the natural place for noticing a very troublesome ambiguity in the use of the word sovereign. Logically, the external independence of an association is compatible either with perfect equality or with any degree of subordination among the individual members. But, as a matter of juristic literature, independence ah extra has often been confused under the same title with the notion of a permanent internal superior, probably because of the practical 51 Justinian Instt. 1. 2. 1. Quod quisque populus ipse sibi jus oonstituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis. A different original meaning of tlie adjective civile is sug- gested in the second part of this volume, under the heading o{jus gentium. '2 See Blackstone Int. § 2. p. 44. ^^ Justinian Instt. 1. o. ^* See above ch. 5. pp. 70 — 75, for the explanation of the term common iaw. 174 LAW, AS BETWEEN THE MEMBERS OF A STATE. indispensability of the latter, which I have previously'* pointed out, to any lasting external relations whatever. As a substantive, sovereign is a term expressing the rela- tion between part of a given political society, or state, and the remainder : it indicates, to use Austin's definition^, " the person or persons to whom the generality or bulk of the members pay habitual obedience." If that person or persons do not pay habitual obedience to any other individual or body (and if, of course, the other members of the state do not pay such obedience), the whole state is said to be sovereign (adjective), or (a much better term) independent. Now, external independence, which is a matter, as has been said, of fact and practice, has its degrees : and, while this, amongst other external relations, can scarcely be predi- cated at all of an association which has no internal depositary of general authority, yet a state, which has such a depositary — perfectly sovereign over his own subjects — may well be under admitted and permanent control in its foreign relations. With such cases, it seems to depend upon the particular points, in which external control is exercised, whether the body of men habitually submitting to it, although through an intermediate governor of their own, ought properly to be called an individual state at all, or the portion of a larger state formed by themselves and the authority which they obey". In the further case, where a government has been limited in the internal matters of legislation and judicature over its own subjects, the state has been called half-sovereign^, but the expression is scarcely a correct one, the internal govern- 5= Above p. 158, 160. ^ Austin 6. p. 241. '^ See Austin 6. pp. 240, 258. =8 See Martens' Droit des Gens (Ed. Verg^) § 20. Heffter (Volker-reolit § 19) seems to consider limitation in external relations the oharacteristic of the same states. LAW, AS BETWEEN THE MEMBERS OF A STATE. 175 ment indicated in the term sovereign being really exercised by an external power'" : the states too themselves, for which the term was devised, have now mostly ceased to exist'". Indeed, the term sovereignty altogether, as used to express external independence of a state, is going out of use. And the only further notice which I shall take of the subject, is- to point out some ambiguities which arise from the double meaning of the similar term summa potestas and summum im/perium in Grotius. One criterion of a ' public war ' — that it must be waged by him who holds the highest power in a state leads Grotius- to enquire what that power is''^ A state he defines to be- " a complete or perfect assemblage of free men, associated for the enjoyment of justice and for common advantage'^." Per- fect apparently means that the assemblage must not be under the power of another, and so really part of a larger associa- tion "l That is, the definition of a state already includes in- dependence. The question whether a war is publicum or not depends on its commencement by the sumim.a potestas, i.e. internal sovereign, or an inferior magistrate °'. And yet, in another point of the same argument, summa potestas also means power uncontrolled ab extra, and is in fact predicated of the whole state"". Austin's criticism of the passage last referred to*" turns upon the allegation that the exclusively negative side of ' sovereignty ', as not subordinate to other human authority, is all that Grotius includes in his definition of summa potestas,, 5' See Austin's criticism, Leot. 6. pp. 258 — 261. *" Martens I.e. and Verge's note. 81 De Jure Belli ac Pacis 1. 3. 4. 1. «2 lb. 1. 1. 14. 1. cited above p. 153, note 23. 63 lb. 1. 3. 7. 2. ^ lb. 1. 3. 5. 1. 66 lb. 1. 3. 7. 1. 66 Austin 6. p. 241. 176 LAW, AS BETWEEN THE MEMBERS OF A STATE. That this is not the case may be seen at once from the last para- graph of the section in question^'. Grotius' fault really lies in the confusion, under the same term, of internal authority and external independence, which, though as I believe practically ■connected, are logically distinct and should be designated by different names. *' Subjectum ergo commune summae potestatis esto civitas...subjectxiin jproprium est persona una pluresve...^ wpiirii dpxv apud Galenum &c. CHAPTER XV. LAW AS BETWEEN STATES. In the case of national, or, in the wider Roman sense ', civil law — i. e. the rules of conduct obtaining between mem- bers of one nation, state, or political society — -I have endea- voured to shew the necessity of recognising, as ultimate sanction, the general disapproval of the society and its con- sequences. A similar general disapproval is of primary im- portance in the law which I shall now briefly consider, of which it constitutes the only proper sanction. International Law may be briefly defined as the aggre- gate of rules which habitually regulate the conduct of civi- lised nations, or states, towards one another ^ It is a matter of fact and practice and, as such, to be at once distinguished from . the principles of justice which ought to regulate the mutual relations of nations in the opinion of this or that authority'. Nor, on the other hand, should we limit a defi- nition, which is to include all rules really efficient, by re- quiring an express acknowledgement on the part of states, Christian or otherwise *. 1 Above ch. 14. p. 173. '' This is very nearly the definition of Halleok (International Law oh. 2. § 1). "The rules of conduct regulating the intercourse of states." 3 See "Wheaton, Elements Pt. 1. Ch. 1. § 1. It is true, however, that Wheaton is there speaking of the authority from which International Law is derived. * Woolsey, Introduction to the Study of International Law. § 5. " The aggregate of the rules which Christian States acknowledge as obligatory in C. J. 12 178 LAW AS BETWEEN STATES. Again, it is historically true that the actual rules at present existing on this suhject have been mainly, if not entirely, developed among Christian states : but it seems to be simply a matter of general policy and expediency, inde- pendent of religious belief, whether non-Christian states adopt these rules or not '*. I therefore prefer the term civi- lised, if any adjective at all be needed. It does not really add any distinctness to the definition : for I shall not attempt to define civilisation, beyond the fact that, for the present purpose, adoption of the existing rules would be taken as primd facie evidence of it. International law ancient and modern. International law is mainly a matter of modern times, but a few remarks are necessary upon the slight traces of similar matter which we find in antiquity, if only to explain occasional expressions of modem writers. Amphictionies. The Greek Amphictionies, of which there were many", were very early associations of small tribes for religious purposes. Their history bears rather upon the origin and developement of a state, than upon the relations of fully developed states to one another. The special obli- gations entered into by the Neighbours, dwelling round some central temple', under religious sanctions backed by very serious secular penalties', were recorded and appealed to in their relations to each other and to each other's subjects." Bluntschli requires recognition, Anerkennung, but this need, Ithink, ordjhevhtual. (Das moderne Volkerrecht 1. 1. cf. note 1. "Bewahrung im Volkerleben"). Calvo (Droit International 1. 1. 1.) understands, by International Law, la reunion des regies de conduite observies par les diverses nations dans leurs relations, entre elles. ^ See Woolsey I.e. and Bluntschli 1. §§ 5, 6. Story and Vattel speak of "Civilised nations" in this regard. See Halleck (Int. Law 2. §§ 8. 9). ^ Grote History of Greece, Pt. 2. oh. 2. '■ afj.(l>tKTloves, JJmwolmer. Curtius Grundz. 157. 8 Aeschines de falsa legatioue, p. 279. LAW AS BETWEEN STATES. 179 later times: but then, far from habitually regulating the conduct of states to each other, they merely served as pre- texts for aggression ^ Fetiales. The Roman jus fetiale is spoken of by Cicero as entirely concerned with the conduct of a nation towards a regular and legitimate enemy ^''. Varro " makes the fetiales deal with the regular commencement of war and with the conclusion of treaties of peace. Their name imports either treaty-making or embassage^^. That the office was a very old one appears from the formulae preserved by Livy", though of course we need not accept its institution by Tullus or Ancus, nor its derivation from the apocryphal race of Fair-dealers". These formulse turn on demands for public restitution, declarations of war. and conclusion of treaties. They indicate a common wor- ship — not impossibly an ancient religious league of populi somewhat similar to the Amphictiony '^ The office of fetialis occurs also outside the possible limits of any Latian league^''; but this is not the only case where Latin institutions are found independently developed elsewhere in Italy". The office, or at least the usages con- nected with it, were retained, with the Eomain tenacity of formula, to the close of the Republic, when Rome had long swallowed up all the little nationalities amongst which a jus ^ Cf. AesoMnes contra Ctesiphontem, pp. 407 — 411. &c. " Cicero de Officiis, 3. 29. 108. " Varro de lingua Latina, 5. 86. 12 The derivation from foedus is, at least, more Hkely than that from fidus (Varro's). If we connect the word with fateor, the e of fetialis is not easy to account for, which might come from the oe of foedus. Corssen ' however (1. 421) makes the Fetiales Sprecher, Gesandter, from the root of fateor, &c. ^' Livy, 1. 24, 32. " Aequiooli. Livy 1. 32. 5. See Seeley, Livy, Bk. 1. p. 45. ^ The temple on the Alban Mount, and the extant road to it, might remount to almost any antiquity. The former is, now, totally destroyed, thanks to the Cardinal Duke of York. 16 Livy 8. 39 ; 9. 1. i' Pontifices are another instance. 12—2 180 LAW AS BETWEEN STATES. fetiale originally obtained. In this last stage, such usages were, it would seem, merely a matter of self-regarding eti- quette, with perhaps some slight deference to home religious feeling : little or none, I imagine, to the independent rights of foreign nations ^^ Jus gentium. The philosophical idea of a jus gentium, or law of all nations, might have been expected to extend to rules regulating the conduct of nations towards each other : and some vague expressions of Cicero go as far. But the term jus gentium, when used in anything like an exact sense by Roman jurists, probably did not include what we mean by International Law at all, while it certainly did include all that was, or was supposed to be, common to different systems of national law'^. In fact, the rules themselves, of what is called International Law, are, as is shewn by any historical sketch of the subject, almost entirely a developement of modern times ^°. Name of International Law. Zouch is considered to have been the first who invented the term jus inter gentes to mark off the law between nations from the other law common to nations". And this expression, Englished into "Inter- national Law " by Bentham, is current at the present day*''. 18 Livy 30. 43. See however Varro, de vita popuK Eomani, apud Nonium Marcellinum p. 529, ». v. Faetiales. 1^ See the distinction already drawn by Grotius between the jus gentium of the Eoman jurisconsults and the jus gentium, properly so called, as relating to the mutual intercourse of nations. De Jure &c. 2. 8. 1. with Becmann's note on 1. 1. 14. See also the chapter on jus gentium, below. -" Kent's International Law (Abdy) ch. 1. &o. &c. -1 Zouoh wrote his Jus Feciale in 1650. He died 1660, see Woolsey, § 9. p. 8. ^ Bentham, Vue Generale d'un corps complet de legislation ch. 1. note 1. (TraitSs 3. p. 186.) He actually borrowed the idea from the Chancellor d'Aguesseau, whose phrase droit entre Us gens Bentham improved into droit international. This title is adopted by most French writers : it is the derecho LAW AS BETWEEN STATES. 181 Austin's name of Positive International Morality'^ is cer- tainly not likely to supersede it. The old style of Law of Nations has been generally abandoned since the time of Bentham, although one or two authors have continued to employ it'"'*. Public and Private International Law. The very recent division of International Law into Public and Private does not enter into our present consideration. The occasions of what is called Private International Law are generally the private rights and relations of individuals, but — as the point to be decided in most cases is, which of the conflicting laws of two or more states should be applied — the parties, whose conduct is regulated by the rule appealed to, are really the states: so that there is no necessity for us to detach this branch of International Law from the remainder. The foun- dation and sanction of the two are the same''^ Law or not Law. On the question whether Interna- tional Law properly comes under the name of Law at all, I will here briefly mention the views of Hobbes, Grotius, and Blackstone, before I come to consider Austin's objection. There is no sentimental morality about the plain-spoken author to whom I have first referred. "That law, which is commonly called the law of nations" says Hobbes "and the law of nature is the same thing^^ ", and "as the laws of Nature (Justice, Equity, Modesty, Mercy, and, in sum, doing to others as we would be done to)," would not be observed among intemacional of Eiquelme and Pando. Italian authors seem to speak mostly of diritto pubblico. 23 Austin 5. pp. 177. 8, &e. ^ E.g. Manning. See his reasons in oh. 1. p. 3. Law of Nations. The majority of Germans, moreover, retain the various ambiguities of Jus Gentium in Volker-recht. ^ See Woolsey § 69. The style (Conflict of Laws), under which Story treated this subject, very well indicates its scope. 28 Leviathan Pt. 2. ch. 30. p. 185. 182 LAW AS BETWEEN STATES. individual men without some sovereign power erected over them, "so cities and kingdoms" (having no such power erected over them)... "endeavour as much as they can to subdue or weaken their neighbours by open force and secret arts, for want of other caution, justly: and are remembered for it, in after ages, with honour^'." That is, there is no Law of Nations at all; or it is Faust-recht only, the law of bludgeon and dagger. In Grotius' classification, the body of rules which we term International Law would fall partly under the head of natural and partly under the head of voluntary human law. Of natural law, according to Grotius, I have spoken above ^. The law of nations, as part of "voluntary'' human law, is "that which has acquired its obligatory power by the will of aU or many nations ■'°." It is "the device of life and of time," proved by use and by the testimony of experts, notably writers of history'". With Blackstone "the law of nations is a system of rules, deducible by natural reason, and estabhshed by universal consent among the civilised inhabitants of the world." "Such rules must necessarily result from the principles of natural justice, in which the learned of every nation agree; or they depend upon compacts or treaties... in the construction of which (however) there is no judge to resort to but the law of nature and reason"" This law, then, depends, on the whole, upon the law of nature, of which the universal consent, &c., seems to be, with Blackstone, rather a necessary result than an independent support, and as to which we have'^, a quota- 2' lb. c. 17. p. 85. 28 Chap. 10. pp. 120, 121. '^ De Jure &c. 1. 1. 14, quod gentium omnium aut multarum voluutate vim obligandi aeoepit. '" lb. The fine expression, evpTj/ia ^iov Kal xpoyou, of Chrysostom, was possibly suggested by the passage cited from Demosthenes, above p. 97. note 3. 31 Blackstone Comm. 4. ch. 5. pp. 66. 7. '^ lb. Int. § 2. p. 43. LAW AS BETWEEN STATES. 183 tion from Gaius" to the effect that "what natural reason has established among all men is called jus gentium." (That the Roman jus gentium is not the modern law of nations, has heen already shewn). The law of nature is here, as elsewhere with Blackstone, part of the law of God'*. In fact, the anger of God is practi- cally treated as the sanction of the law of nations : for in case ■of offences against this law which are incident to whole states or nations "recourse can only be had to war,, which is an appeal to the God of hosts, &c.'^". The law of nations is indeed held by Blackstone to be " adopted by the common law of England" so far as relates to "civil transactions and questions of property between subjects of different states.'' And "where the individuals of any state violate the general law, it is the interest as well as the duty of the government under which they live to animadvert upon them with a becoming severity, that the peace of the world may be maintained, &c., fee.™". But, as the adoption here spoken of, if it has any special meaning, is merely alleged to be the act of one particular nation; and, generally speaking, offences against the law of nations cannot, as Blackstone admits, come within the cognisance of a national court; this point of view, in which International Law is regarded as a part of law national or 'municipal,' need not detain us farther. The nature of things, the law of God, and the consent of nations— these are the grounds upon which Grotius and Blackstone would base the claims of International Law to be called by that name. That practical effect of it, upon which writers of the present day rely, falls exclusively under the ^ Gaius Dig. 1. 1. 9. Quod naturalis ratio inter omnes homines con- stituit, id apud omnes peraeque eustoditur, voeaturc[ue jus gentium. Blackstone omits the second clause. 3^ See above oh. 10. pp. 121, 122. ^^ Blackstone Comm. 4. 5. p. 68. 36 lb. pp. 67. 68. 184 LAW AS BETWEEN STATES. third head. The other two we must, with all respect, treat as inefficient for the guidance of large masses of men^'. In practical politics, we look, for the source of International Law, solely to the consent or comparatively unanimous conduct of nations: for its sanction, to the general avoidance and distrust which will certainly be incurred, and to particular acts of unfriendship or hostility which may possibly be incurred, by a breach of its rules. And in the actual, observed, effect of this sanction most practical men will continue to see a good reason for regarding these rules as law, and calling them by that name. Austin on International Law. The rules generally called International Law are, according to Austin, not imper- ative, as not set by a determinate body; but are merely im- posed by the general opinion of a society formed of various nations'^ Hence they are not law "properly so called," and they are of course not "positive law" because not set by a given sovereign to a person or persons in a state of subjection to the author of the law'". The duties which these rules impose are enforced by moral sanctions; by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility and incurring its probable evils, in case they shall violate maxims generally received and respected*. In laws set by general opinion it is merely likely that some party (undetermined) will visit the offender with some evil or another^'; and although the analogy between such laws and laws proper is admitted*^; yet the impression left upon the mind is that the law of nations is to be regarded as in the same category with the law of honour and the law of fashion*^. s" Above cli. 11. pp. 129—131. 38 Austin 5. p. 187. s" Id. 6. p. 231. « lb. p. 232. « Id. 5. p. 188. « lb. pp. 189. 190. *2 lb. p. 187. This passage is referred to and criticised by Manning, Law of Nations ch. 1. pp. 4. 5. LAW AS BETWEEN STATES. 185 Similar objections are brought against the term Inter- national Law, by a recent writer of much abiUty, in a form somewhat more practical and less dogmatic. "In three vital characteristics 1, a recognised organ of legislation; 2, a recognised court or tribunal; 3, a definite and recognised mode of enforcing the de- cision of that tribunal — public International Law is altogether deficient: so that to call it a law at all is rather a figure of speech than a correct use of technical language"". These assertions are undoubtedly true: but I would sub- mit that if International Law can operate, like other law, upon human conduct, without the vital characteristics named, we have scarcely a right to insist upon their vitality: while, if its rules may, with any reason, pass, as they do, by the name of law, there is, as I shall shortly shew, a distinct loss in refusing it to them. Practical sanctions of International Law. I shall have to return briefly in my concluding chapter to the exceptions taken by Austin against laws of opinion in general. Here I confine myself to the bearing of those exceptions upon the case of International Law. The actual operation of the rules known by this name would seem to be in itself a proof that sanctions have effect rather by their seriousness and certainty than by the determinateness of their character or of the quarter from which they are to come. The seriousness of "general hostility" can surely be scarcely exaggerated. Nor, as to many important parts of International Law, do I admit the indeterminateness of the individuals whose displeasure is to be apprehended. Without taking into account treaties (which of course only affect the parties to them, under prescribed conditions), " Paterson's Liberty of the Subject. Introduction oh. 2. p. 97. 186 LAW AS BETWEEN STATES. I would advert to the fact that several perfectly definite rules, on matters of continual practical importance, have been expressly accepted by every civilised nation. Unless, therefore, we attribute to such nations an inconsistency scarcely likely even in individuals, we may confidently say that, in the case of these rules, the strong disapproval of a ■determinate aggregate of states is certain to visit infraction : "which disapproval must diminish the cordiality of their relations with the offender if it does not interrupt them. To this serious negative evil should be added the strong probability that positive harm may be inflicted by some indeterminate state — some jealous neighbour watching his opportunity, and whom the other states will not, in such a ■case, interfere to prevent. An Amphictionic league binding itself to punish infrac- tion of its mles, such as was contemplated by St Pierre and Bentham*^, would of course at once meet Mr Paterson's -objections, and place the rules agreed upon within Austin's definition of law proper. It may, however, be questioned whether the establishment of such a peculiarly constituted power would diminish or increase occasions of quarrel be- tween nations. Nor is it impossible that the code of such a league, in which any reform would be a long and difficult operation, might lack the elasticity or rather the capacity for gradual improvement which the present law of opinion possesses. Pending, however, the establishment of such a league {which is not much more probable now than it was in the time of Bentham), I maintain that the rules of International Conduct, as now actually administered by the general con- sent and action of civilised nations, constitute a practical law, to which it is absurd to deny the name, because it is not enacted or administered by a political superior, ^i^ See Woolsey § 206. LAW AS BETWEEN STATES. 187 And their exclusion from the pale of law is (if I may diverge for a moment from the region oi facts to a considera- tion of tendencies) rather more than a matter of mere logical perverseness. The common benefit of settling some rules of conduct between nations, as a means of preventing wars, cannot be denied by any one who is not blind to history. The dimi- nution of suffering, which has actually been efifected by the settlement of rules for war itself, is equally obvious. To formulate both kinds of rules; to perceive and express the feeling of an age which renders their formulation feasible; to strengthen and educate that feeling by considerations of humanity and general utility, is the task of jurists : and to no class of thinkers does all mankind owe a deeper debt than to those who have written on International Law. But who does not know the damning effect of a popular nick- name or epigram? The glibly repeated definition, that •denies to International Law the name of law at all, must of necessity cast a certain slur upon the principles which still go by that name. In lowering their nominal authority it ends by weakening their practical effect. And an observed tendency to depreciate rules, which have influenced civilised mankind to their common benefit for two hundred years, is one result of the undue prominence given to certain specified " authors " and " sources " 6f law over the actual operation of law as an existing thing. CHAPTER XVI. DEFINITION OF LAW : CONCLUSION. The general object of law. Taking law according to my definition to be a rule of human conduct sanctioned by human displeasure, I have considered it first as between the elements out of which a state is formed, secondly as between members of a fully formed state, and thirdly as between states. I have treated it rather as determined simply by its actual existence among certain classes of human beings, through whose displeasure its rules are enforced, than by the special object of the rules themselves. Of rules obtaining among other classes than those hitherto mentioned, I shall now speak very briefly ; but must first say a few words as to the object of law. We talk of law as regulating the conduct of those among whom it obtains. But we do not, of course, mean that it gives positive directions as to everything that man does or ought to do. Nor can its general aim be correctly asserted to have been, even in Christian times, a moral one, in the ordinary sense of that word^. This view of law, which is strongly taken by Savigny^, seems to me to land us in that ever recurring confusion between what is and what in the opinion of the writer ought to be. Instead, therefore, of his prime moral end of law, I must substitute that which he considers secondary — the public weal. 1 See atove p. 103. ' Savigny, System 1. 1. § 15, especially pp. 53, i. DEFINITION OF LAW: CONCLUSION. 189 Law aims and has aimed at what is for the time being believed to be for the interest of the association or its head ; and deals, for its subject-matter, merely with such points of conduct as are believed to have some bearing upon that interest. I do not, consequently, see the advantage of in- troducing into definitions of law any special object", which may either prove untrue of some actual case, or must be construed into the general interest above stated. The sanction of opinion. In regard to that general disapproval which I have more than once indicated as the ultimate sanction of law, I fail to see the practical difference, so strongly relied upon by Austin, of a law administered by a determinate sovereign and a rule of opinion administered by an indeterminate number of equals. In human conduct, as has been intimated above, the indeterminateness of the evil anticipated, whether in its precise character or in the quarter from which it is to come, does not affect the opera- tion of that anticipation as a powerful motive, provided the evil to be anticipated is serious. Even the possibility of a major evil will often have more effect than the certainty of a minor, one. To take a homely illustration — a schoolmaster enacts that no boy engaged in certain matches shall be out after a certain hour under pain of a flogging. Every boy so engaged knows that, if he leave his side before play is over, he will probably be regarded by an indeterminate number of his comrades as a sneak. Which sanction is likely to be effec- tive ? Which is the law that is practically obeyed ? There is a very interesting passage, in the Essay on ' E.g. Paterson's definition of Law, in his valuable and interesting "Liberty of the Subject, &o.'' Int. oh. 1. p. 27, "law is the sum of the varied restrictions on the actions of each individual, which the supreme power of the State enforces, in order that all its members may follow their occupations with greater security." 190 DEFINITION OF LAW : CONCLUSION. Human Understanding, where Locke, incidentally to the subject of Moral Eelations, speaks of three kinds of law — divine, civil, and the law of opinion or reputation. By the first, he means the law which God has set to the actions of men, whether promulgated to them by the light of nature or the voice of revelation. By the second, the rule set by the commonwealth to the actions of those who belong to it*. And of the third he speaks thus^ : " If any one shall imagine that I have forgot my own notion of a law, when T make the law, whereby men judge of virtue and vice, to be nothing else but the consent of private men, who have not authority enough to make a law ; especially wanting that which is so necessary and essential to a law, a power to enforce it ; I think I may say that he who imagines commendation and disgrace not to be strong motives to men, to accommodate themselves to the opinions and rules of those with whom they converse, seems little skilled in the nature or history of mankind : the greatest part whereof we shall find to govern themselves chiefly, if not solely, by this law of fashion ; and, so they do that which keeps them in reputation with their company, little regard the laws of God or the magistrate. The penalties that attend the breach of God's laws, some, nay perhaps most men, seldom seriously reflect on; and, amongst those that do, many, whilst they break the law, entertain thoughts of future reconciliation, and making their peace for such breaches. And, as to the punishments due from the laws of the commonwealth they frequently flatter themselves with the hopes of impunity. But no man escapes the punishment of their censure and dislike, who offends against the fashion and opinion of the company he keeps and would recommend himself to. Nor is there one out of ten thousand who is stiff and insensible enough to bear up " Book 2. oh. 28 §§ 8, 9. ^ a. g 12. DEFINKTION OF LAW: CONCLUSION. 191 under the constant dislike and condemnation of hia own club. He must be of a strange and unusual constitution who can content himself to live in constant disgrace and disrepute with his own particular society, &c." The illustration of a club, which Locke incidentally em- ploys, somewhat weakens the real strength of his argument. In modern times the rules of a club are usually, though definitely expressed and truly imperative, narrow in their operation and comparatively unimportant in their penalty.. If, however, we can conceive a club at the present day so widely spread that mere ostracism from it might involve separation from all one's natural and ordinary associations,^, it is possible that the members of such a society might come to regard its rules as so distinctly and par excellence the law that they would entirely disregard the conflicting penalties of the state to which they belong, the sovereign to whom they are subject, and even the religion which they profess. Such clubs are apparently a reality, and a very formidable menace to the states with which they co-exist. Such rules axe widely enforced, sometimes, no doubt, by acts of violence,, but more often by mere sanctions of dislike and avoidance. I believe that the rules which Locke had actually in, view were the so-called law of honour, which would, even in his day, have naturally been designated by the term law in the mouths of most " genteel " people, though perhaps not now. But his words are capable of a much wider application. I consider that we have fair historical grounds for supposing them to correctly describe the first condition of law generally ; where, if divine displeasure has frequently been recognised as the sanction of custom, it has always been supplemented by at any rate the avoidance of human neighbours; where there is as yet no organised civil or municipal sanction, but that law of general opinion which, if, as Locke holds, strong enough to compete with such sanctions, when developed, was- 192 DEFINITION OF LAW: CONCLUSION. certainly strong enough to rule alone be. ore their develope- ment. The early political associations which form the nucleus, or the separate cells, of that complex organism a state, are some- what of the nature of a club. They deal, however, not merely with social needs and friendly gatherings, nor with the partial and temporary objects of a modem illegal combination, but with all the relations of primitive life. And as they are the wider in their scope, so are they the more difficult to escape from and the more serious in their penalties. Law in and between states. When, in the course of that coalition or agglutination which is, almost certainly, the historical formation of a state, we arrive at the recognised judge, whether individual or collegiate, we have attained the possibility of Austin's judiciary law, provided that judge answer his definition of sovereign. But we have strong evidence of a state of things, when the judge is nothing but the declarer of custom, perhaps the chooser between slightly different developements of custom in the different smaller bodies which are coalescing. In this stage, it is only on stray occasions that the judge, and not always he, assumes the temporary office of leader. When a permanence of that -office is established, the state is formed, and the beginning of Austin's sovereignty is attained, a power which has in almost all cases been extended to that of independent legislation. From the commencement of a regular judicature, such rules of custom, as are administered by it, will become more certain and definite in their sanction, and will therefore have more weight than others: they, together with the new rules imposed by the sovereigTi, when sovereignty is reached, will be considered and called law par excellence or the law — but not alone. For, unless the general bulk of the association have become and continue mere slaves, there must still re- main certain regulations of the sovereign power itself Under DEFINITION OF LAW : CONCLUSION. 193 this term I class, it must be remembered, not merely the executive and administrative functions, which must always be exercised by a few, and the legislative function which is often exercised by a large number, but also the more widely spread electoral function, which is scarcely ever possessed by an actual majority of the community, and never by the whole number of individuals composing it. The regulations of sovereign power depend for their sanction upon b, general disapprobation and its results: there is no difference in kind between them and the laws of fashion, honour, or received morality, but it were obviously, at least in modern times, an absurdity to class all together. In the first place, Constitutional law deals with a different and very special subject-matter. In the second, the number likely to disapprove of its infractions, and the extent to which their disapproval is likely to go, are infinitely greater. I shall return, however, to this subject presently. Mutatis mutandis, what has been said of Constitutional law applies to International. For the displeasure of indi- viduals must here be substituted that of states — probably less easily roused, but, when roused, more ready for action, and so more quickly able to make itself felt. The analogy however between the two classes of rules has been perfectly well stated by Austin himself : and I need not again repeat the arguments on which I claim for both the title of which he, I think both unjustly and unwisely, seeks to deprive them. "Laws" of honour and fashion. A few remarks maybe made in conclusion on the apparent reductio ad ahsurdum of my definition of law, which consists in its logical inclusion of the objects mentioned above and classed by Austin together with constitutional and international law. The former are undoubtedly rules of human conduct sanctioned by human displeasure and existing in fact among c. J. 13 194 DEFINITION OF LAW : CONCLUSION. classes (I can scarcely call them associations) other than the states and the society of states which I have considered. I admit that at present it would be considered a more or less improper if not absurd use of words to include these rules under the ordinary and natural meaning of law or the law. A reductio ad absurdum, however, as I have before pointed out, is not the mere putting of a ridiculous case but the proof of a logical incongruity: and there is no such in- congruity in the application of the term law to these objects. From time to time they are or have been as clearly formulated as statutes, and more so than much non-statutory law which is administered by Courts. Nor do I believe that, in other days, such an application would have appeared absurd or improper. In what is termed the age of chivalry, almost the only working regulations of European conduct appear to have been constituted by the laws of honour. A somewhat scanty residuum of the same laws, mingled with what we should now call matter of etiquette, was practically the only code (beside the accidental interventions of quite arbitrary power), obtaining amongst the governing order, under the- extraordinary form of life, once widely spread throughout Europe, which is styled by later writers the Ancien Regime. At present an offender against rules belonging to either of the above classes, so far from incurring a complete ostracism, may easily take refuge with those who either do not hold by the "law" in question, or do not hold by it so strongly as to care to enquire into an alleged offence. The same remark applies to rules of morality in most modern societies. The regular administration of law by sovereign power casts into the shade all " rules of opinion'' but such as relate to that power itself. This is the reason, apart from difference of subject-matter, why, in speaking of law in the language of ordinary people, we should not naturally include those rule& of morality, etiquette or honour, which are of comparatively DEFINITION OP LAW: CONCLUSION. 195 limited efficiency: but we should include those rules of Constitutional and International law, the sanctions of which are graver in their character, more certain to be incurred, and, when incurred, more difficult of evasion. The difference is one of practice, not of strict definition: both classes of rules are properly called law, but the former class does not now come within the general acceptation of the term by people who have to deal with facts rather than with logic. 13—2 PART II. THE FORM' OF LAW. CHAPTER I. SOURCE, MODE, AND FORM. Austin's Sources and Modes. In my present enquiry I have endeavoured througliout to look at law in a practical light — to consider as of primary importance its working existence, its incidence upon, or application to those whose conduct it actually regulates ; as of only secondary importance its imposition or other legislative origin. I must therefore take a slightly different view from Austin's of the division or classification of law now to be considered ; which he was the first to establish with anything like clearness, and which bears not only upon the study of law, bxit also, to a con- siderable extent, upon the prospects of legislative reform. The third part of Austin's Jurisprudence treats of law in relation to its " sources " and the " modes in which it begins and ends." As to the first term, the ambiguity which Austin points out in its use seems almost to justify us in avoiding the word altogether, or, at any rate, in pre- ferring that meaning for it which will keep it best out of our present enquiry. SOURCE, MODE AND FOKM. 197 Sources. Austin apparently prefers' to understand by " sources ", direct or immediate authors, the ultimate author being, in his view, always the sovereign or supreme legisla- tor^ An enquiry into these sources might be clearly enough defined in its scope and object, but is rather matter of par- ticular constitutional law than of Jurisprudence. The faults of classifying law by such sources will be seen below (ch. 2). A signification, which Austin stigmatises as " loose ", is that in which "source" is extended to the "causes" or "occa- sions " of law ; under which head he classes not only anterior custom, but the practices of lawyers, and even the reasons assigned in debate^. Not to mention the extreme disparity of the objects here lumped together by Austin, I may re- mark that, in the first case above-mentioned, what he regards as "one cause" of the law is still considered, by many respectable authorities, identical with the law itself This use, therefore, of the word source appears to be distinctly undesirable. The most reasonable and natural meaniag of "sources" appears to me to be that of earliest extant documents*'. This meaning however will by no means cover all the matters from which our knowledge of law is derived, because it will exclude, amongst other things, as Austin shews, a considerable mass of important literature, if not of authoritative declaration. Sources therefore, if confined to this sense, seem rather a subject for antiquarian than for practical enquiry. And to this sense I should prefer to confine the word, if it be not, for its ambiguity, left out of jurisprudence altogether^. A fourth meaning has indeed been suggested (see below, p. 199), which ^ I judge by what he says in Outline p. 35, where this is the only meaning which he notices. See too his words at the head of p. 555 (Leot. 30). 2 Austin 28. p. 526. ' Id. 30. pp. 554, 555. * Id. 28. p. 527. " See also on " Sources " Holland's Jurisprudence ch. 5. pp. 44, 45. 198 SOURCE, MODE AND FOEM. very nearly indicates my present subject, but I should not designate that meaning by the word " source ". Written and unwritten law. The distinction of law as written or unwritten, which Austin appends to his considera- tion of sources, will be treated hereafter. The literal meaning of the distinction or antithesis referred to, is absolutely unimportant ; nor is it by any means certain that Austin is justified in attributing it to the Roman lawyers. The view generally taken of the same distinction or antithesis belongs to the subject of customary law. The modes in which law begins and ends. This phrase of Austin's is not perfectly satisfactory. The earlier part of it seems fairly clear, although it would no doubt cover a larger space than Austin intends, with those who, like myself, take a wider view of " law ". The latter part is very ambiguous and does not receive much light from the contents of the lectures to which this is the heading. In the part of his " Outline" referring to the course of lectures under considera- tion^, Austin speaks of the modes wherein law is abrogated, or wherein it ot]ierwise ends. But in the course itself there is nothing definitely answering to end in this sense. The course closes with the subject of codification, a subject obviously suggested by the faults of "judiciary " law. I think therefore either that there must be more matter lost before Austin's 40th lecture than is at present supposed', or that he dropped the subject of abrogation as unimportant, or finally that he somewhat modified his view of the end of law, considering that sufiiciently treated in speaking of the form towards which it tends or in which it may finally be found. Form of law. My own point of view of the subject now under consideration was suggested by an introductory sen- * Austin vol. I. p. 41. ' See Campbell's note prefixed to Leot. 40. p. 705. SOUBCE, MODE AND FORM. 199 tence in Markby's very useful " Elements of Law." "What I mean," says Mr Markby, " by the ' sources' of law is simply the place where, if a man wants to get at the law, he must go to look for it *." Unfortunately, as it seems to me, the author in question has been compelled, by his use of the unlucky word source, to class together objects which are certainly not sources in the same sense — the declared will of the supreme or subordinate legislature, judicial decision, commentaries, and custom^ He indeed himself admits the ambiguity arising from the word in question", and he cer- tainly departs, in his enumeration of the above particulars, from the idea of literary authority, which alone could, I think, be correctly described as the "place where if a man wants to get at the law he must go to look for it." I have indicated my own objection to the word source already. If it were retained, in the sense which Mr Markby appears to intend, I should prefer to define the sources of law as the authorities generally, which a practitioner or well informed layman would cite for it. The subject-matter, however, to which I have primary regard at present, is the same as that which Mr Markby has in view under his heading of " Sources " — viz. law in its present authoritative existence. Such attention as must be given to matters of source in Austin's " loose sense," or, to use his other expression, "remote cause," will be given in a secondary and incidental manner. I therefore postpone my consideration of the somewhat heterogeneous matter con- tained in the latter part of Austin's 28th lecture and in the eight following ones, with which matter source in the sense last referred to is much more connected than it is with the comparatively simple subjects of Lectures 37, 38, 39. Looking first at the present literary authorities for law, « Elements of Law § 42. p. 19. » lb. §§ 43—72. pp. 19—34. M lb. § 42. p. 19. note 1. 200 SOUECE, MODE AND FOEM. we find that they are broadly divisible into two or three different classes ; and that, with regard to two at least of these classes, the kinds of law contained in them are of different /orm or character from one another. These different forms of law, which constitute my preseEt subject, occur as well in international as in national or municipal law : but they are more clearly distinguishable and capable of better illustration in the latter. I shall there- fore take the most familiar instance of municipal law which I can find — that of our own country — as the basis of my enquiry, comparing the instances furnished by it with similar ones from Roman legal history. In England the literary authorities which would be used by or cited to a magistrate are of three kinds, briefly indi- cated as follows. They may be Acts of Parliament (or other public rules similar to Acts of Parliament;, they may be authorized E,eports, they may he authoritative Text- books. Two main forms of law therefore at once occur to the mind, which I shall call Statute Law and Case Law. The third class of literary authorities constitutes a sort of appendix or residuary clause, to the contents of which I cannot definitely ascribe any one form, and I must therefore admit that the introduction of Text-book Law into a clas- sification by form is inaccurate, though convenient. More- over, I must take together with this class, from similarity to a leading part of its contents, such custornjiry lavj as may still subsist, though not included in text-books or any literary authority. It is scarcely necessary to say that the order of treatmen here indicated is purely matter of couvenience, not of his- torical priority. Case law, as I understand it, will seldom if ever come before statute law : but much of the law pre- served in text-books is decidedly older than either statutes or cases. SOURCE, MODE AND FORM. 201 Austin speaks at some length in this part of his work, on the Jus Oentium and Aequitas as connected, on the one hand, with the Roman Edict, on the other, with English " Equity." I have accordingly treated briefly of these subj ects after that of Text-book law, devoting my last chapter to Austin's concluding topic — Codification. CHAPTER II. STATUTE LAW. Statute Law. Taking English law as my principal example, I propose to consider the different senses in which the word statute is used by Blackstone and by Austin, in order to determine how far the one or the other will apply to law generally, and serve as a means for the classification of law hjform. It may be remembered that the two points expressed in the Eoman jurists' definition of lex were, a signified command by the populus or plebs and the general applicability of that command. The general incumbency, or obligation upon all citizens, of that command, was probably implied but not expressed ^. It is beside my present enquiry to enter minutely into the composition of the legislative body or bodies here referred to, the necessary formalities, and the constitutional checks. These are matters which Austin enters into" a propos of sources in the sense of direct or immediate authors. But they belong rather to particular Constitutional Law than to Jurisprudence, at least to that part of Jurisprudence which is here considered'. 1 See above pp. 30, 111, 112. 2 Lect. 28, pp. 530—533. 3 See above pp. 93, 163. STATUTE LAW. 203 English Statutes. In England a statute -would primd facie be considered the same thing as aa Act of Parliament^ : and Blackstone, though in a passage somewhat confused by the introduction of the subject of written law, may be, on the whole, taken to define statute law, for England, as made by the King's Majesty, by and with the advice of the Lords spiritual and temporal, and Commons, in Parliament assem- bled ^ By the Commons, it is scarcely necessary to add, are meant " such men of property as have not seats in the House of Lords ; every one of which has a voice in Parlia- ment either personally or by his representatives*." Both "statute'' and "parliament" had been spoken of, prior to the constitution of parliament recognised by Black- stone, in different senses'. He however seems to confine "statute" to this technical meaning, and in fact styles the Great Charter itself a statute "as confirmed in parliament 9 Henry 3^." I proceed to consider what is the bearing on Jurisprudence generally of the above definition of statute. With parliament, says Blackstone, is lodged the sove- reignty — that absolute despotic power, which must in all governments reside somewhere — of the British constitution °. In Britain, therefore, the parliament may be practically considered the sovereign, or supreme authority — though, in strictness, as Austin shews", the sovereignty resides in the * See i7iter alia the introductory section to Maxwell on the Interpre- tation of Sta,tutes. " Blackstone Int. § 3. p. 85. » Id. Com. 1. 2. p. 158. ' E.g. in the case of an assembly " de statutis regni," in 1170 (Stubbs' Constitutional History of England 1. ch. 13. p. 571.) ; of the statutum de Merton, in 1236 ; and of the sessions of council called parliaments from the last quarter of the 12th century (Stubbs ib. p. 570 note 2). " Blackstone Int. § 3. p. 85. See too Coke's Proem, to the second part of his Institutes. ' Blackstone Int. § 2. p. 51. Comm. 1. 2. p. 160. i» Austin 6. p. 253. 204 STATUTE LAW. king and peers with the electoral body of the Commons. Blackstone's definition, therefore, of statute law generally and not confined to Britain, would appear to be almost exactly his definition of municipal law above noticed " a rule of civil conduct prescribed by the supreme power in a state"." It will be seen, too, that he scarcely considers anything as statute which is not made directly by parliament. His definition therefore of statute law is by reference to the source in the sense of immediate author, not to the form of law or mode in which it is made. Faults of classification by "sources." 1. "Source" properly legislative. I have before remarked upon the unfortunate effects of undue prominence being given to the circumstance of the author or enactor of law over the law itself. It is probably on account of their having this circum- stance in common with statutes properly so caUed, that Acts of Attainder are termed by Blackstone in his fourth book laws^^; he having previously stated the more correct view that these, being "orders concerning a particular person," are not rules, and therefore not laws". The same remark applies, in Roman legal history, to the designation of certain particular commands by the term leges, because made by the same persons and with the same cere- monial as a Zea;". The privilegia of the republic, a more accurate term, were usually of an unfavourable character, corresponding in that respect to our Acts of Attainder. In later times the word assumed its present favourable sense. So taken Austin shews that it may possibly imply a general and permanent command upon the community to respect the special rights conferred '^ in which case it is so far a true lex. " See above pp. 170, 171. ^^ Blackstone Comm. 4. eh. 19. p. 259. " Id. Int. § 2. p. 44. » See above p. 112. IS See Austin 1. p. 98: 28. p. 53.5. STATUTE LAW. 205 Here then we have seen the terms law and lex impro- perly applied to occasional commands on account of identity of the maker or enactor. The converse case is an equal objection to classification by " source " : the case, that is, where such classification separates objects which should, in the general view of Jurisprudence, go together. When the action of any of the three constituent parts of the English parliament, as generally settled in the reign of Henry III. and Edward I. is wanting, the name of statute is, in strictness, not given by English lawyers to the ordinances made by the other parts'' " To anything thus enacted," says Blackstone", " no regard is due, unless in matters relating to their own (the enactors') privileges." The theory therefore would seem to be that such matter, so far as valid, is not new legislation, the privileges referred to being part of the previous law. This theory also, I think, applies to the case of royal proclamations, which are, says Hale^^, in some in- stances to be taken for laws. " The king cannot introduce a new law, so as to alter or transfer properties, or impose new penalties, beyond what was established by statute or common law." These proclamations have only a binding force, says Blackstone ", following Coke, " when they are grounded upon and enforce the laws of the realm." But, whatever be the theory on the subject of ordinances and proclamations, there is now in fact a considerable amount of new legislation exercised by the Queen in Council, that is, practically, by the Cabinet or Boards subordinate to the Cabinet. These powers are I believe at present only con- ferred by Act of Parliament. Still the actual rules made are not themselves Acts of Parliament, and accordingly are, if 18 See Coke 1 Instt. 159 b ; and, on an implied authority of parliament, ib. 98 b. " Blackstone Comm. 1. oh. 2. p. 160. '^ Hale Analysis § 5. p. 9. " Blackstone Comm. 1. oh. 7. p. 270. 206 STATUTE LAW. we follow Blackstone's objection, not statutes, though they are often called by that name, and do not differ in practical effect from statutes in his sense. The difference between a supreme and a subordinate legisla- ture is no doubt important, and worthy of indication, as a mat- ter of particular Constitutional law. But, in Jurisprudence, where the question is merely of direct or delegated power, a distinction by that fact, or by the particular body to which the power is delegated, seems to be confusing and unnecessary. Moreover, supposing Blackstone's meaning of statute to be extended to all rules made under the ultimate authority of an Act of Parliament ; this would not include rules made by virtue of privileges, &c., which are part of " common law." Austin alleges, as instances of general laws or statutes, promulgated by subordinate legislatures, the arrets regle- mentaires of the French parlements^°. These modes of legislation are now obsolete, and the disposition generate et re'glementaire by a judge, when pronouncing on a case sub- mitted to him, is prohibited by the Code Napoldon^'. But much better instances of the inconvenience of classifying or defining law by source, in the sense of immediate author, are to be found at an earlier stage of legal history. At Rome, laws of precisely the same binding character and general applicability were enacted not only by the two bodies mentioned in Capito's definition of lex — the populus and the plebs — but also, towards the close of the republic, by the senate, and, after the close of the republic, by the emperor. In theory, these powers may be perhaps considered as all depending upon one supreme authority — that of the populus, whose enactments alone are strictly termed leges. The legis- lation of the plebs depended upon an enactment oi the populus 2» Austin 28. p. 538. 21 Titre Pr6Umiiiaire 5. STATUTE LAW. 207 (the lew Ilortensia). That of the senate, though we have no- very good authority on the point, was probably recognised by the populus in the same Act of Settlement : that of the emperor was constitutionally held to be conferred upon him, with his other powers, by a lex strictly so called ^^ On the above assumptions or theories, therefore, we might apply the term statute to all these objects, supposing that term extended to all rules made under the ultimate authority of a lex. It is not so with the case next to be considered. Faults of classification by " sources." 2. Legislation by a judicial " source." The objection to classification of law by " source ", in the sense of immediate author, becomes greater when we pass to one peculiar kind of subordinate legislation. The rules of conduct hitherto mentioned are all actually prescribed, to use Blackstone's word, by authorities- principally legislative, or at least rather legislative than judicial. But there are also rules drawn up and put forth by authorities primarily judicial, which, though they purport to deal only with " practice " and " procedure," have precisely the same general obligation and general applicability as those directly enacted by the sovereign. Among this class, Austin mentions " The regulae praxis published by our own Courts of Justice "'." These may in great part have grown up by custom ** : though when published by a Court they pass into the class now under consideration. At present, however, such rules are, I think, only made in England by direct authority of an Act of Parliament, and so might be brought under the extended meaning of Blackstone's statutes above- suggested. In Rome we have instances of independent legislation by authorities certainly not primarily legislative, which would be less easy to bring under even the extended meaning of 22 Gaius 1. 6. "^ Austin 28. p. 538. i" See Blaokstone Comin. 1. ch. 7. p. 267. 208 STATUTE LAW. Blackstone's statutes; whicli have been pointedly distin- guished in Roman judicial writing, from statute, by the name of their immediate authors, or by the general style of magis- terial ; and which yet are, in virtual character and practical effect, precisely equivalent to the clearest statutory enactment. I pass over the legis actiones which, although no doubt ac- tually published by the authority of a court '', were based, according to the better explanation of their name, upon a statute. But the edicts depended more upon what we should term a common law than upon a statutory authority ^^i and were called from their immediate authors praetorian or aedilitian, the law resulting from them being known by the name of honorary, i. e. magisteriaP'. I would here carefuUy avoid all use of the expression judiciary or judge made, which is used to indicate a mode or form, not an author, of law^*. The Romans had, in aU probability, at least during the repub- lic, no case-law. As to the practical character and effect of the Praetor's edict there can be no doubt. An edict is throughout per- fectly distinct from a judgement^'. So too is the standing notice (perpetuum edictum) issued by a magistrate at his 2^ The story of Cn. Plavius must be considered elsewhere. 2^ Gains 1. 6. Jus autem edioendi habent magistratus populi Bomani. See however below oh. 13 as to the Lex Corneha. The transition from the express or tacit authority of the ' ' sovereign Eoman People " to that of the " Emperors or Princes," which Austin (35. p. 622) alleges, is I suppose virtually true, but would scarcely have been admitted by a Boman writer. ^' As opposed to what is legitimum. It is not necessary to enquire into the exact accuracy of Austin's statements as to the limwres and jus edicendi (35. p. 617). For our purpose the praetorian and aedilitian are the only edicts, 28 See below p. 213. 2^ I presume Austin's authorities must have had some ground for the statements as to special edicts, i.e. judgements, on pp. 611, 612 (Leet. 35). I cannot find any, while the distinction which he quotes from Cicero's Yerrine orations, is perpetually maintained, e.g. Dig. 1. 14. 3. Ulpian. Quae edixit, quae decrevit, &c. STATUTE LAW. 209 entry on office, from an occasional notice or order'". Being originally only a standing order for the Praetor's year of office (annuum) the edict lacked that complete permanence which Blackstone supposes to be involved in the nature of law as a ruW^. This permanence, however, was practically acquired by such part of the edict as became regularly transferable {tralaticium) from Praetor to Praetor, until the whole was crystallised for good into a statute, and expressed to be perpetuum, in a sense very nearly answering to our meaning of the word, by Hadrian '^ The detailed history, however, of the edict, and the par- ticular mode by which new rights were created or old ones •extinguished do not fall to be considered here. I may only remark that the fact of the edict purporting originally to be a code of procedure should not blind us to the fact that it is, in even the majority of instances, differently from genuine regulae praxis, the enactment of new substantive law^^. When the Praetor engages that he will give possession or grant an action to persons generically designated, he creates legal rights and imposes the obligation to respect such rights as well as any statute can. It matters little whether an Act of Parliament says "Descent shall be traced from the last purchaser," or a Court says "I will protect the heir of the last purchaser in enjoyment," if the Court has the power to make such a general order. In this formal difference — that the new law was introduced implicitly rather than ex- pressly — and in the "source" or immediate author lies the ™ Edictum prout res incidit. See Austin 35. pp. 613, 4 : (Ulpian, Dig. 2. 1. 7. pr., is an original authority for this expression). Edictum repentinum (Cicero Verr. 2. 3. 15. 36) is evidently exceptional. Neither the one nor the other is a judgement. Austin's statement that perpetuum indicates not dura- tion hut generality is a very questionable one. 31 Blackstone Int. § 2. p. 44. See above p. 112. 32 See below ch. 13. Also Austin 85. pp. 623, 4. ^ Austin ib. p. 611. C. J. 14 210 STATUTE LAW. only distinction between Roman praetorian law and Roman leges"^. A considerable part of the edict probably dealt with mere procedure : but so did much of the matter at the be- ginning of the Twelve Tables. And if the alterations in the edict were founded on or suggested by cases^, this was doubt- less also the fact with leges passed on similar subject-matter. The merit of the former, indeed the chief merit in the Roman legislative system, was that the edict gave the opportunity of converting generalisations from cases into statute law every year. Conclusion. In Roman law, then, even more clearly than in English, as doubtless in most civilised states, rules of conduct come to be made by public authorities other than the supreme authority or sovereign, but of equally general obligation, of equally general applicability with the "statutes" of the latter, and not materially dissimilar in form. The delegation of legislative authority by the sovereign will, in general, be expressed or implied, even when the sub- ordinate legislator is in theory only a judge : but in point of practical effect it is immaterial whether the authority be considered as delegated or not, provided its results be recog- nised by the Constitution of the state in question. Blackstone's definition, then, of statutes does not seem convenient for the purpose of classifying or subdividing law in general. It assumes, it is true, ascertainable acts of legis- lation, and so far serves to distinguish its subject matter from customary law : but its obviously intentional result is to confine such acts to those which immediately emanate from the supreme legislative authority: for which purpose a designation by such authority, e.g. Acts of Parliament, would serve better. Nor will an extension of Blackstone's meaning to all ^ Austin 35. pp. 619, 620. ^ As Austin seems to intimate, ib. pp. 616, 617. STATUTE LAW. 211 rules depending upon an ascertainable authorisation from the supreme legislative authority include, without some further straining, the important bodies of law to which I have just adverted, as practically equivalent to Acts of Par- liament or leges. I should therefore much prefer to adopt the view which Austin takes of "statute law," and to utilise that term in a sense which is applicable to these bodies of law, as indi- cating rather the mode in which law is made, or the form in which we find it, than the position of its immediate author. Austin's Statute Law. Statute law is, according to Austin's use of the word, all law made, by either a sovereign or a subordinate political authority, directly, as legislating, not indirectly, as judging^^. The fact that the legislative authority may be also, or primarilj', judicial, is immaterial. A statute is expressly stated by the authority from which it emanates, prospectively, in general terms : whereas a rule of case law is not stated in general terms by a legislative authority at all, but is to be extracted from the decision of a judge. Case law, however, with its special characteristics, its advantages and disadvantages, will be considered hereafter. It remains for me here to notice certain peculiarities of statute law, either as understood by Blackstone or by Austin, beside its form. Actual enactment. Statute, which literally expresses^osi- tion, has always, I think, in the ordinary meaning of the word, postulated actual enactment. I have above used the term ascertainable in this behalf, I doubt whether quite correctly. The Begiae leges of Rome, had they really passed through any process of legislation", would have been as truly statute 36 Austin 29. p. 548 : 36. p. 641, &o. 37 Above, pp. 38, 92. 14—2 212 STATUTE LAW. as the law of the Twelve Tables, though all their alleged particular enactors were as mythical as Romulus himself. But purely customary law, whatever its general form, and however it may have passed according to Austin's theory, through primeval judicial decisions, is not statute. Publication seems, as has been said above, to have been considered an essential part of Roman Statute Law''". Nor can one see how it could be otherwise, in theory, anywhere. According to Austin's fundamental definition of law as a command, it must be signified to those who are to obey'^, as is certainly reasonable, where law is not matter of custom, which people are supposed to know, but of new enactment; so that the conduct attributed by Blackstone to the Emperor Caligula*", is simply the act of a madman. Blackstone makes out the publication of English Statute Law to be virtually effected through the presence, in Parlia- ment, of every man in England by his representatives. This is no doubt absurd optimism, and has been treated by Austin with an irony so profound as to have been at first taken for praise. We may remark that the same passage*' contains a statement of actual provisions for publication, to supplement the legal fiction at which Austin sneers. Still, that an English statute is in force before it is published is doubtless true. In France, a longer or shorter time is allowed to departments more or less remote, after which the " promulgation" is reputed as known, and the statute comes into force*^ but I presume that a Court could not enquire 38 Pp. 38, 39, 92. 39 Austin 1. p. 91. 40 Savigny, System 1. § 22. p. 106 : Thibaut, Versuche 1. 7 ; Maokeldey, Lehrbuch § 115 &c. ^ Cicero Partt. Oratt. 37. 129. Atque haec commtmia sunt naturae atque legis ; sed propria legis et ea quae scripta sunt et ea quae sine Uteris aut gentium jure aut majorum more retinentur. JUS SCRIPTUM AND JUS NON SCEIPTUM. 2G9 to the law of nature^; so that not much reliance can be placed upon the evidence of Cicero. Austin, following Savigny and Thibaut, takes the Roman jus scriptum to have been law committed to writing at its origin. Their jus non scriptum he represents as law origi- nating in custom or ex disputatione fori. The sense given to the same distinction by " modern civilians " he takes to be : that jus scriptum is law established immediately by the sovereign, jus non scriptum law not so established — a dis- tinction by immediate " source," not by ultimate origin or mode of making'. He objects to the latter, or juridical, meaning of the distinction as arising from a misconception of passages in the Digest : and, with more justice, to the use of another pair of terras, by the same civilians, to convey the same meaning. Promulged and nnpromulged. The expression pro- mulged or promulgated, as the word is more commonly spelt with us, was probably suggested, in the antithesis under our notice, by the technical meaning of the Greek 'ypaeiv. It is extremely unsuitable for the present purpose. Promulga- tion originally meant the publication of a project of law, but is often used loosely in the sense of publication of a law when made. When more strictly applied by modern writers to something different from publication, it signifies the final order of the sovereign power which puts an enacted law into execution^ In the antithesis of promulged and wnpromulged, the former word signifies, not this particular act, but enactment generally by legislative authority. Whe- ' Cicero pro Milone 4. 10. Est igitur haeo judices non scripta sed nata lex : quam non didicimus accepimns legimus, verum ex uatura ipsa arri- puimus &c. 7 Austin 28. pp. 528, 9 : 29. p. 542. 8 Above p. 213 ; also Aubry et Rau (Cours t. 1 § 26), de la promulgation et de la publication des lois, (on Code Napolfior, Titre Prfil.). 270 TEXT-BOOK LAW: ther the modern civilians who introduced the antithesis, meant definitely, as Austin holds, to exclude subordinate legislation seems to me very doubtful. Austin's literal meaning discussed. Austin bases his literal meaning of scriptum and non scriptum mainly upon a passacre of Julian, which he contends has been misconstrued by modern civilians^. The passage in question, read in its entirety, makes quite as much for the juridical opposition of statute to custom, as for the literal one of writing to non-writ- ino'. It is true that no distinction is made in point of source i.e. author; both custom and statute being referred to the same Roman people : but it by no means follows, as Austin argues, that the only distinction intended is one of literal writing. It is a difference in the 7node of enactment, or declaration of popular will, to which the jurist expressly refers — whether such declaration is made by vote or by con- duct. On this last subject, however, I shall speak further presently. By Paulus long custom is opposed to scripta jura and scriptum. The passage is made up, it is true, of two quota- tions, of which only the second is attributed to Paulus. But the first, which bears the name of the later jurist Hermo- genianus, may be fairly taken to represent some similar words of Paulus on consuetudo and scriptum^" . ' Dig. 1. 3. 32. Julianas. De quibus causis soriptis legibus non utimur, id cnstodiri oportet quod moribus et eonsuetudine inductum est...InTeterata consuetudo pro lege non immerito custoditur, et hoc est jus quod dicitur moribus oonstitutum, nam cum ipsae leges nulla alia ex causa nos teneant quam quod judicio populi reoeptae sunt, merito et ea quae sine uDo soripto populus probavit, tenebunt omnes : nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis ? Austin 30. pp. 557, 8 does not quote the first sentence, in which I think the expression legibus is important. The earlier part of the above quotation is given to JJlpian in the Greek version (Basilica 2. 1. 41) which adds the clause "nam cum. ..factis" as a note. i» Digest 1. 3. 35, 36. JUS SCRIPTUM AND JUS NON SCEIPTUM. 271 In Pomponius' Manual we are told of a branch of law which arose sine scripto, drawn up by the prudentes or con- sisting in their interpretation". This refers, I may remark, to a period long before the licensed prudentes" of the Empire. Finally Ulpian" compares the Roman law with the Greek as consisting partly of written and partly of unwritten law. It is this passage which is adopted into Justinian's Institutes, the law arising ex non scripto being subsequently identified with the law sanctioned by custom'*; while jus scriptum is made to consist of a number of particulars taken from a frag- ment of Papinian. These particulars furnish a further argu- ment to Austin'^ in favour of his literal interpretation of the antithesis under consideration. For they include, besides the leges, plehiscita, senatns consulta and imperial constitutions, which all come obviously under the head of Statute, also the edicts of the magistrates and the responses of the prudentes, quibus permissum est jura condere. Austin takes the common point of all these to bo com- mission to writing at their origin. This is doubtless true of them all; but, bearing in mind the jus edicendioi the Praetor and the probable legislative character of the licensed pruden- tes, we may, I submit, recognise authoritative issue as the more important common quality. It is the absence of this which makes the jus civile, attributed by Pomponius to the " Digest 1. 2. 2. 5, 12. See below pp. 285—7. '^ Below pp. 293—5. ^' Dig. 1. 1. 6. Hoc igitur jus nostrum constat aut ex scripto aut sine scripto, ut apud Graeoos, tuv voiiwv o! fikv lyypacjioi ol Sh dypaoi. 1* Instt. 1. 2. 3. Scriptum jus est lex, plebiscita, senatus consulta, principum placita, magistratuum edicta, responsa prudentium (8). ..quibus permissum jura condere. 9 Ex non scripto jus venit quod usus comprobavit. See Papinian Dig. 1.1.7. Gains does not draw the distinction of jus scriptum &udjus non scriptum. i" Austin 28. p. 529. See too Mackeldey Lehrbuoh § 115a Anm. bb. Daher geborten bei den Eomern auoh die edicta Praetorum zum jus scriptum. Savigny, System 1. § 22. p. 106. Jus scriptum also heiszt dasjenige Eecht dessen Entstehung mit einer schriftlicben Aufzeiohnung verbunden ist, 272 TEXT-BOOK LAW. republican jurists, sine scripto; for it is certainly treated by that author as of some authority'", we know that it did not remain literally unwritten beyond the time of Aelius", and it was clearly a gradual formation, not originating entirely in pre-literary times. Conclusion. While, therefore, I admit that the literal meaning of this unfortunate antithesis occasionally presents itself to the Roman jurists, I maintain that its general firacti- cal use with them is as a distinction between customary law. on the one hand, and law drawn up and issued in any regular manner by any legislative authority, on the other'^ Under customary law they recognise two elements; national custom, and the practice of courts as represented in the opinions of prudentes. The judiciary legislation, which -according to Austin converts a moral rule of custom into law proper, they do not recognise at all. The above is also the practical use of the distinction jus scriptum and non scriptum by our English jurists, so far as they use it at all. The ambiguities which arise from an in- trusion of the literal meaning, in the opening pages of Glan- ville and Bracton, will be very briefly noticed hereafter. With modern continental writers written and unwritten in general o designate respectively enacted and customary law''''. i" This seems to meet the objection in the latter part of Savigny's note (c) to System 1. § 22 p. 106. " Below, p. 2!12. 18 This is the view of those (Hilbner and others) who explain jits scriptum, von dem durch einen Gesetzgeber promulgirten Eecht (Savigny, System, p. 107). I do not think the technical meaning ol promidgare is to be pressed here. J^ See for example Aubry et Eau (Cours, t. 1. § 2) " Droit coutumier ou non 6crit." " Le droit ficrit est celui qui a dte d^or^t^ et promulguC par Tautorit^ publique.'' CHAPTER VIII. TEXT-BOOK LAW: ROMAN CUSTOMARY LAW. Scanty information. In the endeavour to treat Roman Customary Law as an independent phaenomenon, from which are to be drawn the special conclusions proper to it, on jurisprudence in general, we find the greatest difficulty both in the character of our authorities and the manner in which they have been used. There is, to begin with, an extremely meagre amount of direct testimony on the subject. A dozen short extracts in the first book of the Digest, with three rescripts in the Codex, constitute the main part of our materials. These again are, in most cases, evidently suggested by, and intended to deal with, local rather than general custom. The rules and principles may possibly have been much the same for both : but the fact should not be disregarded, as it has almost universally been by the middle age writers, who have imported these maxims of Roman law into their respective systems. Another fre- quently recurring difficulty, which meets us conspicuously in our own English law, is the confusion between national custom and Court or professional practice. The two are by no means kept separate in the writings of Roman jurists and the constitutions of Roman emperors, under the headings of jus morihus constitutum and jiis a prudentibus compo- situm, as might be imagined from Austin's adoption of C.J. 18 274 TEXT-BOOK LAW: EOMAN CUSTOMARY LAW. these phrases. The Roman mores are often clearly ttose of experts, while the law attributed to prudentes is often as clearly primaeval custom. Savigny, it is true, treats the expert as the mere organ whereby the common con- sciousness of the people operates in special force and definite terms*. I think, however, this can scarcely be taken as an exact statement of the case except in the very beginning of a system of law. In general we soon come to the time when a distinction must be drawn between what the pru- dens simply records, and what lie has an obvious hand in constructing. I have endeavoured to draw this distinction^ in the actual instances of Roman customary law, towards the latter part of the present chapter. Roman Theory of Customary Law. Consuetudo, as we have seen'' in one sense in which the word was used by Roman jurists (Paulus and Callistratus), indicated the run of cases decided upon a statute, as constituting an interpreta- tion of that statute. Here, so far as (to use Austin's phrase) the interpretation is genuine, no new law is made : so far as it is spurious — so far, that is, as a new rule is introduced — that rule is originally the creature of the court. Whether we are to class it as case-law or not depends upon the question whether the individual decisions were still referred to as authoritative, or, which appears to me more probable, were replaced by the generalisation of some eminent author. In the latter case it is text-book law originating in judge- ments, like many of the rules preserved or drawn up by our own Coke. Ulpian, who is in all practical law a clearer and more trustworthy writer than either of the Roman jurists above mentioned, treats consuetudo as something distinct from 1 System 1, § 25, p. 148. See the same author quoted below, ch. 12, p. 325. - Above p. 217, note 12. TEXT-BOOK LAW: ROMAN CUSTOMARY LAW. 275 decided cases and to be proved by them'. For, though the passage in question refers to local custom, as do most of our authorities on Roman customary law, it does not appear necessary to confine his dictum to that case*. One thing is perfectly clear — that the previous judgement is purely evidence, and not essential to the validity of the custom °. As to the validity or binding force of custom we are told, also by Ulpian, that long custom, iu matters which do not come to us on the authority of scriptum^, is wont to be observed pro jure et lege', which we may perhaps translate " as statute law." Elsewhere Ulpian gives a ground for this binding force, where he defines mores as the tacit agreement of the people confirmed by long custom*. This tacit agree- ment was suggested probably by that Greek idea of a com- mon agreement of the state, which Papirian introduced from Demosthenes (or Hypereides) into his definition of lex^. The same theory is carried further by Julian, into an inexact comparison between the general following of a cus- tom by the people as a number of individuals and the formal passing of a law by the people as an assembly". This s Ulpian, Dig. 1. 3. 34 : above p. 217, note 11. * See also Dig. 1. 3. 82 pr. where Savigny considers reference to the custom of Rome, failing the custom of a particular civitas, to be intended. Very probably the original reference of Ulpian to local custom, which is extracted from his book De officio proconsulis, may be connected with the rescript of his master Alexander Severus to Aper a.d. 225 (Cod. 8. 53. 1). * System 1, § 30, p. 192, note I. ^ See last chapter, p. 271. '' Digest 1. 3. 38. Diuturna oonsuetudo pro jure et lege, in his quae uon ex scripto descendunt, observari solet. 8 Ulpian, Tit. 1, § 4. Mores sunt tacitus consensus populi longa consuetu- dine inveteratus. See too Hermogenianus Dig. 1. 3. 35. Sed et ea quae longa consuetudine oomprobata sunt ao per annos plurimos observata, velut tacita civium conventio non minus quam ea quae soripta sunt jiu'a servantur. 9 Above p. 97. " Cited above p. 270, note 9. 18—2 276 TEXT-BOOK LAW : ROMAN CUSTOMARY LAW. " conceit," as it is termed by Austin, is eagerly adopted by our own Blackstone, for which the former author justly takes him to task". I have a little more to say upon this doctrine of a consensus utentium, with regard to customary law, in my concluding chapter on the present subject. At present I return to Julian. According to this jurist, tacit agreement is also by the most correct opinion the ground of the abrogation of statute law through desuetude^''. Whatever be the merit of the reason given, there seems to be no doubt as to this strong effect allowed by Eoman law to disuse. The principle is repeatedly recognised by Justinian, and the one passage making against it is satisfactorily explained by Savigny, as merely denying, to a local custom, power against an express general statute"'. Instances of Roman Customary Law. In considering the actual cases where Roman law is expressly stated to have arisen from custom, usage, or the equivalent expression, unwritten sources, we find mores, as I have intimated, a large and varied heading. Mores include, at the lower end of the record, obvious Court practice, so long as not drawn up and formally published by a regular authority. But at the higher end lie matters of national usage so old as to equal in age, if not to precede, the earliest traditions either of legislation or of jurisdiction. 1' Blackstone, Int. § 3, p. 74. Austin, 30. p. 658. I cannot, however, follow Austin's probable original, Savigny, System 1, § 25, p. 147, into the extremely subtle and non-natural distinctions of note e. 1^ Dig. 1. 3. 32. 1. Quare rectissime etiam illud reeeptum est ut leges non solum suftragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogentur. " Savigny, System 1, § 25, pp. 152, 153 : also Beilage 2 to B. 1. The passage referred to is Cod. 8. 53. 2. Consuetudinis ususque longaevi non vilis auotoritas est: verum non usque adeo sui valitnra momento ut aut rationem vineat aut legem. For a different explanation see Goudsmit's Pandects, § 15, note 2. T'EXT-BOOK LAW: EOMAN CUSTOMARY LAW. 277 The body of Roman law known as jus civile in the narrower sense obviously belongs to this subject. But as it is specially attributed, by our principal authority Pomponius, to Roman prudentes, I shall postpone my consideration of it to the following chapter, and only notice here certain par- ticular cases where changes in Roman law have been directly attributed to custom or practice. In a passage of Ulpian where mores are opposed to statute {lex), or senatus consultum which was practically statute, we are told of a particular class of guardians intro- duced moribus, though called praetorian because it had become the practice for them to be appointed by the Praetor urbanus^'^. These tutors came into use before the formulary system '°. The procedure, in some cases of personal outrage, which superseded the hard and fast line of the Twelve Tables, is stated by Paulus to have been introduced moribus or more^^, by Gains to have been permitted'', and by Justinian to have been introduced'*, by the Praetor. The power of a parent to make a will for children under puberty, which Ulpian informs us was introduced moribus, apparently rested upon recognition by the same authority". " Ulpian, Tit. 11. 2. Tutores aut legitiiui sunt aut senatusoousultis constituti ant moribus introducti, ib. 24. Moribus tutor datur...qui praeto- rianus tutor dicitur, quia a praetore urbis dari oonsuevit. 1^ Gains 1. 188. Olim cum legis aotiones in usu erant. 1' Panlns Sentt. 5. 4. 6. Injnriarum actio aut lege aut more aut mixto jure iutroductum est... 7. Moribus, quoties factum pro qualitate sui...aesti- matum . . . vindicatur. 1' Gains 3. 224. Sed nunc alio jure utimur. permittitur enim nobis a Praetore ipsis injuriam aestimare. ^8 Just. Instt. 4. 4. 7. Poena... quam... Praetores introduxernnt. IS Dig. 28. 6. 2 pr. Ulpian. Moribus introduotum est ut qnis liberis impuberibus testamentum facere possit. Compare Just. Instt. 2. 16 pr. (last sentence), with § 2 and with Dig. 28. 6. 20, Ulpian. Patris et filii testamentum pro uno habetur etiam in jure praetorio. 278 TEXT-BOOK LAW : ROMAN CUSTOMAET LAW. Thus far we have matter of principle and procedure which might naturally arise in law courts or at least among lawyers, and which is in fact connected by our authorities with a magistracy within historical times". But earlier in- stances of law expressed to be moribus introductum follow, some apparently referable to a prehistoric judicature, some certainly conceived as independent of any judicature what- ever. The seizure, by private persons, of property to secure payments in arrear, is a rough remedy scarcely likely to have originated in any but very early times of any regular polity. This remedy (pignoris capio) is stated by Gains to have been introduced moribus, for arrears of military pay, for purchase- money of the soldier's horse, and for the forage-allowance, against the persons respectively liable to discharge these expenses". In the first case the custom could not be older than the introduction of military pay, which Livy places in B.C. 406 ''^ But the aes equestre and aes hordiarium belong, according to the same authority, to the Servian military system''', and, if so, date, at the latest, from ihe beginning of -" Cicero however connects mucli of the praetorian law with the will of all. De Invent. 2. 22. 67. Consuetudinis autem jus esse putatur id quod voluntate omnium sine lege vetustas comprobavit...Quo ingenere et alia sunt multa et eorum multo maxima pars quae praetores edicere consuerunt. ^1 Gaius 4. 27. Introducta est moribus rei militaris : nam et propter stipendium Uoebat militi ah eo qui aes distribuebat, nisi daret, pignus capere. ...item propter earn peouniam licebat pignua capere ex qua equos iisemendus erat ; quae peounia dicebatur aes equestre. item propter earn peouniam ex qua hordeum equis erat oomparandum : quae pecunia dicebatur aes hordiarium. See too Aulus Gellius 6. 10. Verba Catonis sunt. ..pignoris capio ob aes militare quod aes a tribuno aerario miles acoipere debebat, &c. ^^ Livy 4. 59. Additum deinde...ut...decerneret senatus ut stipendium miles de publico acciperet cum ante id tempus de suo quisque functus eo niunere esset. 23 Livy 1. 43. Ad equos emendos dena millia aeris ex publico data ; et quibus equoa alerent viduae attributae quae bina millia aeris in annos singulos penderent. Cicero, de Eep. 2. 20. 36, confirms Livy's account TEXT-BOOK LAW: ROMAN CUSTOMARY LAW, 279 the Republic. These legal rights arose, by custom, either under the early praetor-consuls, before the institution of the specific legal praetor, or else before the institution of the praetor-consuls themselves. Of a somewhat different kind from these positive usages are the mores which forbid marriage within the closer de- grees of natural relationship, and which are evidently as- sumed, whether with justice or not, to be principles common to all humanity^*. The Roman prohibition of gifts between husband and wife*^ is, on the other hand, a national matter, depending probably upon the old view of the wife's filial position towards her husband'"', and the exclusive life-owner- ship of the property of the family, by that family's head. Upon this last principle also depend those two " universal successions" of coemptio and arrogatio, which Gaius tells us were introduced neither by the statute of the Twelve Tables nor by the Praetor's edict, but by that law which has been accepted on the authority of consent^'. Coemptio is ap- parently connected with the Servian constitution ; arrogatio with the primaeval meetings of the curiae: the former may date from before the consuls, the latter from before the kings. As old a date must be given to other rules of national of the early institution of these allowances. His reference of them, however, to Tarquinius Prisoue, and connection of them with Corinth, the utterly fabulous home of the Tarquinii, do not strengthen his testimony. ^ Digest 23. 2. 8. Pomponius. Libertiuus libertinam matrem aut sororem ducere non potest, quia hoc jus moribus nou legibus introductum est. lb. 68 Paulus. Jure gentium incestum committit qui et gradu asoendentium vel descendentium uxorem duxerit. ^ Digest 24. 1. 1, Ulpian. Moribus inter nos receptum est ne inter virum et uxorem donationes valerent. 2« Gaius 1. Ill, 114. Cf. also 3. 83. ^ Gaius 3. 82. Sunt autem etiam alterius generis suoeessiones quae Deque lege xii tabularum neque Praetoris edicto sed eo jure quod consensu receptum est introductae sunt. See above, p. 276. 280 TEXT-BOOK LAW : ROMAN CUSTOMARY LAW. law which continued down to a late period of Roman legislation, without any enactment, to govern many family rights and duties natural or artificial. Amongst the relations referred to, their symbols or accidents, may be mentioned — the earliest marriage, with its forms, pointing perhaps to an older constitution than that fathered on Romulus — the fundamental power of husband over wife, father over children — the descent of property, saddled with certain family reli- gious duties, before its regulation by the Twelve Tables, before any disposition of property after death was allowed a man at all — -the mutual relations of the gentiles, of patron and client. On these, as on the old patrician monopoly of office and privilege, direct legislation is either never pre- tended or it is attributed to the mythical Romulus"^. But they can scarcely be conceived as matter of direct enactment except by romancing historiographers. Such law nasdtur non Jit : its real existence in the remotest antiquity is guaranteed by the immemorial deduction from it of per- manent usage, rather than by its late embellishment with this or that fabulous author. Some of these prehistoric rules, such as the earliest forms of contract and conveyance, may be admitted to have arisen from or been regulated by Court practice : but others are more probably assigned to immemorial national usage. The part played by the earlier legal experts in recording and systematising that usage will be treated in the next chapter. Conclusion. The few statements of theory, on the sub- ject of customary law, by the Roman jurists, may be briefly re-stated after our consideration of the actual instances. Generally, our authorities signify, by mores and consuetudo, lay custom deriving its validity from long voluntary usage by the people. Occasionally, both these words — mores, I ''" See Plutarch, Eomulus, oapp. 13, 22. Diouysiiis, 1. 2. passim. TEXT-BOOK LAW: ROMAN CUSTOMARY LAW. 281 think more so than consuetudo — are taken to mean the practice of courts or lawyers. The consuetudines in actual existence during the classical period are for the most part local. All custom is allowed an equal force with statute, whether to establish, modify or repeal rules of law, except where local custom would derogate from a statutory general rule. Both decided cases, and the works of prudentes, are admitted as evidence of custom, though its validity is independent of either. As between these two authorities, it is possible that the case was regarded as preserving recent lay evidence and dealt mainly with local custom ; while the text writer had equal authority with any case, if not greater, and was, in fact, all but conclusive as to general custom." CHAPTER IX. TEXT-BOOK LAW. ROMAN PEUDENTES. Distinction of prndens and patronus. I now come to consider, in more detail than the general notice due to this subject has allowed me to do before, the juridical part played by the Roman prudentes. This appears to have been a little misunderstood by Austin, in his zeal for actual legisla- tion, whether direct or judiciary. The labours of these experts belong, as it seems to me, throughout rather to text- book than to case-law. But the exact judicial character of the prudens varies considerably at different times and is not at any time perfectly easy to determine. To begin with, we must apparently separate him from the pleader. From the earliest days, among the other duties of a patronus, it devolved upon him to maintain his client's interests in Court — as much, it would seem, by personal influence and character, as by knowledge of law. Tricks of oratory enter gradually into the qualifications of the patro- nus, as he loses his old position, almost analogous to that of a feudal lord, and assumes the character of mere in- fluential citizen. And his oratory is clearly directed rather to the evasion than to the solution of legal difficulties'. This function of the patronus, in which oratory is of more importance than knowledge of law, descends to Cicero's times, who naturally gives the former the first place, 1 See Plautus, Menaech. 4. 2. 1—29. TEXT-BOOK LAW : EOMAN PRUDENTES. 283 although his pleader does condescend to use in Court the ancillary art of the pettifogging jurisconsult^ Great part of Cicero's speech for Muraena is a vigorous personal attack upon Ser. Sulpicius', who, as we know from Pomponius*, had left the business of pleading in Court and taken to that of advising out of Court. From the passages quoted, and similar ones, we see that the prudens answered rather to our equity draughtsman and conveyancing counsel, being consulted at his own house, both by clients directly and by their patroni or public pleaders ^ In strictness it would seem as if the original of our modern word advocate was properly applied not so much to the ordinary patronus, or court speaker ^ as to the chamber practitioner summoned into court' by his consulter, who sometimes noted down the opinion of the prudens for the judge to read, sometimes called in the prudens personally ^ The mere pleader, then, may evidently be left out of our present consideration. If we could conceive, in our own courts, a class of orators whose business and qualification were simply to throw dust in the eyes of a jury, we should ' Cicero, de orators 1. 55. 236. ^ Cicero, pro Muraena, capp. 9 — 27. " Dig. 1. 2. 2. 43. See also the similar case of Tubero ib. 46. ' Dig. 1. 2. 2. 43. Servius...traditur ad consulendum Quintum Mncium de re amici sui pervenisse &o. See too the early case of C. Scipio Nasica (below p. 289). ' See Plautus Trirmmmus 5. 5. 37. C. Jus hie orat. L. Impetrabit te advocato atque arbitro. It is at least a possible interpretation of Cicero pro Muraena, § 9, that the orator conceives Sulpicius as appearing, in the capacity of patronus, against the man for whom he has advised, as advocatus. ' The word is probably borrowed from the Attic irapaKKrjros, though it may be questioned whether the meaning of the two is precisely the same. See Demosthenes, De falsa legations 841 (E) 10, and ShUleto's note. 8 Pomponius, Dig. 1. 2. 2. 49. Neque responsa utique siguata dabant (sc. prudentes), sed plerumque judicibus ipsi scribebant aut testabautur qui illos consulebant. Among the various interpretations of this clumsy sentence, I prefer that which takes ipsi to be not the prudentes, but their clients. 284 TEXT-BOOK LAW: ROMAN PEUDENTES. expect little contribution to law from SUch a source. As little, in all probability, was derived from the ordinary Roman patronus. He backed his friends {adfuit amicis) with the best eloquence at his command, he received from them (at least in the later days of the republic) more or less disguised honoraria or " compliments ; " but, as a legal authority, I fear we must admit, even in Cicero's case, that the less said about him the better. The pontiffs the first prudentes. We come, then, to the legal authority proper, the prudens or expert, considered in our present point of view as a literary authority also, i.e. as leaving some written record, though not jus scriptum in the juridical and Roman sense. The pontiffs and their books are clearly the only repre- sentatives of this class down to the time of Cn. Flavins'. Their particular action in the early period represented by the leges regiae is difficult to determine, as those documerits have only come down to us in the shape of a few fragmentary quotations. On the very questionable legislative character of these so-called leges I have spoken before'". The pontiffs were undoubtedly the repositaries of those primaeval customs which formed the first Roman law, and in all probability the advisers of the early patrician magistrates. Whether they ever recorded individual cases is extremely doubtful", but they appear to have thrown into the form of general rules such applications of national custom and opinion as required declaration or penal enforcement. The form is evident in our fragments, the antiquity of the matter is shewn by attribution to Romulus, Numa, &c. ' The date of Flavius' publication is about 304 b.c. For the general fact stated in the text see Livy 9. 46 ; Cicero, de oratore 1. 41. 186 : Pomponius, Dig. 1. 2. 2. 6, 7. The special difficulties attending the last author's account cannot be treated here. i" Above pp. 38, 92. 1' See my Early Roman Law, pp. 55, 57, as to the story of Horatius. TEXT-BOOK LAW : ROMAN PEUDENTES. 285 The legis actiones, represented by Pomponius as spring- ing from the code of the Twelve Tables"*, to which they possibly owe their general name, though some were most likely of earlier date'", may not have involved much intro- duction of substantive law. It would seem more probable that at least the older were mere form, and therefore, though imposing certain conditions or modes of going to law, which constituted a lucrative secret to the privileged class who kept the knowledge in their hands", did not, even when published, amount to much more than Court procedure. When published, however, in an official or quasi official manner, these together with the actiones of Aelius", which probably approximated to tlie formulae, and the formulae themselves, belong distinctly to the class of statute. The old jus civile. An obvious instance, on the other hand, of genuine text-book law, appears to be found in the jus civile, under the narrower meaning given to this phrase. It is distinguished slightly by Pomponius from the legis actiones^^; although in its authors, its original monopoly, and its ultimate publication, it is classed with those forms". What then was the matter known by this name, which, either accompanying or including the legis actiones, was " Dig. 1. 2. 2. 6. " See Teuffel, § 77, p. 100. Gaius 4. 11. only indicates that same leges must have preceded these forms. The oldest, sacramentum, was no doubt known by that name, and in existence, before any legislation of the Comitia Centuriata. "Pomponius, Dig. 1. 2. 2. 6. 18 lb. 7. This jus Aelianum, containing simply forms of procedure, was probably distinct from the tripertita (see below, p. 292). 16 Pomponius, Dig. 1. 2. 2. 6. Ex his (xii tabulis) fluere ooepit jus civile : ex isdem legis actiones compositae sunt. 1' lb. omnium tamen horum (so. tabularum) et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur quis quoque aimo praeesset privatis. lb. 7. hie liber qui actiones coutinet appella- tnr jus civile Flavianum. 286 TEXT-BOOK LAW: ROMAN PEUDKNTES. published by Cn. Flavius, after being so long "hidden in the pontifical recesses with the sacred rites and ceremonies of the Gods"?" It could scarcely have been the mere table of Court days and Court forms, when we read of the " inter- pretation of experts " and directly afterwards of the " persons skilled in law, through whom it may be capable of daily im- provement"." The author whom I. have chiefly quoted, being indeed our main authority on the history of Roman Law, represents this jus civile as springing entirely out of the litigation upon the Twelve Tables, as being therefore either case-law, or generalisations out of cases, arising under that statute. But expressions in other writers would seem to give it a wider meaning, so as to embrace the older law also, of which the pontiffs were so long the sole repositaries''". I believe we may trace the existence of two elements in this old jMS civile, one of record, one of progress and improvement. The ancient quasi-religious rules which had passed into the law of ordinary civil life found their place there, gradually separating themselves from more purely religious matters which never arrived at that stage. By the side of these, after making all allowance for a certain colouring in Pom- ponius' account (due to the position of the prudentes in his own time), we cannot but recognise a gradual augmentation of the old law, regarded as an interpretation of its statutory '^ Livy 9. 46. Civile jus repositum in penetralibus pontifioum evolgavit Cn. Elavius. Valerius Maximus 2. 5. 2. Jus civile per multa saeoula inter sacra caeremoniaaque Deorum immortalium abditum, solisque pontifieibua notum Cn. Flavius. ..vulgavit. 1' Dig. 1. 2. 2. 12, Pomponius. Aut est proprium jus civile quod sine scripto in sola prudentium interpretatione consistit. 13, Post hoc deinde auctorum suooessione dicemus, quod constare non potest jus, nisi sit aliquis juris peritus per quern possit cottidie in melius produci. -" Cicero, de oratore 1. 43. 193. In omni jure civili, et in commentariis pontificum et in xii tabulis. See too above, p. 284. TEXT-BOOK LAW: ROMAN PRUDENTES. 287 part, but suggested by the exigencies of ordinary practice and judicial decision. If any stress is to be laid upon the expressions of Poni- ponius, the word compositum = drawn up or systematised, implies a generalisation of matter different from the mere reporting of cases, while the phrases sine scripto and sola prudentium interpretatione point to the absence of any au- thoritative enactment or publication'''. In this latter respect, Pompouius' distinction of the jus civile, to which in particular the above phrases were applied, from the legis actiones, is significant. It is most questionable whether a literal meaning of sine scripto can be at all entertained here. But of documents containing this early jus civile we have no trace left, except so far as the " regiae leges " may be considered fragments of them. The literature, if there was any, was kept first as a patrician monopoly, and then, after Flavius' publication of the court-days and forms — whether attended with other matter or not — as a professional one. Austin has several scattered remarks which seem speci- ally to refer to this jus civile described by Pomponius or, as he names it, the jus civile " strictly so called." He does not appear to recognise old customary law as one of its con- stituents''^ but speaks of it as simply " law made by lawyers," which he considers pretty nearly identical with Savigny's "technical" element in modern law''^ The work of the earlier prudentes he of course considers to derive its sole authoritative character from judicial recognition". This was certainly not the theory of the Eoman jurists, though I can 21 Dig. 1. 2. 2. 5. Haec disputatio et hoc jus quod sine scripto venit compositum a prudentibus...communi nomine appellatur jus civile. 22 Austin 37. p. 656. 23 Id. 38. p. 667. See also above, p. 274. 21 Id. 37. p. 656 and 30. p. 562. 288 TEXT-BOOK LAW : ROMAN PEUDENTES. nowhere find any very definite statement as to the exact authority of these prudentes. One vague expression of Pom- ponius^" might lead us to attribute to the pontiffs, in the eai'ly history of the republic, a sort of presidency, whether as actual judges or as official advisers of the magistrates, over private cases. This and several other passages rather point to a developement of civil in the sense of non-criminal law, as the subject of th.e jus civile at present under consideration. But neither the meaning of the expression, nor the state- ment as a whole, is clear enough to be relied upon. The prudentes as professors. The breaking down of the patrician monopoly of office had much to do with the developement of Koman law. Ti. Coruncanius, the first ple- beian pontifex maximus (B.C. 252), having been previously consul in 280, is said to have first professed, or put himself forward as a public instructor, all his predecessors either endeavouring to keep the jus civile a secret, or holding forth their services and leisure rather for clients than for learners^. Before him two eminent counsel appear to have extended their advice beyond the circle of their own " clients " in the old semi-feudal sense, but still only to consulters on actual cases. One is Ti. Sempronius Sophus, consul in 304 B.C., the year of Cn. Flavins' publication, one of the first plebeian pontiffs in 300 B.C. and censor in the following year. This name ao^6bv appellavit, nee quisquam ante huno vel post hunc hoc nomine cognominatus est. TEXT-BOOK LAW: ROMAN PRUDENTES. 289 to his own (the plebeian) order. The other name is that of "C. Scipio Nasica, on whom the title of optimus was bestowed by the senate, and a house assigned him at public expense on the Sacred Way, that he might be the more readily consulted'"." It is not very easy to make out who this Scipio was, or what truth there is in the statement about the house, which cer- tainly appears questionable. He may possibly have been the L. Cornelius Scipio who was consul in 259 B.C. and whose tomb is still extant at Rome, testifying him to have been "best of the good''"'." Political reputation, however, is probably what was meant by that name. As far as professional work went, Pomponius' Scipio was no doubt an adviser of the patrician order. But this at least is sufiGciently proved, that counsel of professional skill, not merely of oratorical power and influence, belonging to both orders, came into existence in the latter half of the fifth century of the city, and that the principal plebeian counsel opened also a sort of school of law, from which "public profession" dates the rapid developement of Roman law as a practical system'". ** lb. C. Scipio Nasica, qui optimus a senatu appellatus est: cui etiam publioe domus in sacra via data est, quo facilius consul! posset. 29 The first Nasica of whom I can find any account is P. Cornelius Scipio, consul in B.C. 191. He, therefore, could not come before Coruncanius as the Nasica of Pomponius (Dig. 1. 2. 2. 38) does. A Cn. Cornelius Scipio Asina was consul in 260 u.c. Possibly the second cognomen is a blunder of Pomponius: it is however the same Nasica mentioned above, whom Livy (36. 36. cf. 29. 14) makes out to have received the complimentary name of optimus in or shortly before the year 204. From the unquestionable testimony of the tombs, I am inclined to identify the person thus honoured, as I have done in my text, with L. Cornelius Scipio, son of Barbatus. For the possibility that optimus m&y have mdicatedi professional skill, see Plautus, Bpidicus 2. 2. 108. But I think, on the whole, that optimus was a political name, on whomsoever bestowed, and that the jurist was probably P. Cornelius Scipio Nasica, styled Corculum for what we should call his brains, and the son of the Nasica who was consul in 191. See Cicero's Brutus, § 79. 30 The Q. Mucius, placed by Pomponius between Nasica ajid Coruncanius, is a hopeless mass of blunders. c. J. 19 290 TEXT-BOOK LAW: ROMAN PEUDENTES. The important point to be noted, as bearing upon the developement of text-book law, in these "professors", is their combination of the function of teacher and oral lecturer with that of professional adviser. Under the former capacity, they must have been obliged to include and generalise the older law, in their courses, as well as take disputed points. Again, with regard to the new law which they were continually originating, I doubt whether the whole or even great part of it is to be considered as resembling our decisions and opinions on cases. The teacher of course advised on actual points in litigation", and the pupils no doubt took down his ipsissima verba. But the responsa of these teachers were by no means given to litigants only. From the beginning of " public pro- fession" we can see a marvellous developement of general rules or principles, from the framing and putting of hypothetical cases^^. These appear, in fact, to have given their form to the opinions meant for court also: so that the law framed by the prudentes arose far more in the shape of general rules than in that of particular decisions, whether authoritative or not. The pmdens as Jurum Conditor. In confirmation of this view I may refer to the occurrence of the curious ex- pression condere, with jura, in Plautus, whose plays belong to the first 20 years of the second century before Christ. The "best of men" who has the jura and the leges at his fingers' ends"', the sharp fellow (catus), the man of keen taste {sapiens) or perhaps nose"* — all of which words, like Sophus above, 31 Cicero, Orator 42, § 143. Alteros enim respondentes audire sat erat ut ii qui docerent nullum sibi ad earn rem tempus ipsi eeponerent, sed eodem tempore et disoentibus satisfacerent et consulentibus. '" See Maine, Ancient Law, the latter part of ah. 2. S3 Plautus, Epidieus 2. 2. 108, 9 ; Hie erit optimus Hie poterit oavere reote, jura qui et leges tenet. 3* Id. Pseudolus 2. 3. 12—15. As to this view of sapere of. 2. 4. 47. TEXT-BOOK LAW: ROMAN PRUDENTES. 291 appear as names given to lawyers'" — has also the name of being the framer and the conditor oijura and leges'". As to the leges this is, of course, mere jest. They are only the jura, or rules of unenacted law, which the private jurisconsult could put together"'' in the course of his practice and teaching. There can be no scruple about specially con- necting the words jura and condere, when the same words are recognised as a technical phrase in after times by Gaius'*. A good deal of the matter in question might doubtless con- sist of what Austin'' calls the author's own "illations imd conclusions,'' which is to some extent the case with our own early text-writer Bracton, as well as with the instance cited by Austin, of Coke. Much would, on the other hand, in all probability, be old customary law. But all the expressions connected with this word jura point to the putting together of matter in the form of general rules, not to the mere recording of it in the form of individual decisions. First actual text-books. From the public profession of Roman law dates, as I have said, its rapid developement, and from the work of Aelius, to be noticed directly, dates what may be definitely called Roman text-book law. I have spoken above on the probable character of the older jus civile. I may repeat that, although works on this subject would include customary law in general, they would scarcely go beyond what is specially called civil as opposed to criminal law. The older criminal law was obsolete by the commence- 3' Cicero, De Amioitia 2. 6 : 5. 18 : De legibus 2. 23. Pomponius, Dig. 1. 2. 2. 36—38. 36 Plautus, Epidicus 3. 4. 89, 90 : qui omnium Legum atque jurum fiotor conditor claet. '7 See above p. 22, note 22. To the phrases there quoted may be added the early (decemviral) expression condere carmen (Cicero, de rep. 4. 12), where condere is apparently to put together words into metre. ^ Below p. 296. ^^ Austin 30. p. 563. 19—2 292 TEXT-BOOK LAW : EOMAN PEUDENTES. ment of the literary period; most minor offences were dealt with by civil actions ; and the graver charges were more like occasional impeachments, before the court of the people, than anything else. It was not, however, the separation from criminal law which gained the subject of early Eoman text- books its name oijus civile. This phrase I have endeavoured to explain elsewhere". How soon it was used to designate that subject we do not know. The books and their titles have in most cases perished together. No writing of Coruncanius was extant in the time of our authority Pomponius, though many notable responses of his were reported^'. But to the beginning of the second century belongs the Tripertita of Sex. Aelius, the "acute" plebeian, whose extraordinary ability is praised by Ennius*''. This work is described by Pomponius, in his abominable style, as "containing the cradle of the law;" to which remark is added the more important explanation of the name. The book was called Triple because, "the clause of the Twelve Tables being put first, there is subjoined the interpretation, and then, worked in below, the proper procedure under the clause ^l" As to the "cradle of law," it may merely be meant that this was the first public text-book: but it is possible that the title' points also to some record of the older law, as well as the comments and forms directly connected with the Twelve Tables'^ The preservation of old, as well as the generalisation of '" Below ch. 14 " Jus gentium." ^1 Dig. 1. 2. 2. 38. Multa et memorabilia /ejitjijur (Muretus' reading for fuerunt). *2 Egregie cordatus homo, catus Aelius Sextus. So Ennius cited by Cicero, Tuse. dispp. 1. 9. 18 : see too De Oratore 1. 45. 198. Aelius was consul in B.C. 198. ■" Digest 1. c. Tripertita autem dicitur, quoniam lege xn tabularum praeposita, jungitur interpretatio, deinde subtexitur legis actio. " See above p. 286. TEXT-BOOK LAW: ROMAN PRUDENTES. 293 new, law could scarcely have been omitted in the educational writings "De disciplina juris^" of the younger Cato, the author of the Regula Catoniana*' ; from whom, says Pompo- nius, the rest of the text-book writers take their start — Aelius being apparently little read in comparison with him". The original conception of nexum, again, is treated by M' Manilius^', who is noted as one of the founders of the jus civile^. Last, not least, I may mention Q. Mucins Scaevola, the pontifex maximus, who first put the JMS civile in form'", in a work which became the basis of the similar ones succeeding it, and very probably summarised great part of the older law under the name of opoi or definitions. Some obsolete matter may no doubt have been preserved by pure antiquarians, like L. Aelius Stilo Praeconinus^', the teacher of Varro: but the knowledge of what remained in force was doubtless due to such writers as Scaevola, who is the earliest author quoted in the Digest. The licensed pmdentes. During the republic the pru- dens was simply a teacher, a text-writer, or a chamber-counsel without the necessity of call to the bar. He required no diploma and held no official position, but all who had confi- dence in their acquirements, says Pomponius, advised those who wished to consult them; nor did they necessarily give their opinions under seal, but in general the clients either noted the opinion, to be urged to the judge, or called in the jurisconsult as a witness to the law*^. The author is here ^ Gellius 13. 20. 9. This is M. Porcius Cato Lioimanus, born 192, died 152 B.C. (Teuffel, § 114). 4« Digest 34. 7. <" Digest 1. 2. 2. 39. I have no hesitation in accepting Mommsen's reading ordiuntur. Cato is constantly quoted by subsequent -writers : Aelius, according to Mommsen, only once. «8 Varro L. L. 7. 105. ■•9 Pomponius, Dig. 1. 2. 2. 89. He was consul in B.C. 149. '^ lb. 41. He was killed in the Marian proscription 82 b.c. »i Teuffel, § 137. Soholl, Legis xii Tabb. Eeliquiae 9, 11, 26. *>= Dig. 1. 2. 2 (Pomponius) 49. See above, note 8, p. 283. 294 TEXT-BOOK LAW: ROMAN PRUDENTES. speaking of the function of tlie prudens as chamber-counsel, but the whole of his account shews that the work of writing text-books or treatises on the jus civile went on, by the side of this advising on actual cases, from the times of Sex. Aelius to and long after the commencement of the Empire. Towards the close of the republic it has been considered that a syste- matisation of the Eesponses set in which must have become fatal to the farther expansion of the law represented by them'^. I cannot, for myself, find conclusive evidence of this. It is, however, no doubt, possible that the more recent and practical generalisations of the prudentes would be from time to time absorbed into the growing body of the edict^, leaving the older law, and the educational matter in general, as the main representative of their writings. Under the Empire a change, which has never been very clearly defined, was introduced in the functions of the pru- dentes. In Cicero's time their opinions on a case were of course not binding on the judge ^*, and, as has been said above, the profession was entirely open. Augustus introduced the principle of certain licensed jurisconsults advising on his (the Emperor's) authority: from which time these ofiicial opinions were accredited by the seal of their author, and the position in question was sought for as a favour or piece of patronage '^ Whether Augustus brought this principle into practice seems to be doubtful. 63 Maine, Ancient Law, ch. 2, p. 41. ^ Below, ch. 13 ad finem. ^ See Cicero pro Caecina 24. 69. ^ Dig. 1. 2. 2. 49 Pomponius. Primus divus Augustus ut major juris auctoritas haberetur constituit ut ex auctoritate ejus responderent : et ex Olo tempore peti hoc pro beneficio coepit. A difficulty arises in this author from his indiscriminate use of the expressions publice respondere and ■populo respondere. Against Ortolan (Hist. § 358), I think the former phrase means ex auctoritate imperatoris respondere both in the case of Sabinus and in that of Priscus Javolenus referred to by Pliny (Epp. 6. 15, see Ortolan ib. § 390). Fopulo respondere, as applied by Pomponius to the case of Sabinus, is TEXT-BOOK LAW: ROMAN PRUDENTES. 295 The very confused statement of Pomponius as to the famous Masurius Sabinus may perhaps come to this. He was raised to the equestrian order late in life from a position of lower rank and no great means, in which he had been mainly supported by pupils"'. Although only a person of equestrian rank, he was the first who advised on public authority, i.e. imperial license "^ This privilege was intro- duced by Augustus, and first conferred on Sabinus unasked by Tiberius Gaesar^^. It was subsequently sued for as a favour from the emperors. Hadrian's licensed prudentes. Some change in the licensing system is indicated by one of those jokes of which time has rather dulled the point. It is attributed to Hadrian by Pomponius, writing apparently under that prince™. The meaning seems to be that the position of adviser is not generally asked for but assumed unasked, and that he (the Emperor) was glad that any one who had confidence in his probably due to the mot of Hadrian (below, note 60) : the point in Sabinus' promotion is, not that he gave opinions to the public (which others had done before), but that he did so on public authority. ^' Pomponius, ib. 50. Ergo Sabino concessum est a Tiberio Caesare ut populo responderet : q.ui in equestri ordine jam grandis natu et fere quinqua- ginta annorum receptus est. 1. uio nee amplae facultates f uerunt, sed plurimum a suis auditoribus sustentatus est. =8 Ib. 48. Masurius Sabinus in equestri ordine fuit et publice primus respondit : posteaque hoc coepit beneficium dari. a Tiberio Caesare hoc tamen illi concessum erat. On my interpretation of " in equestri ordine fuit et " cf. 44. Varus et consul fuit, Ofilius in equestri ordine perseverabat. ^^ See above. The key to the apparently irreconcileable statements about Augustus and Tiberius may be that this was in the last years of Augustus' reign. Tiberius became Caesar a.d. 4, returned to Eome and triumphed a.e. 12. Augustus died a.d. 14. ^ Pomponius ib. 49. Et ideo optimus princeps Hadrianus cum ab eo viri praetorii peterent, ut sibi liceret respondere, rescripsit eis hoc non peti sed praestari solere, et ideo, si quis fiduciam sui haberet, delectari se si populo ad respondendum se praepararet. Optimus, not divus, indicates Hadrian's lifetime. The title was still somewhat new, having been first con- ferred on Trajan. 296 TEXT-BOOK LAW : ROMAN PRXJDENTES. powers should train himself to advise the public. The answer was given to applicants who had held the office of praetor and were therefore well fitted for the privilege which they requested. In words it apparently indicates a disposi- tion to confer the privilege more widely than hitherto : in secret meaning it reveals a dislike of this Emperor to creating a privileged class at all. That the class did subsist after his time we know". With this story must be connected the rescript of the same Emperor mentioned by Gains, that if the opinions oi the prudentes, who have been permitted jura condere, all agree, such common opinion has the position of statute : if they disagree, the judge may follow which opinion he chooses"''. Savigny, as has been before remarked, takes this so-called statutory effect to be confined to an individual case pending, for which the opinions are delivered. For the future, the opinions of the licensed jurists are merely a literary au- thority, increasing probably in reputation and influence, as the class of jurists in question and the intellectual power brought to bear upon law in general diminishes''^ With this view I cannot agree. There is little doubt that opinions of living licensed prudentes were, at least from the time of Hadrian", and subject to the conditions in that Emperor's rescript, binding on the judge. They therefore partook of the nature of judgements on appeal, or reserved cases : and, as mere judgements, they could have no more authority than others. But the expression condere jura reproduced by Gains'^, and the stronger conscrihere leges, ^^ See Ortolan, Hist. § 388, A\ho, however, takes a somewhat different view from mine. "■^ Gaius 1. 7. "s System 1. 3. § 26, pp. 156, 7. See also above, ch. 3, note 24, p. 220. •» See Ortolan, Hist. §§ 359, 360, as to their non-binding effect before. ^ See above, pp. 290, 291. Ortolan seems to consider this expression as merely indicative of a high degree of influence. This appears to me to deny the words any exact meaning. TEXT-BOOK LAW : ROMAN PRUDENTES. 297 used of the same persons by later authors**, appear to in- dicate some generality of form and to postulate some sub- sisting authority. Such phrases cannot be considered as satisfied by the function of mere judges or referees on actual points at issue : but they are perfectly applicable to the framing of those general statements or rules of which the Digest so largely consists. Later licensed prudentes. As to the number or person- ality of the licensed prudentes or the duration of the system to which they belonged, we have scarcely any direct informa- tion. The unanimity required by Hadrian, for binding effect, would naturally become more and more rare if the opiniotis in question had, as I conceive them to have had, a permanent authority or quasi-authority. Accordingly we find Constantine complaining of the never-ending conten- tions of prudentes, and, in the case of three authors long dead — Papiniau, Paulus, and Ulpian — abrogating the notes of the two latter upon the former, but otherwise confirming all the writings of Paulus". The "law of citations," passed under Theodosius the second, confirms the authority in general of Papinian, Paulus, Ulpian and Modestinus, giving equal force to quotations from the whole of Gaius' writings, and also to the quotations made by the above-named authors from other writers, such as Scaevola, Sabinus, Julian and Marcellus, or rather to the works in general of such other writers as were quoted by all the five authorities first named. A repeated abrogation of the authority of the notes of Ulpian and Paulus on Papinian follows. In case of conflict- ing opinions a numerical majority is to prevail, Papinian being allowed a sort of casting vote in equality, and a gene- ral overriding authority being given to the sententiae of 86 Codex 1. 17. 1. 4. «7 Codex Theodosianus 1. 4. 1, 2. a.d. 321. 298 TEXT-BOOK LAW: ROMAN PRUDENTES. Paulus'l I have not entered into the naany difficulties which have been found in this law™. The points to be remarked in it for my present purpose are briefly stated at the head of the following remarks on the Digest. The prudentes in the Digest. Justinian's collection of extracts purports to be made from the works of prudentes who had enjoyed the imperial authorisation™. The presence therefore of the older jurists, who wrote before the licensing system, in the Digest, is accounted for, vmder the law of citations, by their quotation in the writings of the five prin- cipal authorities. Sabinus, who was actually the first licensed prudeiis, comes in the same category; from which fact, as well as from the considerations urged above, I should con- clude that the opinions of even the licensed prudentes had not a binding force, at least as precedents, until the rescript of Hadrian. Papinian, Paulus, Ulpian and Modestinus evi- dently were, and Gaius was not, of the licensed class. On examining the works and the titles of the works, to which authority was given or recognised in the Digest, we see that they were by no means confined to reports of actual cases, or even opinions on hypothetical cases. In the Insti- tutes of Gaius and the Sentences of Paulus we have works of a scientific or educational character, which deal exclusively in general rules. Of course there was, beside these, a large mass of text-books for practitioners, crammed, like ours at the present day, with minute points. For it must be re- membered that, after the fixation of the edict by Hadrian, the generalisation, and incorporation into statute, of observed cases, in the old fashion, was at an end. «8 lb. 3. A.D. 426. The text may be found in Ortolan, Hist. § 501 , note 1 : Eivier, Introd. Hist. § 175. "" I am glad to find my views of it confirmed by Mr Moyle in the able Introduction to his edition of Justinian's Institutes, pp. 59, CO. '» Codex 1. 17. 1 (Deo Auctore), 4. TEXT-BOOK LAW: KOMAN PEUDENTES. 299 The fragments, then, which have come down to us in the Digest, are often, as we should expect, particular decisions, or rather opinions, and remain in the category of cases. Many, however, are expressed in general terms and appear to be answers to general questions. These general propo- sitions, which are quite intelligible if we consider the educa- tional position of the prudens, are questioned or condemned by Austin. He assumes, gratuitously as it appears to me, that specific matter has been suppressed, by reference to which these general propositions ought to have been con- strued and qualified". He applies, in fact, the canons of a very rigid system of case-law to matter which was often widely removed from case-law in form, and which depended upon an entirely different principle for authority. The ultimate conversion, by Justinian, of the extracts in the Digest into so many leges, as in the similar case of the Imperial constitutiones''^, does not affect the present enquiry. " Austin 37. p. 647. See also above, ch. 5, p. 248. '2 Above p. 221. CHAPTER X. TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. The Conquest our starting-point. In our present English law there is by no means the same continuity from a prehistoric period which we find in the Roman legal system. Although usages similar to those which obtained amongst the Normans were undoubtedly growing up in England before the battle of Hastings, and although the early Norman kings may have both affected and intended to administer the old law of the land, yet the Norman con- quest must be taken as a new departure for the subject of our present enquiry. A new system of administration grew up, having the source of its strength in the royal power, and carried out by judges often specially promoted by and de- pendent on the king. National custom was gradually modi- fied ; on the one hand by the bringing up of important matters to the central authority, now regarded as the fountain of justice ; on the other hand by the provincial visitation of royal judges and their intervention in the local bodies over which they presided. All this tended to produce a new uniform system based on the practice of the king's court. The change which may be effected in substantive law under the guise of mere court rules is one of the commonplaces of early legal history ; nor should we be surprised to find the introduction of obviously new principles, in this particular epoch, when the theory of absolute legislative power in the TEXT-BOOK LAW: EARLY ENGLISH PRUDENTES. 301 individual sovereign was for some time a reality. The basis of our present law is undoubtedly English rather than Norman, and even the change of which I am speaking is distinctly anti-feudal, but it is a change so complete and all-pervading that the law before Glanville need merely be referred to as illustrating and supplementing his information*. Glanville. General rules of frequent usage in court form the subject of our first English text-book*, generally attributed to Ranulph de Glanville, Justiciary of Henry the Second, and written, in Latin, not earlier than the 33rd year of that king's reign, 1185 ^ It is a collection of rules of law and forms of practice then obtaining in the king's court, written ^without reference to cases^ or any other express authority 'whatever. As this book is the best instance of the early authorities for our present common law*, I think it worth while to quote rather fully from the prologue, which is fol- lowed in great part by both Bracton and "Fleta." Beginning with a somewhat fulsome eulogy on Henry 11.", adapted from the Proem to Justinian's Institutes, which is afterwards adroitly applied by "Fleta" to his own sovereign Edward I., Glanville urges, as a proof of the king's justice, his adherence to the laws of the realm and the customs introduced for some reason and long maintained, as well as his deference to the counsel of those whom he has found to be the ablest in the ' See, on the whole of this subject, the excellent chapters 11 — 13 of Stubbs' Constitutional History, from which much of these remarks is taken. '' Glanville, Prol. Quaedam in curia generalia et frequentius usitata. The title " Tractatus de legibus et consuetudinibus Eegni AngUae, &e. &c." may, as is very often the case, not be of equal date with the work. 3 Reeves' History of the English law, ch. 3, p. 223. * The actual cases referred to (e.g. in Lib. 8. oapp. 2, 3, which give the above date) are merely instances of forms. <■ The Dialogus de Soaccario must of course be classed with this treatise, though it may have been written a little earlier. Stubbs, Hist. 1. 12, p. 491. 6 See, however, for the great position of this king, Stubbs, ib. 492. 302 TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. administration of justice'. "For as to the English laws," says the author, "although not written, there seems no im- propriety in their being called laws (since the pleasure of the prince is just what constitutes law and has the force of law) ; those, to wit, which we know to have been promul- gated, on doubtful matters to be settled in council, by the advice of the chief men with the addition of the prince's sanction. For if, from mere defect of writing, laws were not to be reckoned as such, the writing would seem to give the strength of a greater sanction to the laws themselves than either the justice of the judge or the reason of the ordainer. A2;ain, for the laws and rules of the kingdom to be univer- sally included in writing, is in our times absolutely im- possible, partly on account of the ignorance of writers, partly on account of the confused multitude of the laws. But there are in the court certain rules general and frequently em- ployed, the committal of which to writing appears to me not presumptuous, but even, to many, very useful and, for assisting the memory, extremely necessary^." This curious passage is considered by the editor of Austin to have been misunder- stood by Bracton who partially quotes it. Glanville is repre- ' This is the upshot of the corrupt and uu grammatical passage " Legibus namque...promptissimas." The consuetudines de ratione introductae et diu obtentae are of course a quotation from Digest 1. 3. 39. " Glanville, Prol. Leges namque Anghcanas, Ucet non soriptas, leges appellari non videtur absurdum (cum hoc ipsum lex sit quod principi placuit et legia habet vigorem), eas scilicet quas super dubiis in consilio definiendis, procerum quidem consilio et prinoipis accedente auctoritate constat esse promulgatas. Si enim ob scripturae solummodo defectum leges minime censerentur, majoris procul dubio auotoritatis robur^ipsis legibus videretur acoomodare scriptura quam vel decernentis aequitaa vel ratio statuentis. Leges autem et jura regni soripto uniTersaUter concludi nostris temporibus omnino quidem impossibile est, cum propter scribentium ignorantiam turn propter earum multitudinem confusam : verum sunt quaedam in curia generalia et frequentius uaitata quae scripto commendare non mihi videtur praesumptuosum sed et plerisque perutile, et ad adjuvandam memoriam admodum necessarium. TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. 303 sented by Mr Campbell as speaking with a certain irony, and also as using scriptum and non scriptum in Austin's literal sense". I cannot quite agree in the encomium on Glanville, whose meaning seems to me obscure and con- fused, but at the same time to have an important bearing on the beginning of our so-called "common law." Glanville's own object, expressed in the latter part of the passage, is quite clear : it is to reduce to writing what was then literally unwritten, the custom or practice of the court. The words vel decernentis aequitas vel ratio statuentis may be taken as having .some application to what follows as well as what pre- cedes them. They point to the king as the fountain of justice, and the judgements of his court as forming precedents. They also point to the king as the highest legislative authority; which is very clearly indicated by the reference to his pleasure based upon Justinian's Institutes, or the passage from Ulpian quoted in the Digest". The earlier part of the passage can, in my opinion, refer to nothing whatever but the old English, or Anglo-Saxon, laws and customs which were juridically speaking unwritten law. The laws of Edward, William and Henry. The real character of the dom-bocs has been indicated above", and it is not improbable that this very character, together with the variance in them for different parts of the kingdom, may have conduced to their being treated as customary law. Glanville's argument about them requires a little ex- planation from previous history. A general confirmation of the old law of England, as the law or laws of king Edward (Confessor), may be con- fidently attributed to William the Conqueror and Henry 9 Austin 29. p. 547, note 35. i» Just. Instt. 1. 2. 6. Sed et quod prinoipi plaouit legis habet yigorem. From Ulpian, Dig. 1. i. 1. pr. . 11 P. 65. 304 TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. the First, with certain emendations made by the former on the counsel of his barons". These emendations, constituting probably the substance of all the Conqueror's new law, are printed by Professor Stubbs from the " textus Roffensis," a MS. written in the reign of Henry I., which is our oldest authority on the bodies of law now under consideration. They are included with little change in the so-called "Laws of William the Conqueror," which perhaps belong to the same reign of Henry I. The "Leges Henrici primi" were apparently drawn up by a private hand, either under Stephen or in the early part of Henry the Second's reign. The charters forming the first two chapters are genuine docu- ments of Henry I." Finally, the "Leges regis Edwardi Confessoris" are a compilation dating probably from the latter part of the reign of Henry II., which has been attri- buted to Fitz Neal, the author of the Dialogus de Scaccario, and to Glanville himself". The preface to the so-called Laws of Edward the Confessor contains a story of their ascertainment by the Conqueror, on the counsel of his barons, through a commission of en- quiry into the national customs '\ It is probable, at any rate, that both these " Laws,'' the "Dialogus" and the work of Glanville, whose preface we are now considering, were ^^ Thorpe 1. 493 (Laws of William the Conqueror 3. 13). Hoc quoque praeoipimus ut omnes habeant et teneant leges Eadwardi regis in onmibaa rebus adauctis lis quas constituimus ad utUitatem Anglorum. Quoted in almost the same words by Stubbs from the Textus Eoffensis (Stubbs, Documents &c. p. 81). Also Thorpe 1, p. 501 (Leges Eegis Henrici primi 2. 4). Lagam Edwardi regis yobis reddo cum iUis emendationibus quibus earn emendavit pater meus oonsilio baronum suorum. This part of the " Leges'' comes from the charter of 1101 (Stubbs, Documents 96—98). 1' Above p. 71, also Thorpe's notes 1. 609 — 631, especially p. 611. " Sohmid, Gesetz. lxx : Stubbs, ffist. 1. 12. 491. 1° Thorpe 1. p. 442. " The authority on which the statement is made seems to be that of the justiciar Eanulph Glanville," Stubbs, Hist. 1. 9. 268. TEXT-BOOK LAW: EARLY ENGLISH PRUDENTES. 305 drawn up by order of Henry II."' Here then, I think, we have the promulgation, by the advice of the great men, under the king's authority, which, according to Glanville, turns the unwritten, i.e. customary, law of former times into law proper, or at least entitles it, without absurdity, to the name. Glanville's unwritten, law. I should therefore regard Glanville's argument about the deficiency of literal writing, at least in the case of the first laws to which he refers, as a mere play on words. With regard to these laws, the same principle was applied which Hale represents as holding good down to the beginning of the time of legal memory". The old law of England, although part may have been under a previous dynasty authoritatively prO' mulgatei, and much was certainly committed to writing, came to be regarded by the Courts in which our present law grew up, as matter of traditional custom. This is why it was termed our unwritten law, that phrase merely expressing the want of an original authoritative commission to writing by the Anglo-Norman sovereign power. With regard to that power its '' original institution and authority are not set down in writing''." It is beside my present question to investigate the reasoning by which Hale and Blackstone satisfy themselves that written ordinances authoritatively made before the time of legal memory, but after the Con- quest, are also leges non scriptae^". Nor need I refer again to the faultiness of a division of law which is either unim- portant or else ambiguous and inexhaustive'". Glanville, then, obviously recognises a juridically un- written, i. e. customary law, for which I would suggest, as i« Stulbbs, Hist. 1. 12. 491. See below p. 309 as to Eritton. " History of Common Law, pp. 4, 66. ^^ Blackstone, Int. § 3, p. 61. 19 Hale, Hist. p. 5 ; Blackstone, Int. § 3, p. 85. 2" Atove oh. 7 : also Austin 29, pp. 546, 7. C. J. 20 806 TEXT-BOOK LAW : EAELT ENGLISH PRUDENTES. literary authority, the latest compilation of the old English or Anglo-Saxon law. Into the latter much substantive law undoubtedly entered, but the original scope of the docu- ments from which it was derived was the regulation of judicial procedure. Hence we need not be surprised at its almost entire abrogation by the gradually changing practice of the later Anglo-Norman and English courts. Bracton. The indebtedness of Glanville to Roman law, although evident, is slight. The same source was drawn from more abundantly by our next great text-book writer, Bracton, whose work on the laws and customs of England was composed or completed between the j'ears 1262 and 1268^'. He begins however with a formal recognition of the great part played by custom in English law, adopting the difBcult passage of Glanville jiist commented on. This he certainly does not make any more reasonable °^, while he obscures its reference to the act of William the Conqueror, by foisting in constitu- tional theories from the Digest^'. The amount of Roman law introduced by Bracton into our system has possibly been exaggerated by modem authorities". He borrows from the Institutes the prelimi- nary account of jus, the main divisions — under persons, things and actions — and a considerable part of the subject- matter of each of those divisions. Still, these extracts or adaptations bear but a small proportion to the great bulk of the work. By comparing this with the earlier compila- tions of " Laws" just mentioned, we see that it really con- sists of the old law of England, although the latter, in its 21 See Beeves' Hist. 2. 8, p. 90. "^ See Campbell's note to Austin 29. p. 547. 2' Bracton 1. 1. 2. Compare Dig. 1. 3. 1. -* E.g. Guterboct (see Coxe's translation) : Twiss, in his preface to Bracton (Rolls Series) : Spence (Equitable Jurisdiction, Vt. 1, Bk. 2, ch. 3) &o., &o. TEXT-BOOK LAW : EARLY ENGLISH PRUDENTES. 307 substantive part as well as in its procedure, was undergoing a gradual alteration through the Anglo-Norman judiciary system. With regard to the portions of Koman law which are in many cases bodily transferred into the English manual both by Bracton and Fleta, it is generally not difficult to shew where the foreign matter ends and where the practice of the day begins : so that I am inclined to consider these passages rather added for illustration and ornament than adduced as an authority'''. In the English part of Bracton, on the other hand, it is by no means easy to separate the original national law or custom from the modifications of practice. From this fact, and. the fact that Bracton, unlike Glanville, includes all the substantive law of England in his time, his work must be considered as practically our cunabula juris. The older materials are now so completely absorbed and as- similated that, while they furnish valuable evidence as to the origin of law in generaP", they do not need in- dependent consideration as constituents of English law in particular. With regard to the particular form of law under which Bracton's work should be classed, our attention will naturally be directed to the great number of cases which he cites, particularly the judgements of Martin or Simon de Pateshul, who was Justiciary of England in the earlier part of Henry the Third's reign^'. There is here, however, little resem- blance to a modern report. The references, being merely to the bare records or enrolments which preceded the Year- books, do not affect the perfectly general character of Brac- ton's dicta. In the early Year-books themselves, which date =5 Beeves' History of tlie Englisli Law, vol. 2, ch. 8, p. 89. 26 Above pp. 61, 62. =' See Spelman's Glossary under " Justitia :'' Twiss's preface to Braeton, &o. 20—2 308 TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. from before the reign of Edward the Second ^^, beside a some- what fuller record of the formal proceedings, we have the arguments of pleaders, and frequent notae in the shape of general maxims, usually but not always arising immediately out of the particular case. I have not found these notae quoted, by judge or pleaders, in other cases ; but I think it probable that they formed part of the materials for one at least of the works next to be mentioned. Fleta. The Latin treatise bearing this curious name may possibly have been so called from its compilation in the Fleet prison. The Prologue, which is in the main a copy of Glanville's, contains also, however, obvious allusions to Edward the First™. And it has been said that the author was one of the Justices imprisoned by that prince in the year " Judaeis et justiciariis exitialis," 1290, to which period internal evidence points™. Fleta is a pretty full account of the legal principles and practice existing in the author's time. Portions of Roman law are inserted bodily, as in Bracton, from whom they are obviously taken, and on whose work Fleta is principally founded. The latter treatise, however, though repeatedly quoting statutes, does not quote cases. If certain words in the prologue are rightly understood by me, the author of Fleta expressly purports to epitomise or compress recorded judgements". 28 The time which was generally assigned to their commencement. Beeves however (eh. 12, p. 357) admits the possibility of an earlier date. The recent EoUs Series contains publications of Tear-books from 20 and 21 Edward I. ^0 See in particular the interpolated sentences "Quis vero posset amplo f amine... acceptio muneris vel personae." 3« See Selden ad Fletam, c. 10, p. 548. NiehoUs (Britton xxvi) attributes the work to some clerk or lawyer in the household of Edward I., in the same year. 3' Fleta Procem. Brevi volumine complicans justorum judicia. TEXT-BOOK LAW: EARLY ENGLISH PRUDENTES. 309 Britton, which apparently dates a little after Fleta'^ resembles that work in its general character, its non- quotation of cases, and its being based upon Bracton. There is indeed great probability in Selden's contention" that the names are really identical ; the author of the older work being spoken of, in documents dating from the beginning of Edward the First's reign, as Henricus de Breton. Although, however, these facts point to Britton being an avowed adaptation or second edition, the book differs in several remarkable points both from its original and from Fleta. In Britton we come, for the first time, to the vernacular language of the Courts, then French, so that we have probably a more faithful representation of the law actually in use, with less admixture of foreign matter. Accordingly, the Roman law, in great measure, disappears. In arrangement Britton, as to some extent Fleta, takes the practical view according to remedies, rather than the theoretical or scientific one according to rights"*. But the point of chief interest in Britton, to the student of jurisprudence, is the authoritative character of the work, which purports to contain the direct commands of the King'^. Causing the laws which have heretofore been used in the realm to be reduced to writing, and commanding that they be used and observed throughout England and Ireland, he S2 NichoUs' Britton xxyii. Coke (Co. Litt. 89 a) argues that Britton was written before the Statute of Westminster the Second (1285) : but he was probably influenced by an identification, beyond doubt erroneous, of the author with John Britton, bishop of Hereford (Co. Litt. 304 b). 33 Selden ad Fletam, cap. 2, pp. 457, 8. 34 See Fleta' 1. 1, 16 : 2. 1, 3. &c. As to Britton, NichoUs xxx. 35 Britton L. 1. Prologue. Avoms les leys qe horn ad us^ en noster reaume avaunt ces hores fet mettre en esorit solum ceo qe cy est ordeynfi. Et volums et commaundums qe par tut Engleterre et tut Hyrelaunde soint issi usetz et tenuz en toutz poyntz, sauve a nous de repeler les &o. &c....sauve les usages a ceux qe par presoripcioun de tens ouut autrement us^ en taunt qe lour usages ne soynt mie desoordauntz a dreiture. 810 TEXT-BOOK LAW: EARLY ENGLISH PKXJDENTES. does in the most express and definite manner turn customary rules into Austinian statute. Here, as in so many cases, the literal meaning of writing, in the unfortunate antithesis discussed above, cannot be pressed : but the object of the greatest and wisest of our princes is clear. That object is neither more nor less than a codification of the common law of England. There is no really strong reason to suspect the connexion with the royal authority which the work claims'"; and this "reduction to writing" is, as Reeves suggests", of a piece with the introduction of official report- ing in the shape of the Year-books. Britton is, of course, no statute in the strict English sense ^*; nor have we any record of its being passed as an ordinance in Edward's occasionally irregular legislation ''^ It stands on the same footing in after times, as to authority, with Glanville, Bracton and Fleta, of which class of works it is the most curious and interesting specimen. These books are very rarely cited in early judicial deci- sions^" in which, on the other hand, reference is frequently made to previous decisions. The English deference to indi- vidual precedent is already fully established, and the generali- sations in the works hitherto described do not for some time supersede the case law upon which I believe them to have been mainly founded". 28 Hale, Hist, of the Common Law, ch. 7, p. 157, classes Britton among the tractates of private men, which therefore had no greater authority than private collections. '^ Hist, of English Law, vol. 2, ch. 12, p. 357. See, however, the editor's remarks in the preface to the year-book of 20 and 21 Edw. I. (EoUs Series) p. xi. 38 See above pp. 202, 204. 2^ See Stubbs, Constitutional History of England, vol. 2, ch. 14, § 179, and ch. 15, § 232. ^0 Beeves' Hist. vol. 2, ch. 11, p. 282. But see vol. 4, ch. 27, p. 186. ^ See above. Speuce appears to me greatly to exaggerate the amount of Eoman law entering, as a substantive part, into our early treatises. Pt. 1, TEXT-BOOK LAW : EARLY ENGLISH PRUDENTES. 311 The celebrated treatise of Littleton on Tenures, written in the reign of Edward IV,, attained a more independent authority. Whether from his want of references (in which point however he stands on the same footing with Fleta and Britton), or from his great reputation, the maxims of Little- ton are certainly quoted in very early cases as rules of law". The main interest, however, in Littleton is due to his great commentator, whose work introduces a new class of text- books. Staunforde. One other text writer may be mentioned before I come to Coke. Sir Wjliiam Staunforde, writing on Criminal Law and on the Prerogative, in the middle of the sixteenth century, continually quotes the Year-books, but usually by way of bare reference, without any statement of particulars, in support of some general maxim. I'he larger portion of his work consists of passages from the earlier writers, Bracton, Britton and Glanville : but as to later materials he endeavours to digest and generalise, and his generalisations have been accepted by subsequent authors". Institutional works. It has been suggested", with re- gard to Bracton, that his work was meant not for the general reader but as a hand-book for judges, which I consider to have been the object of the earlier dom-iooks''^. The want of printing, and difficulty in multiplication of copies, may also be taken into account ; though I would not press this argu- ment too strongly, remembering the undoubtedly wide diffu- sion of Institutional works among the Romans, a hundred years before our era. From the character and contents, Bk. 2, ch. 12, p. 285, and the latter part of ch. 3 in the same book. As to the establishment of the system of precedents, see the last cited chapter, p. 127. ■i^ Reeves, Hist. vol. 4, ch. 25, p. 115. « lb. ch. 32, pp. 569, 570. ** Twiss, in his preface to Bracton (Rolls Series). « Above pp. 65, 66. 312 TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. however, of the text-books hitherto mentioned — more per- haps in the case of the others than in that of Bracton — we may judge that they were almost exclusively intended for practitioners already trained by some amount of oral in- struction and attendance in Court or elsewhere^". This is obviously the case with the short French Appendix (" Fet assavoir") printed at the end of Fleta, and with the two Latin treatises (" Summa Magna " and " Summa Parva ") attributed to Hengham, one of Edward the First's disgraced Justices'", who may indeed have been the author of Fleta himself The scope of the Mirror of Justice, attributed to the reign of Edward II., is undoubtedly wider, though rather by way of suggesting reforms of alleged abuses than by generalising or drawing correct inferences from previous materials^^ Coke is, according to Blackstone, among the last of the authors " whose treatises are cited as authority and are evi- dence that cases have formerly happened in which such and such points were determined which are now become settled and first principles"." The obscurities, conceits and unsys- tematic arrangement of this author are well known. Nor would he perhaps, in the present revived study of early English law, be considered so conclusive an authority as he formerly was. On the other hand he is our first writer of any importance who has treated of our law, with a distinct ■•* The Scliolae of the reign of Henry IH. are considered by Selden (ad Pletaiu u. 8, p. 525) to liave been exclusively for Roman law (see however Blackstone, Int. § 1, p. 24). The Inns of Court are dated from about the beginning of the reign of Edward H. But the tradition of each serjeaut having ids pillar in St Paul's, mth his apprentices round him (Eeeves, Hist, vol. 2, eh. 12, p. 360), points to an earlier time of students in English law with no common habitat. ^' Above p. 308. ^s See Eeeves, Hist. vol. 2, ch. 12, p. 359. *^ Blackstone, Int. § 3, p. 73. TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. 313 view to the general public^", and in a historical as distin- guished from a barely practical manner. Thus his book forms a new departure, and he is justly called by his editor, Butler, the " centre of ancient and modern law." Wherever the subject will allow it, he begins his enquiry into the grounds of our law with Glanville, Bracton, Fleta and Brit- ton, whom he continually treats as, together with Littleton, ultimate authorities". He carries on his enquiry through the modifications and alterations in that law, due to the judicial decisions recorded down to his time. Were it not for his writings, says Butler^^ we should have to search for the legal learning of ancient times in the voluminous and chaotic compilation of cases contained in the year-books ; or in the dry though valuable abridgements of Statham, Fitzherbert, Brooke and Rolle. That is, according to the view of bis learned editor, Coke's abstractions and generalisations have superseded, at least in some instances, the extant judicial records upon which they are founded. Finally, although Coke in several places professes to pub- lish nothing but what "is grounded upon the authorities and reason of our books, rolls of parliament and other judicial records"'," yet it is obvious that this language may be ex- tended to cover not only "illations upon existing law" but ^^ See Coke's Preface to the Commentary on Littleton, under the headings " Wherefore called Institutes " and " wherefore published in English.'' His labours are " cunahula legis, the cradles of the law," for students in their beginning of their study, ib. 51 Beeves, Hist. vol. 2, ch. 11, p. 282. See also the last sentence of Coke's Prooem to the third part of his Institutes (Pleas of the Crown) ; and the repeated mention of " our books " in the marginal notes (by Coke) to the first part (Co. Litt.) 11 b. It is, however, possible that in the last instance he may mean the Year-books. 52 Preface to the 1.8th edition of Coke on Littleton (1 Instt.). 53 Bud. of the Prooem to the 4th part of the Institutes (Jurisdiction of Courts). 314 TEXT-BOOK LAW : EARLY ENGLISH PEUDENTES. "conclusions founded upon notions of general utility";" both of which classes of matter are found in Coke and expressly attributed by him to Littleton'". Hale's Analysis of the Civil Part of the Law was ap- parently Institutional in its intention, and is certainly scientific rather than practical in its arrangement. This "tractate" is principally known through the larger work of Blackstone. The general exclusion, by the latter, of text-book writers after Coke, from the list of original authorities, finds certainly one exception in Hale's chief work — the Pleas of the Crown. But the tendency of our courts is undoubtedly to confine that list to those venerable sages of an earlier time in whose authoritative writings the older decisions have been, to quote the words of Blackstone, "digested for general use." One important function of the modern text-book writer is to select and preserve such portions of these authorities as are adapted to the present state of things; a selection not, however, very easy to make, and therefore leaving recourse to the original authors still available'^. Blackstone. A few words may be added here about Blackstone himself, although he belongs rather to the class of modern text-book writers, whose case is considered in the last chapter on this subject. To Blackstone is specially due the working out of that new arrangement (or new application of an old arrangement) for our English Corpus Juris, which he derived from Hale's Analysis, as Hale had borrowed the main idea from the Institutes of Justinian. That arrangement, under its original form, still appears to me equal in theory to any other, and far superior to all others in convenience. Otherwise Black- M Austin 30, p. 563. *' See the interesting note on " Maxim," Co. Litt. 11 a. ^* See, as to Braoton, Spence, Equitable Jurisdiction, Ft. 1, Bk. 2, ch. 3, p. 121 and note e. TEXT-BOOK LAW: EARLY ENGLISH PEUDENTES. 315 stone discharges the functions of a modern text writer in- differently well. He faithfully preserves the rules and general maxims of law which had been cast into that form by older writers, out of matter practically obsolete. He generalises, with a precision and clearness which has scarcely been enough appreciated, from the confused mass of statute, judiciary, and text-book law before him. His great fault is a somewhat servile optimism as to everything established, which was very common in his time. Hence he makes few suggestions of improvement, and those rather by way of reason and explanation (sometimes very absurd) of old rules, than by direct reference to the considerations which obviously prompted the suggestion. But the heaping together of cases, in all their particularity, without an attempt at generalisation, is a fault of many modern text-book writers, from which Blackstone is conspicuously fr^e. CHAPTER XI. TEXT-BOOK LAW : ENGLISH CUSTOMARY LAW. Theory. Believing that our so-called customary law is to a greater extent than the Roman derived from pro- fessional sources, I have reversed the order above adopted and spoken of our older prudentes first. In the theory, however, both of ancient and modern authorities, the exist- ence of customary law amongst us is most definitely re- cognised on the independent ground of national, or at least lay, usage. And this fact has the more importance in regard to jurisprudence, because it is with us that judicial deci- sions — Austin's medium through which custom becomes law — have the most admitted authority. It is soon seen that the theory in question is not uni- versally true, and a few instances may be cited in which it can be compared with fairly ascertained facts. Among the subjects of common, i.e. general' customary, law enume- rated by Hale and Blackstone'^, many are at first sight referrible to court practice. The rules which would appear to have most connexion with national custom are perhaps those which regulate the descent of landed property. Yet these underwent, as to a large class of estates, a radical change between what we may roughly date as the times 1 See below p. 318 for the distinction of general and partictdar custom. = Hale, Hist. ch. 2, p. 24 : Blackstone, Int. § 3, p. 68. TEXT-BOOK LAW: ENGLISH CUSTOMARY LAW. 317 of Glanville and Bracton'. As this change disinherited a majority of expectant heirs, and on the other hand was in the interest of the government, to which the judges were subservient, we can scarcely consider it to have been so much national as professional or judicial. The new doctrines of Uses and Trusts, before the Statute of Uses, are not part of our "common law" in the strict technical sense, and do not therefore fall within the scope of Hale's History. They are only treated in a somewhat scattered and fragmentary manner by Blackstone, but the vast importance of their effect is well known. That they were introduced through the medii^m of an extraordinary Court, and that they were afterwards turned into statute, is merely accidental matter of our particular history. Changes as important, from the old national custom and early code of the Romans, grew up among the legal profession, in the ordinary civil Court ; and these two were from time to time turned into what was practically statute by the Edict. The English doctrines to which I refer can scarcely be considered in any sense national. It is probable that the necessity for the introduction of some such change may have been felt by the bulk of the commimity*, and that their main principle may have been, like all " equitable" inno- vations, in accordance with the moral feeling of the age° ; but the changes themselves are extremely technical, and are generally traced to a foreign system of law, through the medium of one branch alone of our legal profession. ■* Hale, Hist. oli. 11 : Blacistone, Book 2, ch. 14, pp. 215, 6. See a very able treatment of this subject by Mr Kenny (Law of Primogeniture, pp. 18—24). * See the concluding remarks of Spenoe (Equitable Jurisdiction, Pt. 1, Bk. 3, ch. 2). " See below, ch. 15. 318 TEXT-BOOK LAW: ENGLISH CUSTOMARY' LAW. Many other instances might be alleged, and, in fact, the only general customary law of England which does not owe its existence very largely to professional sources is our Constitutional, law. In minor points even this has been practically modified by Court decisions. But the principles which govern the powers and duties of the sove- reign body, which it is absurd not to consider as law^, are matter of national custom, and are not incapable of change even in historical times, according to change of national feeling. Customs, general, particular, peculiar and notorious. I have implicitly referred to the distinction drawn in our books between customs general and particular, the latter of which are sometimes opposed to common law under the name of custom simply'. By these customs or particular customs are generally meant local rules, as distinguished from custom, which can " be alleged generally within the king- dom of England ; for that is the common la',v^" Black- stone" adheres to this meaning of particular, with the L'xception that he inaccurately classes the law merchant among these local customs. Hale, on the other hand, gives the name of particular custom to the civil (Roman) and canon laws. These are, according to him, particular be- cause they only apply to particular subjects, matters, or courts": custom, because, so far as not adopted by statute (in which case they are statute law), they derive their force here simply from immemorial custom and usage" « Above pp. 169, 170. " Hale, Analysis, § 33, p. G5. 8 Coke on Littleton 110 b : see above, p. 76, for what appears to me the' more correct explanation of the term " common law." ' Int. § 3, pp. 74, 79. Both Blackstoue and Hale are verj' inaccurately quoted by Austin in Lect. 30, p. 552. " Hale, Hist. ch. 2, pp. 23, 24. ^^ lb. p. 26, and Eunnington's note (A) p. 38. TEXT-BOOK LAW : ENGLISH CUSTOMARY LAW. 819 Blackstone styles these same laws peculiar, because adopted and used only in certain peculiar courts and jurisdictions'" ; cxLstomary, for the same reason, as Hale". Austin objects to the ground on which the civil and canon laws are classed apart, preferring to base that classi- fication on their "singularity," or "inelegance," i.e. want of homogeneousness with the rest of our judicial system ". In regard to their legal character he classes together all customs which are notorious, i.e. of which the tribunals are judicially conscious and which will be enforced without proof of their existence '°. This distinction runs to some extent across that into general and particular : the two local customs of gavel- kind and borough English being, at least in their principal point, "taken knowledge of" by our courts'*. The distinction of notorious and non-notorious is of course all important in practice. In theory, all legal customs appear to stand on the same basis. With Hale, for instance, the legal validity both of the common law proper and of the particular laws above mentioned (civil and canon law) is equally based upon long and immemorial usage. Local customs are in his view parts of the common law, which determines as to their reasonableness, sufficient continuance, &c." Coke, in commenting upon a dictum of Littleton, that a local custom may bar the common law, apparently 12 Int. § 3, p. 79. 13 lb. p. 80. " This very peculiar meaning of elegans and its opposite seema justifi- able in the passages here quoted by Austin (30, p. 552). There are a few others of similar character in the same author (Gaius) and in the Digest. I prefer, where possible, to retain the more natural sense of accuracy or propnety, and the reverse. 1^ Austin 30, p. 553. I would remark here, for the benefit of readers of the " Outline," that by Austin's " or (speaking more properly) " on p. 38 of the latter, he does not mean that " notorious and non-notorious " is a better way of expressing " general a,ni particular," but a better division of customary laws. " Co. Litt. 175 b, note 4. ^^ Hale, Hist. chap. 2, p. 25. 320 TEXT-BOOK LAW : ENGLISH CUSTOMARY LAW. regards the latter as being itself a similar custom'^. And Blackstone does not seem to recognise any difference, in the ultimate ground of validity, between customary laws in general and particular customs, although he gives special canons as to the 'proof, legality and allowance of the latter". Here, as in the case of Roman law, it is scarcely safe to con- sider such canons as indistinguishably applicable to all legal custom''". But we may regard the following as an illustra- tion at least of the general English theory ; that, where proof of a particular custom is needed, it is not proof of a previous judicial decision as an ultimate authority, but either of usage in fact, or of a decision recording lay evidence as to such usage ^'. It would be interesting to see how Austin dealt with the question of non-notorious customs, but I cannot find that the promise of their separate consideration^^ is ever fulfilled. Disuse. Our theory of the repealing effect of custom is not very clear, but that effect appears to be less in England than it was in Rome, and formerly in modem countries which followed the Roman law^'. Hale speaks of the " statutes or acts of parliament," made before the period of legal memory, as repealed or altered by contrary usage''*. But a later statute cannot be antiquated or lose its force by non-user^^. That 18 Co. Litt. 113 a on § 169. " Consuetudo ex certa causa rationabili usitata privat oommimem legem." Quia consuetudo contra rationem introducta potius usurpatio quam consue- tudo appellari debet &c. " Blackstone, Int. § 3, p. 76. 2" Take, for instance, the finding of an "immemorial custom" on tlie strength of 20 years' regular usage. Blackstone, Int. § 8, p. 77 note 11. 21 Blackstone 1. c. ^ Austin 30, p. 553. ^ See Lord Mackenzie as to the Scotch Acts of Parliament before 1707 (Roman Law, Preliminary chapter, § 3). ^ Hale, Hist. ch. 1, p. 3. -^ Co. Litt. 81 b. The same is the doctrine of modern French, Prussian and Austrian Law (Aubry et Eau, Cours, t. 1 § 29 : the Einleitttng to the Prussian Landrecht § 59, and to the Austrian Gesetzbuch § 9 : see Schmidt's Lehrbuch p. 45). TEXT-BOOK LAW : EN'GLISH CUSTOMARY LAW. 321 old custom can be altered by recent, and that too when the recent custom is really nothing but court or professional practice, would seem to be clear from the instances above alleged, to which may be added the disuse of the general rule de rationabili parte honorum about the time of Coke'*. In theory, the common law may be expounded and evidenced by the usage, practice and decisions of the Courts, but can only be altered by Act of Parliament. That a statute may alter or repeal the previous common law, and a fortiori any other custom, scarcely needs to be stated". Present English customary law. Much of the English customary law (other than constitutional) still in force is of the particular or Ipcal kind^, canons for the evidence of which are pretty well established. It is not necessarily the case e converso that all our particular law is customary. When recognised, as it sometimes is, by statute, it must be considered statute law'l Of our general customary law the major part has been included in statutes. What remains has in most cases been at some time or other declared in well-known judicial decisions, which have again been general- ised by the joint action of Court and practitioners. Such rules Austin would of course . regard as deriving their whole legal force from the decisions, being not so much superseded by them, as destitute of any legal existence before them. In general I think these rules would be accepted on the authority of modern text-books. But instances do occur in which our theory of customary law 28 Co. Litt. 176 b and note (HaJgrave and Butler) 6. 27 Hale Hist. oli. 2. p. 25. Blaokstone Int. § 3. pp. 87, 89. 28 Almost all the present Prussian customary law appears to be local (see Landrecbt Publikationspatent § 7, Einleitung § i, and Schmidt p. 47), as also most of the French (below, p. 326, n. 12). 29 Austin 30. p. 552. See Hale's similar reasoning as to part of his particular laws (Hist. ch. 2. p. 26). c. J. 21 322 TEXT-BOOK LAW: ENGLISH CUSTOMARY LAW. appears still to have some practical effect. I give what seems to me to be such an instance, for what it is worth. On the subject of rights of common, certain general rules of law exist, independent of any local custom. These have grown up, like most of our real property law, in the Anglo- Norman period and under the Norman rules of feudal tenure. They appear in our authoritative text-books, and have been embodied in the decisions of our Courts. Yet recent judges, of very high authority, have shewn a disposition considerably to modify the customary law, as to freeholders' rights of common, previously established both by books and deci- sions. The general doctrine, of attributing a legal origin to beneficial rights which have been long used, has been specifically supported by modern historical research, as against previous technical notions that such rights have no legal origin'"" Such an instance would be very rare, but it seems to shew that the original force of the rule, whether in the case of particular custom proved in a suit, or of general custom found in a text-book, is considered to come from the lay usage, and not from the declaration of the judge or the testimony of the writer. As a matter of expediency, the possibility that a con- siderable amount of judicial tradition may be upset or modified, by reference to almost prehistoric times, does not commend itself much to the practical mind. At Rome such a possibility could scarcely have existed. Besides the greater facilities for converting the old law into statute, with more or less modification, in the Edict, there is the strong proba- bility that the work of Scsevola entirely superseded all '" See Joshua Williams's note on Lord Dunraven v. Llewellyn, in the Appendices to his Principles of the Law of Eeal Property. Also Lord Hatherley's judgement in Warwick v. Q^teen's College, L. E. Equity Series, 6 Ch. App. pp. 723, 4 : and that of Sir G. Jessel in Baylis v. Ty seen- Amherst L. E. 6 Ch. Div. p. 510. TEXT-BOOK LAW : ENGLISH CUSTOMARY LAW. 323 previous authorities'". In England, as such weight would scarcely be given to any text-book, the possibility of which I speak seems rather to call for a reduction of our customary law to statute at the earliest opportunity. The intention of continental codes has been, in general, to abolish customary law°^ though it does not appear that the intention has been perfectly carried out'". The simpler case of English text-book law which, though sometimes called customary, is really based exclusively upon decisions and practice, will be noticed in the general remarks on text-book law. »i Above, p. 293. 22 See e. g. Code NapoMon, " Loi du 30 Ventose An 12," in Tit. PrSl : as to Prussia and Austria, Holtzendorff Th. 1. System. Th. p. 323; the opening passages in the Pablikationspatent and the Kundmaohungspatente ; and generally the brief statement in Savigny, System 1. § 31. 5' As to Prussian law, see the passages quoted above in note 28. The Austrian Biirgerliehes Gesetzbuch contains an express saving of Customs (not merely local), where a statute refers to them (Einleitung § 10). For the French Code, see below, p. 326, note 13. 21-2 CHAPTER XII. TEXT-BOOK LAW : GENERAL EEMARKS. Text-book law unwritten. I shall conclude the subject of text-book law with a few general remarks, suggested in the main by the two historical examples which we have been considering, on the different elements themselves which are included in this residuary class, and on the authority which those different elements respectively enjoy. Excluding, to begin with, all matter which though found in text-books is also found elsewhere as statute or judiciary law, we may set down the remainder as, to speak juridically, umvritten law. None of it, with the exception of one debated case — that of the Roman licensed prudentes^, is drawn up or issued in a regular manner by any legislative authority^. All of it, on the other hand, is in the form of general rules or maxims, and resembles, so far, statute rather than judiciary law. There the homogeneity of text-book law ends. Its two main elements may be roughly stated as jus moribus constitutum and jus a prudentihus compositum — customary and profes- sionaP law. But while these two classes are in some cases not very easy to distinguish, the latter moreover includes several different constituents of different degrees of authority. Jus moribus constitutum. By the mores here spoken of I mean not Court practice but national custom. It has been 1 AboTe, ch. 9. p. 296, 7. ^ lb. cb. 7. p. 272. 8 lb. cb. 8. p. 273. TEXT-BOOK LAW: GENERAL REMARKS. 325 shewn above how, in the Roman state, a considerable part of the law existing to a late historical period may be referred to this source*. The rude forms of the earlier _;'ms civile were in their origin truly national, though they became a patrician monopoly. It is not really till the barrier of caste has been broken down that the great developement of Roman law takes place which gives the later and more valuable part of it a distinctly professional rather than a national character'. By that time certain old rules had become so rooted in the con- servative Roman nature that they were left at least theoreti- cally undisturbed ever after. Into our own jural system, in spite of Blackstone's deduc- tion of our maxims and customs from Alfred and Edgar °, I believe this branch of text-book law to enter very little. Although both the name and the original of our common law'' come from before the Conquest, the customary part of it at present in existence is almost entirely deducible from the practice of the Anglo-Norman Courts®. On this subject the cautious language of Hale may be advantageously compared with Blackstone's vague grandiloquence". As far as regards actual application I do not know that any difference can be observed between the old custom arising from a national, and the early practice arising from a professional, source. Practically, therefore, we may for some time accept Savigny's theory'", of the prudentes being the organ or representative of the people, although historically this ceases to be true with ourselves at a very early period. And beside the fact that early rules, the progress of which we can fairly trace in our courts, are traditionally ascribed to national custom, it must not be forgotten that the individual " Above oh. 8. p. 280. " lb. oh. 9. p. 290. 6 Blackstone Int. § 3. pp. 66, 67. ' Above, p. 74. 8 lb. oh. 10. p. 300. ' Hale Hist. ch. 4. p. 66. i» Above, oh. 8. p. 274. 326 TEXT-BOOK law: general eemarks. cases, upon which the generalisations of early practice were based, are almost as inaccessible to us as the foundations of custom. Basis of customary law. To a certain extent the ques- tion of the origin of law must recur under this head. The present subject is, however, not a matter of pure history or archaeology, as that question might by some be considered. Constitutional law is at any rate still a living and growing reality ; and the theory of other customary law has still with ourselves some practical meaning". On the Continent un- doubtedly, the abolition of customary law purports, in most important countries, to have been effected'^. This abolition, however, is by no means free from exceptions and reservations. I find, for instance, in a recent comment on a passage in the French code which Savigny regards as abolishing all general customary law, an adoption of his own tests for determining the validity of such law". It may therefore be worth while to complete the considerations initiated in a previous part of this work", with more direct reference to the process through which custom is determined to be law. Austin. With regard to legal authority, Austin classes, under the one head of judiciary law, not only all the rules which are to he extracted from recorded cases, but all rules already generalised, which "have grown up by custom or usage and become law by judicial adoption" or consist of "law fashioned on opinions and practices which obtain amongst lawyers"". To this last class may, as he justly says, be referred a large portion of English law, through " Above, ch. 11. note 30, p. 322. 12 Above, p. 323. " Compare Aubry et Eau (Cours t. 1. § 23. p. 43) on the "loi da 80 Ventdse au 12," as to the nicessite juridtque, mth Savigny on the necessitatis opinio (System, 1. § 29 pp. 174, 180). See the numerous instances (mostly however of local custom) in which they quote the Code as expressly referring to ancient usages. Also, the references in note 28, p. 321. " Above, pp. 165, 6. " Austin 37. p. 655. TEXT-BOOK LAW : GENERAL REMARKS. S27 judges adopting the views of authoritative expository writers or the practice of conveyancers, and enforcing them as law. I am not, however, concerned at present so much with this last class, or with Austin's judiciary law in general, as with lay customary law in particular, and that early practice which cannot be separated from it. I shall therefore here merely call attention to the wide difference, between the heteroge- neous matters which Austin classes together, in their " sug- gesting cause" as he styles what most people would call their origin, in the degree of authority which they enjoy, and in their form — for surely a rule previously existing, whether authoritative or not, and applied by a judge, is a very differ- ent thing from a rule which must be gathered out of his decision. In niost of his passages bearing upon this subject, to which only a very close and critical perusal can do any jus- tice, Austin lays much stress upon the correct apprehension of the term customary law in its strict sense — of a rule which has, at some time, been set, directly or indirectly, by a political superior, although possibly founded on an anterior custom. The opinion against which he is contending is, that the law called customary exists as positive law, independently of a sovereign authority: whereas, in his contention, before the interposition of such authority, the custom is merely a rule of positive morality, generally observed by the citizens or subjects, but deriving its only force from the general dis- approbation falling on those who transgress it, from moral or from religious, not from legal sanctions. It only becomes law proper, or positive law properly so called, on being adopted by the sovereign author directly in the way of legis- lation or indirectly in the way of judicial decision '^ This contention of Austin is a mere truism if his defini- tion or postulate is accepted — that every positive law is set 16 Austin 1. pp. 103—5 ; 30. pp. 551, 560. 328 TEXT-BOOK law: general remarks. by a sovereign. But, if his antagonists' meaning of positive he, " existing by virtue of human sanctions," or even " equal in effect to law which has been regularly enacted," it may be questioned whether their view is not true of the beginnings of all law, and of Constitutional law in all time. Austin's view of the order in which law is naturally gene- rated" accords very much with the results of historical and philological enquiry. First comes the custom, in most cases based upon and sanctioned by religious feeling, in some observed merely because it is the custom. Originally, avoid- ance at common religious ceremonies may have been the only form of that universal disapprobation from which that custom derived its force. But general ostracism is quite as probable an early sanction. Long before historical times we have the common ofEcer, almost always religious in the first instance, who, as repre- senting the small association, declares the custom in disputed cases, or imposes a penalty on individual infractions. The sanctions, which in the first stage are probably of a negative character and ill-defined, though by no means inefficient, begin to be positive and definite. Common avoidance is replaced by the formidable sentence of sacratio, or devotion to the infernal gods, with power for any one to slay the devoted person. This very elementary stage can, without any great amount of credulity, be recognised in our earliest traditions and oldest legal monuments of Rome. We have a power " Austin 37. p. 657. 1st. Rules of positive morality. 2nd. Adoption and enforcement of those rules by the tribunals. 3rd. Addition of other rules drawn from the former by consequence or analogy. 4th. Introduction of new rules by the judges propria arbitrio ; and illations from these. 5th. Legislation proper by the sovereign legislature &c. !> Above, p. 297. TEXT-BOOK LAW : GENERAL REMARKS. 335 of our common law : but it is only a small amount of our early text-books which can be entirely referred to national custom. We recognise then, in text-books, many general rules which we may confidently assume to have arisen solely out of legal practice. According to the Roman theory, which appears to be on the whole that of the Continent now, the influence enjoyed by these rules, which are in .no sense binding, depends upon the reputation of the individual author. It gains no more force from actual decisions as its basis than it does from hypothetical cases, from inference, from speculation, or from suggestions as to utility*". In England and the United States, besides this influence, a certain degree of authority will be exercised by the gene- ralisations from recorded cases, which are perhaps the most valuable part of our modern text-books : but the authority is due to the decisions*', which do not in terms contain the generalisation. In our older text-books, at least from Littleton to Hale*^, we have according to Blackstone*' a quasi-original authority, based however in theory upon cases which are supposed to have been "digested" by these authors. The decisions themselves, moreover, in all cases of Common law (as opposed to Chancery law) are only con- sidered as declaring or evidencing a previous rule. Where this is not national custom, it is nothing but the practice of the Court and profession, which includes the case of Chancery as well. A strong instance of an almost binding authority in pro- *> See the words of the Prussian Code, Einleitung § 6. Auf Meintmgen der Eeohtslehrer, oder altere Aussprtiche der Eichter, soil, bei kiinftigen. Entsoheidungen keine Eiicksicht genommen werden. For the practical modifications of this doctrine see above, p. 224, note 37 (and addendum), p. 264, note 30. ^1 See however p. 250 for this authority being put a little higher. ■«3 Above, oh. 10, pp. 811—314. " Int. § 3. p. 73. 336 TEXT-BOOK LAW : GENERAL REMARKS. fessional practice is adduced by Austin himself when he speaks of the law made by Judge and Co. to use Bentham's phrase". The law in question is really the work of " Co " only, if the practice of the profession gains such force that the Courts "are compelled to make it law". I scarcely think that either the prevalent practice of modem conveyancers, or the most logical generalisations or reasonable suggestions of a modem text-writer, can in any accurate sense be called law until sanctioned by some decision. Then they acquire with us a binding character, but not so in Roman law or on the Continent. Singular law. One rather anomalous case remains to be mentioned. The authority of those singular, peculiar or particular bodies of law which are administered in certain of our Courts can scarcely be called matter of national custom, but must apparently be referred to the practice of the Courts in question". With Austin all this is judiciary law, and, if his theory be strictly followed, must be taken to have been adopted piecemeal in individual decisions. The scope of this singular law has been very much diminished by modem legislation ^''. Modern text-book writers. Under the term j^fudentes are of course included all professional compilers or devisers of law. A few words may be specially devoted to the class of prudentes from which this division of the present work takes its name. The functions of a text-hooh writer at the present day, in spite of his want of authority, can scarcely be rated too highly. In general we may regard him as paving the way to a code ; but, when that ideal is attained, his usefulness will ** Austin, 38. p. 667. *^ Above, pp. 318, 319. So mucli of the Canon Law as obtains in England is apparently regarded by some authors as national custom. ■"^ E.g. by the Probate, Divorce and Admiralty Acts. TEXT-BOOK LAW: GENERAL EEMAEKS. 337 by no means cease, while his work has a permanent and independent value in cases for which a code is unsuitable. International Law, for instance, will never receive that universal enactment which would turn it into a true statute, and at the same time probably check its gradual im- provemenf". For case-law, it equally lacks a common tribunal and an authoritative record. Therefore, to compile virtual precedents of humanity and general utility has been the work of text-book writers on this subject from Grotius down- wards. To tabulate the admission, by nation after nation, of certain general principles, is to bring those principles nearer every year to a binding authority. The reduction of Inter- national Law to the form of a code, by the late Dr Blunt- schli, has been somewhat severely criticised, on practical grounds^*; but it may be questioned whether this is not the best shape into which writers oh the subject can throw their work. It should at least be free from any odium attaching to claims of binding authority or statutory fixity. All that is proposed is to set forth clearly the present feeling of the civilised world'"'. On points where this feeling is not unani- mous, there will doubtless be contradictory maxims ; but the very exhibition of these contradictions, by such a system as Bluntschli's, must tend to their reconciliation, and to the nearest practical attainment of an luternational Code. For statements of that custom, again, which obtains as Constitutional Law, we have to rely mainly on text-books. Judicial decisions may, doubtless, from time to time evidence this or that individual point : the entire scheme may be statutorily enacted by the sovereign. But since by Constitu- *■' Above, p. 186. •■8 See Calvo, Droit International, t. 1, p. 90. 49 Bluntsohli, Das moderne Vblkerreelit der civilisirten Staaten als Eechtsbuoh (not Gesetzhuch) dargestellt. See particularly the end of § 1 in the Introduction (pp. 6, 7). C. J. 22 338 TEXT-BOOK LAW: GENERAL REMARKS. tional Law proper we mean the rules which determine the powers and the constitution of that sovereign's self, it is clear that such statutes are mere expressions of the will of the majority, which may change the next day. That will has changed, though slowly, in our own very conservative nation. Of the elements, which go to make up our composite sovereign, two certainly do not now exercise, nor would be tolerated by the opinion of the nation in exercising, the powers which, accordiDg to old constitutional theory, they still possess : on the other hand, the Cabinet, or rather the prime minister, does exercise very great power totally unknown to that theory. Such changes, which are going on in our own time, come to pass through incidents of parliamentary prac- tice ; through the expression of opinion by the electors to the House of Commons, on a dissolution ; in very rare cases, like that of the Reform bill, through the expression of what can only be called the will of the nation. They are recorded by text-book writers, who also furnish the historical con- necting links which make them intelligible. With regard to Magisterial law — a convenient phrase to express the law of a state, other than ConstitutionaP" — the province of the text-book writer is manifold. Of ancient custom he gives the history and raison d'etre ; he records and preserves so much as has not become obsolete. In the former function he can never be entirely replaced : the latter might with great advantage be discharged by well-drawn statutes^'. To court practice, as to the authoritative precedents of English law, he renders, or ought to render, the inestimable services of digestion, harmonisation, reduction to general principles, and, here again, the omission of what is obsolete. To the great merits of our English case-law I hope I have not done injustice in a former chapter. But our report books can ^^ Above, p. 167. Also my Analysis of Criminal Liability, p. 1. "^ Above, pp. 314, 323. TEXT-BOOK LAW: GENERAL REMARKS. 339 scarcely he considered desirable as a permanence. It is not long since some of them deserved no name so well as that of rabbish-heaps : even now they are rapidly accumulating masses of matter of very different qualities. This matter, according to our theory, the text-book writer cannot super- sede by his own generalisation : but he can put it in the power of a judge to do so ; he can facilitate the periodic digestion which it is to be hoped will improve our present system^; and he can suggest that logical or scientific . sup- plementation which a system based on practice may, even after codification, still require '''. 62 Below, ch. 16, p. 393. 6' See above, p. 262. 22—2 CHAPTER XIII. JUS GENTIUM AND EQUITY: THE PEAETOR'S EDICT. The Jus Gentium of the Romans lias been spoken of above' as a "philosophical idea." Another, and supposed earlier, meaning has been attached to this phrase by high authorities. Both deserve consideration here as bearing more upon the question of "sources" and "modes" than upon any other aspect in which law can he viewed, or classifi- cation by which it can be divided. And the particular view taken by Austin of the " earlier jus gentium " leads directly, as I conceive, to an erroneous conception of our own very fundamental juristic idea equity. Savigny, whom I cannot help regarding as the " remote cause" if not the "source" of Austin's theory on this subject, says, "The early commerce of the Romans with neigh- bouring foreign peoples made it necessary to apply before the Roman tribunals the law of peregrini, besides the indigenous law — therefore, also, to know it by study; and not merely the law of some particular foreign state, but also that which was common to several of them. The more the Roman dominion spread, and consequently the dealing with foreign states became more manifold, by so much the more must the scope of vision on this matter have widened — and in this way they came imperceptibly to the abstract conception of a law common to the Romans and all foreign > P. 180. JUS GENTIUM AND EQUITY: THE PRAETOK'S EDICT. 341 states ; therefore common to them and all men." Much, he adds, of the general element embraced in this jus gentium passed over into the jus civile, and the jus honorarium served as the intermediate organ of this passage^. Peregrini. This word, literally meaning foreigners, has in its regular opposition to cives, different meanings at different times of Roman history. Origirtally it included, according to Savigny', all persons who were not full citi- zens of Rome, and therefore the members of all other Italian states down to the third year of the Social war, B.C. 89. During that earlier period there were, however, variable friendly relations of a temporary character with these states*, particularly with those of the Latin race or "name." But whether the "Latins" of this period — a partly national and not yet purely legal denomination — formed a sort of middle class, or stood, in their legal relations at Rome, on the same footing with the other peregrini, is a question which I cannot satisfactorily answer. Savigny is rather in favour of the former alternative". Whatever was the position of these Latini was probably also that of the " Latin " colonists, although originally Roman citizens^ During the Social war, Roman citizenship was given to all Italy south of the Po, the part between the Po and the Alps being allowed the half citizenship known as Latinitas, = System 1, § 22, pp. 109, 110, 118. The whole section should be read. s lb. 2, § 66, p. 38. * lb. p. 44. ° He is not very clear on the subject. The alternative Latino peregrinove in the Lex Agraria of 110 B.C. (Eudorff, c. 14, par. 29), while it fixes the Italians as peregrini, is in favour of some distinction between the latter and the Latini. I take Mommsen (Eomisehes Staatsrecht 2, p. 200) to include these older Latini, for purposes of jurisdiction, under the general class of peregrini, and am inclined to agree with him. See, apparently to that effect, Gaius 1. 79, Sed ad alios Latinos pertinet, qui proprios populos propriasque civitates habebant et erant (and yet were) peregrinorum uumero. 8 Apparently referred to by Cicero, pro domo, 30. 78. For the similar position of the nomen Latinum and the coloniarii see Eivier, § 20, p. 139. 342 JUS GENTIUM AND EQUITY: ■which was shortly extended to many other parts of the Roman dominion'. After this time Latinitas appears to be a purely juristic expression, the minus Latium expressing the condition of these latter Latini, the majus that of those before the Social -war^ After this time therefore peregrini would mean generally persons who are not cives nor Latini. I have been obliged to enter into these modifications of the meaning of the words simply in order to exclude them from our consideration. The administration of the Praetor qui inter peregrinos jus dicet arose while peregrinus still bore its older and simpler meaning. Austin's account of the matter is as follows. In the earlier ages of Rome, and before she had extended her empire beyond the bounds of Italy, a Praetor was appointed to determine the civil cases which arose from the relations between the victorious republic and the subject or dependent communities. This new magistrate was styled "Praetor Peregrinus " because the questions over which his juris- diction extended were more frequently between foreigners and foreigners than between foreigners and Roman citizens ; although, in the strict sense of the term peregrinus, the parties whose causes he commonly determined were not peregrini or foreigners but friends and vassals of Rome". After his appointment, the ancient and ordinary Praetor was styled, by way of distinction, " Praetor TJrbanus," partly because his tribunal was immoveably fixed at Rome, and partly because he decided between Romans and Romans agreeably to the law of their own pre-eminent city". A body of subsidiary law was gradually established by the suc- ' E.g. to the Sicilians mentioned in Cicero's letter to Atticus 14. 12 (b.c. 45). According to Saviguy (2, § 66, p. 45 m) this is the oldest dateable reference to Latini in the purely juristic sense. 8 See Gains 1. 96 and Savigny's note last cited. » Austin 31, p. 573. i" Id. 31. 574 ; 84. 605. THE praetor's EDICT. 343 cessive edictawhich the Praetor Peregrinus and his successors, imitating the Praetores Urbani, emitted ou their accession to office. This subsidiary law in the main seems to have been an abstractum (gathered by comparison and induction) from the peculiar law of Rome herself and the various peculiar systems of the subject or dependent nations". It acquired the name of jus gentium, first as extending to all communities (including Rome itself) which formed part of the Roman empire ; secondly, because the questions or controversies, ■which it was framed to meet, arose plerumque inter peregrinos (more frequently between foreigners and foreigners), but peregrini or foreigners, when contradistin- guished from Romani cives, are frequently styled gentes^". Arising in an age comparatively enlightened, and being the product of large experience, the jus gentium was so conspicuously better than the proper Roman law that it gradually passed into the latter: mainly because it served as the pattern to the Praetores Urbani in the large and frequent innovations which they made, by their general edicts, upon the old, rude, and incommodious law peculiar to the Urbs Roma'*. The jus gentium therefore of " the early Roman lawyers " was the common law of the communities composing the Roman world, as distinguished from the particular systems which were respectively peculiar to those several communi- ties or gentes. But the jus gentium occurring in Justinian's compilations, and also in the Institutes of Gaius, is the natural or divinumjus which occurs in the writings of Cicero, and which Cicero himself as well as the classical jurists, who probably were influenced by his example, borrowed from the (j)va-iKov Uicaiov or natural rule of right conceived by Greek' "1 Id. 31. 574. " lb. 574, 5. " lb. 577. 344 JUS GENTIUM AND EQUITY: speculators on law and morals. And this latter jus gentium OT jus naturale has little or no connexion with the former". These views had been, with slight variations, widely ac- cepted by modern English authorities. As I cannot by any means accept them, and I think they have an important bearing upon jurisprudence from their connexion with Aus- tin's theory of " Equity," I must state here somewhat in detail, what I believe to be the true account of (1) the later Roman Praetors in particular and of the Praetor's edict in general ; (2) the Eoman jus gentium ; (3) the Roman aequi- tas; and (4) the English Equity. The Praetor Urbanus. Of the first institution of the original Praetorship we have a very brief account given by Livy, who makes that institution a sop to the patrician order, on one of the dual chief magistracies being wrested from it by Licinius and Sextius'^ The functions of the new officer were to "declare law," i.e. administer justice, in the city — a point pressed by the jurist Pomponius, who makes the neces- sary absence of the other officers, on military business, the ground for the creation of this new one, and gives him, at the outset, the distinctive title of urbanus from this circum- stance '^ A lex Plaetoria of uncertain date, but which there is some reason to connect with the original establishment of this officer, calls him Praetor Urhanus", and there is little doubt that the designation was given to distinguish him " Austin 31. 579—581. ^' Livy 6. 42. Concessumque ab nobilitate plebi de consule plebeio : a plebe nobilitati de praetore uno qui jus in urbe diceret ex patiibus creando. 1^ Dig. 1. 2. 2. 27. Cumque consules avocarentur bellis finitimis neque esset qui in civitate jus reddere posset, factum est ut praetor quoque crearetur qui urbanus appellatus est quod in urbe jus redderet. " Censorinus de die nat. 24. Sed postea M. Plaetorius trib. plebisseituta tulit in quo scriptum est, Praetor urbanus qui nunc est quique posthao fuat duo lictores apud se habeto jusque ad supremam (so Hultsch) inter cives dicito. THE PEAETOE'S EDICT. S45 from the two older Praetors, those chief magistrates whom we generally know by their later name of consuW. His special title was from the locality of his duties, not from the subject- matter of his jurisdiction. The second Praetor. Another Praetor was added, ac- cording to Florus the epitomizer of livy, about the year 242 B.C., apparently to set free the then Praetor Urbanus for military duty in a very critical period of the first Punic war'*. Pomponius, however, alleges the influx of foreigners into the city as the reason for the creation of another Praetor, "who was called ^ere^rmws because he generally administered jus- tice between foreigners''"." A considerable parb of Austin's theory as to the origin of the jus gentium depends upon the above testimony of this very lax and careless author. The appellation peregrinus is an incorrect abbreviation of the empire^'. This is however a minor point. The reason given by Florus for the creation of an additional Praetor is ^8 See the notes on p. 146 of my Early Boman Law. '^ Livy Periocha, six. Duo praetores turn primnm creati sunt. CaeciKns Metellus pontifex maximus A. Postumium oonsulem, cum is ad tellum gerendum proficisoi vellet, in urbe tenuit ueo passus est a sacris recedere. These periochae are generally attributed to Plorus, who wrote no earlier than Pomponius, hut of course referred to the books (now lost) of Livy. The scruple about the sacra is also recounted by Tacitus (Ann. 3. 71), and Valerius Maximus (1. 1. 2). It looks like a pious fraud, devised in order to substitute for A. Postumius (of whom I can find nothing recorded) the able Q. Valerius Falto who was then Praetor Urbanus. See Zonaras 8. 17. Aovrinos KaruXos Sttotos ipiSii ical TovTifi ^wcvifupBri KuicTos OiaSipios 4>XdKKos (a mistake for *a\ra>i') a.ffTWop.Qv. The Capitoline marbles record triumphs of both Lutatius Catulus and this Valerius, in the following year> for the great naval victory which closed the first Punio war. It may have been due mainly to the Praetor Valerius, as Catulus was disabled by a previous wound (Eutropiua 2. 27). 2" Dig. 1. 2. 2. 28. Post aliquot deinde annos (387 — 242 !) non sufficiente eo praetore, quod multa turba etiam peregriaorum in civitatem vcniret, creatus eat et alius praetor, qui peregrinus appellatus est, ab eo quod plerum- que inter peregrines jus dioebat. 21 See Mommsen, Eomisches Staatsrecht 2, p. 179. 346 JUS GENTIUM AND EQUITY : more probable in itself than that of Pomponius, and agrees with that author's own account of the motive for increasing the number to four about the year 227^^ I find a separation of the urban jurisdiction from that inter cives Romanos et peregrinos mentioned by Livy in the year 216, and a, peregri- na sors (allotment) in the jurisdiction of the following year and in that of 213^1 But the two "provinces" are united in 214, 212, 211, 207, 203, 202, 200 and 199'*; while the pere- grina jurisdictio is coupled with foreign service in 209, 208, 206, 205 and 204-'. Hence we are not surprised to find that Plautus, whose plays range from 204 to 184 B.C., recognises military Praetors serving abroad and a magisterial Praetor at home but never mentions a peregrinus, or any specialisation of home magis- terial functions. The first contemporary use of the stjde "praetor qui inter peregrinos jus dicet" that I can trace is in the Lex Acilia repetundarum (§ 12), which Mommsen proves to be an enactment of 123 or 122 B. C. I would not of course infer that a separate jurisdiction did not exist before that time, although I cannot believe that it was connected with the first introduction of the second Praetorsbip in 242. The Lex Papiria, which regulated the Sacramental procedure, re- cognises a praetor qui inter cives jus dicet'^ and therefore implies a praetor qui inter peregrinos jus dicet. There is no certain date ascertainable for this Lex Papiria, but I am dis- posed, in spite of some difficulties, to connect it with the reform of Aebutius mentioned below. In some part of the 60 or 70 years before that epoch, there was undoubtedly a ^ Dig. 1. 2. 2. 32, partim qui urbania rebus partim qui provineialibua praeessent. 23 Livy 22. 35 : 23. 30 : 2i. 44. " Id. 24. 9 : 25. 3 : 25. 41 : 27. 36 : 30. 1 : 30. 27 : 31. 6 : 32. 1. 2" Id. 27. 7, 22 : 28. 10, 38 : 29. 13. 2" Pestus (F.), p. 347. Saoramentum. THE praetor's EDICT. 347 Praetor administering justice between the peregrini as well as a Praetor administering justice between the cives. But I consider that the frequent union of the offices is strongly against any different systems of law having been administer- ed by the two officers; and in favour of the Eoman law having been administered by both, mutatis mutandis where peregrini were concerned^'. The formal drawing up of two separate bodies of law, by the Praetors, is, as yet, entirely out of the question. First issue of annual edicts. At what time the Praetor's habit of issuing a notice for his year of office began is by no means clear. Plautus does not appear to know of any standing orders or notices except certain edictiones against offences in reference to public traffic, order and health, proceeding from the plebeian aediles'^^. An inference of another kind cor- roborates that which we should draw from this silence of his. If the testimony of Pomponius, when referring to an extant work, be worth anything, the old legis actiones con- tinued to be developed at least until the time of Sex. Aelius™; who was consul in 198 and censor in 193 B.C. It could not be, therefore, till after his time, that the failure of the old system led to the introduction of the formulae, which was really what necessitated the edict. For the lex Aebutia, to which the reform is attributed, three dates have been sug- gested, depending simply upon the fact that Aebutii are be- lieved to have been tribunes of some sort, in the years 234, 177 and 171 B.C. The first date is out of the question from the consideration, just alleged in reference to Sex. Aelius. The second is perhaps the most probable of the three'". =>7 See below, p. 3i9. "^ See Plautus Captivi, 4. 2. 24 — 44, for a parody of them, ss Dig. 1. 2. 2. 7, 38. 2" I should attribute the law to T. Aebutius who was Praetor in 177 b.c. See Livy 41. 6, 15. A M. Aebutius was tribunus militum in the same year. 348 JUS GENTIUM AND EQUITY: Little or no light is thrown on the date of the lew Alhutia by the leges Juliae which seem to have completed its work. They can scarcely have belonged to the times of Julius Caesar and Augustus''. The immense latitude given to the Praetor's power, by the introduction of the formulary system, naturally required a premonition to the public which is doubtless the origin of his notice (edictum), whether it was yearly or standing (annuum, perpetuum) from the beginning or no'^. Again, it is quite possible that the change of system may have owed its introduction, in some degree, to the difficulty of administering justice between peregrini, who could not of course plead title ex jure Quiritium, nor enter into the strict Quiritarian obligation s^'. From the commencement, then, of the formulary system (say B.C. 177) the gradual formation of two separate edicts is undoubtedly possible. And the peregrini, for whose benefit the supposed second edict was drawn up, would still be, for the most part, persons of Italian nationality, Austin's '•'friends and vassals of E,ome'^" And yet the view taken by Austin of the formation of the jus praetoriiim (I post- ib. 41. 1, and a L. Papirius Maso Praetor Urbanus in 176 (ib. o. 15). The Masones were «. patrician family (Cicero ad Fam. 9. 21). The investigation in detail belongs to the history of Eoman la,-w per se. At present I am dis- posed to attribute the " lege L. Papiri Tr. PI." of Festus 1. c, as well as the common idea of a plebeian tribune Aebutius, to a confusion between these three persons, and to place the Aebutian and Papirian laws in 177, or 176 B.C. '1 Ortolan mates them out laws of JuUus in 46 and Augustus in 25 B.C. A Sex. Julius was consul in 157, which is a much more probable date. 22 See below, p. 350. The further constitutional reasons alleged by Austin (35. 610, "But in consequence, &o."), for the Edict, seem scarcely necessary. *s See Gaius 2. 40 : 3. 93 : 4. 37, &o. Austin's account of the difBculty (31, p. 572) is correct enough. ^^ Austin 31, p. 573. See above, p. 342. THE praetor's EDICT. SiO pone consideration of the name and the subject jus gentium), will scarcely commend itself to the student of Roman history or law. Arguments against a distinct second edict. It would certainly seem cb priori very improbable that in his juris- diction over the cases of foreigners a Roman Praetor would make an ahstractum, as suggested by Austin, from the peculiar law of Rome compared with the peculiar systems of the sub- ject or dependent nations^'. Neither the old Italian tribes nor the more distant states, to whose members the term peregrini was afterwards confined, were ever treated by Rome on this independent footing. The slight amount of testimony in Gaius on this subject is far more in favour of an application of the Roman law proper, to these cases, by fiction and analogy. And the expressions of the later jurists Marcianus and Papinian, when they speak of the jus prae- torium as the " living voice " of the jus civile, which it assists supplements and corrects'^, indicate, in the past time to which they refer, rather a developement ab intra than an introduc- tion of foreign matter. Modern authorities beside Austin'' have believed in the existence of a distinct edictum praetoris peregrini, partly on the strength of Gaius' mentioning the edicts of the two Praetors '*, partly on that of a supposed commentary of Labeo*^ But the language of Gaius is perfectly applicable to two bodies of law in all but a few points the same; the commeutary of Labeo depends upon a misreading of '' See on this subject Mr Moyle's Introduction to Justinian's Institutes, p. 35. 3« Dig. 1. 1. 8 : 1. 1. 7. 1. 37 See Pernice "Labeo," 1. 57, 8. 38 Gaius 1. 6. 39 Ulpian Dig. 4. 3. 9. 4a, ideo Labeo quoq^ue libro trigensimo praetoris peregrini Bcribit, &c. 350 JUS GENTIUM AND EQUITY : the Digest*"; and of the supposed edict no fragment remains'". Provincial edicts were drawn up, doubtless before the time of Cicero, partly containing matter peculiar to the pro- vince, partly following " the city edicts*^"; and mainly com- posed of clauses transferred from the edicts of previous governors". And Gaius appears" to have written a treatise on the edictum provinciale — perhaps a general form — as op- posed to the edictum urhicum. But this opposition is itself against the existence of two different edicts at Rome. Edictum perpetuum. The first authoritative statement as to the practice of issuing perpetua or standing edicts eo nomine is the lex Cornelia, passed in the year 67 B. C, which recognises the practice and makes it compulsory for future Praetors'*^. There can be little doubt that notices for the Praetor's year of office had been issued before, but the practice may not have been quite universal, and the device of an occa- sional or summary notice might, although not identical with a judgement ^^ produce all the injustice of an ex post facto ^^ See Mommsen, Eomisches StaatsrecM, 1, p. 201, n. 2. He proposes to read posteriorum. No commentary on the edict of tjhe Praetor Peregrinus is mentioned in the Index FlorentinuG. ^1 Mommsen, 1. c. ^2 Cicero ad Atticum, 6. 1. 15 {B.C. 50). See also the case of Verres mentioned below. ^ Cicero 1. c, also ad Div. 3. 8. 1. *• See the headings in the Digest, and the Index Florentinus. Treatises hy other authors " De officio proconsulis " possibly dealt with much the same subject. *^ Asconius in Coruelianam, p. 58 (the genuine Asoonius of the 1st century a.d.). Aliam deinde legem Cornelius,,.tulit, ut praetores ex edictis Buis perpetuis jus dicerent ; quae res cuuctam gratiam ambitiosis praetoribus qui varie jus dicere solebant sustulit. This Cornelius was tribune of the plebs in 67 B.C. See Dio Cassius 36. 23, 'Etrij-y^o-aro /car' apxas re eO^iI's airois rd diKata oTs XPV<^°^'^°'^ irpoX^yeiv /cat fjiTjd^v aTr' avrwv TrapaTp^Treiv . '^ See above, p. 208, as to Austin's error on this point. The edictum ex THE praetor's EDICT. 351 law. This was one of the heaviest charges against Verres, and it is possible that Cicero's denimciation of his conduct, three years before, may have had something to do with the passing of the lex Cornelia". From the wording of that law and other considerations I consider that perpetumn meant originally nothing more than standing for the year of office, and was then exactly equal in signification to annuum. But it is probable that a considerable amount of matter was already tralaticium, transferrible, or habitually transferred, from one edict to another, and so practically permanent law. The facts indeed that a comment was written by Cicero's friend Sulpicius, who was consul 51 B.C., on the edict ^'; that Cicero himself, about the same time, speaks of the edict having superseded the Twelve Tables as a handbook of law*"; and that Ofilius, the friend of Caesar, reduced to shape the Praetor's edict^"; all point to an edict, and I think to only one, as a recognised body of law half a century before our era=\ Summary. My endeavour has been as far as possible to confine myself in this chapter to the edict as it originally tempore or repentinum was a prospective and general order, but made in view of a particular case. ^' Cicero Verrin. 3. 14. 33, 36, &a. Cornelius was against Cicero in politics, but lie seems to be the person defended by Cicero in the lost speech commented on by Asconius. See Teuffel, 1, § 167. ^ Digest 1. 2. 2. 44. Pomponius. Ante eum Serviua duos libros ad Brutum perquam brevissimos ad edictum subscriptos reliquit. ^' Cicero de legibus (e.g. 52) 2. 23. 59, Discebamus enim pueri xii ut carmen necessarium, quas jam nemo discit. lb. 1. 5. 17, Non ergo a prae- toris edioto ut plerique nunc, neque a xii tabulis, ut superiores : sed penitus ex intima philosophia hauriendam juris disciplinam putas. 5» No doubt during Caesar's sole power 45, 44 e.g. See Digest 1. 2. 2. 44. Pomponius. Idem (Oiilius) edictum praetoris primus diligenter oomposuit. For this meaning of componere see above, pp. 22, 287, 291, and Weyhe's Libri tres edicti, pp. 11, 12. 51 For what was probably fixed in the time of Labeo see Weyhe, cap. 1. 352 JUS GENTIUM AND EQUITY: THE PRAETOB'S EDICT. grew up among the Romans and was understood by them. I have therefore postponed my consideration of so much of Austin's theory of the edict as appears to me to belong more properly to jics gentium. Up to the present point, I would sum up the results of my enquiry thus. The original ap- pointment of the second judicial Praetor does not appear to have been connected with any distinction of jurisdiction: and the special title of the first (urhanus) was certainly not due to any such distinction. An assignment of one of the courts to business in which peregrini were concerned doubt- less took place; but cannot be certainly dated much before the introduction of the formulary system, sixty-five years (242 — 177) after the appointment of a second Praetor. The formation of an edict, embodying the changes introduced by the Praetors in Roman law, cannot have begun until after the same introduction, and was not placed under statutory sanction for more than a hundred years after it (177 — 67)- When the apportionment of a special jurisdiction to the pere- grini first took place, they would probably be, in the main, Italians, and some of the principal modifications in the old law, which was strict and exclusive, would have to be made ■with a view to them. But both probability and testimony point to this result having been attained by the admission rather of the men themselves into the Roman courts, through legal fictions, than of their law into the Roman law. If there were a special edict for the peregrini, its difference merely consisted in certain further modifications of the old law, not in the collection of extraneous matter or the for- mation of a logical abstractum from Roman and other law. CHAPTER XIV. THE ROMAN JUS GENTIUM. Lateness of the idea. The body or bodies of law of which I spoke ia the last chapter were known to the Romans by clear and significant names derived from the form in which they appeared or from their source in the sense of immediate author. They were either the Notices {edicta), the Praetor's Law (jus praetorium), or the Magisterial Law {jus honorarium) as based upon the magistracy of the Praetor'- No such clear explanation can be given of the term jus gentium ; but certain explanations which have been given may at least be cleared away. When Austin speaks of a meaning attached to this phrase by the "early Roman lawyers" I do not know to what extant writer he refers, as he expressly excludes the jurists from the birth of Cicero to Ulpian^ I can only date the origin of the phrase conjecturally. Cicero speaks of a separation between jus civile and jus gentium by majores nostri^ : but I know no older Latin authority for the latter idea than himself. Neither have I found mention of a jus gentium in the Auctor ad Herennium, nor in Cicero's early work de Inventione {about 80 B.C.) based upon that author. It is hazardous to assert a negative which a single overlooked passage may falsify, but I believe that the phrase 1 Digest 1. 1. 7. Papinian : 1. 2. 10. Pomponius. ' Austin 31. p. 580. ^ Cicero de Officiis 3. 17. 69. c. J. 23 354 THE ROMAN JUS GENTIUM. jus gentium does not occur in these works, while the idea is expressed by natura,jits naturae, Jus commune, &c. which are opposed to "this national law of ours'' hoc civile jus". I shall return to the meaning of jus gentium with Cicero a little further on. Meaning of Gentium. Gentes, in the strict sense, would signify not the Italian tribes so much as the old family or quasi-family associations of Kome. But, as early as Plautus we find the expression omnes gentes clearly meaning all nations'" and the genitive gentium, without omnium, in con- nexion with such words as unde, uhi, &c. answering almost exactly to our English expressions " whence, where &c. in the world." Austin attributes to gentes a meaning similar to that borne by " Gentiles " in the antithesis " Jews and Gentiles." Apart from its special theological application^, gentes in this antithesis means s\nrp\.y foreign nations. There are a few but not very clear instances of this use in classical Latinity'. That gentes could mean the individuals belonging to foreign nations* is entirely out of the question. Jus gentium is, idiomatically rendered, the law of the world. Jus civile. I can no more date with certainty the intro- duction of this term jus civile than I can that oi jus gentium ; but I believe it to be the earlier of the two. The meanings of the phrase are various, and, though pretty clearly ascer- tained, by no means easy to account for. In the passages from Cicero quoted above, and in others, it means the whole law of a particular state and, wbere a state is not specified. * Auctor ad Herennium 2. 10. 14 : 2. 13. 19. Cicero de Inventione 2. 53. 160 — 162. Cf. de Inventione 2. 22. 67. Naturae quidem jura quaeruntur ad hane controversiam, quod neque in hoc civili jure versantur, '0|u6s 51, 52 vdfios 52- — 56 — Pindar on 54 — derived from vifuiv 55 — 57 Opinion, sanction of 189—192 GENERAL INDEX. 399 Papinian, his definition of law 97 Paulus „ „ „ 118 peregrini 341, 342 permissive legislation 137, 168 philosophical law of natiire 117 — 119 Plato on law 98 political association, general course of 149 popular assembly 152 " positive " law 181, 132, 135 — — "strictly so eaUed" 136 — — moral rules 137 — 140 Praetor Urbanus 344 — the second 345 — "peregrinus" 345, 346 precedents recognised by Hale 246 — practical application of 249, 250 promulgation 213 " promulged and unpromulged " law 213, 269 prudentes according to Savigny the organ of the people 274, 325 — distinguished from patroni 282, 284 — pontiffs the first 284 — as professors 288—290 — as jurum conditores 290, 291 — licensed 293—295 — under Hadrian 295—297 — later 297, 298 — in the Digest 298, 299 publication of statute law 30, 38, 92, 212 raihts 79, 80 rajah 82 ratio legis 233, 234, 250, 251 " reason of the thing," Hale's 244 — 246 rectus 83 regere, rex Sec. 82, 83 regiae leges 38, 92 reihs, reich, recke 82, 83 repealing statutes 137 res judicata 216, 217 rescripta of Emperor 220 — 222 — Blackstone on 222, 223 responsa prudentiwm 222 rice (ric) 84 Eight, derivation and original mean- ing of word 79—82 — relation of word to rex &e, 82—84 Eight and Wrong 85, 86 Eight and rights, Austin and Black- stone on 77 — 79 Eights of Persons and Things, origin of phrase 24 Eight = Law 87—89 — " subjective " and " objective" 89 riht, relit 81, 82 flOLKOS 84 Eoman law, use of its study 1 — 3, 5,6 •^ ' rule, Blackstone' s interpretation of a 112, 113 Sanctions 132—134 — physical 122, 123 — less obvious 168, 169 — of opinion 189—192 Savigny on original law 151 — on Interpretation 230 — 235 — on jus gentium 340, 341 scheme of this work 6 — 9 scriptum (jus) and non scriptum 267, 268 — meaning of, according to Ger- man jurists and Austin 268, 269 — that meaning discussed 270 — 272 — GlanviUe's use of the antithe- sis 302—6 Shield of Achilles, trial scene in 49, 50 " singular " law 319, 336 Social Contract or Compact 142 — 144 sources of law, different meanings of phrase 197—199 — fault of classification by 204 —210 " spurious " Interpretation, Black- stone &c. on 235—238 — — Austin on 238—240 — — history of 240—242 "state" or "nation" 141, 142 — essentials of 143, -144, 157, 158 — definition of 163— 165 statute law, English 202—205 — juridical meaning of 210 — 212 staua 91 Staunforde 311 Stoic id^^^^'-law 96, 99, 100, 106 political society 149 400 GENERAL INDEX. synthetic method of jurisprudence 3 sovereign, ambiguous meaning of 173—176 — derivation of 160 sovereignty, genesis of 158 — 160 — not universal nor original 154, 160 — not necessarily sole 159 — subdivision of 162 testamentum per aes et libram 35, 36 Teutonic names of law, summary 75, 76 text-books, contents of 266, 267 — first Eoman 291—293 text-book law, " unwritten " 324 text-book writers, function of modern 336—339 ei/xis, derivation and meaning of 42 —46, 48 S^fuo-res 43, 47, 48, 49 •de^areiuj 42 Bi/ures 46 Becr/Ms 48, 55, 57 Ulpian, his definition of law 98 — his law of nature 110 unconscious definitions of law 13 — 15 — — summary of 90 — 93 Utilitarianism 123, 124 valgus, vants 84 village communities (Maine) 155, 156 vrijina 84, 85 witoth 59 wraikios 85 wrenc, wrincle 85 Wrong, derivation and original meaning of 84, 85 Year-books, early 307, 308 INDEX TO AUSTIN. For the convenience of students of Austin^ I have added a table of reference, from the passages of his Jurisprudence -which I have cited, to the present work. Column A represents the paging of the third edition of the Jurisprudence, the number of the lecture being indicated by Roman numerals. The frag- mentary matter at the end of the lectures is headed " T. & N." (Tables and Notes). Column C gives the page of this book. Fr&face 1—22 5 4—11 382 8 144 Outline 38 319 41 198 I 88 125 88, 9 132 89 104 90 109 90 371 91 212 93 133 95,7 112 97 118 98 204 100,1 137 102 137 103—5 327 II 106,7 117 109 124 171, 2 251 172, 3 109 174 139 174,5 137 174,5 138 175 135 177 140 177,8 181 178—80 117 182,3 135 183 136 184 137 138 184, 5 136 186 137, 8 187 138—40 184 188 184 189, 90 184 193 138 198, 9 139 200 139 201 361 204 137 166 212 109 111 213 111 214 109 215 111 217 107 218, 9 123 219, 20 137 VI 231, 2 184 237 146 239, 40 149 240 161 174 148 241 157 174, 5 242 163 248 164 243, 4 152 159 244 164 245 165 249 142 160 164 253 164 203 255,8 163 C. J. 26 402 INDEX TO AUSTIN. A C A C A C 268 174 523,4 133 XXXT 268—61 176 134 270 140 569 359 273 164 XX vm 362 274 170 140 526, 7 528, 9 197 269 572 673 348 342 275 276 171 26 530—3 635 202 204 574 348 342,3 287 307-35 144 144 537 538 136 206, 7 575 364 343, 4 364, 5 XII XXIX 577 343 364 365, 6 137 542 30 579—81 344 168 213 680 353 XIV 269 582,3 359, 60 377 115 542, 3 212 583 358 378, 9 146 643, 4 213 361 645 256 584 362 XV 546, 7 305 396 364 547 303, 6 XXXTT 648 211 589 362 XVI 648, 9 215 592 359 408 77 XXX XXXTTT XVII 651 327 594, 5 364 412 77 552 318 319 596 597 364,6 366 XVIII 553 321 166 597, 8 599 243 169 419 421 77 77 564 319, 20 166 239 243 421 81 16 26 197 215 329 600 250 3L9 370 371 428, 9 116 555 197 600,1 XIX 566, 6 329 227, 9 601 245, 6 433,8 115 556 567, 8 331 270 XXXIV XXII 558 659 276 330 605 342 463, 4 26 560 327 XXXV XXIII 561 330 329 610 611 348 208, 9 470,1 134 562 222 612 208 287 613,4 209 XXVII 563 291 616 217 522 169 564 314 222 616,7 617 210 208 INDEX TO AUSTIN. 403 A C A A C 618 370 660,1 252 690—8 224 619, 20 210 661 253 692,3 386 377 662 253 391 622 208 694 390 623, 4 209 xxxvni 696 247 663 257 700—3 381 XXXVI 664 255 702 4 632 264 666,7 256 703,4 382 634 370 378 635 374 667 287 XLII 636 377,8 336 737 89 639 365 XXXIX 378 670 214, 5 XLIV 640 370, 2, 6 671 672 247 248 778, 9 356 XXXVII 672,3 256 T. &N. 641 211 673 257, 8 952, 3 5 642 247 264 961 2 643 247,9 674, 5 259 1019—21 5 645 234 261 1023 234 646 247,8 676 248 1024^6 239 647 248 257 1025 239 299 677 260 1028 232 648 247,8 677, 8 259, 60 1029 240 648,9 252 679 247 1030 239 651 248 680 247, 9 1036—40 251 652 251 681 263 1040—54 251 654 253 386 1066—74 380 654,5 223 683 248 1060, 1 382 655 229 685 382 1062, 3 388 245 685—8 381 1070, 1 392 326 686 249 1071, 2 386 655, 6 227 262 1129 384 239 686, 7 245 1129—37 380 656 241 687 254 1130, 1 384 287 688 263 657 328 381 658 137 689—98 381 ADDENDA. P. 10, in list of books. Bivier. Introduction Historique au Droit Eomain. NouTelle Edition. 1881. P. 224, note 37, adfinem. In Austria the direct prohibition of reference to a previous judgement, contained in the Biirgerliches Gesetzbuch (Einleit. § 12, cf. the Prussian Einleitung § 6) has been still more distinctly modified. The PlenarentscJieidungen of the supreme Court are binding precedents, and the Judicatenbuch, since 1872, is an official record of them. P. 231 adfinem. Savigny's classification of "Interpretation" is generally copied in the German Lehrbiicher. The ideas, however, connected with his terms seem to be somewhat modified by recent practice. " Usual" interpre- tation may be now nearly identified with "Praxis," and that with the run of recorded decisions. "Doctrinal" interpretation (Wissenschaft) relies on the authority of text-book writers. Both are included under the term Jurisprudenz. P. 290, 1. 21. Jwum. I take Dr Kennedy's authority (Lat. Gr. p. 52) for this genitive. I believe MSS. of Plautus read jurium, but I cannot see any reason for the i. CAMBRIDGE: PRINTED BY C. J. CLAY, M.A, & SON, AT THE UNIVERSITY PKESS.