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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 052 202 474 
 
Cornell University 
 Library 
 
 The original of tiiis 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/cu31924052202474 
 
OXFOED LEOTU.EES 
 
 AND OTHER DISCOUESES 
 
OXFOED LECTURES 
 
 AND OTHER DISCOURSES 
 
 BY 
 
 Sir FREDERICK POLLOCK, Bart. 
 
 M.A., HON. LL.D. BDIN. 
 
 COEPtJS PKOPESSOE OP JURISPRUDENCE IN THE UNIVEESITT OP OXFORD 
 
 HONORARY MEMBER OP THE JURIDICAL SOCIETY OF BERLIN 
 
 Honlion 
 
 MACMILLAN AND CO. 
 
 AND NEW YORK 
 
 1890 
 
 All rights reserved 
 
SIR ALFEED LYALL, K.C.B. 
 
PEEFACE 
 
 A PUBLIC lecture, as the term is used at Oxford, is 
 the setting forth of matters in some way belonging 
 to the speaker's particular branch of learning for 
 an audience not assumed to be specially versed in 
 its methods or applications. A considerable part 
 of this volume represents, in text or in substance, 
 public lectures actually delivered in the University ; 
 the whole of it is in a general way of the same 
 character. A few pieces are included which are 
 slightly or not at aU connected with the Faculty 
 of Law. Those whom the subjects do not interest 
 will easily forgive the inclusion of these pieces, since 
 they are so few. To lawyers I might justify one of 
 them by the authority of Mr. Justice Wills, from 
 whose " Eagle's Nest " in the valley of Sixt I started, 
 many years ago, on one of my first days of real 
 mountaineering, and another by boldly perverting 
 Bracton's words propter jus gladii quod dividi non 
 potest. 
 
VUl PREFACE 
 
 To the minority of readers who may be more 
 interested in these outlying essays than in the main 
 part of the book, I need hardly make excuses for 
 having taken the first occasion of preserving them. 
 
 Some lectures on the History of the Science of 
 Politics, which might otherwise have formed part of 
 this book, were separately republished a few months 
 ago for a special reason which was then stated. 
 
 F. P. 
 
 Lincoln's Inn, 
 
 October 1890. 
 
CONTENTS 
 
 PAGE 
 
 I. The Methods of Jueispeudbncb ... 1 
 
 II. English Opportunities in Histobipal and Oom- 
 
 PABATIVB JUEISPEUDENCE . . .37 
 
 III. The King's Peace . . . . .65 
 
 IV. OxEOED Law Studies . . .91 
 V. The English Manor . . . .112 
 
 VI. Sir Henry Maine and his Work . . . 147 
 
 VII. Religious Equality . . . .169 
 
 VIII. Home Rule and Imperial Sovereignty . . 187 
 
 IX. Examinations and Education . . .216 
 
 X. Law Libraries ..... 234 
 
 XL The Library of the Alpine Club . . .250 
 
 XII. The Forms and History of the Sword . . 260 
 
 INDEX ...... 299 
 
THE METHODS OF JUEISPEUDENCE ^ 
 
 JjjBJS'PRXJBENCE, juris prudentia oxperitia, Mechtsivis- 
 senschaft — these are terms current among lawyers 
 and scholars, and imply the existence of a systematic 
 body of doctrine ; of a special kind of knowledge 
 which can be and is methodically treated, and 
 possesses methods and ideas proper to itself. A body 
 of such special knowledge is a science, unless it 
 depends only on the application of other and more 
 general sciences. Thus there are scientific treatises 
 on gunnery, navigation, and railway engineering. 
 But we should hardly say that seamanship, or gunnery, 
 or the construction of locomotives, is a science of 
 itself. The application of the seaman's, or gunner's, 
 or locomotive engineer's knowledge is a distinct art 
 in itself, having in each case its own distinct practical 
 end, and needing to be separately studied by those 
 who would be skilled in it. But the knowledge that 
 guides the art is obtained by the application to a 
 particular kind of cases of general physical truths, 
 and the methods are applications of those discovered 
 
 1 An introductory lecture delivered at University College, London, 
 October 31, 1882. 
 
 B 
 
2 THE METHODS OF JUKISPRUDENCE I 
 
 and used in mathematics and mathematical physics. 
 Therefore we may speak for some purposes of the 
 science of seamanship for instance, but if we are 
 speaking with attention to the exact use of words, 
 we shall say that seamanship is an art depending on 
 certain branches of mathematical and physical science. 
 As regards our own case, there is no doubt that the 
 practice of the law is a perfectly distinct art. It is 
 constantly spoken of as such in our older books. The 
 lawyer's technical words are called terms of art, and 
 in our own day an Ul-drawn instrument may stUl be 
 described by the judge as inartificial. In this usage 
 the word has probably the larger sense in which the 
 " liberal arts " were understood in the mediaeval 
 university course, covering what we now understand 
 by both art and science ; but at all events it 
 includes art in the modern sense. Indeed, the 
 lawyer's is a manifold art. As counsel he is called 
 on to form a practical judgment on the legal effect of 
 the facts laid before him ; as advocate, to present in 
 the most forcible and persuasive manner that view 
 of the case which is most favourable to his client's 
 interest ; as draftsman, to express in apt and sufficient 
 words the intention of the parties who instruct him. 
 Nor can a draftsman, in particular, produce really 
 good work, whether the instrument to be framed is 
 an ordinary lease or an Act of Parhament, unless he 
 has a share of artistic feeling in the eminent sense, 
 and takes a certain artistic pride in the quality of his 
 workmanship, apart from the reward he will get for it. 
 Art, then, we certainly have. And we have a body 
 
I THE METHODS OF JURISPRUDENCE 3 
 
 of doctrine which in most civilised countries is 
 systematic, and in England is at least capable of 
 being made so, which is the peculiar and technical 
 study of lawyers — so much so that laymen complain 
 of it for being too technical — and which cannot be 
 regarded as the application of any other and more 
 general science or sciences. Legal ideas have as clear 
 a generic stamp of their own as mathematical or 
 physical ideas ; and in law, no less than in physics, 
 the terms of commonest use have a widely different 
 import for the trained and for the untrained mind. 
 A man of what is called good general education will 
 talk of Obligation or Possession as he will talk of 
 Energy or Mass, thinking he knows what he means, 
 but in truth having only a vague shadow of a mean- 
 ing. The physicist will tell him in one case, the 
 lawyer in the other, that he is using words which 
 it has taken generations of strenuous thought and 
 discussion to bring to their full and clear significance. 
 In either case he may put us off, if he chooses, with 
 ridicule — the last refuge of obstinate ignorance in its 
 lighter moods, as the will of Providence is in its 
 serious ones. We also find that competent lawyers 
 are substantially at one in their methods and their 
 terminology, though they might have some trouble in 
 explaining either to lay people, and English lawyers, 
 for a variety of reasons, for the most part anxiously 
 shrink from verbal definition. Law, then, has all the 
 marks of a distinct science; and, seeing that legis- 
 latures and courts of justice notoriously exist, it 
 cannot be charged with being a science falsely so 
 
4 THE METHODS OF JURISPRUDENCE I 
 
 called and versed in unreal matter, such as astrology 
 or the Chinese doctrine of auspicious and inauspicious 
 sites. It may be suggested, perhaps, that legal science 
 is nothing but the application of logic (at all events 
 if logic be taken to include the systematic use of 
 induction and analogy) to a special aspect of human 
 life. My answer to this would be that every science 
 is equally an application of logic to some class of 
 facts. Logic is not a special science or art at all, but 
 the condition or instrument of all knowledge alike. 
 With metaphysics, and perhaps pure mathematics, it 
 stands apart, presupposed in every science, but 
 specially attached to none. It may be said, again, 
 that Jurisprudence is one of a group of special studies 
 which all come under Politics in the wide sense, and 
 that some parts of what is called legal knowledge are 
 really quite as much political. To this I should not 
 gravely object, or not at all. Political science as a 
 whole, however, cannot be said to be much organised 
 at present ; and the special branches, jurisprudence, 
 political economy, and whatever others there may be, 
 must meanwhile exist on their own footing if they are 
 to exist at all, and even encroach on the general 
 theory of politics when they find it convenient. 
 
 If it is certain that jurisprudence or legal science is 
 the name of a real and distinct scientific study, no 
 less is it certain that learned men have found it by 
 no means an easy task to define its contents and 
 scope. At this day widely difierent accounts of these 
 are given by difi"erent schools. A student who has 
 received an English training is at first bewildered by 
 
I THE METHODS OF JURISPRUDENCE 5 
 
 the Continental treatment of theoretical jurisprudence. 
 It is not merely that the terminology differs from his 
 own ; there is a radical diversity of conception and 
 handling. Perhaps it may help us to understand 
 such a divergence if we go back to the earliest 
 classical definition of Jurisprudence, and see to what 
 questions it gives rise. I mean Ulpian's, which is 
 not only preserved in the Digest, but conspicuously 
 adopted at the beginning of the Institutes, and is 
 therefore familiar to every student of Eoman law. 
 
 The words of Ulpian are as foUows : — luris- 
 prudentia est rerum divinarum atque humanarum 
 notitia, iusti atque iniusti scientia. We need not now 
 trouble ourselves, I think, to discuss the exact mean- 
 ing attached to this expression by Ulpian or the Greek 
 theorists whom he followed. It wUl be more for our 
 present purpose to see if, without doing violence to 
 the words, we can find a meaning acceptable enough 
 to lead us to definite issues. " Jurisprudence is the 
 discernment of things divine and human, the know- 
 ledge of what is just and unjust." At first sight this 
 is but an unpromising rhetorical description, covering, 
 as it seems to do, the whole field of human conduct 
 without distinction between legal and moral duty. 
 But if we look closer, we see that the scientia here 
 in question is a discriminative, not a collective know- 
 ledge. To know what is just and unjust is to know 
 the difiierence between just and unjust. What if the 
 notitia spoken of in the first clause be likewise a 
 discernment not so much of the things themselves as 
 of the distinction between them ? If so, we may read 
 
6 THE METHODS OF JURISPRUDENCE I 
 
 it thus : " tlie discermnent of that which concerns 
 the gods and that which concerns human authority," 
 the separation, in other words, of the province 
 reserved for religion and morality from the province 
 of law. That is not yet jurisprudence, but it is a 
 preface to jurisprudence ; it is the knowledge of what 
 jurisprudence is not, and, to that extent, of what it 
 may be. The res divinae are to be left aside for the 
 theologian or the moralist. And this is a distinction 
 which is not merely formal, but goes deep into the 
 practical working of law. Thus the motive of any 
 given action, as distinct from its intention, is for the 
 most part a res divina in the sense we have put upon 
 Ulpian's definition. For many purposes, the law re- 
 gards intention but not motive. It makes a great moral 
 difi"erence (to take a stock example) whether a man 
 breaks a baker's window and snatches a loaf as a mere 
 piece of mischief, or because his children are starving ; 
 but the legal offence is the same.. Intention is a 
 necessary element in the facts constituting theft; 
 but when all the elements are there, they no less 
 amount to theft because the motive may be such as 
 to extenuate or all but abolish the moral demerit. 
 Practically the result may be tempered by judicial 
 discretion, which (not being bound to give reasons in 
 detail) supplies the more subtle adaptations required 
 by moral feeling. This is just the kind of point on 
 which even intelligent laymen are apt to stumble ; 
 law-makers seem to them unjust because they leave 
 the refinements of administration to the administrator. 
 I leave you to consider for yourselves, from this point 
 
I THE METHODS OF JURISPRUDENCE 7 
 
 of view, the spirit of our English criminal justice ; 
 the wide range of possible sentences (in the case of 
 manslaughter for instance anything from one day's 
 imprisonment to penal servitude for life), the power 
 of suspending sentence altogether by taking security 
 to come up for judgment, the extreme rarity of 
 minimum sentences, and the like. 
 
 To return to our general topic : we have set off the 
 proper field of legal study, namely res humanae in 
 the sense of institutions of human ordinance. Then 
 the definition specifies further : iusti atque iniusti 
 scientia, the knowledge of what is just and unjust. 
 Here just and unjust must mean something within 
 the sphere of res humanae, something allowed or 
 disallowed by rules which are administered, or 
 conceived so to be, by a definite human authority. 
 Just is that which is, actually or potentially, upheld 
 in a court of justice ; unjust is its contrary. Justice, 
 legal as well as moral justice, is no doubt conceived 
 as antecedent to any particular tribunal. Neverthe- 
 less if we want to know in practice what legal justice 
 means, we must look to the usage of existing law- 
 givers and judges. So far we have traced in the 
 rough the distinction between law properly so called 
 and opinion or morality. The remark is obvious that 
 Ulpian seems to omit the peculiar relation of positive 
 law to the State. But the Latin word ius really 
 includes this, if we may forget the unhappy term ius 
 naturale, which seems to be a mere external ornament 
 borrowed from Greek philosophers in excess of zeal to 
 make a show of philosophical culture, and inconsistent 
 
8 THE METHODS OF JURISPRUDENCE I 
 
 with the proper Roman use of the word. Indeed the 
 Roman vocabulary for these general notions was 
 almost too good. A Roman, possessing such apt and 
 clearly distinguished words as fas, mos, ius, lex, and 
 aequum and honum to fall back on when he came to 
 the region of moral discretion, could not feel much 
 occasion for further verbal analysis. He could 
 scarcely have been made to understand our modern 
 ambiguities and flounderings with Law, Recht, and so 
 forth. We analyse to supply our want of clear terms 
 and correct instinct. Our science, then, is a know- 
 ledge of human laws. But of what laws, or what 
 species of them ? Are the laws or legal conceptions 
 we study to be actual or ideal, general or particular ? 
 There are many distinct systems of rules by which 
 the tribunals of civilised countries actually profess 
 to be guided. They have the family likeness which 
 belongs to the corresponding institutions of all 
 civilised States, but they have considerable specific 
 differences. We find one body of legal doctrine and 
 form of legal proceedings here, another at Edinburgh, 
 another in the Isle of Man, and another in Jersey ; 
 this by merely looking round us at home. If we go 
 beyond our own seas, we may count up a dozen or 
 more distinct bodies of law without quitting the 
 dominions of the British Crown. And then there are 
 several distinct systems of speculation and argument 
 by which philosophers have endeavoured to make out 
 what the laws of civilised States, in their general 
 features at any rate must be or ought to be. This 
 kind of discussion may range from the most abstract 
 
I THE METHODS OF JURISPRUDENCE 9 
 
 and general ideas to the pressing and practical needs 
 of the day. Moreover we may consider the form of 
 laws as well as their matter ; this leads us to such 
 topics as codification, draftsmanship, and even 
 parliamentary procedure. Shall the province of juris- 
 prudence be deemed to embrace all these lines of 
 inquiry, or some and which of them? Let us see 
 what number and variety of possible species of legal 
 science we have obtained. 
 
 First consider laws as the actually existing and 
 operative rules under which justice is administered. 
 A man may study the system of his own land in 
 order to know how things stand with his own property 
 and business, or to qualify himself as a skilled adviser 
 in the affairs of others. This is what we mean in 
 common speech by being learned in the law. By a 
 good lawyer we signify, speaking among Englishmen, 
 a man well acquainted with the laws of England as 
 they now are and concern our present affairs. We 
 may call such knowledge practical or empirical juris- 
 prudence. In England it has to be sought in a 
 clumsy and laborious fashion, and has got a forbidding 
 reputation. It may be not useless to say that, in 
 spite of all repulsive appearances, the studetit can 
 commit no greater mistake than despising it. 
 
 A bare account of existing laws may be sufiicient 
 for common practice ; but at many points it must 
 leave unsatisfied curiosity in a mind that is curious at 
 all. Doubts and anomalies force us to inquire how 
 the particular legal system and its various parts came 
 to be what they are. And if we pursue the inquiry 
 
10 THE METHODS OF JUKISPRUDENCE I 
 
 far, we shall find that, as many things in existing law 
 were explicable only through history, so the history of 
 one system is not complete in itself. Sooner or later 
 we break off in a region of tradition and conjecture 
 where we can guide ourselves only by taking into 
 account the kindred institutions of other nations and 
 races. Thus we are led to historical and comparative 
 jurisprudence, a line of study which forms a bond 
 of alliance between the scientific lawyer on the one 
 side and the historian, the archaeologist, and the 
 ethnologist on the other, and enables legal science to 
 claim an assured place among the Humanities. 
 
 Again, comparative study discloses a certain 
 amount of groundwork and typical conceptions which 
 are common to all legal systems, or to all that have 
 made any considerable way towards completeness. 
 The Eomans discovered, or thought they discovered, 
 such a common groundwork of legal institutions in 
 the various commonwealths that became subject to 
 Eome. What remained, after deducting local and 
 technical peculiarities, was called by them the common 
 law of nations, ius gentium. Human society is so far 
 alike in all tolerably advanced nations that the same 
 kind of dealings have to be regulated and the same 
 kind of interests protected. Marriage and the custody 
 of children ; sale, hiring, loan, and pledge ; liability 
 for voluntary or involuntary acts causing injury ; the 
 punishment of theft and homicide — these matters, 
 under whatever names or forms, must be provided for 
 in every community where a settled order is to be 
 preserved. Thus we get a common stock of general 
 
I THE METHODS OF JURISPEUDENCE 11 
 
 ideas, the study of which, so far as we can pursue it 
 or imagine it to be pursued apart from the study of 
 any actual system of law, may be called General 
 Jurisprudence. But these general ideas of law may 
 be approached from another direction. The endeavour 
 may be made, not only or chiefly to recognise them 
 as being in fact common to different systems, but to 
 exhibit them as necessary ; to deduce them from the 
 general conditions of human society and action, and 
 define their exact import without reference to their 
 actual treatment by legislators or courts of justice. 
 Thus we may attempt a general definition of such 
 ideas as Duty, Intent, Negligence, Ownership, 
 Possession, or (boldest ambition of all) of Law itself. 
 Speculation of this kind (for it is essentially a 
 speculative study) has of late years been conveniently 
 named Analytical Jurisprudence. It is apt to run up 
 into speculations on the theory of politics and govern- 
 ment which really form a sort of political prolegomena 
 to legal science, or borderland between jurisprudence 
 and politics. To this region belongs the theory of 
 Sovereignty which is so conspicuous in Bentham and 
 Austin. 
 
 We have then already four branches or methods of 
 jurisprudence, practical, historical, comparative, and 
 analytical (for what I have called General Juris- 
 prudence is hardly more than a name for the collective 
 result of the two latter), and these are all concerned 
 with laws, not as they might be or as we should like 
 them to be, but as they are. 
 
 If now we take in the consideration of laws as they 
 
12 THE METHODS OF JURISPRUDENCE I 
 
 ought to be, we pass into ground which belongs — 
 according to English notions at any rate — to the 
 statesman more than to the lawyer. Still it belongs 
 to lawyers in some sort, as technical knowledge is 
 needful to, give definition to the statesman's ideas, 
 and express them in an appropriate and sufficient 
 form. This department of jurisprudence is marked 
 off from the others in that it does not examine facts, 
 but aims at an end or ideal. This may be expressed 
 by calling it, as I have elsewhere called it. Final 
 Jurisprudence, by analogy to the well-known term 
 Final Cause. The consideration of it may be 
 approached in two ways. In England Bentham has 
 taught us to approach it with a view to practice. If 
 we consider what laws ought to be, it is because we 
 want to make them such as they ought to be. We 
 conceive our ideal for the purpose of realising it by 
 reforms. The instrument of reforming laws is legis- 
 lation ; and we must further study the powers and 
 the handling of the instrument if we would use it 
 with effect. We must learn how to apply it to the 
 best advantage. Our good intentions must be 
 executed by the best possible workmanship ; and if 
 we find that the technical methods in use themselves 
 need reforming, they also must be reformed. Thus 
 our Final Jurisprudence assumes the shape of a 
 Theory of Legislation, with special branches treating 
 of the formal structure of laws, codification, revision 
 of codes, and legal procedure. If we want to see a 
 good practical exposition of the theory of legislation 
 as understood by enlightened Englishmen, we cannot 
 
I THE METHODS OF JUKISPEUDENCE 13 
 
 do better than study the principal chapters of the 
 Indian Penal Code with the notes annexed by its 
 authors to their original draft. ^ And if anybody were 
 to challenge me to say what is the use of a theory of 
 legislation, I should think it a sufficient reply to point 
 to the Anglo-Indian codes. Bentham was in many 
 ways an unpractical or impracticable reformer, but his 
 work gave a fruitful impulse to practical minds such as 
 Macaulay's and Macleod's in the following generation. 
 But there is another way of considering what laws 
 ought to be. The perfect and ideal law may be 
 regarded as a kind of pattern existing in the con- 
 stitution of man's social nature, or in the minds of 
 philosophers, and consisting of principles which, as 
 being absolutely reasonable, ought of right to be 
 followed by all reasonable men, though, because of 
 man's weakness and the local diversities and historical 
 accidents of existing governments, the laws which are 
 in fact enforced by princes and rulers can be only 
 more or less rude approximations to them. Similarly 
 the law which in given historical circumstances a 
 perfectly wise legislator would enact may be conceived 
 as a pattern from which the law that is actually made 
 unavoidably deviates to a greater or less extent ; and 
 the former may be deemed to be, in the ideal sphere 
 of reason though not in fact, not only a law in some 
 sense, but more truly the law for the given circum- 
 stances than the imperfect production we have to 
 accept in practice. The general principles of legis- 
 
 1 These notes are included in Lady Trevelyan's edition of Macaulay's 
 works. 
 
14 THE METHODS OF JURISPRUDENCE I 
 
 lation and government which are in this manner put 
 forward as claiming assent from all men in so far as 
 they are rational and social beings are said to be of 
 natural obligation, and the sum of them is called the 
 law of nature, droit naturel, Naturrecht. The law 
 which would in itself be best for a given nation in 
 given circumstances is sometimes called, by authors 
 who take this point of view, positive law, the rules 
 of actual civU obligation which we of the English 
 school call positive law being by these authors named 
 enacted laws, and relegated to a subordinate place 
 in their exposition. 
 
 This view, such as I have endeavoured to charac- 
 terise it, is still prevalent among Continental philo- 
 sophers and jurists. The sort of doctrine which 
 embodies it may be called Ethical Jurisprudence, for 
 the law of nature, whatever it may be, is alleged to 
 be binding on all men's reason, which is as much as 
 to say that it is of like obligation and equally wide 
 application with morality : and indeed its principles 
 appear to be nothing else than those moral and social 
 precepts which, by general consent, or in the opinion 
 of the expounder for the time being, are convenient 
 to be enforced by the power of the State, or would 
 be so in a perfect State. By those who take up this 
 doctrine it is considered the most important and 
 dignified branch of legal science, and is often called 
 the philosophy of law in an eminent or exclusive 
 sense, and though it is not in itself incompatible 
 with other branches of jurisprudence, it is apt in the 
 hands of these authors to thrust them very much into 
 
I THE METHODS OF JURISPRUDENCE 15 
 
 the background. So far as my acquaintance with, 
 it goes, it appears to me to lump together in a 
 cumbrous and over -ambitious manner a good many 
 topics in the theory of government, politics, and 
 legislation, which are better treated separately. 
 Nevertheless, we cannot dismiss it in the lump as 
 absurd or illegitimate. The theory of legislation 
 must take its most general data from the most 
 general facts of civilised human society. It must 
 equally take its first principles, avowedly or tacitly, 
 from ethics. Ethical Jurisprudence, therefore, is to 
 a certain extent not only legitimate, but necessary. 
 The only strictly necessary difference between our 
 " theory of legislation " and a German philosopher's 
 Naturrecht is, that the Continental schools consider 
 their ideal of legal institutions as a thing to be 
 contemplated in and for itself, with a metaphysical 
 interest which is as it were cut adrift from practice ; 
 while the Englishman's ideal is of something to be 
 realised, or approached as near as may be, in an 
 actual State, for actual citizens, and by the posi- 
 tive enactment of a legislature. But the difference 
 is vastly exaggerated in outward show by the circum- 
 stance (not that it is an accidental one) that the 
 English and the Continental schools found their 
 theories on widely different ethical systems. In the 
 sense in which I have distinguished the terms, there 
 might be a Kantian theory of legislation and an 
 utilitarian Naturrecht. Many chapters of Mr. 
 Herbert Spencer's recent work would be most 
 intelligibly described to a Continental jurist as 
 
16 THE METHODS OF JURISPEUDENCE I 
 
 Naturrecht treated from the point of view of Mr. 
 Spencer's philosophy of evolution.^ Transcendent 
 theories of moral obligation,- however, naturally lead 
 to a transcendent philosophy of law which constructs 
 an ideal for its own sake ; and the consideration of 
 morality as a means to welfare or happiness leads 
 to the consideration of the State and its institutions 
 in the same manner, and to the framing of political 
 conceptions for practical purposes and under practical 
 tests. In other words, the political grounds and 
 reasons of legal institutions will present themselves 
 to the philosopher who holds a transcendental theory 
 of ethics as texts or chapters of the law of nature ; 
 while to such as are content to follow the humbler 
 but surer path of experience they will rather appear 
 as topics to be used in the theory of legislation. The 
 ethical habit of thought will impart its own form and 
 colour to the political and legal philosophy founded 
 on it. Thus the students of France and Germany, 
 trained on the lines of Descartes or Kant, are prone 
 to make much of the law of nature ; Englishmen who 
 study law with any theoretical interest, deriving their 
 impulse mainly from Bentham, think of law reform 
 and active legislation. And, for the reason just 
 given, not only the English and the Continental 
 student differ in their cast of thought, but each 
 expresses his thought in a language unfamiliar to the 
 
 1 Since these remarks were written, the term has been actually 
 applied to the theories of Bentham and Austin by an eminent livinc 
 Continental master of the historical school, Brunner of Berlin. Truly 
 philosophy has many and subtle revenges. 
 
I THE METHODS OF JURISPRUDENCE 17 
 
 other, and understood by him with difficulty. The 
 most hopeful common ground for a better understand- 
 ing is to be found, I think, in the historical school. 
 In Bluntschli's or Holtzendorff's work, for example, 
 German philosophical ideas are tempered by history 
 and knowledge of practical politics into a shape 
 which need not frighten any fairly open-minded 
 English reader. 
 
 Before we leave this topic of Final or Ethical 
 Jurisprudence, I will remark that, although a theory 
 of the law of nature or of legislation must rest on 
 some definite kind of ethical temper, I do not see why 
 it should formally assume any particular theory of 
 ethics. In either shape — Naturrecht, or theory of 
 legislation — there must be some positive conception 
 of the purpose for which the State exists ; because 
 that purpose, whatever we consider it to be, fixes the 
 ultimate object of all laws and legislation. This is 
 fundamental and unavoidable. And the conception 
 chosen by the theorist can hardly fail to be associated 
 with one or another side of the standing controversy 
 between the various " Methods of Ethics." But that 
 is no reason why he should take upon himself the 
 burden of a whole ethical doctrine. If he feels moved 
 to write on ethics as well as on jurisprudence, he may 
 do it separately. For example, Austin's second, third, 
 and fourth Lectures appear to me to have no business 
 where they are. They are not jurisprudence at all, 
 but ethics out of place. Still more does this apply to 
 aU the expositions of what is called the law of nature. 
 Continental, Scottish and American. 
 
 c 
 
18 THE METHODS OF JURISPRUDENCE I 
 
 There is another branch of legal science of which I 
 have as yet said nothing, and which stands by itself ; 
 I mean that which deals with existing or possible 
 relations not between citizens of the same State but 
 between independent States, International Law is a 
 true branch of jurisprudence, notwithstanding all that 
 may be said about its want of sovereign power and a 
 tribunal.^ You may define it as "positive international 
 morality " not having the nature of true law, but if 
 you do, the facts are against you. For what are the 
 facts ? 
 
 1. The doctrines of international law are founded 
 on legal, not simply on ethical ideas. They are not 
 merely prevalent opinions as to what is morally right 
 and proper, but something as closely analogous to 
 civil laws as the nature of the case wiU admit. They 
 purport to be rules of strict justice, not counsels of 
 perfection. 
 
 2. Since they assumed a coherent shape they have 
 been the special study of men of law, and have been 
 discussed by the methods appropriate to jurisprudence, 
 and not by those of moral philosophy. 
 
 3. There is also a practical test, and a conclusive 
 one. If international law were only a kind of morality 
 the framers of State papers concerning foreign policy 
 would throw all their strength on moral argument. 
 But as a matter of fact this is not what they do. 
 They appeal not to the general feeling of moral right- 
 ness, but to precedents, to treaties, and to the opinions 
 
 1 I am happy to be now supported in this view by Mr. Westlake 
 {International Law : an Introductory Lecture, Cambridge 1888). 
 
I THE METHODS OF JURISPRUDENCE 19 
 
 of specialists. They assume the existence among 
 statesmen and publicists of a sense of legal as 
 distinguished from moral obligation in the affairs of 
 nations. 
 
 4. Further, there is actually an international 
 morality, distinct from and compatible with inter- 
 national law in the usual sense. As a citizen among 
 citizens, so a nation among nations may do things 
 which are discourteous, high-handed, savouring of 
 sharp practice, or otherwise invidious and disliked, 
 and yet within its admitted right and giving no 
 formal ground of complaint. There is a margin of 
 discretionary behaviour which is the province not of 
 claims and despatches but of "friendly representa- 
 tions" and "good ofl&ces." 
 
 If therefore we find that our definition of law does 
 not include the law of nations, the proper conclusion 
 is, not that there is no such thing as a law of nations 
 and that we are to talk pedantically of positive inter- 
 national morality, but that our definition is inade- 
 quate. 
 
 To resume : we have as our total of divisions the 
 following : — 
 
 A — I. Positive Jurisprudence : which is 
 a. practical. 
 h. historical. 
 
 c. comparative. 
 
 d. analytical. 
 
 II. Final Jurisprudence, which has a practical side 
 (theory of legislation) and a speculative one (ethical 
 jurisprudence or Naturrecht). 
 
20 THE METHODS OF JURISPRUDENCE I 
 
 B. International Jurisprudence, which again is 
 diversely treated by different authors, and might be, 
 like municipal jurisprudence, subdivided according to 
 their several methods if we were examining it more 
 closely. 
 
 Putting aside the law of nations, let us see how 
 and for what reasons one or another of the methods of 
 jurisprudence has in different times and nations had 
 the supremacy. We shall see at the same time that 
 none of them can really subsist alone. 
 
 Consider, in the first place, the Koman lawyer 
 of the classical period, as his learning and office are 
 described by Ulpian. He is before all things iuris 
 prudens, that is, a lawyer in our special and usual 
 sense of the word ; he is skilled and competent to 
 advise in the laws of Eome ; not the laws of Plato's 
 Republic on the one hand, nor the" particular ordinances 
 of Ehodes or Ephesus on the other. His knowledge is 
 eminently practical. But his practice branches out 
 into more than one direction of science and specu- 
 lation. There are ancient and half obsolete portions 
 of Eoman law which are not yet so obsolete but that 
 an accomplished lawyer must know them. He must 
 therefore bd (if he aims at excellence and above 
 common competence) to some extent a historian and 
 an antiquary. There is every reason to think that 
 the best Roman lawyers were also considerable histor- 
 ical scholars according to their means. This taste is 
 conspicuous in Cicero, who is for us the standing 
 pattern of the Roman statesman of the later Republic, 
 proud of his own institutions and of his knowledge of 
 
I THE METHODS OF JURISPRUDENCE 21 
 
 them, and at the same time eager to adorn his know- 
 ledge with Greek culture and philosophy. Thus Eoman 
 antiquities bring in history; and if the historical 
 study was not scientific it was not for want of interest 
 or of acute minds, but because comparative study had 
 not gone far enough to make the scientific treatment 
 of history, and especially of archaic history, practi- 
 cable. Philosophy comes in by another door, which 
 is opened by the Praetor's Edict. A jurisdiction 
 extending beyond the stiU narrow bounds of Eoman 
 citizqnship abandons the strait and archaic forms of 
 Eoman custom and procedure. It seeks under the 
 local and peculiar forms principles that may be 
 admitted by the common reason of mankind. The 
 same state of things which made Eome a cosmopolitan 
 power had given a cosmopolitan stamp to the ethical 
 and political speculations of Greek authors. Hence 
 Greek philosophy was ready with speculative justifica- 
 tion of the practical wisdom of Eoman administrators ; 
 and the Eomans, having no philosophy of their own, 
 gladly took up the ideas thus ofi"ered to them. On 
 the actual substance of Eoman law Greek speculation 
 probably left hardly any mark, not even on the 
 Praetorian part of it ; but on the general conceptions 
 of the State, of law and of justice, it left a good deal. 
 The Eoman was taught to look beyond the traditions 
 and statutes of the Quirites for the source and the 
 majesty of the law which was his study. He sought 
 a wider ethical foundation for legal institutions, and 
 delighted to think, as Ulpian says, that his learning 
 was a genuine branch of philosophy. Nothing is 
 
22 THE METHODS OF JURISPRUDENCE I 
 
 easier than to ridicule Ulpian's exordium in detail. 
 Latin is hardly a philosophical language, to begin 
 with, notwithstanding Cicero's efforts to make it so. 
 But it was better that Celsus should define law as ars 
 boni et aequi, and Ulpian think the definition perfect, 
 than that they should think all legal science was 
 contained in the exact framing of an issue, or in dis- 
 covering what had become of a nudum ius Quiritium. 
 And perhaps the definition is not altogether absurd. 
 Why, says our modern critic, it includes morality 
 and all sorts of things that are not law. Let us pause 
 a moment. I have an odd prejudice in favour of 
 making sense of what has been said by men who (to 
 judge from that which is on all hands admitted of 
 their performances) were not likely to talk nonsense. 
 I would rather suspect myself of having missed a 
 shade of meaning than write down Celsus an ass for his 
 definition, and Ulpian for approving it. An " art of 
 what is right and fair" sounds vague enough. But 
 let us expand the phrase a little (without really adding 
 anything of our own) : "a skilled application of the 
 principles of right and fairness." Is that so hope- 
 lessly unlike the purpose aimed at, if not always 
 accomplished, by lawgivers and courts of justice? 
 Observe, it is art, a special and skilled application of 
 knowledge. And that is just what common morality 
 is not; for if it were an art practicable only by 
 specially skilled persons, it evidently would not be 
 morality. Law then, according to Celsus, is so much 
 of the permanent principles of moral justice as is 
 reduced or reducible to a technical system. His 
 
I THE METHODS OF JURISPRUDENCE 23 
 
 definition is a concise, and (as I think) a sufficiently 
 clear statement of the point of view taken in modern 
 times by what I have called Ethical Jurisprudence. 
 But he fails to distinguish, you may say, between 
 what is and what ought to be. True, but his time 
 was not ripe for the distinction. If it could then 
 have been made with the trenchant clearness of 
 Hobbes or Bentham, it is doubtful whether Eoman or 
 European jurisprudence would have been any the 
 better. Eoman law had to be made broad enough to 
 be in due time the strength of European civilisation ; 
 and nothing but a large infusion of ethical and cos- 
 mopolitan feeling could have done this. Let us not 
 be over-critical about the form. "What more idle 
 fiction is there, philosophically speaking, than the 
 original contract between king and people? Yet 
 without it the English Revolution might never have 
 been accomplished and the Whig party never have 
 taken shape. 
 
 Nor was the analytical element wanting in classical 
 Eoman jurisprudence, though it was not clearly or 
 separately conceived. Technical ideas were furnished 
 in abundance by the historical tradition of the ancient 
 system, and by the newer and more extensive range 
 of Praetorian jurisdiction. The classical jurists put 
 forth their strength in fixing the bounds of these 
 ideas and developing their consequences. Their 
 method was not consciously analytical, but their work 
 (even when we are not satisfied with its results) is a 
 model of legal analysis. Their tact and sense of 
 analogy go far beyond the region of bare empirical 
 
24 THE METHODS OF JURISPRUDENCE I 
 
 readiness which is still thought by many English 
 lawyers to be the only solid ground of their art. In 
 the Eoman treatment of a complex legal idea such as 
 that of Possession we may find all the modem 
 methods employed, and appropriately for the most 
 part. Or instead of taking a subject, let us take the 
 one treatise of the classical period that we have in a 
 fairly complete state. We find in various parts of the 
 Institutes of Gains distinct and creditable attempts in 
 the direction of historical inquiry (mostly suppressed 
 in the colourless recension of Justinian) ; the rational 
 and ethical element is marked in his account of 
 modern reforms ; there are passages of critical 
 analysis (and the criticism is very good) ; and in the 
 quotations from Homer, though we may smile at 
 them, there is a germ of comparative jurisprudence. 
 From Gains vouching the Iliad to help the definition 
 of sale and exchange, to Sir Henry Maine correcting 
 British dogmatism by the phenomena of the Indian 
 village community, seems a long way. Yet, if we 
 read Gains and his fellows in a spirit neither of letter- 
 worship nor of picking holes, we can feel at home 
 with them and know that we are working on the 
 same lines. 
 
 In modern times the several methods of juris- 
 prudence have been separately and diversely worked 
 out ; so . diversely as to appear, what they need not 
 and should not be, positively hostile to one another. 
 Here in England peculiar conditions have impressed a 
 peculiar form and character both on our laws them- 
 selves and on the study and exposition of them. 
 
I THE METHODS OF JURISPRUDENCE 25 
 
 From an early time our judicial system has been 
 independent of Continental culture, and singularly 
 independent of the other departments of government. 
 The judges have not been a special branch of the pro- 
 fession, but selected, under an efficient criticism of 
 skilled opinion, from the profession at large. Ever 
 since the King's Courts received their definite historical 
 form, the judgments of the King's judges have been 
 accepted as not only deciding the case in hand but 
 declaring the law. From an early time, again, we 
 have had a central and powerful legislature which, as 
 it represents the estates of the whole realm, has made 
 statutes binding on the whole, and knows no legal 
 bounds to its competence. Thus our laws have been 
 eminently national and positive, and our particular 
 legal habit of mind is perhaps the most insular of our 
 many insular traits. Our long standing apart from 
 the general movement of European thought has had 
 its drawbacks ; but I think it the better opinion that 
 both in jurisprudence and in the not wholly dissimilar 
 case of philosophy the gain has outweighed them. And 
 I mean this to be understood, in the present case, both 
 of science and of practice. The effect was to make 
 our jurisprudence above all things practical, and then 
 historical. I say historical as distinguished from 
 comparative. One may find in Coke's commentary on 
 Littleton, or better in Sir Matthew Hale's writings, 
 a great deal of historical research, though very little 
 comparison. Doubtless the history and the fruit of 
 its application suffer much for want of the compara- 
 tive method. Long ago it was remarked upon as a 
 
26 THE METHODS OP JUEISPRUDENCE I 
 
 strange thing that English real property lawyers so 
 much neglected the Continental learning of feudalism. 
 Still our English authors from Coke downwards (or 
 indeed from Fortescue) pay serious attention to the 
 history of their own system. Much of their history 
 is wrong, partly from prejudice, partly from credulity 
 and partly from imperfect materials ; nevertheless 
 they deserve credit for historical purpose, and for a 
 certain amount of really historical method. 
 
 Speculative or analytical treatment of legal ideas, 
 on the other hand, can hardly be said to have existed 
 at all in England before Bentham's day. Such 
 approaches to it as might be discovered in the earlier 
 literature would be confined, I think, to public and 
 especially to constitutional law, and would belong 
 rather to political theories than to jurisprudence 
 proper. Blackstone's constitutional doctrine is not 
 derived from legal sources at all, but is a modified 
 version of Locke's Essay on Civil Government. 
 Ethical topics more or less answering to the 
 Naturrecht of the moderns are by no means wanting 
 either in Blackstone or in writers of earlier date, but 
 they occur (so far at least as the common law goes) 
 in a casual and confused manner. We have in this 
 kind the dicta running through several generations 
 of text-writers and judges to the effect that the law 
 of England is the perfection of reason, and the 
 attempts made at various times, notably in the 
 Elizabethan age, to support or adorn its technical 
 doctrines by reasons drawn from general philosophy. 
 The student who has a mind for curious reading may 
 
I THE METHODS OF JUEISPEUDENCE 27 
 
 find a notable example in the great case in Plowden 
 on Uses and Consideration, where the law of nature 
 and Aristotle are freely invoked. Efibrts of perverse 
 astuteness in the same direction are manifested in the 
 Scriptural reasons and illustrations occasionally given 
 by Coke. 
 
 From another side, however, there came to the 
 English system a large and bold infusion of ethical 
 jurisprudence. The decisions of the Chancellor, 
 professing as they did in the earlier days of his Court 
 to be special dispensations of the king's justice in 
 cases for which no ordinary jurisdiction was adequate, 
 were openly founded on ethical and social principles 
 that were adopted on their intrinsic merits. Equity 
 was at length exhausted with victories, and ceased to 
 be creative. But during two centuries or thereabouts 
 before Lord Eldon's time the principles and practice 
 of the Court of Chancery were being settled into the 
 lines which he, more than any one man, finally fixed ; 
 and something hardly distinguishable from " the law 
 of nature " was openly put forward as the ground and 
 the sufficient reason of the innovations. We may 
 roughly say that the Chancellors deliberately adminis- 
 tered an expansive and inventive justice down to the 
 time of the Eevolution, and practically did so for almost 
 a century later. In the present century the doctrines 
 of equity have been quite as fixed both as to substance 
 and as to procedure as those of the common law ; nor 
 have they escaped from creating fresh examples of 
 the mischief they were originally designed to avoid, 
 the sacrifice of convenience and the common reason of 
 
28 THE METHODS OF JURISPRUDENCE I 
 
 mankind to the consistency of technical deductions. 
 These things are of common knowledge to students ; 
 but we should also note what is more easily over- 
 looked, the reaction of the methods and spirit of 
 Equity (and ultimately, to an extent perhaps greater 
 than is commonly allowed, of the general movement 
 of European thought) upon the development of the 
 , common law. So early as the fifteenth century we 
 find a common-law judge declaring that, as in a case 
 unprovided for by known rules the civilians and 
 canonists devise a new rule according to " the law of 
 nature which is the ground of all laws," the Courts at 
 Westminster can and will do the like. And in the 
 latter part of that century Westminster could show 
 at least one jurist of real genius. Chief Justice Brian. 
 For the most part, however, jealousy of rival juris- 
 dictions only made the common lawyers more obstinate 
 in their technicality down to a much later time. 
 The rational and ethical tendency became a real 
 power in the common law in the eighteenth century. 
 Lord Mansfield, its most illustrious exponent, some- 
 times carried it further than a mature system would 
 bear. But on the whole excellent work was done 
 under this impulse ; nor is it correct to regard the 
 movement as confined to commercial law, though its 
 most conspicuous efiects were certainly in that 
 department. He was a bold man, it has been said, 
 who first invented the "common counts." The de- 
 velopment of the so-called equitable actions on the 
 common counts for money had and received, and the 
 like, belongs to this period. It is difficult nowadays 
 
I THE METHODS OF JURISPRVDEITCE 29 
 
 to estimate the saving in costly and hazardous pro- 
 cedure which was effected by their introduction. 
 The same spirit was also shown, and perhaps to a 
 greater extent than we now have occasion to re- 
 member, in positive legislation; for many of the 
 statutes of the first half of the eighteenth century, 
 whose operation has been superseded by later enact- 
 ments, or has become too familiar a part of our 
 common stock to be matter of express reference, 
 were at the time considerable measures of law reform. 
 The peculiar character of English legal institutions 
 was strong enough to subdue these new elements to 
 itself. The ideas of a man of genius like Lord Mans- 
 field were worked piecemeal into practice, but no 
 definite theory was constructed by himself or by 
 any one else, though in the reports and treatises of 
 the last century one is puzzled by language which 
 appears to assume that a complete system exists. 
 There was a serious endeavour for lucidity and form, 
 as against the gratuitous technicality and the literary 
 clumsiness of the only existing legal classics. Black- 
 stone's Commentaries were the outcome of this 
 endeavour, and, all things considered, an admirable 
 one. Dr. Brunner has borne splendid witness to 
 Blackstone's merit in his account of the sources of 
 English law.^ But, both in the work of Blackstone's 
 forerunner Hale and in his own, the arrangement is 
 of the roughest kind, and the analysis of ideas is 
 
 ^ In tlie introduction to Holtzendorff's Encyklopadie der Reclitswiasen- 
 schaft, translated by Mr. Hastie, Edinburgh, 1888, but there is a still 
 later edition of the original 
 
30 THE METHODS OF JURISPRUDENCE I 
 
 rudimentary. Their science is historical, but too 
 self-contained and insular for the need of searching 
 analysis to be felt. I need not tell you how 
 Bentham's vehement and often unfair criticism broke 
 the spell that had fortified English jurisprudence as 
 in an enchanted castle, nor of the work of the 
 analytical method, enriched by wider and more en- 
 lightened historical research, in the hands of recent 
 and living English authors. The history of the 
 modern scientific movement in our legal studies is 
 written in books which all students who aim at real 
 knowledge must have in their hands and ought to be 
 familiar with. 
 
 On the Continent the order of things has been 
 quite difi'erent. Ethical speculation, as we just now 
 said, has almost overshadowed jurisprudence, and has 
 only within the last few generations been sufficiently 
 tempered by positive and historical studies. Probably 
 many reasons of more or less weight might be offered 
 for this. First among them, I think, would come the 
 peculiar position of Eoman law during the middle 
 ages. In all the lands which had obeyed Rome, and 
 were included in the nominal supremacy of the 
 revived Western Empire, it acquired a prevalence and 
 power not derived from the sanction of any distinct 
 human authority. No such authority was for the 
 time being strong enough to compete in men's esteem 
 and reverence with the shadow of majesty that stiU 
 clung to the relics of Eoman dominion. Thus the 
 Eoman law was not merely taken as (what for many 
 purposes and in many states it really was) a common 
 
I THE METHODS OF JURISPRUDENCE 31 
 
 groundwork of institutions, ideas, and method, stand- 
 ing towards the actual rules of a given community- 
 somewhat in the same relation as in the Roman 
 doctrine ius gentium to ius civile ; but it was con- 
 ceived as having, by its intrinsic reasonableness, a 
 kind of supreme and eminent virtue, and as claiming 
 the universal allegiance of civilised mankind. If I 
 may use a German term for which I cannot find a 
 good English equivalent, its principles were accepted 
 not as ordained by Caesar, but as in themselves 
 binding on the Rechtsheivusstsein of Christendom. 
 They were part of the dispensation of Eoman authority 
 to which the champions of the Empire in their secular 
 controversy with the Papacy did not hesitate to 
 attribute an origin no less divine than that of the 
 Church itself Even in England (though not in 
 English ppactice, for anything I know) this feeling 
 left its mark. In the middle of the thirteenth 
 century, just when our legal and judicial system was 
 settling into its typical form, Bracton copied whole 
 pages of the Bolognese glossator Azo. On the Con- 
 tinent, where there was no centralised and counter- 
 vaihng local authority, the Eoman law dwarfed every- 
 thing else. Yet the law of the Corpus Juris and the 
 glossators was not the existing positive law of this or 
 that place : the Eoman law was said to be the 
 common law of the Empire, but its efiect was always 
 taken as modified by the custom of the country or 
 city. " Stadtrecht bricht Landrecht, Landrecht bricht 
 gemein Eecht." Thus the main object of study was 
 not a system of actually enforced rules, but a type 
 
32 THE METHODS OF JURISPRUDENCE I 
 
 assumed by actual systems as their exemplar without 
 corresponding in detail to any of them. Under such 
 conditions it was inevitable that positive authority 
 should be depreciated, and the method of reasoning, 
 even for practical purposes, from an ideal fitness of 
 things should be exalted, so that the distinction 
 between laws actually administered and rules elabor- 
 ated by the learned as in accordance with their 
 assumed principles was almost lost sight of. This is 
 not matter of conjecture, for elsewhere similar causes 
 have had similar effects. In India the whole Hindu 
 community acknowledges a kind of ideal Brahmanical 
 law.^ To the Hindu population, broadly speaking, 
 this is what the Eoman law was to the mediaeval 
 Empire, and in the same kind of way it is largely 
 modified by local, or rather tribal and even family 
 customs. And English administrators and judges, 
 honestly striving to do justice to Hindus according 
 to their own law, have found grave difficulties in 
 discerning the usage actually observed within their 
 jurisdiction from that which native experts in Hindu 
 law declared, on the authority of texts and commen- 
 tators, as being the rule. The opinions of the 
 Brahman Pandits have constantly tended to ignore 
 particular customs, and it was a considerable time 
 before English magistrates found that they were in 
 
 1 It is doubtful how far, if at all, the Hindu law books represent 
 anything that ever really existed as positive law. The so-called code 
 of Manu is not a code in either the Eoman or the modern sense. 
 Moreover the conflict between Brahmanical theories and local customs 
 is aggravated by sacerdotal ambition. These matters, however, do not 
 affect the limited comparison now made. 
 
I THE METHODS OF JURISPRUDENCE 33 
 
 danger of imposing on great numbers of people rules 
 which were in truth as foreign to them as English 
 law itself. A still more interesting example is 
 afforded by the United States. There the general 
 foundation of English common law bears the same 
 sort of relation to the positive laws of the several 
 States of the Union that Roman law does to Con- 
 tinental jurisprudence. In every State it is less than 
 the actual law of that State, but greater than the 
 actual law of any other State. And along with this 
 condition of things we find a marked tendency in 
 American authors to take a Continental rather than 
 an English view of the general theory of jurisprudence. 
 Not only our positive and analytical method finds 
 little favour with them, and their theoretical work is 
 mostly akin to that of the German philosophical and 
 historical schools, but they treat the common law 
 itself as an ideal system to be worked out with great 
 freedom of speculation and comparatively little regard 
 to positive authority. Decided cases are treated by 
 them not as settling questions but as offering new 
 problems for criticism. There are even one or two 
 American writers of great ability for whom, as for the 
 German expounders of Naturrecht, legal science 
 appears to consist in a perpetual flux of speculative 
 ideas. It is also noticeable that the present generation 
 of scientific American lawyers have shown a disposition 
 for historical research and exposition which has already 
 borne excellent fruit. 
 
 The prevalence of one or another method of juris- 
 prudence depends in the first place, if the foregoing 
 
 D 
 
34 THE METHODS OF JURISPRUDENCE I 
 
 considerations be sound, on the historical conditions 
 of legal systems and institutions. But there is no 
 reason why in England, Germany, or America, we 
 should make ourselves the slaves of such conditions, 
 or why one method should be cultivated to the 
 exclusion of the others. The false pride and 
 exclusiveness of a favourite method will always bring 
 their own punishment. A merely practical attention 
 to law brings us into the danger of degrading our 
 science to what Plato calls inartistic routine. His- 
 torical interest unchecked by analysis may in another 
 way overwhelm us with particulars, and leave us 
 where we cannot see the wood for the trees : again, 
 the historical scholar is apt to fall into unreflecting 
 optimism, thinking everything must be for the best 
 which is explained as the natural result of historical 
 conditions. Unguarded analytical speculation tends 
 to make jurisprudence a thing of abstract formulas — 
 as it were a sham exact science — instead of a study 
 of human life and action. Excess of zeal for that 
 which ought to be, whether in the shape familiar to 
 us here of agitation for reforms, or in its Continental 
 guise of devotion to the law of nature, tends no less 
 strongly to beget contempt and ignorance of that 
 which is, and expose the would-be philosopher to the 
 derision of the first attorney's clerk. Every method is 
 in its place legitimate and necessary, but is bound to 
 secure itself against mistakes by taking due account 
 of its fellows. Practically we shall guide our course 
 by looking for what seems most to want doing among 
 the things that come in our way to do. Here in 
 
I THE METHODS OF JURISPRUDENCE 35 
 
 England we have an immense wealth of particular 
 doctrines and principles, which, however, for want of 
 being brought into the light of general ideas, remains 
 uninstructive to the student until he has made a 
 pretty full acquaintance with it in miscellaneous 
 reading and practice. We have likewise a scheme of 
 general jurisprudence due to Bentham's ideas in the 
 first instance, and of which the importance as a part 
 of legal knowledge and education was explicitly laid 
 down from this chair by Austin. Not having been 
 developed from within our particular and historical 
 jurisprudence, but set beside it by criticism from 
 without, and having indeed arisen from a movement 
 of repulsion, this is at present, I think, something too 
 much in the air. English learners run an appreciable 
 risk — ^which for the moment our attempts at improve- 
 ment have perhaps rather increased than diminished — 
 of regarding legal science as a thing apart from legal 
 practice. Jurisprudence and Eoman law may seem 
 to them nothing but additional subjects of examination 
 imposed by the perversity of fate. Little has yet 
 been done to make it clear that the object of these 
 studies is not to enable English lawyers to talk with 
 an air of knowledge of foreign systems or abstract 
 speculations, but to make them better English lawyers 
 by the exercise of comparison and criticism. There 
 is a want of efiectual contact and influence between 
 the general and the particular branches of Juris- 
 prudence, which nevertheless are both needful if 
 either is to do its best. Our most useful ambition 
 at present, I think, wUl be to supply this want ; and 
 
36 THE METHODS OF JURISPRUDENCE I 
 
 it will be my endeavour, so far as my means avail, to 
 work in this direction. I propose to illustrate from 
 English institutions and doctrines the general form 
 and constituents of Positive Law, and a certain 
 number of its leading ideas. We shall have oppor- 
 tunities both of correcting and enlarging our general 
 ideas by reference to practice, and of criticising 
 particular solutions and consequences from a com- 
 parative and general point of view. We shall try to 
 go like wary travellers, neither slavishly following 
 every winding of a beaten road, nor rashly making 
 short cuts over unknown ground to find ourselves 
 confronted by impassable floods or precipices. 
 
II 
 
 ENGLISH OPPOETUNITIES IN HISTOEICAL AND 
 COMPAEATIVE JUEISPEUDENCE ^ 
 
 If envy is ever allowable between colleagues, I think 
 I might have been excused two or three months ago 
 for regarding my friend the Vinerian Professor with 
 some measure of that feeling. In the first place, 
 Professor Dicey had delivered his inaugural lecture 
 while I still had to provide for mine, and therefore he 
 had outstripped me in the beatitude of accomplished 
 possession. Another advantage I was more gravely 
 disposed to envy him was that of entering on his 
 new labours in a scene known to him of old, and 
 among familiar friends ; an advantage which perhaps 
 is not a matter of mere sentiment. For, as our two 
 ancient Universities, taken together, have a generic 
 character which makes them unique in Europe and 
 broadly marks them ofi" from all other seats of learn- 
 ing, so each of them is marked off from the other 
 by subtle but real differences of individual spirit and 
 traditions. In such a case resemblance and analogy 
 will carry one a long way ; but there comes a point — 
 
 1 An Inaugural Lecture delivered at Corpus Christi College, 
 Oxford, October 20, 1883. 
 
38 ENGLISH OPPORTUNITIES H 
 
 as in the learning of a language closely akin to another 
 already known — where the warrant of analogy fails, 
 and even where the unbiassed curiosity of a perfect 
 stranger may be less liable to error. The privileges 
 of starting from impartial ignorance, be they more 
 or less, are too manifestly denied to me. Therefore 
 I must seek to fortify myself in another direction. 
 Having no interest to maintain the paradox that, next 
 after an Oxford man, a complete stranger will make 
 the best Oxford Professor, I must persuade you to 
 think me, as I desire to think myself, as little of a 
 stranger as possible. And this is not such a merely 
 personal matter as it seems : for the relations of a 
 Professor to the University and its members are (at 
 least it is a Professor's business to make them so if 
 he can) something wider and more human than the 
 delivering and hearing of lectures, and therefore it 
 concerns you to know that fortune has dealt favourably 
 with me in preparing the way for these relations, and 
 especially in regard to the Faculty to which my work 
 belongs. 
 
 To say that I find myself here among friends is 
 nothing. I have seen enough of Oxford hospitality 
 and of the universal brotherhood of scholarship to be 
 assured that such would be my experience if I had 
 come here without a single acquaintance in this 
 College or in the University. But it is something to 
 say that I find myself in the company of old friends, 
 and moreover of those who have been my guides and 
 fellow-workers in a pursuit still followed in this land 
 by few, scorned or depreciated by many, the scientific 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 3& 
 
 and systematic study of law. When a dozen years 
 ago I emerged, wearied and bewildered, from that 
 rough and fragmentary training of " reading for the 
 bar," which Professor Dicey so excellently described 
 to us last term, I was advised to turn to Roman law 
 as the best means of impressing some order and 
 proportion of clear ideas on the half-digested mass of 
 facts and formulas which I had acquired. It was 
 from Professor Bryce that I sought counsel as to my 
 reading ; his advice was such as it would be bold, if 
 not foolhardy, to give to a man reading for examination 
 purposes ; but then I was not going to be examined : 
 and from my following of that advice I date whatever 
 pretensions I may have to competence for taking a 
 philosophical as distinct from a merely empirical view 
 of law and jurisprudence. 
 
 It is with no ordinary satisfaction, therefore, that 
 I now embrace the honour of meeting Professor Bryce 
 as a colleague. On the occasions of such meeting, 
 again, another peculiar pleasure awaits me : for they 
 are presided over by the Warden of All Souls as 
 Chairman of the Legal Board of Faculty. I do not 
 know whether it has often happened that two school- 
 fellows, as nearly as possible of equal standing, should 
 part, one to Oxford and one to Cambridge, and almost 
 lose sight of one another for years ; that they should 
 take up the same profession, and their bent should 
 lead them independently to deal with its learning in 
 the same spirit ; that they should select for illustra- 
 tion, for different external reasons, the very same 
 subject; that they should use and discuss one an- 
 
40 ENGLISH OPPORTUNITIES H 
 
 other's work with perfect freedom, and without the 
 shadow of constraint; and, lastly, that they should 
 find themselves associated at the same University, 
 in conditions the most agreeable and honourable 
 for both, in the promotion and direction of their 
 chosen study. These things, I conceive, would be 
 esteemed an improbable combination in any well-con- 
 structed fiction dealing with modern society. They 
 are however the things, plainly and truly stated, 
 which have happened to Sir William Anson and myself. 
 His presence and companionship ought to disperse — 
 they do disperse — whatever cloud of unfamiliarity 
 might yet hang over my introduction to this 
 University. 
 
 So much it seemed not unfitting to say, on this 
 peculiar occasion, of my personal privileges and oppor- 
 tunities. According to the common and reasonable 
 usage, the duties and opportunities of my ofl&ce, or 
 rather of the branch of studies with which my office 
 is concerned, appear most proper to be now the chief 
 matter of our attention. The historical and com- 
 parative treatment of jurisprudence is the function 
 particularly assigned to the Corpus Professor; and 
 I do not think it needful to tell you either that 
 historical and comparative jurisprudence exists (I 
 speak of it in the singular, for the two branches con- 
 verge to one study and one method), or what results 
 it already has to show. The works of my predecessor 
 in this Chair are a sufficient answer to any questions 
 on that score. I understand that a certaia sort of 
 clever young men, anxious to say something new and 
 
ir IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 41 
 
 surprising, are already going about to disparage Sir 
 Henry Maine's way of research as a thing out of date. 
 I shall not be at the pains of discussing this opinion. 
 Nothing worse can happen to such as are capable of 
 entertaining it than to remain possessed by their own 
 conceit, and they deserve nothing better. If such a 
 fancy is taken up otherwise than as a conscious exercise 
 in paradoxical argument, it must be through total 
 misapprehension of the historical method, of its true 
 scope and significance, and of its place in modern 
 science. 
 
 The historical method is not the peculiar property 
 of jurisprudence or any other branch of learning. It 
 is the newest and most powerful instrument, not 
 only of the moral and political sciences, but of a great 
 part of the natural sciences, and its range is daily 
 increasing. The doctrine of evolution is nothing else 
 than the historical method applied to the facts of 
 nature ; the historical method is nothing else than 
 the doctrine of evolution applied to human societies 
 and institutions. When Charles Darwin created the 
 philosophy of natural history (for no less title is due 
 to the idea which transformed the knowledge of 
 organic nature from a multitude of particulars into a 
 continuous whole), he was working in the same spirit 
 and towards the same ends as the great publicists 
 who, heeding his field of labour as little as he heeded 
 theirs, had laid in the patient study of historical fact 
 the bases of a solid and rational philosophy of politics 
 and law. Savigny, whom we do not yet know or 
 honour enough, and our own Burke, whom we know 
 
42 ETOLISH OPPORTUNITIES II 
 
 and honour, but cannot honoui* too much, were 
 Darwinians before Darwin. In some measure the same 
 may be said of the great Frenchman Montesquieu, 
 whose unequal but illuminating genius was lost in a 
 generation of formalists. By such hands was the 
 instrument formed and polished that my predecessor 
 in this Chair has wielded in your presence and before 
 the world : and from his hands I take it in reverence 
 and not without fear, as a common mortal essaying 
 to lift the spear of Achilles. It is a key to unlock 
 ancient riddles, a solvent of apparent contradictions, 
 a touchstone of sophistries, and a potent spell to 
 exorcise those phantoms of superstition, sheeted now 
 in the garb of religion, now of humanity, now (such is 
 their audacity) of the free spirit of science itself, that 
 do yet squeak and gibber in our streets. It is like 
 the magic sword in Mr. George Meredith's delightful 
 tale, whose power was to sever thoughts. One thing, 
 indeed, the historical method will not do ; there 
 should be no mistake about this, and none shall be 
 readier than myself to make the admission. Neither 
 the theory of evolution in physics and psychology, 
 nor the historical method in ethics and politics, can 
 solve the ultimate problems of philosophy. But it 
 does not follow that either of them is useless to the 
 student approaching those problems. He may be 
 helped by them to see in more than one way where 
 science ends, and philosophy in the strict sense begins ; 
 he may even be helped to perceive in what forms and 
 within what limits philosophical questions may be 
 reasonably and hopefully stated. 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 43 
 
 Thus we have to do not with a literary fashion, 
 not with the style of work of this or that writer, but 
 (it cannot be too often repeated) with a method which 
 has transformed and is transforming the face of human 
 knowledge. That such a method should not be fruit- 
 ful when applied to the special subject-matter of 
 jurisprudence, intimately connected as that is with 
 the historical institutions of civilised mankind and 
 with the history of human nature itself, would be a 
 thing contrary to all rational expectation. It could 
 be accounted for, did it so happen, only by singular 
 incapacity or infelicity on the part of those who 
 undertook the adventure. But it has not so happened : 
 already we have ample fruit, and ample promise of 
 more. Enough, however, of these things in general. 
 If any man is wilfully blind, let us leave him to his 
 blindness. It will now be convenient for us, I think, 
 to consider, not what may be done by historical and 
 comparative jurisprudence in the abstract, but what 
 we as Englishmen, here and now, have special oppor- 
 tunities for making of it, and therefore what, to the 
 best of our power, we ought to make of it. 
 
 Let us first notice what a tempting field is offered 
 to the historical student by the laws and legal insti- 
 tutions of England; and for the moment I speak 
 of England alone. We know that English law is 
 the despair of systematic reformers ; the very causes 
 which have made it so make it an unrivalled treasure- 
 house of historical illustration. In our existing polity 
 the latest mechanism of elaborate legislation may be 
 found side by side with relics of a period of legal 
 
44 ENGLISH OPPORTUNITIES " 
 
 culture not less archaic than that of the Twelve 
 Tables at Rome. If we retrace the growth of our 
 institutions as far back as the Norman Conquest, we 
 shall find in full strength usages of which Roman 
 jurisprudence has preserved only the faintest traces. 
 We need not go abroad or sift obscure tradition and 
 doubtful reports for examples of old-world forms of 
 legal ideas, or the transitions by which they are 
 adapted to the modern world. Our own Common 
 Law is full of them. We are only beginning to 
 realise their interest ; the total want of the historical 
 and scientific element, until a few years ago, in the 
 training of English lawyers, has led us to despise 
 these things as mere dry bones of antiquaries. Here, 
 then, is a plain duty laid upon us, to bring out the 
 significance of our own legal antiquities in relation to 
 the general history of legal development, and to make 
 our confused and half-wrought wealth in this kind 
 accessible to fellow-workers in other lands. As a 
 brilliant specimen of what may be expected in this 
 region (though not a work undertaken chiefly with 
 that view) I may point to Mr. 0. W. Holmes's 
 lectures on " The Common Law." That name leads 
 me on, by an irresistible temptation, to another branch 
 of what I have to say ; but first there is an objection 
 to be removed. 
 
 Some one may deny that the study of legal anti- 
 quities is jurisprudence at all ; some one else may 
 say, as indeed one or two historians have at least 
 hinted, that a modern lawyer is in certain ways at a 
 positive disadvantage in it. Well, the analytical and 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 45 
 
 the historical purist may both have their say ; there 
 is no occasion for us to hinder them. Only we shall 
 not in this place, I hope, trouble ourselves with being 
 over nice to define the limits of sister faculties. 
 Assuredly these things belong to History as well as to 
 Law ; for my own part I trust that Law and History 
 may ever be too good allies and helpmates to wrangle 
 over an imaginary boundary between their territories. 
 Each of them has so much to do for the other and so 
 much to learn from her that a dispute of this kind is 
 wasteful folly. I would fain have every lawyer a 
 historian ; and, seeing we ought to desire for all our 
 fellow-men the increase of all good knowledge, there 
 can be no harm in wishing that some historians had 
 a little more law. Not the least of the objects at 
 which the work of this University in both Schools 
 may be aimed with good hope of accomplishment is 
 to make such wishes superfluous in the coming gene- 
 rations. Meanwhile, trespass in pursuit of knowledge 
 is a thing rather to be encouraged. Professor Stubbs 
 has shown how much we lawyers may have to learn 
 from the historian : it is for us to do something 
 towards repaying the debt. Lately Mr. Justice 
 Stephen, in his History of the Criminal Law, has 
 brought in one or two substantial instalments. 
 
 Just now I named the work of an American lawyer 
 on the Common Law. The writings of Dr. Oliver 
 Wendell Holmes are popular in the best sense on 
 both sides of the Atlantic. His son, now a judge of 
 the Supreme Court of Massachusetts, inheriting a 
 share of the same subtle imagination and finely 
 
46 ENGLISH OPPORTUNITIES II 
 
 discerning mind, has devoted his power to gaining 
 the more limited but more concentrated interest of 
 a technically critical audience. As the reader of 
 English literature loses much to whom the works of 
 the father are unknown, so the English lawyer to 
 whom law is not a mere business, but a science and 
 study, cannot afford to neglect the work of the son. 
 It is tempting to praise one's friends : but I am not 
 here to praise my friend Mr. Holmes, though the 
 occasion might furnish excuse enough, and I pass on 
 to that which his work suggests. Eminent as it is 
 in its own kind, I take it but as a specimen and 
 symbol. I need not tell you that in the United 
 States there already exists a considerable legal litera- 
 ture, much of it excellent, some of it classical, pro- 
 duced by English-speaking men trained in English 
 legal ideas, and living under laws which are based 
 on, and in the main identical with, the Common Law 
 of England. Across the Atlantic we exchange dis- 
 cussion of the earliest Year Book and criticism of the 
 latest leading case in a dialect which to the French is 
 barbarous, and to the Germans foolishness. What 
 does such a fact signify to us English lawyers ? 
 Nothing less than this, that the system which we 
 have inherited is unique alike in its history and in its 
 destiny. 
 
 From the storm -floods that made wreck of the 
 Eoman Empire there emerged, defaced but not 
 broken, the solid fabric of Eoman law. Not by any 
 command or ordinance of princes, but by the in- 
 herent power of its name and traditions, Eoman law 
 
11 IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 47 
 
 rose again to supremacy among the ruins of Roman 
 dominion, and seemed for a time supreme in the 
 civilised world. In only one corner of Europe it 
 finally failed of obedience. Rude and obscure in its 
 beginnings, unobserved or despised by the doctors 
 and glossators, there rose in this island a home-grown 
 stock of laws and a home-grown type of legal institu- 
 tions. They grew in rugged exclusiveness, disdaining 
 fellowship with the more polished learning of the 
 civilians, and it was well that they did so : for, had 
 English law been in its infancy drawn, as at one time 
 it seemed likely to be drawn, within the masterful 
 attraction of Rome, the range of legal discussion and 
 of the analysis of legal ideas would have been 
 dangerously limited. Roman conceptions, Roman 
 classification, the Roman understanding of legal 
 reason and authority, would have dominated men's 
 minds without a rival. It is hardly too much to say 
 that the possibility of comparative jurisprudence 
 would have been in extreme danger. I am not now 
 considering whether English law, in its media3val or 
 its modern stage, be better or worse than Roman law. 
 The point is that it is different and independent ; that 
 it provokes comparison and furnishes a holding-ground 
 for criticism. In its absence nothing but some sur- 
 passing effort of genius could have enabled us to view 
 the Corpus Juris from the outside. Broadly speaking, 
 whatever is not of England in the forms of modern 
 jurisprudence is of Rome or of Roman mould. In 
 law, as in politics, the severance of Britain by a 
 world's breadth from the world of Rome has fostered 
 
48 ENGLISH OPPORTUNITIES II 
 
 a new birth which mankind could ill have spared. 
 And the growth of English politics is more closely 
 connected with the independent growth and strength 
 of English law than has been commonly perceived, or 
 can be gathered from the common accounts of English 
 history. 
 
 We stand, then, in a special and marked relation 
 to the comparative and historical study of laws by 
 the mere fact that our own laws are insular. But they 
 are more than insular ; they have become the law 
 of half a world ; already they may compare for the 
 extent of their influence on men's affairs with the 
 law of the Roman Empire. They have travelled 
 with the English language wherever English enter- 
 prise has made itself a new home. From the North 
 Sea to the Pacific they are the rule of life, and the 
 mould in which men's ideas of justice are formed: 
 and, if we go round the world, we shall traverse the 
 domain of many strange laws and customs to find the 
 image of our English polity and jurisprudence at the 
 very antipodes. It is still more important for the 
 power and value of English law, in the aspect under 
 which we now regard it, that it has become the herit- 
 age of an independent nation of our own stock, and 
 not only of a nation, but of a federal union of States 
 which for their own municipal purposes are sovereign 
 and independent. Since the classical period of 
 Eoman law there has never been a constitution of 
 afi'airs more apt to foster the free and intelligent 
 criticism of legal authorities, the untrammelled play 
 of legal speculation and analysis, than now exists in 
 
II IN HISTORICAL AND COMPARATIVE JUKISPKUDENCE 49 
 
 the States of the American Union, where law is 
 developed under many technically independent juris- 
 dictions, but in deference and conformity to a common 
 ideal. We are justified, therefore, in expecting that 
 ovir American colleagues will not be behindhand in 
 the work to which in this generation jurisprudence 
 appears to be specially called. This is the just and 
 natural rivalry for English and American men of law, 
 not the interchange of litigious despatches or the 
 argument of diplomatic claims before foreign arbi- 
 trators. Not only do we hope that no less agreeable 
 emulation may again in our time arise between the 
 two nations, but we may flatter ourselves — we of this 
 Faculty at least — ^that our fellowship and intercourse 
 in legal matters is not the least of the forces working 
 against any such mischief. It is only one of the 
 visible marks of our common origin, of our common 
 foundation of institutions, character, and habits ; but 
 it is a strong and a deep one. I feel, for my own 
 part, a much nearer sense of kinship in discussing 
 points with an American colleague than in hearing or 
 reading generalities, however admirably expressed, 
 about the friendship that ought to prevail between 
 the two great English-speaking nations : and I think 
 I may say without rashness (I have in mind some 
 small but not insignificant instances) that the feeling 
 of American lawyers is the same. Personal experi- 
 ence or assertion seems however needless in the face 
 of the splendid welcome our American brethren have 
 even now given us in the person of the Chief Justice 
 of England and his companions. On this side we 
 
 E 
 
50 ENGLISH OPPORTUNITIES II 
 
 may have no opportunity of doing the like in any 
 such conspicuous and collective manner : but we can 
 each of us use the opportunities that come to him. 
 Most of all here, in these ancient Universities which 
 are sought almost as holy places by our kinsfolk of 
 the Western Continent, should we be ready and eager 
 to meet with more than a stranger's welcome those 
 who serve with us one law and learning. Let no 
 such pilgrim fail of ample greeting at our hands. 
 Benedictus qui venit in nomine legum Angliae. 
 
 These are resources, this is a range of knowledge 
 and inquiry which, taken alone, would be in no way 
 despicable. But I must call on you to look further. 
 Let us consider of what manner of realm and empire 
 we are citizens, and see what boundless wealth is 
 open to us. Within our own seas, what varied 
 specimens of legal development may we not find ! 
 Cross the border into Scotland, and you are under a 
 system of law so diflPerent from that of England that 
 at first sight it seems to speak with an unknown 
 tongue. It is a system instructive both in its 
 analogies to ours and in its contrasts, both in the 
 similarity of the results produced and in the diver- 
 sity of the means by which they are effected. Eng- 
 lish lawyers, as a rule, are content to live in greater 
 ignorance, if possible, of the law of Scotland than 
 of the law of the Continent of Europe. Here are 
 opportunities of fruitful comparison — and I mean 
 fruitful for practical as well as philosophical purposes 
 — going to waste at our own door. During the last 
 few years there has been much discussion of the 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 51 
 
 principles and method of criminal procedure. This 
 is a subject on which examination of Scottish usage 
 would be particularly instructive; but for the most 
 part it has been discussed as if Scotland did not 
 exist, or were less accessible to Englishmen than 
 France or Italy. Turning from north to south, we 
 find living in the Channel Islands the ancient cus- 
 toms of Normandy which on the Norman mainland 
 have been wiped out by the levelling sweep of the 
 Napoleonic legislation. In the little Isle of Man we 
 have yet another seat of independent laws and juris- 
 diction. The practising English lawyer is not con- 
 cerned with these things, and is almost of necessity 
 indifferent to them. All the more should the study 
 of them be encouraged at the times and places where 
 there is room for it, and chiefly in the legal Faculties 
 of the Universities. 
 
 Thus far we are merely looking round, as it were, 
 at home. We have yet to add to the wealth of these 
 realms in the matter of our science the wealth of 
 the British empire. Herein we are partakers of 
 a marvellous heritage, of memories and hopes, of 
 powers and responsibilities, such as are the lot of 
 no other nation upon earth. More truly than 
 Pericles we may say that the valour of our fathers 
 compelled every land and every sea to open a way 
 before it ; more truly than Virgil's feigned prophecy 
 spoke of Augustus we may fit his words to the 
 dominion of which, under the auspicious name and 
 reign of our sovereign lady Queen Victoria, and by 
 wisdom and genius not less than those of Eome, 
 
52 ENGLISH OPPORTUNITIES 11 
 
 the principles" have been ordained and the boundaries 
 established : — 
 
 Super et G-aramantas et Indos 
 proferet imperium : iacet extra sidera tellus, 
 extra anni solisque vias, ubi caelifer Atlas 
 axem umero torquet stellis ardentibus aptum. 
 
 nee vero Alcides tantum telluris obivit, 
 fixerit aeripedem cervam licet aut Erymanthi 
 pacarit nemora et Lernam tremefecerit arcu, 
 nee qui pampineis victor iuga flectit babenis 
 Liber, agens celso Nysae de vertice tigres. 
 
 The record of this dominion abounds in wonders in 
 every part, but the British rule in India is most 
 wonderful. A history that no maker of romance 
 would have dared to invent ; a future that no pru- 
 dent man will dare to forecast ; a power so dis- 
 proportioned to its apparent means of command that, 
 if not vouched by positive enumeration, the facts 
 would seem incredible ; these are the salient and 
 elementary features of our Indian empire. 
 
 On what support, now, does that unique empire 
 rest ? Some persons of no mean authority will tell 
 us that it rests upon force. And in some sense doubt- 
 less they say well. But if we speak thus, it should 
 be clearly understood- what kind of force we have 
 in mind. Evidently not the bare force of arms. 
 Eoughly speaking India contains about two hundred 
 and forty millions of people, of whom about one 
 hundred and twenty thousand are Europeans. Let us 
 try to realise what these figures mean. The number 
 of Europeans in India, British soldiers and others, 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 53 
 
 does not amount to more than the population of an 
 English town of the second rank, such as Portsmouth 
 or Leicester. It is distinctly less than the popula- 
 tion of Delhi or Benares. This number is distributed 
 among nearly five times as many people as inhabit 
 the whole of the United States. Or, to put it an- 
 other way, suppose the whole of the dwellers in 
 India to be ranged in military order. Two thousand 
 is, I believe, a fair working strength for a brigade of 
 infantry. There would be hardly one white man to 
 every brigade. I know what may be said to mitigate 
 these contrasts : the native races of India are not 
 united, they have not European discipline, and the 
 like. But in a case of such immense odds, what 
 mitigating circumstances can avail ? No, we do not 
 govern India by the force of arms only. By what 
 then ? The answer is inevitable. State our position 
 in the very lowest terms in which it can plausibly be 
 stated. Say that the people of India from north to 
 south love us not, and would fain be rid of us. Say 
 that they obey only from mutual fear and jealousy, 
 because men dread the unknown evils they might 
 suffer from some native conqueror of hostile race and 
 religion more than they mislike the certain evils of 
 English rule. What is the signification of this, the 
 worst that can be said by any one who is not grossly 
 impudent or ignorant? It signifies that our rule 
 is better in the estimation of the majority of the 
 dwellers in India than any other rule which they 
 could probably look for in our absence. It signifies 
 that under English rule the weak feel safer against 
 
54 ENGLISH OPPORTUNITIES H 
 
 the Strong than ever they did before. It signifies 
 that our empire is not of brute force, but of judgment 
 and righteousness ; in one word — for I will not shrink 
 from seeming bold in my ofl&ce — that it is an empire 
 of law. The secret of our strength in India is that 
 we have endeavoured truly and indiflferently to do 
 justice, according to the best of our skill and under- 
 standing, to all sorts and conditions of men. 
 
 And great indeed is the diversity of men that the 
 rulers of India have to do with, and of their laws and 
 customs. The Brahman, .whose ancestors were the 
 poets of a splendid and refined language, and the 
 pioneers of the everlasting problems of philosophy, 
 while ours, without arts or letters, were rough-hewing 
 the elements of political freedom in German forests ; 
 the Mussulman, himself a descendant of conquerors 
 within historical memory, inheriting from them the 
 aptitude for government and afiairs, and still proud of 
 traditions whose virtue may sleep but is not dead ; 
 the Sikh, most valiant of our foes in the day of strife, 
 and most faithful of helpers in the day when men's 
 faith was tried ; the Eajput, who traces his unblem- 
 ished line of descent from an antiquity that laughs 
 European dynasties to scorn ; — all these, alien from 
 one another, and alien from our Western ways, are 
 equally the care of English justice, their society 
 and usages the study of English governors. Nor 
 these only, but tribes and kindreds so much farther 
 remote from us that the difference of Englishman 
 and Hindu seems to vanish when we consider them ; 
 the dusky people of the far south, Hindus barely in 
 
II IN HISTOKICAL AND COMPARATIVE JURISPRUDENCE 55 
 
 name, who preserve in strange customs the vestiges 
 of barbarous polities extinct before the beginning of 
 history ; the wild folk of the hUls on our marches, 
 who have been known (so men say) to offer human 
 sacrifice on their immemorial high places to propitiate 
 the dread and secret gods deemed by them to sit in 
 unknown England and rule the issues of their law- 
 suits ; the remnants of aboriginal populations whom 
 English officers find surviving, forgotten for gener- 
 ations past by their neighbours, in remote nooks of 
 mountain and woodland ; these likewise are under the 
 equal protection and receive the equal judgment and 
 justice of the supreme power in India, This is a very 
 weighty matter to be laid upon any government of 
 human frame ; we need not marvel if to some it 
 appears more than can be borne. Yet the burden of 
 this duty has been fully understood and fully under- 
 taken, I win not say always with success (that were to 
 call mortals infallible), but with constant good faith, 
 good will, and diligence, and with such results as in 
 the main Englishmen may well be proud of. 
 
 Perhaps I have gone too near to forgetting the 
 lawyer in the citizen : but I think excuse will not be 
 wanting, for which of us can be unmoved at the 
 thought of being a partaker, as every English citizen 
 assuredly is, in such a power, such a destiuy, and 
 such duties ? Our matter now in hand is to see how 
 these things concern us not as Englishmen simply, 
 but as students. The British empire in India, we 
 said, is an empire of law : we may add that it has 
 become an empire of systematic legislation, and offers 
 
56 ENGLISH OPPORTUNITIES H 
 
 a unique field of observation in historical and com- 
 parative jurisprudence. There we are face to face 
 with living examples of institutions and ideas else- 
 where dead or decayed. Two great Asiatic bodies of 
 customary ordinance, Hindu and Mahometan, widely 
 differing from our own laws in almost every possible 
 respect, demand the closest attention not only from 
 students but from men of practice. The texts and 
 authorities of Hindu law raise historical questions of 
 the utmost interest and of more than Indian scope. 
 The constitution of the Hindu family gives us the 
 complete picture of which only a few faint linea- 
 ments are preserved in European societies. Its feasts 
 and its offerings illuminate our obscure records of the 
 household rites of Greece and Rome. In, the Indian 
 village we have a living witness to the most ancient 
 form of self-government. And at almost every point 
 Indian customs and institutions throw new light on a 
 subject whose very difficulty makes it fascinating to 
 both jurists and philosophers — the relations of law to 
 religion in its early stages. Such is the character of 
 the opportunities presented by India to Englishmen, 
 and especially to those who are in a position to study 
 the facts at first hand. If you would see how they 
 can be used I will refer you not to any professedly 
 legal treatise, but to the work of an English adminis- 
 trator who now bears, rule over one of the great 
 Indian provinces : I mean the admirable Asiatic 
 Studies of Sir Alfred Lyall,^ another proof (if proof 
 could reasonably be demanded) that the historical 
 
 1 Now a member of the Indian Secretary of State's Council. 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 57 
 
 and comparative method is yet in the vigour of its 
 youth. 
 
 But the surpassing interest of India must not lead 
 us to forget the vast and varied field of legal studies 
 offered us by other British colonies and possessions. 
 I think it may be said with truth that there is not in 
 the world any type of legal system which the Queen 
 in Council, in her supreme judicial capacity, may not 
 be called on to administer. The Judicial Committee 
 of the Privy Council are the authoritative inter- 
 preters, not only for India of the sacred or semi- 
 sacred books of Hindus and Mahometans (side by 
 side with the latest Act of the Governor -General in 
 Council), but for Lower Canada of the law of the old 
 French Monarchy, now recast by native enterprise in 
 a code of modern form ; for Mauritius, of the Civil 
 Code of Napoleon ; for the Cape Colony and Ceylon, 
 of Eoman law as understood by the great Con- 
 tinental lawyers who preceded the modern epoch of 
 historical research. Add to this the share which the 
 position of England among nations has given to 
 English tribunals in the administration and develop- 
 ment of a maritime law which is nothing if not cos- 
 mopolitan. It is little to our credit that the dealing 
 with such materials as these should, until of late 
 years, have been left in the hands of a few specialists, 
 and should have been almost ostentatiously slighted 
 by the professors of our English Common Law. 
 Recent consolidation of jurisdiction, of professional 
 qualifications, and of professional training, has done 
 something, and will do more, to break down this 
 
58 ENGLISH OPPORTUNITIES II 
 
 unnatural estrangement. For us here, at all events, 
 the title of " Foreign and Colonial Laws " represents 
 something very different from a museum of legal 
 oddities to be hastily turned over once in a couple of 
 years in search of authorities for a particular case, 
 and then with no small danger of misunderstanding 
 the authorities when found for want of acquaintance 
 with the general principles which they assume. 
 Meanwhile, let it not be thought that our oppor- 
 tunities in this kind have been altogether wasted. 
 We have had illustrious judges who were masters of 
 general jurisprudence, and have used its resources to 
 widen and enrich the municipal jurisprudence of 
 England. So far as they have not attained European 
 reputation, it is because their work is not collected 
 in systematic form but scattered in the pages of our 
 law reports, and practically inaccessible save to 
 English lawyers. It is enough to name three men 
 whose genius was different and shown in distinct 
 departments, Lord Stowell, Lord Justice Knight- 
 Bruce, and Mr. Justice Willes : may their example 
 not fail of abundant and worthy followers ! 
 
 A discourse of this kind must needs deal in great 
 measure with generalities. But I should like to give 
 you one example of the points in the history of legal 
 ideas which remain to be worked out by the com- 
 parative method. I will take it from a subject which 
 has occupied a good deal of my own attention for 
 some years, the law of Contract. At this time of 
 day we all think it a plain matter that the law should 
 hold men to perform their promises. Not every 
 
II IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 59 
 
 promise, it is true, will be enforced by modern courts 
 of justice even in things lawful and honest ; but the 
 conditions which limit their action are explained 
 and justified as intended only to exclude light or 
 hasty words from creating the bond of civil duty. 
 Now this, I am much disposed to think, is in truth a 
 modem conception. I believe that the enforcement 
 of promises as such did not enter into the earlier 
 forms or notions of civil justice. Archaic methods of 
 redress fall under one of two heads, retaliation and 
 restitution. The complainant seeks either vengeance 
 for personal injury, or the restoration of something 
 that belongs to him and has been wrongfully taken or 
 detained. A debt is repayable, not because the debtor 
 has promised to pay (as we now imagine the relation), 
 but because the creditor's money is in his hands. From 
 the- demand " Pay me that thou owest" to the more 
 general and elastic claim, " Perform thy covenant with 
 me," there is a far longer step in thought than it is 
 easy for us now to realise. It may be asked how any 
 tolerably civilised society was carried on if men had 
 no means of compelling the fulfilment of promises? 
 We have not said that they had no means. It was 
 not that men lived in a golden age of trust and good 
 faith, or were content to go without redress in the 
 miscellaneous affairs of life. The sanction which 
 temporal jurisdiction did not afford was afforded by 
 religious fears, and sometimes by the coercive power 
 of distinct religious tribunals. 
 
 We see this in a striking form in our own legal 
 history. Down to the fifteenth century the greater 
 
60 ENGLISH OPPOKTUNITIES H 
 
 part of what we call " simple contracts " were of no 
 effect in the king's temporal courts. But the man 
 who complained of broken faith could betake himself 
 to the bishop, and the bishop's court would take it up 
 as a matter of conscience. If the case was made out 
 to the satisfaction of the ecclesiastical judge, perform- 
 ance was compelled by the power of the Church. 
 Penance and excommunication were then very real 
 and effectual sanctions, probably more real and effect- 
 ual in many places than any that were practically 
 at the disposal of the civil authority. You may say, 
 however, that English legal history is fall of anomalies, 
 and this may be a quaint local accident of no general 
 significance. And, if I had nothing else to bring 
 forward, you would say well. Here the value of 
 comparative inquiry comes in. We find in the 
 classical period of Roman law that there is one form, 
 and one only, whereby the force of legal compulsion 
 can be given at the will of the parties to any and 
 every sort of promise. That form is the Stipulation, 
 and there appear in and about it unmistakable 
 traces of a religious origin and of an originally 
 spiritual sanction. Already, then, we see that our 
 own history is not a mere isolated curiosity. Going 
 farther afield, we take Mr. Newton^ for our guide 
 among the inscriptions that reveal to us the affairs 
 and administration of an ancient Greek religious 
 house. A master seeking to enfranchise a favoured 
 slave, and to secure his freedom against any possible 
 attack in time to come, could not bind himself by 
 
 ^ Now Sir Charles Newton. 
 
n IN HISTORICAL AND COMPARATIVE JURISPRUDENCE 61 
 
 any form of direct promise to the slave, who, until 
 the enfranchisement was perfected, was incapable of 
 acquiring rights. What security could he then 
 give? There might have been a method, as at 
 Eome, of placing the freedman under the direct 
 protection of public law ; but the Greek method was 
 different, and belongs to an older world. The master 
 sold the slave in name to Apollo of Delphi, and 
 pledged his faith with sureties to the God himself 
 that no man should disturb the title ; so that, if he 
 or his heirs should thereafter attempt to go back 
 from the gift of freedom, they would be wrongdoers 
 not against men but against the Gods. Armed with 
 these evidences, we are now justified in making use 
 of the fact, in itself ambiguous, that the earliest 
 transactions in the nature of contract of which we 
 have any record are treaties, confirmed by oath, 
 between heads of tribes or clans dealing with one 
 another as independent powers. The shape they 
 take might be accounted for by the absence of any 
 human tribunal acknowledged by both parties ; but 
 with the analogies before us, it seems as likely that 
 they were modelled on the commonest if not the only 
 form in which private agreements then existed. It 
 may be worth while to add that in Homer (no mean 
 store of archaic law for those who wiU seek discreetly) 
 the confirmation of a promise by oath is frequent, 
 and, so far as I can remember, there is no trace of 
 any other kind of obligation. 
 
 Much might be said on the general importance of 
 spiritual sanctions in the archaic stages of law, and 
 
62 ENGLISH OPPORTUNITIES 11 
 
 of the lingering traces it has left even in modern 
 times. Shakespeare's curse on the mover of his 
 bones comes of an ancient stock : its ancestors are 
 yet preserved in Greek inscriptions, the work probably 
 of men who had a more serious belief than Shakespeare 
 in the efficacy of their imprecations. Another set of 
 examples is furnished by the elaborate and fantastic 
 curses invoked by the draftsmen of early English 
 charters, notably about the end of the tenth century, 
 on any one who should presume to violate the gifts 
 they recorded. The so-called curse of Ernulphus, an 
 eleventh-century precedent faithfully transferred from 
 the Textus Eoffensis to the pages of Tristram Shandy, 
 is by no means at the head of them for invention and 
 variety. A vestige of this kind of formulas clung 
 about the Great Charter itself. One suspects that a 
 similar purport may lurk in the seemingly innocent 
 form of pious words to this day employed in some 
 documents of maritime law. 
 
 To pursue this subject, however, would take us I 
 know not where, certainly as far as India. Therefore 
 I shall be your suitor that these bare indications may 
 suffice, and I will make an end by claiming as good 
 company and alliance for the studies assigned to this 
 Chair as at the beginning I did for my own person. 
 
 Something has been said of the natural alliance 
 between Law and History. Just now I pronounced 
 a name venerable to all students of classical literature 
 and art. In citing Mr. Newton's work, I have already 
 exemplified the relations of Jurisprudence to those 
 studies for which the University still preserves, I will 
 
11 m HISTORICAL AND COJIPARATIVE JURISPRUDENCE 63 
 
 not say wrongly, a name denoting them as the crown 
 of human culture. And this relation is not a thing 
 to be put aside as accidental, or trifled with as matter 
 of mere ornament. Rightly considered, it is essential 
 to our science and our work. For Jurisprudence, if 
 it is to be truly and vitally distinct from the empirical 
 collection of matters of fact, must partake of the 
 nature of Philosophy. And we know that Philosophy 
 without scholarship and artistic faculty — without the 
 Muses, as a Greek would in one word have said — is 
 uncouth and but half articulate. As in philosophy so 
 in the higher regions of all science, a thread of poetry 
 is interwoven with the strand of knowledge, and the 
 pursuit of truth, as was seen and proclaimed by Plato, 
 becomes a pursuit of the beautiful. The light of this 
 beauty flashes on the mathematician when he discerns 
 the same harmonies of position and magnitude mani- 
 fested ia infinitely diverse configurations of space, or 
 with some new charm of analysis compels a world of 
 new relations of quantity to arise and do his bidding. 
 It rejoices the mountaineer when he traces the normal 
 features of glacier structure on the surface that to the 
 untrained eye is a mere wilderness of stone-heaps and 
 crevasses. And we, too, may hope not to fail of that 
 light and that joy, whether we trace in the individual 
 singularities of men's laws and customs the constant 
 working of the same human nature and the same 
 unconscious bias of old-world thought, or endeavour 
 to analyse and exhibit in their just relations the 
 developed ideas of modern law. It is not for nothing 
 that Sir Alfred Lyall, whose work I named a little 
 
64 ENGLISH OPPORTUNITIES IN JURISPRUDENCE II 
 
 while ago, is a poet as well as a student and a ruler 
 of men. And it was with deep and wide meaning 
 that the greatest poet of modern Europe proclaimed 
 under the figure of Helena the glory of the arts and 
 sciences inherited from Greece by the modern world. 
 His meaning was wide enough, I am assured, to 
 include even the learning that seems harsh and 
 crabbed to many who are not fools. We of the 
 Faculty of Law may claim and maintain, no less 
 than our colleagues in the Humanities, our part in 
 the favour of the Muses and the splendour of the 
 ideal beauty perceived by true poets and philosophers 
 from Plato to Goethe ; and the least of us may thereby 
 feel, as in that vision of Goethe the warder seeing the 
 face of Helena, that our service is a delight : — 
 
 Schwach ist, was der Herr befiehlt, 
 Thut's der Diener, es ist gespielt : 
 Herrscht doch iiber Gut und Blut 
 Dieser Schonheit Uebermuth. 
 Schon das ganze Heer ist zahm, 
 Alle Schwerter stumpf und lahm, 
 Vor der herrlichen Gestalt 
 Selbst die Sonne matt und kalt, 
 Vor dem Eeichthum des Gesichts 
 Alles leer und Alles nichts. 
 
Ill 
 
 THE KING'S PEACE 1 
 
 "Against the peace of Our Lady the Queen, her 
 crown and dignity." This formula was once the 
 necessary conclusion, as it is still the accustomed one, 
 of every indictment for a criminal offence preferred 
 before the Queen's justices. Even to those who have 
 nothing to do with assizes or quarter sessions the 
 Queen's Peace is a familiar term. By the widely 
 spread office of justice of the peace it is brought 
 home to the remotest corners of England. And it 
 seems to us a natural thing that throughout the 
 realm peace should be kept — in other words that 
 unlawful force should be prevented and punished — 
 in the Queen's name and by officers armed with her 
 authority. This does not look, on the face of it, like 
 a fact requiring any special explanation. Our con- 
 ception of an executive power, under whatever names 
 and in whatever forms it is exercised, is that its first 
 business is to preserve order. And that this power 
 should be one and uniform in every part of a land 
 ruled by the same laws appears to us so far from 
 
 1 A Public Lecture delivered in the University of Oxford, May 24, 
 1884. 
 
 F 
 
66 THE KING'S PEACE HI 
 
 remarkable that anything contrary to it has the air 
 of a puzzle and an anomaly. Such is our modern 
 point of view, too obvious (one would think) to be 
 worth stating. Yet it is so modern that there was 
 demonstrably a time when it was an innovation. It 
 belongs to the political theory of sovereignty which 
 has superseded the feudal theory of autonomous per- 
 sonal allegiance. It assumes that the rights of private 
 feud and war, rights exercised without contradiction 
 far into the Middle Ages, are for us intolerable and 
 impossible. It assumes, moreover, that a central 
 authority has become strong enough to subdue local 
 competition and jealousy. These conditions have 
 been brought about in Western Christendom only by 
 long processes of growth, strife, and decay. Perhaps 
 examples might be assigned of lands and institutions 
 where even yet they are not wholly fulfilled. The 
 establishment of the king's peace is a portion, and 
 in England no small one, of the historical trans- 
 formation which has given us the modern in the place 
 of the medieval State. In the history of our law 
 the steps are singularly well marked, and for that 
 reason are worth our dwelling on. A clearly traced 
 example in detail wUl assist our grasp of the general 
 process. 
 
 Before we consider our English evidences, it is 
 well to remember what is the state of things to which 
 the king's peace is opposed. Modern as is the par- 
 ticular development to which I call your attention, 
 both the need and the remedy were understood at a 
 time ancient enough for the most exacting definition 
 
Itt THE KING'S PEACE 67 
 
 of antiquity. " In those days," says the chronicler 
 in the Book of Judges, "there was no king in Israel, 
 but every man did that which was right in his own 
 eyes." And he explains his meaning by the case of 
 Micah of Mount Ephraim, who "had an house of 
 gods, and made an ephod, and teraphim," and by 
 good fortune retained a wandering Levite, and knew 
 that the Lord would do him good, seeing he had a 
 Levite to his priest. But the tribe of Dan, or some 
 clan of them, were seeking a place to dwell in, and 
 their spies lodged in Micah's house, and took note of 
 the images and the Levite. They also saw the city 
 of Laish, and the people that were therein, " how 
 they dwelt careless, after the manner of the Zidonians, 
 quiet and secure," and reported to their brethren 
 that it was an easy and desirable conquest, " a place 
 where there is no want of anything that is in the 
 earth." Whereupon the men of Dan set forth, six 
 hundred men appointed with weapons of war, and, 
 coming on their way to Micah's house, carried off the 
 graven image, and the ephod, and the teraphim, and 
 the molten image. The priest was easily persuaded 
 to follow. " Is it better for thee to be a priest unto 
 the house of one man, or that thou be a priest unto 
 a tribe and a family in Israel ? " We hear nothing 
 of Micah till the raiders were well on their way. 
 But he then appears as doing exactly what, according 
 to English law and usage of the twelfth or thirteenth 
 century, he ought to have done. He raised the hue 
 and cry, and pursued with as many of his neighbours 
 as he could assemble. 
 
68 THE KING'S PEACE HI 
 
 " And when they were a good way from the house 
 of Micah, the men that were in the houses near to 
 Micah's house were gathered together, and overtook 
 the children of Dan. And they cried unto the 
 children of Dan. And they turned their faces, and 
 said unto Micah, What aileth thee, that thou comest 
 with such a company ? And he said. Ye have taken 
 away my gods which I made, and the priest, and ye 
 are gone away : and what have I more ? and what is 
 this that ye say unto me. What aileth thee ? And 
 the children of Dan said unto him, Let not thy 
 voice be heard among us, lest angry fellows run 
 upon thee, and thou lose thy life, with the lives of 
 thy household. And the children of Dan went 
 their way : and when Micah saw that they were 
 too strong for him, he turned and went back unto 
 his house." 
 
 Fortified by the possession of the idols and a real 
 priest of the sacred tribe, the expedition went on to 
 accomplish its main purpose. "And they took the 
 things which Micah had made, and the priest which 
 he had, and came unto Laish, unto a people that 
 were at quiet and secure : and they smote them with 
 the edge of the sword, and burnt the city with fire." 
 They then built a new city, whereof the graven image 
 from Micah's house became the tutelar idol or 
 Palladium. The story of its capture was preserved, 
 one may suppose, as a tribal tradition, without any 
 notion that the six hundred men appointed with 
 weapons of war deserved anything but praise for their 
 successful conduct of the enterprise. Such was right 
 
Ill THE KING'S PEACE 69 
 
 in the eyes of the men of Dan in the days when there 
 was no king in Israel. 
 
 No parallel to this state of things can be found in 
 modern Europe. But we have only to go to Asia to 
 find it within the living memory of civilised observers. 
 As Six Alfred Lyall has pointed out, the episode of 
 Micah and his household gods is as natural and in- 
 telligible to an Indian frontier ofl&cer as it is puzzling 
 to the ordinary Biblical commentator. And there are 
 still living under the Queen's rule men who have 
 borne their share in exploits much like that of the 
 six hundred of Dan, and who doubtless look on the 
 English peace as a mischievous innovation, and regret 
 the good old times when for their frontiers and hills 
 there was no Governor-General in Council, and every 
 man did that which was right in his own eyes. The 
 same hand which has analysed in prose the religion 
 of an Indian province has expressed in strong and 
 brilliant verse the feelings of a superannuated free- 
 booter of this sort. The old Pindaree, so far from 
 being thankful for the Queen's peace, would fain be 
 forty years younger, to flee from this tyranny of law 
 and order, where he is " lectured by Kafirs and bullied 
 by fat Hindus," and get him to "some far-off country 
 where Mussulmans still are men" — in other words, 
 where free fighting and plunder are to be had, and 
 there are no Penal Codes administered by the infidel 
 and impartial Gallios of the Indian Civil Service. 
 These Asiatic instances will serve as an auxilium 
 imaginationis to aid us in clothing with life and 
 circumstance the meagre terms of the records which 
 
70 THE KING'S PEACE HI 
 
 mark for us the first appearance of the king's peace 
 in our own land. 
 
 The custumals and ordinances of Kentish and 
 West -Saxon chiefs and English kings which are 
 collectively known as "Anglo-Saxon laws" exhibit 
 a state of society where private war is usual and 
 lawful. It has, indeed, laws and regulations of its 
 own. A man must not be attacked in his own home- 
 stead without being summoned to do his adversary 
 right, and even then he is entitled to seven days' 
 grace after the investment of his house before an 
 assault is delivered.-' In this sanctity of the homestead 
 we have one of the earliest securities for order ; and 
 it is one of the foundations, if not the chief foundation, 
 of the institution we have now especially to examine. 
 Every man was entitled to peace in his own house. 
 The brawler or trespasser in another's homestead broke 
 the owner's peace, and owed him special amends. We 
 find this in the very earliest collection of ordinances, 
 dating in substance at any rate from the first quarter 
 of the seventh century. "If in an earl's town [that 
 is, enclosure or private holding ; such is the primitive 
 signification of the word, which survives in cognate 
 languages and in many English place-names] one 
 
 1 Alfred, c. 42. Thig may be a comparatively recent " temperament," 
 as Grotius would say. It is safer, however, to assume tiat the law 
 is an express definition of older customary observance. I note here 
 that documents are cited according to the arrangement in Schmid's 
 Gesetze der Angelsachsen. I likewise note that I have not attempted 
 to collect parallel examples from the Continent, though I doubt not 
 such might be found : e.g. the Alsatian formula proclaiming peace 
 during certain times, ap. Beatus Khenanus, Ber. Germ. lib. 2, s. t. 
 Status Germaniae sub imperatoribus Saxonibus (p. 97 in ed. 1531). 
 
in THE king's peace 71 
 
 slays a man, let him atone it with twelve shillings. 
 . . . The j&rst who breaks into a man's town, let him 
 atone it with six shillings, the next with three, after 
 him a shilling each." ^ For slaying in the king's 
 town the fine is increased to fifty shillings,^ which 
 makes it clear that in other cases too the fine here 
 mentioned is payable not to the party directly injured 
 but to the householder. Similarly, misconduct in a 
 man's house where the king is drinking must be paid 
 for with a double fine.* The peace of a house is 
 broken not only by slaying but by quarrelling. Who- 
 ever calls a guest in another's house mansworn, or uses 
 other shameful words to him, incurs three distinct 
 fines ; one to the host, another to the injured party, 
 and another to the king. The same law holds " of 
 old right " if one uncivilly removes another's cup 
 where men are drinking ; and the same fines are 
 payable to the king and the householder if a weapon 
 is drawn, though no actual hurt be done.* We find 
 a curious echo of this ancient custom after the 
 Conquest, in the so-called laws of Henry I., where 
 there is a longer but much less clear statement that 
 wherever men meet for drinking, selling, or like 
 occasions, the peace of God and of the lord of the 
 house is to be declared between them.^ The amount 
 
 1 ^thelbirht, cc. 13, 17. = lb. 5. ^ lb. 3. 
 
 * H16tli£er and Eddric (Kent, late seventh century), co. 11-13. 
 It is not quite clear what " ste6p dsette " means. See Thorpe's and 
 Schmid's notes. 
 
 5 C. 81. The heading " de pace regis danda in potatione,'' if not a 
 later addition, shows that the compiler did not fully understand the 
 text, which says " pax Dei et domini inter eos qui convenerint .... 
 
72 THE KING'S PEACE HI 
 
 payable to the host is only one shilling, the king 
 taking twelve, and the injured party, in case of 
 insult, six. Thus the king is already concerned, and 
 more concerned than any one else ; but the private 
 right of the householder is also distinctly though not 
 largely acknowledged. We have the same feeling 
 weU marked in our modern law by the adage that 
 every man's house is his castle, and the rule that 
 forcible entry may not be made for the execution of 
 ordinary civil process against the occupier : though 
 for contempt of Court arising in a civil cause it may, 
 as not long ago the Sheriff of Kent had to learn in a 
 sufficiently curious form.-' The theoretical stringency 
 of our law of trespass goes back, probably, to the 
 same origin. And in a quite recent American text- 
 book we read, on the authority of several modem 
 cases in various States of the Union, that "a man 
 assaulted in his dwelling is not obliged to retreat, 
 but may defend his possession to the last extremity." ^ 
 Under the West -Saxon rule, where the king's 
 power was first consolidated, eventually to swallow 
 up that of all the under-kings and princes of the 
 English name, we find that breaking the peace of the 
 king's house is a graver matter than anything yet 
 
 ponenda est." Here tlie " dominus " can be only the house-master 
 (there would be no ground for reading drnnini regis, which is not the 
 phrase of the time j in the preamble Henry is indeed called gloriosus 
 Ocesar, but not dominus) : see § 2. The fri?Ses-b6te of jEthelr. vi. 32. 
 (repeated in Cnut, ii. 8) seems also to refer to the peace of private 
 householders. 
 
 1 Harvey v. Harvey, 26 Ch. D. 644. 
 
 2 Cooley on Torts (1880), p. 168. 
 
HI THE KING'S PEACE 73 
 
 mentioned. "Whoso fights in the king's house, be 
 all his heritage forfeit, and be it in the king's doom 
 whether he have his life or not."^ There follow a 
 series of graduated fines for fighting in a minster, in 
 the house of an ealdorman or member of the Witan, 
 or in that of a common man. Two centuries later 
 the penalty for quarrelling in the king's hall is 
 extended by Alfred to the drawing of a weapon. 
 Fighting in the presence of bishops and ealdormen, 
 in the folkmoot, and in a countryman's homestead, 
 are forbidden under various pecuniary penalties.^ 
 Like provisions are repeated, with more or less varia- 
 tion, in later collections.^ How far they were observed 
 we do not know. Probably Sir Henry Taylor is no 
 less true to history than to human nature in the 
 exclamation he puts into the mouth of a partisan in 
 the king's palace itself : — 
 
 " Keep the king's peace ! If longer than three minutes 
 I keep it, may I die in my bed like a cow." 
 
 And it is said in 6ne of the Irish legends of Ossian, 
 with reference to a state of society perhaps not very 
 different from that of Wessex in the seventh or eighth 
 century, that he was never afraid but once, and that 
 was when he saw a man die in his bed. 
 
 Thus far then every man has his own peace, of 
 
 1 Ine, c. 6. In § 1 there is no mention of viite. Presumably the 
 Church's peace was too much sui generis for the king to claim any- 
 thing in this case. Cp. the so-called Laws of Edward the Confessor, c. 6 : 
 " Qui sanctae ecclesiae pacem fregerit, episcoporum turn est justitia." 
 
 2 Cc. 15, 38, 39. Cp. too the graduated ifines for trespass (burh- 
 biyce) in c. 40. * As Cnut, ii. 59. 
 
74 THE KING'S PEACE HI - 
 
 which the breach is a special offence. But the great 
 man's peace is of more importance than the common 
 man's, and the king's peace is above all, and is broken 
 at the hazard of the offender's life and goods. In the 
 spiritual order the peace of the Church commands yet 
 greater reverence. But for practical purposes the 
 Church by no means disdained the temporal sanction, 
 and it seems well understood that where her peace 
 is, there is the king's peace also, and the king's 
 vengeance on breakers of it. " Be every church in 
 the peace of God and of the king and of all Christian 
 folk." "Every church is lawfully in Christ's own 
 peace, and every Christian man hath great need to 
 know the great worship of this peace, because God's 
 peace is of all peaces most chiefly to be sought and 
 most willingly to be held, and next thereto the king's." ^ 
 Whoever broke the peace in a church, therefore, had 
 to do with both the spiritual and the temporal power. 
 And the graduation of ranks from the king's hall to 
 the simple homestead does not fail of its analogy here. 
 According to the rank of the chutch, so is the fine.^ 
 More than once the peace of a church within its walls 
 is expressly declared to be as inviolable as the king's 
 peace specially given, of which more anon. Land and 
 life are equally forfeit by the breach of either.^ The 
 
 1 ^thelr. vi. 13 ; Cnut, i. 2. Alf. 5 is already to the like effect. Cf. 
 the Laws of Howel, ap. Haddan and Stubbs, i. 237. 
 
 2 jEthelr. viii. 1-5 ; Cnut, i. 3. The rights of the Church are 
 personified in a manner somewhat startling to modern usage : " And 
 Jiset is Jjonne Serest, Jjset he his dgenne wer gesylle ]?am cyninge and 
 Criste," etc. 
 
 3 Edw. and Guth. 1 ; Cnut, i. 2, § 3. Compare cc. 1-15 of "Be 
 
Ill THE KING'S PEACE 75 
 
 special protection given to well-conducted widows 
 appears to come under this head, as being procured at 
 the instance of the Church ; for they are said to be in 
 God's and the king's peace, and the declaration occurs 
 in a context of ordinances chiefly ecclesiastical.^ In 
 later times, when the peace of the king in his temporal 
 capacity had been extended so as to bring all sorts of 
 ofi'ences within the jurisdiction of his courts, the 
 special point of these expressions was forgotten, and 
 " the peace of God and of our lord the king" became 
 a common form in criminal pleadings. 
 
 We have now to see how the king's peace was 
 extended iu respect of persons, occasions, and places. 
 A general summary of the doctrine as understood 
 about the time of the Conquest is given in a con- 
 venient form by the compilation known as Laws of 
 Edward the Confessor (c. 12 ; c£ c. 27) : — 
 
 "The king's peace is of many kinds. There is 
 one given by his own hand, which the English call 
 " kinges hand-sealde gri?s." Another of the day when 
 he is first crowned ; this lasts a week. At Christmas 
 a week, and a week at Easter, and a week at Whit- 
 suntide. Another given by his writ. Another 
 belongs to the four roads : namely Watling Street, 
 Foss, Hikenild Street, Erming Street, whereof two 
 traverse the kingdom in length, the others in breadth. 
 Another belongs to the waters, whereon provisions 
 are shipped from sundry parts to cities and boroughs." 
 
 griSe and be munde " (Appendix iv., Schmid, Eth. vii. of Ancient Laws), 
 a document of evident ecclesiastical origin. 
 1 ^thelr. V. 21 ; vi. 26. 
 
76 THE king's peace HI 
 
 The peace given by the king's hand (cyninges 
 hand-grig : in the Latin of the Anglo-Norman time 
 " pax regia per manum vel breve data " ) ^ appears to 
 be in the first instance a special privilege of persons 
 in attendance on him or employed about his business. 
 It is mentioned like a well-known and accustomed 
 thing, but we have little or nothing to show to whom 
 or for what purpose it was commonly given. We 
 may assume that the king's officers and messengers 
 had it ; perhaps others might have it by special favour. 
 It would be quite in harmony with what we know of 
 the king's court in the period immediately following 
 the Conquest that his special " hand-peace," while it 
 existed, should have been purchasable. And it might 
 often be worth a man's while to pay richly for it if 
 he could ; a merchant carrying money or jewels, for 
 example. This, however, is conjectural. In any 
 case, breach of the king's " hand-gritj " was an offence 
 of the highest order, not being redeemable by any 
 payment : whereas breach of the peace individually 
 given or generally proclaimed by other authorities 
 was a matter for compensation by a fixed scale of 
 fines. ^ The peace-breaker, if he fled, was reckoned an 
 outlaw ; it was a serious offence to harbour him,^ so 
 serious that it was itself reserved for the king's justice. 
 Only the king's grace could restore him to his rights 
 as a free man. He might be lawfully slain if he 
 
 1 Ll. Henr. Primi, c. 10, § 1. 
 
 ^ .^thelr. iii. 1. It is not necessary to decide whether these other 
 peaces were regarded as subordinate branches of the king's. The con- 
 text rather suggests it by the association of the king's reeve with the 
 alderman. ^ lb. 13. 
 
ni THE KING'S PEACE 77 
 
 resisted capture ; this, at least, is expressly given as 
 the tradition concerning breakers of the Church's 
 peace, and we cannot suppose that the king's stood 
 lower. ^ In much later times, it will be remembered, 
 it was doubtful whether outlaws or persons attainted 
 upon a prcemunire (which last expressly includes 
 being put out of the king's protection) might not be 
 killed with impunity. 
 
 One particular application of the king's personal 
 protection was to confirm the reconciliation of private 
 enemies. When a manslayer's composition has been 
 accepted by the kindred of the deceased, the king's 
 peace was to be declared between the parties, and 
 terms fixed for payment by instalments.^ The effect 
 of this would be that if the kindred on either part 
 attempted to repudiate the settlement at any time 
 before full payment, they would expose themselves, 
 not only to a renewal of the feud, but to the penalties 
 and dangers which fell on a peace-breaker. Another 
 use of this royal power is curious as foreshadowing 
 the policy of encouragement and security to foreign 
 traders which runs through the whole history of our 
 commercial law. In ^thelred's treaty with the Danes 
 we read : " Let every man of those that are in peace 
 with us have peace both by land and by water, both 
 within harbour and without." The ordinance goes on 
 to say that in an enemy's land the ships and goods of 
 the king's friends which may be found there are to have 
 
 1 Edw. Conf. 6. And see the customs of Chester, Lincoln, Oxford- 
 shire, and Berkshire, ap. Stubbs, Sel. Ch. 87, 90, 91 (2d ed.) 
 
 2 Edm. ii 7 ; cp. App. vii. 1, § 3 (B. & G. 13, Thorpe). 
 
78 THE KING'S PEACE III 
 
 peace, except as to property mixed witli that of the 
 enemy. Even merchant-ships from an enemy's land 
 are protected to a considerable extent. They may be 
 wrecked if they are driven in by stress of weather, 
 but if they come of free-will into an English port they 
 are to have peace.^ Here the alien trader, if he was 
 to be protected at aU, must be under the king's peace, 
 as he would have no standing before any of the 
 popular courts. Doubtless he also had the benefit 
 of the general peace of the four roads and navigable 
 rivers. 
 
 Then we find that certain feasts of the church and 
 other solemn assemblies are in the king's peace, more 
 or less. As early as Alfred's time double fines are 
 ordained for off'ences on Sundays and the greater feast 
 days and in Lent. There are also ^ exhortations to 
 keep the peace and avoid all manner of sin and strife 
 at holy times.^ But these appear to be nothing more 
 than general good advice, like the Queen's proclama- 
 tion read until very lately at the opening of 
 assizes, purporting to forbid various things which the 
 Crown certainly has at this day no legal power to 
 interfere with. And the express mention of the 
 double fine in certain cases is enough to show that 
 stealing or fighting in Easter-week, for example, was 
 not converted by the sanctity of the time into the 
 higher off'ence of peace-breaking in the special sense. 
 
 1 jEthelr. ii. 2, 3. C. 3 may be principally meant to secure good 
 treatment for friends of the English at the hands of the Danes. But 
 c. 2 seems a quite general declaration for the benefit of commerce. 
 
 2 .ffithelr. V. 19 ; vi. 25 ; Cnut, L 17, § 2 (all in nearly identical 
 terms) ; cf. Cnut, ii. 38, 47 ; Henr. 62, § 1. 
 
in THE king's peace 79 
 
 But the meetings of the Witan, the security of persons 
 attending them, and the discipline of military expedi- 
 tions, were by the eleventh century at any rate under 
 the full sanction of the king's authority. " I will," 
 says Cnut, " that every man be of peace worthy on 
 his way to gemdt and from gemdt, unless he be a 
 notorious thief." Again : " If a man on the service 
 of the host commit breach of the peace, let Mm lose 
 life or wergeld."^ Thus the king's peace, in ,a sort 
 of artless fashion, anticipated the office of our Mutiny 
 Acts and Articles of War. If we may trust a rather 
 doubtful authority, the king's coronation feast was 
 protected to the same extent.^ The king's peace at 
 certain seasons likewise occurs as a local privilege ; 
 we find in Domesday that Dover had it from 
 Michaelmas to St. Andrew's day.^ The giving of a 
 special peace at fairs and markets,* and very possibly 
 on other public occasions,^ was an ancient custom. 
 
 1 Cnut, ii. 61, 82. 
 
 ^ Edw. Conf. 12, 27. But here observe that the offence is no longer 
 b6t-leds. Appointed fines, though, very heavy ones are mentioned. 
 
 ^ Perhaps such a primlegium was a doubtful privUege in the modem 
 sense, for in case of breach the town paid a fine to the king. " A 
 festivitate S. Michaelis usque ad festum Sci. Andreae treuua regis erat 
 in uiHa- Si quis earn infregisset inde propositus regis acoipiebat 
 communem emendationem . . . Omnes hae consuetudines erant ibi 
 quando Willelmus rex in Angliam uenit." 
 
 * Report of the Royal Gorrvmission on Market Rights and Tolls, 1889, 
 pp. 1, 34, 99. There is a trace of this in the common form of pro- 
 claiming a fair stiH in use (ift. p. 5). When this peace became 
 identified with the king's peace does not appear. In Scotland it is 
 mentioned as a special privilege at a comparatively late date. 
 
 6 An example of a proclamation of peace (in part intentionally 
 burlesque) at a wrestling match occurs in the Grettis Saga, tr. Morris 
 and Magniisson, p. 213. 
 
80 THE KING'S PEACE III 
 
 As to places, we find that in the eleventh century 
 the limits of the king's court, within which his peace 
 must be kept, are extended by an artificial definition. 
 They are to be ascertained by taking from his actual 
 residence a radius of three miles, three furlongs, and 
 a minutely expressed fraction.^ The compiler of the 
 so-called Laws of Henry I. makes a not insignificant 
 addition. " Multus sane respectus esse debet, et 
 multa diligentia, ne quis pacem regis infringat, maxime 
 in ejus vicinia." This " maxime " shows that the 
 establishment of peace in the precints of the king's 
 house appears to him only as a special and emphatic 
 instance of an universal law. The exceptional and 
 local character of the king's peace is already obsolete 
 for him, and hardly intelligible. 
 
 Of more importance, however, is the protection 
 of the great roads, which was a settled rule by the 
 time of the Conquest. In the laws of William the 
 Conqueror we read : " Of the four roads, to wit 
 Watling Street, Erming Street, Fosse, Hykenild ; 
 whoso on any of these roads kills or assaults a man 
 travelling through the country, the same breaketh 
 the king's peace." ^ These roads remained from the 
 time of the Eoman government of Britain. Watling 
 Street is the best known of them. Starting from 
 Dover, it passed through Canterbury, London, and 
 Lichfield, to Wroxeter. Thence a later continuation 
 of it turned northwards to the Mersey, and under the 
 name of High Street was prolonged to the Eoman 
 
 1 App. xii. Schmid ; cf. Henr. 16. 
 2 Will i. 26. 
 
m THE king's peace 81 ' 
 
 Wall, while another branch struck off into Yorkshire. 
 The Foss Way made, roughly, an opposite diagonal, 
 its chief points being Ilchester, Bath, Cirencester, 
 Leicester, and Lincoln. 
 
 Erming or Irmin Street appears to have connected 
 London with the stations north of York by way of 
 Huntingdon and Lincoln, crossing the Humber by a 
 ferry. Icenhild or HykenUd (later commonly written 
 Icknield) Way ^ may be described as very roughly 
 parallel to the more important Foss Way. Starting 
 from Wallingford on the upper Thames in a north- 
 easterly direction, it crossed Watling Street at Dun- 
 stable and Erming Street at Eoyston, and went on 
 through Icklingham to or near Venta Icenorum 
 (Caistor St. Edmund's near Norwich). There were 
 other well-defined roads, but these four were the 
 main ones, and these alone were first recognised and 
 guarded as the king's highways.^ 
 
 Even for some time after the Conquest it would 
 appear that other roads, though public, were not in 
 the king's protection but only in the sheriff's.^ But 
 
 1 This is quite distinct from Eikenild or Ryknield Way, witli 
 whidi it was identified by some of the earlier antiquaries. (Higden 
 ap. Palgrave, Eng. Gomm. 2, cxxxviii.) 
 
 2 For the topography, see Guest, The Fou.r Roman Ways (Origines 
 Gelticae, 1883, vol. ii. p. 218), and the map of Britain in Miiller, Smith, 
 and Grove's Atlas (1874). Dr. Guest's paper is, in the posthumous 
 essays above cited, reprinted from the Archceological Journal, vol. xiv. 
 He gives the original forms of the names as Fos, Wsetlinga Street, 
 Icenhilde Street, Earminga Street. See also Green's Making of England, 
 passim. The statements in Schmid's Glossary, under the names of 
 the several roads, stand in need of revision by the light of Dr. Guest's 
 work. 
 
 3 Edw. Conf. 12, § 9. 
 
 a 
 
82 THE KING'S PEACE J^II 
 
 a tendency to enlarge the definition of the king's 
 highway is already at work. " Via regia dicitur quae 
 semper aperta est, quam nemo concludere potest vel 
 avertere cum minis (?) suis, quae ducit in civitatem 
 vel burgum vel castrum vel portum regium. " ''■ " Omnes 
 herestrete omnino regis sunt."^ Jurisdiction over 
 the king's roads " de civitate in civitatem " was 
 specially reserved out of the very large declaration of 
 the privileges of the see of Canterbury in the great 
 plea between Lanfranc and Odo on Penenden Heath. ^ 
 First, only the four roads are the king's ; then every 
 common road which leads to the king's city, borough, 
 castle, or haven ; and as most roads of any importance 
 must, sooner or later, answer this description if 
 followed far enough, the king's highway came to be, 
 as it now is, merely a formal or picturesque name 
 for any public road whatever. As late as the four- 
 teenth century, however, it was an opinion still held 
 by some that not every common road was royal, 
 insomuch that the soil and freehold of a common road 
 could be vested in an individual owner only if it was 
 not via regia.^ The very survival of the term " the 
 king's highway " shows that the idea of peculiar legal 
 sanctity clung about highways in popular imagination 
 
 1 Henr. 80, § 3. The final regium is omitted by one MS. Minis 
 must be corrupt. The variant minis, " rubbish," is more plausible. 
 One might suggest mnris, if muriis would bear the general sense of 
 inolosure or purpresture. 
 
 2 lb. 10, §2. Herestret = fleersto-osse, a main road fit for military- 
 purposes. 
 
 ^ Bigelow, Placita Anglo-normannica, 5, 8. 
 * Y. B. 6 Ed. III. 23, pL 48. 
 
in THE KING'S PEACE 83 
 
 long after they had ceased to be more under the 
 king's peace than any other English ground. Echoes 
 and revivals of the same feeling occur in the Statute- 
 book. By the Statute of Marlbridge all men save 
 the king and his officers are forbidden to take a 
 distress on the king's highway or any common road 
 (in regia via aut communi strata). And an Act of 
 Henry VIII. (24 Hen. VIII. c. 5, entitled " An Act 
 where a man killing a thief shall not forfeit his 
 goods ") made it justifiable homicide to kill any one 
 attempting robbery or murder "in or nigh any 
 common highway, cartway, horseway, or footways," 
 
 The same reign, it may be noted, presents a 
 curious reminiscence of the sanctity of the king's 
 peace within his own house ; I mean the Act which 
 imposed the penalty of losing the right hand on any 
 one guilty of " malicious striking by reason whereof 
 blood is or shall be shed against the king's peace" 
 within the precincts of any palace or residence of the 
 king.-^ The statute presents in the minuteness of its 
 directions a curious compound of ferocity with a sort 
 of rude humanity. 
 
 In all these ways the king's peace was enlarged 
 in the age imjnediately preceding the Conquest, and 
 tending to become the general peace of the kingdom. 
 The interests of the king and of the subject conspired 
 to the same end. It was for the king's manifest 
 advantage to widen the bounds of his jurisdiction for 
 the purpose of increasing the fines and forfeitures 
 incident to its exercise. This kind of competition for 
 
 1 33 Hen. VIII. c. 12. 
 
84 THE king's peace III 
 
 business and fees between independent or half- 
 independent powers is the key, we need hardly 
 remind the reader, to much of the legal history of 
 the Middle Ages, and explains some of its oddest 
 details. It was no less for the subject's advantage to 
 be able to appeal for redress to the one authority 
 which could not anywhere be lightly disobeyed. 
 How the completion of the process should be carried 
 out was more or less an aifair of occasion and accident. 
 As in other cases, the Conquest makes a gap in the 
 continuity of the evidence, and obscures the exact 
 sequence of things, while nevertheless it hastens and 
 consolidates, on the whole, the result already impend- 
 ing. We do not know, for example, how a man 
 proved that he had the king's special peace. We do 
 know that in later times the averment of a trespass 
 being committed against the king's peace, or that 
 the person injured was in the king's peace, neither 
 required nor was capable of proof, but still was 
 necessary to give the Superior Court jurisdiction. 
 We may imagine a transition period in which the 
 judges were ready, on some very slight suggestion, to 
 presume as between the king and the sheriff that the 
 king's peace had been specially granted to the 
 plaintiff, or to a man unlawfully slain. It is true 
 that the Crown had assumed concurrent or exclusive 
 jurisdiction (subject only to the possibility of a 
 special grant of regalities to a subject) over various 
 offences and trespasses, while breach of the king's 
 peace was still nominally only one specific offence. 
 From the point of view of amplifying jurisdiction, 
 
in THE king's peace 85 
 
 therefore, the extension of the king's peace may not 
 seem to have been so urgent. But these offences 
 reserved to the Crown are really of the same class. 
 The list as given for Wessex in Cnut's laws (ii. 12) is 
 as follows : — 
 
 pis syndon Ipi gerihta, Jje se cyning ^h ofer ealle 
 men on Westsexan, Ipast is mund-bryce and ham-s6cne, 
 forstal and flymenafyrmSe and fyrd-wite, buton he 
 hwsene furSor gemaedrian wylle, and he him Jjses 
 weorSscipes geunne. 
 
 Mund-bryce is the same as griS-bryce, breach of 
 the king's special protection, of which we have already 
 heard. Ham-sdcne is an attack in force on a man in 
 his homestead (saving, I presume, all rights to the 
 regular prosecution of a feud). The ojffence is to this 
 day known to the law of Scotland as hamesucken. 
 It would according to the older notions be a breach 
 of the householder's peace, not of the king's. But 
 the very fact of the king assuming jurisdiction in 
 such cases is evidence that the distinction could not 
 be long maintained. Already in the laws of Edmund, 
 before the middle of the tenth century, this offence is 
 on the same footing as mund-bryce : the penalty 
 being the same, and expressed in almost the same 
 words, as that of the laws above mentioned which 
 forbid fighting in the king's house. ^ The exact 
 meaning of forstal (more commonly written forsteal) 
 is not free from doubt. But it included attacking 
 one's enemy by stealth while he was journeying : so 
 
 1 Edm. ii. 6. 
 
86 THE KING'S PEACE III 
 
 that, if committed on any of the great roads, the 
 offence would be against the king's peace according 
 to the authorities cited above. Flymena-fyrmSe, the 
 harbouring and comforting of outlaws, is closely 
 connected with substantive offences against the king 
 and his peace, for such offences were the gravest and 
 probably the most frequent cause of outlawry.^ Fyrd- 
 wite, the public fine for making default in military 
 service, must have been in the king's hands, as 
 captain of the host, from the time of its first 
 institution. It disappears, however, with the change 
 of military system after the Conquest. Thus, on the 
 whole, an easy way is prepared for Pleas of the 
 Crown, as we now say, and breaches of the king's 
 peace to become co-extensive. It is curious to see 
 how much the list is increased in the generations 
 following the Conquest (Leges Henrici Primi, c. 10). 
 
 The exception of cases where the king might be 
 pleased especially to honour any man (namely, by the 
 grant of jura regalia) was preserved, in form, almost 
 to our own time. Where such a grant had been 
 made, the effect was to substitute the' peace of the 
 lord to whom the grant was made for that of the 
 king. And in the Counties Palatine of Lancaster and 
 Durham, while their separate jurisdictions were main- 
 tained, the style of pleading was not contra pacem 
 regis, but contra pacem duds, comitis, or episcopi as 
 the case might be.^ 
 
 ^ It is wortli note that an outlaw's bookland is forfeit to the king, 
 whether he be the ting's man or not : Cnut, ii. 13. 
 2 Blackstone, i. 117. 
 
Iir THE king's peace 87 
 
 After the Conquest, then, the various forms in 
 which the king's special protection had been given 
 disappear, or rather merge in his general protection 
 and authority : for the details that occur in the 
 compilations bearing the names of Henry the First 
 and Edward the Confessor, welcome as they are by 
 way of supplement to earlier documents, are mere 
 echoes of traditions no longer living. The king's 
 peace is proclaimed in general terms at his accession.^ 
 But, though generalised in its application, it still was 
 subject to a strange and inconvenient limit in time. 
 The fiction that the king is everywhere present, 
 though not formulated, was tacitly adopted ; the 
 protection once confined to his household was ex- 
 tended to the whole kingdom. The fiction that the 
 king never dies was yet to come. It was not the 
 peace of the Crown, an authority having continuous 
 and perpetual succession, that was proclaimed, but the 
 peace of William or Henry. When William or Henry 
 died, all authorities derived from him were determined 
 or suspended : and among other consequences, his 
 peace died with him. What this abeyance of the 
 king's peace practically meant is best told in the 
 words of the Chronicle, which says upon the death of 
 Henry I {anno 1135): "Then there was tribulation 
 soon in the land, for every man that could forthwith 
 robbed another." Order was taken in this matter (as 
 our English fashion is) only when the inconvenience 
 became flagrant in a particular case. At the time of 
 Henry IH.'s death his son Edward was in Palestine. 
 
 1 Palgrave, i. 285. 
 
88 THE KING'S PEACE HI 
 
 It was intolerable that there should be no way of 
 enforcing the king's peace till the king had come 
 back to be crowned : and the great men of the realm, 
 hj a wise audacity, took upon them to issue a 
 proclamation of the peace in the new king's name 
 forthwith.-' This good precedent being once made, the 
 doctrine of the king's peace being in suspense was 
 never afterwards heard of. 
 
 Thus by the end of the thirteenth century, a time 
 when so much else of our institutions was newly and 
 strongly fashioned for larger uses, the king's peace 
 had fully grown from an occasional privilege into a 
 common right. Much, however, remained to be done 
 before the king's subjects had the full benefit of this. 
 The local officers of justice were still no ministers of 
 the king or of his courts ; local interests and jealousies 
 might still come in the way of the efi'ectual and 
 comparatively speedy redress which the king's power 
 alone could give. A remedy was not difficult to 
 devise ; it lay in the appointment of other officers 
 commissioned directly by the king, and charged to 
 maintain his peace and his rights of jurisdiction. A 
 beginning of this was made as early as 1195 by the 
 assignment of knights to take an oath of all men in 
 the kingdom that they would keep the king's peace 
 to the best of their power. ^ Like functions were 
 assigned first to the old conservators of the peace, 
 now all but forgotten, then to the justices who super- 
 seded them, and to whose office a huge array of powers 
 and duties of the most miscellaneous kind have been 
 
 1 Stubbs, Select Charters, p. 448. ^ J5. p. 264. 
 
Ill THE KING'S PEACE 89 
 
 added by later statutes. The steps by which this was 
 effected are part of the technical history of the modern 
 law, and it does not concern us here to recall them. 
 Then the writ de securitate pads made it clear 
 beyond cavil that the king's peace was now, by the 
 common law, the right of every lawful man. The 
 precept to the sheriff is that he cause the complainant 
 to have of the person who threatens him " our strict 
 peace according to the custom of England." Binding 
 persons over to keep the peace is in our days one of 
 the commonest forms of summary jurisdiction, and 
 one cannot claim for it any peculiar dignity. 
 Probably it is more familiar in rustic parts than 
 almost any legal institution, and more cherished 
 though less imposing and exciting than the pomp of 
 assizes. If its precise operation is not understood 
 belief in its efficacy loses nothing. We have heard of 
 an application being made in good faith to a Devon- 
 shire magistrate to " swear the peace upon " a dying 
 man, to the end of securing the complainant (his 
 wife) from the threatened visitation of his ghost, in 
 the event of her contracting a second marriage of 
 which he disapproved. But if we can clear our 
 imagination from anecdotes of petty sessions and go 
 back to the old form of the writ in Fitzherbert, we 
 shall find in it a gravity and weightiness not unworthy 
 of a great legal reform. "We must not think of it as 
 being in its early days a mere preventive of common 
 assaults, an economiser of the "little diachylon" 
 made immortal by Holt in Ashby v. White. Eather 
 it must have been a material instrument in the 
 
90 THE KING'S PEACE HI 
 
 suppression of wrong -doing on a more formidable 
 scale, of tumultuous revenges and private warfare ; a 
 task for which all the power at the disposal of the 
 Crown was none too much. 
 
 We said that the king's peace and protection had 
 become the established right of every peaceable 
 subject. Nevertheless a trace of the archaic ideas 
 persisted as long as the art of common law pleading 
 itself. The right was to be enjoyed only on condition 
 of being formally demanded. In order to give the 
 king's courts jurisdiction of a plea of trespass it was 
 needful to insert in the writ the words vi et armis, 
 which imported a breach of the peace ; and it was 
 usual, if not necessary, also to add expressly the 
 words contra pacem nostram. Without the allegation " 
 of force and arms the writ was merely " vicountiel," 
 that is, the sheriff did not return it to the Superior 
 Court but had to determine the matter in the County 
 Court.^ By so many steps and transformations did 
 it become possible for Lambarde, and Blackstone 
 after him, to say,^ with unconscious inversion of the 
 historical order of development, and as if the matter 
 were in itself too obvious to need explanation : " The 
 king's majesty is, by his office and dignity royal, the 
 principal conservator of the peace within all his 
 dominions ; and may give authority to any other to 
 see the peace kept, and to punish such as break it ; 
 hence it is usually called the King's Peace." 
 
 1 F. N. B. 86. 2 Comm. i. 349, 350. 
 
IV 
 
 OXFOED LAW STUDIES^ 
 
 That the profession of the law is necessary in a 
 civilised commonwealth, and competence therein by 
 no means to be attained without study, is matter of 
 common knowledge. In speaking here of that study 
 we have to consider more closely how it stands with 
 us, not only as English citizens, but as scholars in this 
 University. To what end is our study and teaching 
 of law ? Shall we say that we aim at producing 
 successful lawyers ? That would be a facile answer, 
 if tenable. But it will not hold on any side. The 
 University would justly refuse approval to it, as the 
 world would justly refuse credit. Speaking as from 
 the world to the University, I should feel constrained 
 to say that such is not our competence ; we could not 
 achieve this if we would. Speaking as from the 
 University to the world, I would say that such are 
 not our aspirations ; we would not undertake this if 
 we covdd. Nay more, the undertaking is not within 
 any resources of human teaching; it is in its own 
 nature beyond them. Success in a profession depends, 
 
 1 A Public Lecture delivered in the University of Oxford, May 22, 
 1886. Allusions to matters then recent are left untouched. 
 
92 OXFORD LAW STUDIES IV 
 
 at the last, on a man's self and not on what he has 
 received from without. All that his friends can do 
 for him, or any teaching or training institution what- 
 ever, is to furnish him forth with such equipment that 
 he may be ready for opportunities when they come, 
 or for the one critical opportunity. And we cannot 
 make even this our business to the full extent or for 
 its own sake. We are no more called upon to make 
 our graduates accomplished advocates or draftsmen 
 than to make them accomplished engineers or railway 
 directors. What really does concern us is that there 
 is a science as well as a practice of law; a science 
 inseparable from the practical art, or separable only 
 at the cost of ceasing to be versed in real matter, but 
 still a science of itself And we shall find that in 
 this there is nothing strange to our traditional habit, 
 or alien from our dealing with other arts and sciences 
 which have a practical side. If we consider the most 
 obviously academical, and certainly not the least 
 noble or strenuous of professions, we shall find the 
 same distinction in force. The humanities are in- 
 dispensable to a good schoolmaster, but we do not 
 therefore warrant that our prizemen and classmen 
 shall be good schoolmasters. If any one holds our 
 Classical Schools cheap for not being, as of course 
 and without more, an officina of successful teachers 
 of the classics, the same greatly misconceives both 
 the function of the University and the dignity and 
 difficulty of the teacher's office. What, again, of our 
 relation to those other arts, eminently so called, which 
 more visibly adorn and elevate life ? Why have we 
 
IV OXFORD LAW STUDIES 93 
 
 saluted Mr. Herkomer as a colleague, and why do we 
 receive Dr. Joachim and Dr. Eichter not only as the 
 welcome and familiar guests of England, but as par-, 
 takers of the honourable degrees of our ancient 
 English Universities ? Surely it is not that we 
 expect to send out into the world, from hence or 
 from Cambridge, a certain number of painters and 
 musicians. It is indifferent whether we send out 
 any. The significance of our action is a different 
 and independent one : that the humanities are not 
 limited by any one form of expression. Because 
 Michael Angelo and Turner not less than Homer, 
 Bach and Beethoven not less that Plato, had the 
 secret that bids the immeasurable heavens break 
 open to their highest, therefore we do honour, in the 
 name of the Muses whom we serve, to the masters 
 and ministers of their art. The witness of our 
 various activities here, of the new studies which 
 some regard with suspicion from within, and some 
 with contempt from without, is that the humanities 
 have their part in all science whatever ; that a pro- 
 fession, above all a learned profession, is not an affair 
 of bargain and bread- winning, but the undertaking of 
 a high duty to mankind. We do not say that in our 
 schools we can make a man a skilled physician ; but 
 we can show him what is the tradition inherited by 
 the science and art of medicine, and how intimate its 
 connections with the whole of man's knowledge of 
 nature and of himself Neither do we say, perhaps 
 even less ought we to say, that we can make a man a 
 skUled lawyer. But we can endeavour to impress on 
 
94 OXFORD LAW STUDIES IV 
 
 him those larger and more generous notions which, if 
 not planted betimes, are apt to wither in the dust of 
 technical detail and the heat of forensic business. 
 We can help him to regard law not merely as a 
 regulated strife, or a complex machine for securing 
 and administering property, but as the greatest, the 
 most interesting, and in one word, the most humane 
 of the political sciences. We can show him how legal 
 ideas, legal habits of thought, oftentimes even legal 
 controversies of the most distinct and technical kind, 
 have entered into the very marrow of our political 
 history, and may do so again. We can guide him to 
 the distinction of that which is accidental and local 
 from that which is permanent and universal ; we can 
 map out for him the analogies and contrasts between 
 our own system and that of the Eoman law, with 
 whose descendants and successors our Germanic law, 
 broadly speaking, divides the civilised world. Most 
 chiefly, we can help him to fix in his mind that 
 there are such things as general principles of law; 
 that the multitude of particulars in which he must 
 inevitably be versed as a practical student and worker 
 are not really a chaos ; and that, if he sets out with 
 good will and good faith, he need have no fear that 
 the search for a true art founded on science, rkyyy\, 
 will lead him into the wilderness where blind and 
 erring tribes worship routine justified by rule of 
 thumb, the aTexvo<i rpi^'q denounced by Plato and by 
 all sound philosophy. 
 
 So much we offer to the student, and it is not a 
 little. If proof be needed that the offer is no vain 
 
IV OXFORD LAW STUDIES 95 
 
 boast, it shall presently be forthcomiiig. But a 
 University has regard to the mature worker as well 
 as to the novice. We shall send forth our students 
 warned and strengthened, as we trust, for the toil of 
 their strictly professional training, and prepared to 
 fill up and enrich with active experience the general 
 notions they have already formed. For some years, 
 perhaps for many, the larger world will claim them ; 
 many will belong to it irrevocably. Yet some will 
 return to us, meaning to attach themselves to the 
 science rather than the art of their profession, but 
 with fresh interest, wider scope of knowledge, and a 
 firmer grasp of intellect, derived from contact with 
 the living afiairs of mankind. These wiU not find 
 their pursuits uncared for. "We have here, in well 
 devised order and easily accessible, all the needful 
 appliances of legal work and research. In one way 
 the apparatus of our science is simple ; we share with 
 moral as distinguished from natural philosophers the 
 convenience of working mainly with books. But the 
 amount of books a working lawyer must have within 
 reach, whether his work be for the sake of practice or 
 of science, is beyond the means of most private men. 
 Our colleague Mr. Freeman can write a history with- 
 out leaving his Somersetshire country-house. To 
 write a law-book under such conditions, a man would 
 need an exceedingly weU fiUed purse or a singularly 
 capacious and accurate memory, unless in other 
 respects he were more than man or considerably less 
 than a sound lawyer. To say, therefore, that serious 
 workers in the law will find here an adequate and 
 
96 OXFORD LAW STUDIES IV 
 
 well-ordered law library — in some respects a better 
 one than those of the Inns of Court in London — is 
 to say that of which every lawyer will perceive the 
 importance. I need not add that the means to which 
 I refer are those placed virtually at the disposal of 
 the University by the care and liberality of All Souls 
 College. Moreover, opportunities for oral discussion 
 (a way of improving knowledge and clearing up 
 doubts which is often and justly commended by our 
 writers of authority) are in no wise wanting. In All 
 Souls we have a centre of legal thought and work 
 fitted to produce results that shall be academical in the 
 best sense, and as far as possible from academical in tjie 
 disparaging sense of having no relation to real facts in 
 which the word is sometimes used. I will be so bold 
 as to say that we have gone far to solve, as regards our 
 own Faculty, the problem which some years ago was 
 current, even to weariness of ears and vexation of 
 spirit, under the name of the Endowment of Eesearch. 
 It may be said to us, and fairly : These are your 
 assertions on behalf of your own speciality ; these are 
 your professions of what the Oxford Law School can 
 do ; such intentions may be very good, but can you 
 produce any visible fruit whereby men may judge 
 your work ? Now, considering the moderate number 
 of years for which our Law School has been in exist- 
 ence in its present form, we think we can show fairly 
 acceptable results. Fifteen or twenty years ago 
 there was hardly to be found in the English language 
 a good elementary introduction to any part of juris- 
 prudence. I speak of elementary text-books, of works 
 
IV OXFORD LAW STUDIES 97 
 
 fitted to the apprehension of an intelligent but as 
 jet untrained beginner. Books were then in just 
 repute, as they still are, which were and are in- 
 valuable repertories of learning for the trained 
 lawyer; but such books presuppose familiarity with 
 the very forms of speech and order of thought 
 wherein the novice finds his difficulties. They are 
 meat for men. And if elementary guidance was 
 scanty even in the common lines, of English law, 
 there was almost a total lack of it in the region of 
 public and constitutional law ; and we shall scarcely 
 find the law of nations to be an exception in this 
 category, notwithstanding the bulk of its English and 
 American literature. In Eoman law we had simply 
 nothing deserving of serious mention. What do we 
 find now ? I have no mind to exaggerate our merits, 
 but neither will I use the language of false humility 
 because I have to speak of the work of colleagues and 
 friends. Mr. Poste, and more lately Mr. Moyle, have 
 made accessible to English readers (for English 
 students who can use German books without difficulty 
 are still the minority) the results achieved in Roman 
 law by the Continental scholarship of this century. 
 We can now welcome the excellent contributions of 
 Mr. Muirhead^ from Edinburgh or Mr. Eoby from 
 Cambridge without feeling that our own hands are 
 empty. Last of all, our colleague Dr. Grueber has 
 for the first time, in his exhaustive monograph on the 
 Lex Aquilia, exhibited to us in our own language the 
 
 1 Professor Muirhead died in 1889, regretted by Continental a3 well 
 as British students of Eoman law. 
 
 H 
 
98 OXFORD LAW STUDIES IV 
 
 very form and method of the leading modern school 
 of Eoman law : and this, be it remembered, with 
 direct and definite relation to our University course. 
 Not less are the benefactions of Professor Holland and 
 Dr. Markby ^ to the beginner in search of an introduc- 
 tion to the general principles of law. It was Black- 
 stone, teaching in this University, who, in the words 
 of Bentham's frank admission, "first of aU institu- 
 tional writers taught Jurisprudence to speak the 
 language of the scholar and the gentleman." The 
 crabbed involution of Bentham's own later manner, 
 and the still more repulsive formlessness of his successor 
 Austin, who could never forgive Blackstone for 
 writing good English, deprived a later generation of 
 these advantages. In following the technical divisions 
 of the law (with partial amendments, not always 
 felicitous) Blackstone was at any rate intelligible to 
 lawyers. The terminology of Bentham and Austin 
 inflicted on us a mass of new technicalities, little 
 better in themselves, if at all, than Blackstone's, and 
 intelligible to nobody. Dr. Markby and Mr. HoUand 
 have delivered us from this state, and furnished us 
 with lucid and readable expositions of the elementary 
 (though not always easy) conceptions which underlie 
 the detail of the law. Passing from these generalities 
 to our particular system, we find ourselves indebted 
 to the Warden of All Souls — and I am only repeating 
 what I said some years ago, before I had any standing 
 here — for a model introductory text-book on a special 
 subject of English law. 
 
 ^ Now Sir William Markby. 
 
IV OXFORD LAW STUDIES 99 
 
 These results, I conceive, are somewhat. But there 
 is more yet ; there is that which we may claim as 
 not only service to professional students, but direct 
 service to the Commonwealth. It is going, perhaps, 
 to the verge of what is permissible in this place to 
 refer to the constitutional argument lately^ addressed 
 to the House of Commons by my friend Professor 
 Bryce, an argument which faced the highest and 
 most difficult questions of modern politics. I refer to 
 it only to say that, whether or not we agree with its 
 aim and conclusions, no competent person can fail 
 to admire in it the combination of learning and 
 subtHty with sincerity and highmindedness ; and that 
 generous adversaries were to my own knowledge among 
 the first to bear witness to its merit. The Warden 
 of All Souls, however, and Mr. Dicey have been 
 elucidating the principles of our public law within 
 strictly academical bounds, and their labours belong 
 to our Law School in the full and proper sense. 
 Professor Dicey's book, designed for peaceful uses, has 
 become an armoury for political combatants ; whether 
 the untried weapons snatched out of it by untrained 
 hands are altogether safe for those who wield them, 
 it is for the captain and not for the armourer to 
 consider. Sir WUliam Anson's exposition of the law 
 of Parliament has been only these few days in our 
 hands. It is at least an excusable ambition to hope 
 that work of this kind, addressing itself to all 
 capable citizens, and executed by persons of verified 
 competence who are removed from the stress and 
 
 1 In the debate on Mr. Gladstone's Home Eule Bill. 
 
100 OXFORD LAW STUDIES IV 
 
 disturbing influences of active politics, may do some- 
 thing to enlarge the horizon of English political 
 thought, and mitigate the crudeness and bitterness 
 of English political controversy. In no generation 
 of English history has the solid framework of law and 
 custom on which the English Constitution is built up 
 stood more in need of plain, definite, impartial ex- 
 hibition than it does this day. At no time has it 
 been fitter for us to be put in mind that the efiective 
 power of law is not only the work but the test of 
 a civilised commonwealth, and that law, as a great 
 English writer has said, is in its nature contrary to 
 such forces and operations as are " violent or casual." 
 It may be now and again inevitable that the casual 
 fortunes of political strife determine resort to violent 
 experiments for whose consequences we have no 
 warrant. There may be such junctures brought 
 about in the fates of nations, or by the improvidence 
 of their rulers, that good citizens must acquiesce in 
 desperate remedies rather than expose their country 
 to yet worse evils. We who believe that law, like 
 all other human sciences, and politics, like all other 
 human arts and faculties, rest at bottom on the nature 
 of things, and that the nature of things cannot be 
 deceived and will not forgive, may submit to such 
 things if the need for them is proved ; but we will 
 not praise them, nor the men who have made them 
 needful. The lea;rning which practical men afiect to 
 despise shall help us, at least, to know whither we 
 are going, and what we risk. 
 
 It is time to come back from justifying ourselves 
 
IV OXFORD LAW STUDIES 101 
 
 to the world to considering, here among ourselves, 
 how we shall best further our work. There are some 
 kinds of technical study (I have already hinted) 
 which cannot well be undertaken here, or not so well 
 here as elsewhere. In what lines, then, is it wise to 
 guide our students, having regard both to the abun- 
 dance and to the limitations of our resources ? Let 
 us consider for this end the general forms of an English 
 lawyer's knowledge. They may be laid out in a 
 threefold division of things necessary, things useful, 
 and things of ornament. Some knowledge is necessary 
 to a lawyer, in the sense that it should be always in 
 his mind, and capable of being instantly called up 
 into active apprehension, and that a good lawyer 
 would be ashamed of not having it at command. 
 Much is useful, but not in this way necessary. A 
 good lawyer will be glad to have the full and actual 
 command of as many departments as he can. But 
 no man can thus occupy the whole field of such a 
 science ; and as a rule, both in practical and in specu- 
 lative work, one must choose one or two departments 
 for minute acquaintance, and in others be content 
 with a sort of index -knowledge. Outside his own 
 special branch, a sound lawyer will know where to 
 look for full information, and have a fair notion of 
 what he may expect to find. But it will be no shame 
 to him not to be ready with an off-hand answer. 
 Then we have the matters which are rather of delight 
 and curiosity than of immediate profit, and are the 
 ornaments of professional knowledge. Familiarity 
 with them is the mark of the lawyer who is learned 
 
102 OXFORD LAW STUDIES IV 
 
 in the eminent sense, as distinguished from him who 
 is merely competent. Now and again they become 
 of importance, even of capital importance, in practical 
 application ; witness, for example, the masterly his- 
 torical investigation of the jurisdiction of Justices of 
 Assize delivered as a judgment in Fernandez's case^ 
 by Willes J. But to be thus applied, they must have 
 been acquired for their own sake : they cannot be 
 "got up " like the facts of a brief. Bearing these 
 distinctions in mind, it is in our power here in every 
 one of these kinds to start a learner on the true path. 
 We cannot usefully attempt to give him even so 
 much of the details of law as will ultimately be in- 
 dispensable to him ; but we can give him a clear 
 vision and a firm grasp of elementary principles which, 
 being called to mind as occasion requires, will save 
 him from being oppressed and confused by the 
 multitude of particulars. Much less can we teach 
 him all that is useful for a lawyer ; but we can aid 
 him to form the scholarly habit which makes the 
 difference in practice between sure-handed and slovenly 
 execution. We cannot make him a profound jurist 
 or an accomplished legal historian ; but we can 
 aid him to form tastes which, after the inevitable 
 stress of purely technical training has been endured 
 and has done its work, will lead him to enjoy the 
 fruits of the higher learning, it may be to add to 
 them. 
 
 In particular, the course of our Law School — and 
 I refer more especially to the course prescribed for 
 1 10 0. B., N. S. 1. 
 
IV OXFORD LAW STUDIES 103 
 
 the Civil Law degree^ — gives an opportunity, which 
 may not recur for years after, for imbuing the mind, 
 at the stage when it is just ripe for appreciation, 
 with the classics of English legal and political science. 
 A student will hardly lose sight of the larger bearings 
 of jurisprudence who has been grounded betimes in 
 Hobbes, in Blackstone, in Burke's great constitutional 
 speeches and writings, in the best parts of Bentham's 
 work, and in the lines of research opened by my 
 predecessor in this Chair, Sir Henry Maine. Herein 
 I assume a genuine pursuit of knowledge. There is 
 no kind of sound doctrine which may not be — and I 
 fear I must say, which is not — perverted by short- 
 sighted learners and unscrupulous teachers, who 
 substitute for the pursuit of knowledge the pursuit 
 of examinations. For such as these their place is 
 prepared, according as they have desired and deserve. 
 The Muses wiU deal with their blaspheinies in their 
 own good time, showing perhaps some mercy to the 
 dupes, but none to the sinners against light. 
 
 Again a man may learn here better than elsewhere, 
 
 1 It may be proper to explain, for readers not familiar with the 
 somewhat complex arrangements of the Oxford Schools, that the 
 Honour School of Jurisprudence is one of the several optional ways 
 of taking a degree with honours in Aits. The degree in Civil Law is 
 open only to candidates who have already graduated in Arts (not 
 necessarily in any particular School), and the examination for it is of 
 a more advanced kind. There is not any corresponding examination 
 at Cambridge, where attempts to make some similar use of the 
 Chancellor's Medal for Legal Studies have failed : but the Law Tripos, 
 which confers a degree in Arts or Laws at the successful candidate's 
 option, covers a somewhat wider ground than the Oxford School of 
 Jurisprudence. 
 
104 OXFORD LAW STUDIES IV 
 
 and certainly better than by perfunctory reading 
 snatched from the time which is none too much for 
 his practical training, to appreciate the Koman law 
 as a real and living system, different from our own 
 but of kindred spirit, and presenting the most in- 
 structive analogies even in detail. It is neither 
 possible nor desirable for an English lawyer to know 
 the Corpus Juris in the way that a German professor 
 does ; and a compulsory smattering of undigested 
 Eoman law rules and terminology is worse than 
 worthless. But the original authorities of the Eoman 
 system are, compared with our own, compendious ; 
 and a moderate amount of systematic application 
 under proper guidance will give a man a range of legal 
 ideas more complete in itself and more conducive to 
 orderly thinking than he is likely to get from any 
 other form of legal study at present practicable. In 
 the Common Law we have outgrown Blackstone's work, 
 and we are not yet ready to replace it. 
 
 And this brings me to a not unimportant con- 
 sideration : that the invaluable habit of first-hand 
 work and constant verification can be formed and 
 exercised in a limited field no less than in an un- 
 limited one, and, for the beginner, even better so. 
 We no longer make and transcribe notes and extracts, 
 with infinite manual labour, in a huge " commonplace 
 book," as former generations were compelled to do by 
 the dearth of printed works of reference.^ But, since 
 
 1 The old " Abridgments " are nothing else than the commonplace 
 books of eminent lawyers. See the preface (attributed to Hale) to 
 EoUe's Abridgment. Hale's own unpublished commonplace book, an 
 
IV OXFORD LAW STUDIES 105 
 
 the law is a living science, no facilities of publishing 
 and printing can ever perfectly keep pace with it. A 
 student who intends to be a lawyer cannot realise 
 this too soon. There is no need, for him to make 
 voluminous notes (indeed there is a great deal of 
 vain superstition about lecture notes) ; but those he 
 does take and use ought to be made by him for him- 
 self, and always verified with the actual authorities 
 at the first opportunity. Another man's notes may 
 be better in themselves, but they wUl be worse for 
 the learner. As for attempts to dispense with first- 
 hand reading and digesting by printed summaries 
 and other like devices, they are absolutely to be 
 rejected. No man ever became a lawyer by putting 
 his trust in such things ; and if men can pass ex- 
 aminations by them, so much the worse for the 
 examinations. It is of course needless to say this 
 to scholars ; I now speak of purely professional 
 experience. And in order to form the habit of 
 first-hand work it is not necessary to possess many 
 books, or even to have constant access to libraries. 
 There is nothing to prevent any student of average 
 means from having in his own copies of good modern 
 editions the whole of the authentic texts of the 
 Eoman law. If, however, the Corpus Juris- appears 
 too formidable, the use of select parts of the Digest 
 has been greatly facilitated by the publications of this 
 University. English authorities are less manageable, 
 but the selections of leading cases which have been 
 
 amazing moniiment of minute industry, is preserved among the MSS. 
 of tte Lincoln's Inn Library. 
 
106 OXFORD LAW STUDIES IV 
 
 published on both sides of the Atlantic (I may 
 specially mention as the latest and one of the best 
 Mr. Finch's, on the Law of Contracts) will go some 
 way towards enabling the student to practise real 
 search and verification without so much as leaving 
 his own rooms. At the same time it is good to learn, 
 as early as may be, the use of public libraries, 
 catalogues, and books of reference generally. Facility 
 in such things may seem a small matter, but much 
 toil may be wasted and much precious time lost for 
 want of it. To the working lawyer these things are 
 the very tools of his trade. He depends on them for 
 that whole region of potential knowledge which, as I 
 have said, must bear a large proportion to the actual. 
 And where can one learn the mechanism of scholar- 
 ship, general or special, better than at Oxford ? 
 
 It is somewhat old-fashioned, though there is 
 plenty of authority for it in our legal literature, to 
 ofi"er general good advice for the student's conduct 
 of life. Such advice is apt to fall upon a dUemma. 
 If you have had the experience on which it is founded, 
 you do not need it ; if not, you will not believe it. 
 And after you have forgotten the advice and the 
 adviser, and discovered the truth of things at your 
 own charge, you will say to yourself quite innocently. 
 Why did not some one tell me this before ? Yet a 
 few hints of warning and encouragement may fall on 
 kindly soil and ripen. And therefore I would say to 
 the student going forth into the heat of the day, 
 Trust your own faculties and the genius of your 
 University, and beware of the idols of the forum. 
 
IV OXFORD LAW STUDIES 107 
 
 You will meet those who will endeavour to persuade 
 you that it is " unbusinesslike " to be a complete man ; 
 that you should renounce exercises and accomplish- 
 ments, abjure the liberal arts, and burn your books of 
 poetry. Do this, and the tempters will shortly make 
 you as one of themselves. You will steadfastly 
 regard your profession as a trade ; you will attain an 
 intolerable mediocrity, the admiration of crass clients, 
 and the mark of double-edged compliments from the 
 Court ; you will soberly carry out the rule laid down 
 in bitter jest by a judge who was a true scholar, of 
 attending to costs first, practice next, and principle 
 last; you will stand for Parliament, not as being 
 minded to serve the common weal, but as thinking it 
 good for you in your business ; and if you are for- 
 tunate or importunate enough, you may ultimately 
 become some sort of an Assistant Commissioner, or a 
 Queen's Counsel with sufficient leisure to take an 
 active part in the affairs of your Inn, and prevent its 
 library from being encumbered with new-fangled 
 rubbish of foreign scientific books. But if you be 
 true men, you will not do this ; you will refuse to fall 
 down and worship the shoddy-robed goddess Banausia, 
 and you will play the greater game in which there is 
 none that loses, and the winning is noble. Let go 
 nothing that becomes a man of bodily or of mental 
 excellence. The day is past, I trust, when these can 
 seem strange words from a chair of jurisprudence. 
 Professors are sometimes men of flesh and blood, and 
 professors of special sciences are not always estranged 
 from the humanities. For my part, I would in no 
 
108 OXFORD LAW STUDIES IV 
 
 wise have the oar, or the helm, or the ice-axe, or the 
 
 rifle, unfamiliar to your hands. I would have you 
 
 learn to bear arms for the defence of the realm, a 
 
 wholesome discipline and service of citizenship for 
 
 which the Inns of Court offer every encouragement, 
 
 and for learning to be a man of your hands with 
 
 another weapon or two besides, if you be so minded.^ 
 
 Neither would I have you neglect the humanities. I 
 
 could wish that every one of you were not only well 
 
 versed in his English classics, but could enjoy in the 
 
 originals Homer, and Virgil, and Dante, and Eabelais, 
 
 and Goethe. He who is in these ways, all or some of 
 
 them, a better man will be never the worse lawyer. 
 
 Nay more, in the long run he will find that all good 
 
 activities confirm one another, and that his particular 
 
 vocation gathers light and strength from them all. 
 
 And what is to be the reward of your labour, when 
 
 you have brought all your best faculties to bear upon 
 
 your chosen study? Is it that you will have more 
 
 visible success and prosperity than others who have 
 
 worked with laxer attention or with lower aims ? Is 
 
 it that the world will speak better of you ? Once 
 
 more, that is not the reward which science promises 
 
 to you, or to any man. These things may come to 
 
 you, or they may not. If they come, it may be 
 
 sooner or later ; it may be through your own desert, 
 
 or by the aid of quite extraneous causes. The reward 
 
 1 The Inns of Court School of Arms is well approved by the 
 authority of our old writers on Pleas of the Crown and the office of a 
 Justice of the Peace, who all say that cudgel -playing and such liie 
 sports, as tending to activity and courage, are lawful and even laudable. 
 Hawkins (P. C. I. 484) closes a whole cateiia of such authority. 
 
I^^ OXFORD LAW STUDIES 109 
 
 which I do promise you is this, that your professional 
 training, instead of impoverishing and narrowing 
 your interests, will have widened and enriched them ; 
 that your professional ambition will be a noble and 
 not a mean one ; that you will have a vocation and 
 not a drudgery; that your life will be not less but 
 more human. 
 
 Instead of becoming more and more enslaved to 
 routine, you will find in your profession an increasing 
 and expanding circle of contact with scholarship, with 
 history, with the natural sciences, with philosophy, 
 and with the spirit if not with the matter even of the 
 fine arts. Not that I wish you to foster illusions of 
 any kind. It would be as idle to pretend that law is 
 primarily or conspicuously a fine art as to pretend 
 that any one of the fine arts can be mastered without 
 an apprenticeship as long, as technical," as laborious, 
 and at first sight as ungenial as that of the law itself. 
 StiU it is true that the highest kind of scientific 
 excellence ever has a touch of artistic genius. At 
 least I know not what other or better name to find 
 for that informing light of imaginative intellect which 
 sets a Davy or a Faraday in a difi"erent rank from 
 many deserving and eminent physicists, or in our 
 own science a Mansfield or a Willes from many deserv- 
 ing and eminent lawyers. Therefore I am bold to say 
 that the lawyer has not reached the height of his 
 vocation who does not find therein (as the mathema- 
 tician in even less promising matter) scope for a 
 peculiar but genuine artistic function. We are not 
 called upon to decide whether the discovery of the 
 
110 OXFORD LAW STUDIES IV 
 
 Aphrodite of Melos or of the unique codex of Gaius 
 were more precious to mankind, or to choose whether 
 Blackstone's Commentaries would be too great a 
 ransom for one symphony of Beethoven. These and 
 such like toys are for debating societies. But this 
 we claim for the true and accomplished lawyer, that 
 is, for you if you will truly follow the quest. As a 
 painter rests on the deep and luminous air of Turner, 
 or the perfect detail of a drawing of Lionardo ; as 
 ears attuned to music are rapt with the full pulse and 
 motion of the orchestra that a Eichter or a Lamoureux 
 commands, or charmed with the modulation of the 
 solitary instrument in the hands of a Joachim ; as a 
 swordsman watches the flashing sweep of the sabre, 
 or the nimbler and subtler play of opposing foils ; 
 such joy may you find in the lucid exposition of 
 broad legal principles, or in the conduct of a finely 
 reasoned argument on their application to a disputed 
 point. And so shall you enter into the fellowship of 
 the masters and sages of our craft, and be free of that 
 ideal world which our greatest living painter has con- 
 ceived and realised in his master -work. I speak not 
 of things invisible or in the fashion of a dream ; for 
 Mr. Watts, in his fresco that looks down on the HaU 
 of Lincoln's Inn, has both seen them and made them 
 visible to others. In that world Moses and Manu sit 
 enthroned side by side, guiding the dawning sense of 
 judgment and righteousness in the two master races 
 of the earth ; Solon and Scaevola and Ulpian walk as 
 familiar friends with Blackstone and Kent, with Holt 
 and Marshall ; and the bigotry of a Justinian and the 
 
IV OXFORD LAW STUDIES 111 
 
 crimes of a Bonaparte are forgotten, because at their 
 bidding the rough places of the ways of justice were 
 made plain. There you shall see in very truth how 
 the spark fostered in our own land by Glanvill and 
 Bracton waxed into a clear flame under the care of 
 Brian and Choke, Littleton and Fortescue,'" was tended 
 by Coke and Hale, and was made a light to shine 
 round the world by Holt, and Mansfield, and the 
 Scotts, and others whom living men remember. You 
 shall understand how great a heritage is the law of 
 England, whereof we and our brethren across the 
 ocean are partakers, and you shall deem treaties and 
 covenants a feeble bond in comparison of it ; and 
 you shall know with certain assurance that, however 
 arduous, has been your pilgrimage, the achievement is 
 a full answer. So venerable, so majestic, is this living 
 temple of justice, this immemorial and yet freshly 
 growing fabric of the Common Law, that the least of 
 us is happy who hereafter may point to so much as 
 one stone thereof and say. The work of my hands is 
 there. 
 
V 
 
 THE ENGLISH MANOEi 
 
 In this exceedingly complex historical product there 
 are two leading facts or groups of facts to be 
 explained. We have the institution of the Manor, as 
 known to lawyers, decrepit and in the way of being 
 reduced to a shadowy name by the enfranchisement 
 of copyholds, but still alive. A manor is an ancient 
 imperium in imperio, as the family settlement of 
 great estates may in some ways be deemed a modern 
 one. It is a fortress island of Franco -Norman 
 feudalism strangely blended with ancient local custom, 
 holding out against that levelling flood of the Common 
 Law which our forefathers, disguising a bold and far- 
 sighted centralising policy under an innocent phrase, 
 named "the custom of the realm." Like the scheme 
 of a family settlement, the customs of a manor are 
 privileged to exclude and modify the ordinary law 
 within a pretty wide range of variation. In both 
 cases the varieties that actually occur are found to be 
 consistent with a well-marked generic resemblance. 
 The private law of the estate (to use a happy phrase 
 
 1 This essay contains tlie substance of several lectures given on 
 different occasions. 
 
V THE ENGLISH MANOR 113 
 
 of Sir H. Maine's) and the private law of the manor 
 have each their own regular type. Aberrations are 
 possible, but rare. Then we have or had, more or less 
 associated with the manor, the system of common- 
 field cultivation which prevailed in many parts of the 
 country within living memory, and of which many 
 traces yet remain. The measures of agricultural im- 
 provement which made an end of the system in 
 practice have at the same time put its extent and its 
 details more fuUy on record, in the shape of evidence 
 and reports, than had ever been done before. As 
 regards this head, we have to depend almost entirely 
 on historical and economical sources of knowledge. 
 Lawyers have confined themselves to a technical 
 theory of tenure into which the facts of usage could 
 at need be dovetailed without manifestly spoiling the 
 work. This was done piecemeal and with grudging ; 
 the facts might be known to a whole country-side, 
 and natural in the farmer's eyes ; but it was reason 
 enough for the lawyer to treat them as abnormal that 
 they strained his accepted theory. When we turn 
 from Kemble's or Nasse's marshalling of the facts to 
 Coke's commentary on the law of tenures according to 
 Littleton's semi-sacred text, we find that Coke's brief 
 and apparently capricious suggestions of odd legal 
 possibilities become suddenly luminous. As matter 
 of law, the Manor and the Common Fields have not 
 any necessary connection. The historical problem 
 (which is also capable of becoming in particular cases 
 a legal problem of practical importance, and has 
 become so in cases within our knowledge) is to 
 
 I 
 
11 4: THE ENGLISH MANOE V 
 
 determine what the connection really was. The 
 opinion that there is not any relation but that of 
 territorial coincidence may be recommended to the 
 next inquirer in search of a new paradox. We have 
 not yet heard of its being maintained, and hope for 
 some amusement when its day comes. MeanwhUe 
 we turn to the closer examination of our manor. 
 
 The necessary elements of a perfect manor are a 
 lord, free tenants, and a Court Baron. The free tenants 
 hold lands of the lord according to the course of the 
 common law, and by titles originally created, or pre- 
 sumed so to have been, by livery of seisin, commonly 
 though not of necessity witnessed by deed, or its 
 equivalent. At least two free tenants are required 
 to make a Court. In this court the tenants who owe 
 suit to it (that is, to whose tenure the duty of 
 attending it is incident) are themselves the judges, 
 the lord or his steward being only president. In 
 default of free tenants to make a court, the manor in 
 strictness of law ceases to exist. We read in a well- 
 known passage of Domesday of one lord lending three 
 tenants to another to keep up his court ; so that the 
 lord expected really to lose something if the court 
 failed him. Nowadays it has been discovered that a 
 "reputed manor" will serve as weU as a real manor 
 for most purposes, and in particular for the reception 
 -of fees and fines from the customary tenants. This 
 class of tenants is not a necessary though it is a 
 usual element. Customary tenants or copyholders 
 hold their land not according to the common law but 
 according to the custom of the manor, and their title 
 
V THE ENGLISH MANOR 115 
 
 is evidenced not by deeds but by entry on the court 
 rolls. The court which deals with their affairs is 
 called the " Customary Court," or " Customary Court 
 Baron," and is in practice held together with the 
 Court Baron of the free tenants. In legal theory it 
 is not the same court ; the lord or his steward is 
 judge, and the suitors are different. Mr. Maitland 
 has shown, however, that the distinction of two 
 courts is artificial and comparatively late.^ A Court 
 Baron is simply curia haronis, the lord's court. The 
 reading of it as citria haronum, the court of the free- 
 holders, is merely fanciful. The name does not 
 commonly occur in early court rolls, and there is no 
 evidence that freeholders as such were called barones 
 at any. time. The customary law of copyhold tene- 
 ments must differ from the common law as regards 
 modes of alienation ; it may, and often does, differ as 
 regards the course of inheritance. Dues are payable 
 to the lord, of an amount formerly substantial, and 
 constantly shown by ancient court rolls and surveys, 
 where such have been preserved, to represent the 
 commuted value of services once claimed in kind. 
 Connected with the tenure and services are methods 
 and rules of agriculture which to a modern farmer 
 are simply barbarous ; within the present century 
 they have everywhere, or almost everywhere, been 
 got rid of as intolerable. Thtis in the manor itself 
 
 1 Introduction to Select Pleas m Memorial Gowrts (Selden Society, 
 1889), pp. xvii., xxxix., sqq. Guria, ha/ronvmi does occur, Mr. Maitland 
 now teUs me, as the title of a thirteenth-century tract, but even there 
 the MSS. are not uniform, and curia ba/rormm, c. barotds are used 
 indifferently in the same MS. 
 
116 THE ENGLISH MANOR V 
 
 we have two distinct systems or groups — the free 
 tenants, whose tenure falls quite naturally into the 
 feudal theory of post -Norman lawyers, and the 
 customary tenants, whose customs do not fall in 
 with that theory at all, and have to be forced into 
 apparent harmony with it by more or less barefaced 
 fictions. As to the territorial extent of a manor, we 
 have to bear in mind that its bounds need not, and 
 often do not, coincide with those of any other civil or 
 ecclesiastical division. There may be several manors, 
 or parts thereof, in one vill or parish, and conversely ; 
 and for this there is definite legal as well as historical 
 authority if required. 
 
 No historical explanation of the manor can be 
 accepted which fails to account for all these elements. 
 Even an hypothesis which does not profess to be 
 complete must leave room for a rational account 
 of those parts which for the time being it leaves 
 untouched. Thus we may dismiss at once the story 
 told by Blackstone, and followed until quite lately by 
 all the ordinary legal text-books. Copyhold tenure 
 was supposed by him to have arisen since the Norman 
 Conquest out of the mere indulgence of lords to 
 tenants who really and truly held at their will. And 
 he suggests, though he does not say, that the customs 
 themselves are of equally late origin. If we had no 
 authorities earlier than the Conquest, we should still 
 be warranted in saying that rational human beings 
 could not have invented our manorial customs at any 
 later time. Blackstone's legend could still not seem 
 probable to a student in any degree trained in the 
 
V THE ENGLISH MANOR 117 
 
 practice of historical and comparative observation. 
 But we have earlier authorities ; we know that the 
 estate and duties of the Geneit before the Conquest, 
 expressly stated to vary according to local usage 
 ("that which is established on the land"),^ were 
 substantially like those of the villanus of the twelfth 
 or thirteenth century. It is one of Kemble's merits 
 to have brought out this continuity beyond the 
 possibility of doubt, and not the least of Mr. Seebohm's 
 to have emphasised it. 
 
 Again, we have to consider the facts of existing 
 societies which are stUl in an archaic stage before we 
 commit ourselves to any theory of origin. Through- 
 out India we find communities with a system of 
 agriculture regulated by custom, and with a kind 
 of Customary Court, but without a lord. The inter- 
 pretation of these facts may be doubtful, but the facts 
 themselves are not; they are well known and 
 abundantly verified. Take away the lord and the 
 feudal theory from an English (or German) manor, 
 and there is left something very like an Indian village 
 community. Take an Indian village community, and 
 impose on it a lord and a theory of tenure, and the 
 result will be something very like an English manor. 
 There is no vestige of evidence that there ever was 
 a lord in the Indian community. And it seems a fair 
 hypothesis, in the absence of proof to the contrary, 
 that in the English manor the community is the 
 oldest element, and the lordship a newer one ; that 
 the village community is an undeveloped manor, or 
 
 1 Eectitudines singularum personarum, § 2. 
 
118 THE ENGLISH MANOR V 
 
 the manor a developed and transformed village 
 community. Moreover, German inquirers, with no 
 knowledge at all of the Indian phenomena and no 
 detailed acquaintance with the English, have derived 
 from their own materials, as regards the origins of 
 German land tenure, exactly this result. There is 
 likewise a body of Slavonic usage (in great part, like 
 the Indian, living and verifiable at this day) which 
 points in the same direction. Again, there is con- 
 siderable evidence, abundant in Asia, slighter in bulk 
 but specific enough in kind in Europe, that the 
 conception of private and absolute property, the 
 dommium of the Eoman lawyers, as we now hold and 
 act upon it (that is to say, as the common rule of law 
 and society, not a privilege in respect of persons or 
 modes of acquisition), belongs not to the earliest 
 stages of society, whether as regards things movable 
 or immovable, but is of comparatively later origin. In 
 the state of things yet visible in India, we have to do, 
 in the first instance, not with property owned by 
 individuals, but with family possessions administered 
 by a chief. Separate property exists, but as an 
 exception or privilege.^ 
 
 It is obvious that, so long as land is abundant, 
 there is no need for rules of property in the modern 
 sense. For all practical purposes it is enough to 
 recognise rights of use and enjoyment in that part 
 of the tribal territory which a man, in Locke's phrase, 
 " hath mixed his labour with." And this is what we 
 find. Mr. Victor Dingelstedt tells us of the Kirghiz, 
 
 1 See Note A. 
 
V THE ENGLISH MANOR 119 
 
 who are still in the nomad state, "Les Kirghiz ne 
 reconnaissent pas le droit de propriete individuelle sur 
 le sol, mais ils en conc^dent I'usufruit h, perpetuite ou 
 h, temps h, tout individu qui a fait des frais ou employe 
 du travail pour le faire valoir. . . Pourtant, sous 
 I'influence de la loi russe, les Kirghiz commencent h 
 garder dans la m^me famille et transmettre en 
 succession les lopins du terrain qu'ils ont cultivds," ^ 
 Contact with Eoman law must have been a powerful 
 agent in producing the like effects on Germanic custom. 
 Let it be observed that the corporate or quasi- 
 corporate unit of archaic property law, the family, or 
 house or village community, is not like a modern 
 corporation, which is an owner among individual 
 owners. The modem law first assumes individual 
 dominium, and then by a fiction treats the corporation 
 as a single person and invests it with capacities of 
 dominion, obligation, and so forth. Roman law as 
 we know it, we need hardly explain, is for this 
 purpose and for the whole of the present inquiry 
 substantially modern ; very little has been left for 
 recent European law to add in that direction. But 
 the archaic family or community is not a dominus or 
 a person in the modern legal sense at all. It is not 
 a subordinate or artificial unit created by the State, 
 but an original unit upon which the State is built, 
 and out of which individual rights are gradually 
 developed. Does any one say this is mere specula- 
 tion ? The answer is ready. Let him consult any 
 
 1 Le droit coutumier des Kirghiz, in Bevue G^n^rale du droit, 1890, 
 xiv. 213. 
 
120 THE ENGLISH MANOR V 
 
 standard work on Hindu law, or, still better, any 
 Indian revenue officer. 
 
 Some people appear to think that any hypothesis, 
 or at least the current hypothesis, of the growth of 
 the manor from the village community, or rather the 
 superposition upon it of the feudal structure of lord- 
 ship and tenure, must involve the supposition of a 
 time within historical memory, or only just beyond 
 its bounds, when there was not any private property 
 in land at all, or any difference between free men of 
 the same community in respect of landholding. I 
 have not been able to find any supposition of the 
 kind in Kemble, or Von Maurer, or Sir Henry Maine, 
 or the Bishop of Oxford, or (to cite a scholarly but 
 perhaps more elementary book) Mr. Kenelm Digby. 
 What the Bishop of Oxford does say is that, 
 " although traces stUl remain of common land-tenure 
 at the opening of Anglo-Saxon history, absolute owner- 
 ship of land in severalty was established and becoming 
 the rule" — a statement which is certainly very far 
 from any theory of primitive communism. Again, all 
 these authors are aware of the existence of lords 
 having under them tillers of the soil from whom pay- 
 ments and. services are due, and of whole communi- 
 ties being dependent on lords. Kemble is even 
 emphatic on this head. If any one goes about to 
 confute Kemble, or Von Maurer, or the Bishop of 
 Oxford by proving that independent village com- 
 munities were not common in England a century 
 or even two centuries before the Norman Conquest, 
 he will in no way diminish the value of their work, 
 
V THE ENGLISH MANOR 121 
 
 and will add to the knowledge we have derived from 
 it only this, that he has not himself studied it with 
 fitting care. As to the earlier Germanic institutions, 
 the existence of some private property in land, and a 
 connection of landholding in some way with degrees of 
 personal rank, are laid down for us by Tacitus. A 
 theory of Teutonic communism within the period of 
 historical observation would therefore have to begin 
 with contradicting Tacitus. It is needless to explain 
 that the modern authors we have cited are not so 
 rash as to do anything of the kind. In one point 
 their terminology is open to criticism ; they use the 
 word " mark " as a compendious equivalent for 
 "village community." Now I feel sure that there 
 is not any authority for the Old English " mearc " ^ 
 having borne such a sense, and I think Fustel de 
 Coulanges's work, especially his posthumous volume 
 L'alleu et le domaine rural, has made it at least 
 doubtful whether the High - German authorities 
 warrant it, as regards the earlier documents, for 
 Germany. But the question is at bottom one of 
 things, not words. 
 
 Having pointed out the elements of which a lawful 
 manor consists, we may now see what means we have 
 of tracing them back beyond the conventional 
 commencement of legal memory. Domesday Book 
 tells us of manors in plenty, but of their internal 
 constitution it tells very little. For the preceding 
 centuries our direct evidence is imperfect. I do 
 
 ^ The normal meaning of " mearc " is " boundary," and I do not 
 know of any passage in which this is not acceptable. 
 
122 THE ENGLISH MANOR V 
 
 not think any considerable addition has been made 
 to the materials used and published by Kemble a 
 generation ago. The six volumes of the Codex 
 Dijplomaticus are full enough in one way, but the 
 charters there collected are of one prevailing type — 
 grants on a large scale by princes, mostly for religious 
 purposes. I believe that they are, with few excep- 
 tions, grants of lordship, not of occupying possession. 
 They hardly tell us more about the detailed economy 
 of land-holding than a collection of modern family 
 settlements of great estates would tell a French or 
 German student of the position of a modern English 
 tenant-farmer. We have also to remember that the 
 charters were framed by clerks whose learning, such 
 as it was, was Eoman or Eomanised, and who were 
 thinking much more of their Continental models than 
 of explaining actual English usage to posterity. Of 
 the local customs and tenures we have no continuous 
 or systematic records ; there is no reason to believe 
 that any such were kept in writing. Our notions 
 of the Anglo-Saxon land system as a whole must be 
 to a great extent hypothetical, and to some extent 
 conjectural. Yet a few exceptional documents and 
 incidental notices in various quarters have given us 
 fixed points of importance. We know that the 
 relation of chief and dependant, or lord and man, was 
 part of the regular order of society long before the 
 Norman Conquest, and that the dependant often held 
 land of his lord on more or less burdensome terms. 
 We know, too, that these terms were similar in kind 
 to those on which customary tenants of manors are 
 
V THE ENGLISH MANOR 123 
 
 found holding their land in post-Norman surveys and 
 records. They consisted in doing or finding work for 
 the benefit of the lord's demesne land, or paying its 
 equivalent. Sometimes they were so burdensome 
 as to appear barely compatible with personal freedom. 
 It is quite certain, however, both from earlier and 
 later authorities, that there was not any necessary 
 correspondence between the terms of the tenure and 
 the personal status of the tenant. We know from 
 their express language that a tenant in a very small 
 way might be, and commonly was, a free man. 
 There was then, and long after, a personally enslaved 
 class ; a member of it (jjeow, servus or nativus, bond- 
 man) had no civil rights as against his lord. But as 
 against any one else, after the Conquest at any rate, 
 he might act as a free man, and hold free land if he 
 could. Somewhat in the same way a free man might 
 be personally commended to one lord and owe suit of 
 court to another. It is supposed, rather from post- 
 Norman indications than from direct evidence, that 
 there was at one time a considerable class of independ- 
 ent landholders on a moderate scale, such as we 
 should now call squires or yeomen. But their 
 proportion in number to the dependent freemen, and 
 the proportion of either to bondmen (we purposely 
 avoid the vague and unauthorised word " serf") are 
 unknown. Kemble was of opinion that " the ruin of 
 the free cultivators and the overgrowth of the lords " 
 had gone very far before the Conquest; and his 
 opinion is entitled to great weight. We may well 
 think that in the tenth century dependent com- 
 
124 THE ENGLISH MANOR V 
 
 munities tilled mucli, or even most, of the soil of 
 England, and that at least the germs of lordship 
 were as early as the English settlement. But we can- 
 not affirm that dependence was universal, or that 
 the English conquerors of Britain brought lordship 
 with them full-grown (still less a manorial system), 
 or that a thane even under Edward the Confessor 
 was the lord of a manor in the Anglo-Norman 
 sense. It would save trouble to follow Mr. See- 
 bohm in pushing Kemble's view to that extreme 
 length ; but the evidence does not warrant it. 
 The private jurisdiction which is essential to the 
 developed manor has been shown, we think, to be 
 essentially feudal, and to belong only to the latest 
 pre -Norman period. In any case, only positive 
 necessity would make us assume that the Germanic 
 people who invaded Britain either had never been 
 like the Germans described by Tacitus, or had become 
 whoUy different in the meantime. The alternative of 
 merely discrediting Tacitus is not within the range of 
 serious argument. One conclusion of a negative sort 
 already mentioned may be repeated here. Whatever 
 the English village community, dependent or independ- 
 ent, was called, there is no real authority for calling 
 it a mark. Our proper English word, and the only 
 one for which there is ancient authority, is "town- 
 ship," afterwards Latinised as " viU." And not only 
 there is no authority for attributing to the township 
 a popular court called a mark-moot, but it is very 
 doubtful whether there was any regular township 
 court at all. Certainly the word " mearcmdt " is 
 
V THE ENGLISH MANOR 125 
 
 found. But it may just as well refer to a court 
 where the pleas of adjacent hundreds or shires were 
 held on or near the common boundary, a thing known 
 to have been sometimes done. There is every reason 
 to think, as will be shown presently, that the manor 
 court was of wholly different origin. It seems quite 
 possible that it was welcomed as affording relief 
 against the delays, inaccessibility, and other incon- 
 veniences of the hundred court. How far it may 
 have supplanted the work of an informal township 
 meeting, going back to a more ancient origin than 
 the hundred court itself, and answering to the pan- 
 chayat of an Indian vUlage, is at present an open 
 question. 
 
 We have already hinted that manorial, or as it 
 would better be called seignorial jurisdiction, is in 
 truth purely feudal. Local — or more exactly personal 
 — justice is as essential to feudal tenure as military 
 service. The lord is bound to do justice to his 
 tenants ; the tenants on their part must attend the 
 lord's court that he may have the means of justice ; 
 for the feudal tenant claimed " the judgment of his 
 peers," not the judgment of the lord alone. Every 
 lord ought to have his court. The king himself was 
 lord of many domains, and held courts for his tenants- 
 which were quite distinct from the public courts of 
 justice held for all the king's subjects, or for so many 
 of them as had the time and the money, first to find 
 their way to the place where the king happened to be,, 
 and then to pay the heavy fees which were required 
 before they could get their suits heard. These 
 
126 THE ENGLISH MANOR V 
 
 private feudal jurisdictions were valuable to the lords, 
 pretty much as the king's justice was valuable to the 
 king, by reason of the profit accruing from fees and 
 fines. In the case of the greater lordships — an earldom, 
 a bishopric, the possessions of a rich monastery — this 
 was an important source of revenue. We find that 
 struggles for jurisdiction and the profits of juris- 
 diction account for many of the oddest features of the 
 legal history of the Middle Ages. The king, the 
 Church, and the great men, were all endeavouring 
 to get and to keep as many courts and as many 
 grounds of jurisdiction as they could. Nor was it an 
 unknown practice, any more than in modern times, 
 to take what one Wanted, when one felt strong 
 enough, and find reasons for it afterwards. It is not 
 surprising, therefore, if we fail to discover a perfectly 
 logical system of judicature in our medieval author- 
 ities. But there is no doubt at all that feudal tenure 
 implies the duty and the right of jurisdiction of some 
 kind. It would be rash perhaps to give any confident 
 opinion as to the origin of this rule, which is at least 
 as fundamental in Continental as in English feudalism. 
 Perhaps it was simply that, in the general state of 
 disorder from which feudal polity emerged, it pro- 
 vided the best if not the only chance of getting 
 justice at all. In England the feudal system of 
 jurisdiction never quite had its own way. It was 
 imported as an exotic, and comparatively late. 
 Private jurisdictions were coming in, after Con- 
 tinental example, before the Norman Conquest, but 
 apparently not much before. Thus the tradition of 
 
V THE ENGLISH MANOR 127 
 
 the old public courts was never quite effaced, and on 
 the other hand the king's government and the king's 
 justice, in the hands of such rulers as Henry the 
 Second and Edward the First, gained strength apace 
 and checked feudalism in time. The private lords' 
 courts were not abolished, but they were made to 
 know their place, and the creation of new feudal 
 jurisdictions was cut short by the great statute 
 known as Quia Emptores. It was attempted — but 
 without permanent success — to make this the law of 
 Scotland also. Many private jurisdictions must have 
 perished by mere decay ; the increased ease and 
 certainty of getting the king's justice and peace 
 "according to the custom of England" from the 
 king's judges led suitors to prefer the royal juris- 
 diction, and the judges were always ready to extend 
 it at the expense of the private lord. The trouble of 
 collecting a lord's free tenants from remote places to 
 make up a court must have worked the same way. 
 Private courts, on the whole, survived only where 
 there was a sort of compact nucleus of local business 
 and interests by which they could be maintained. 
 Such a nucleus was afforded by the social structure 
 of the township, with its system of common agriculture 
 and labour -dues, already existing. Accordingly we 
 have the complex legal entity known as the manor — 
 an institution to which we may find partial parallels 
 in Asiatic customs of unknown antiquity, in the 
 provinces of the later Eoman empire, and in mediaeval 
 Germany, but which in its entirety is one of our 
 insular puzzles. It is certain that down to the 
 
128 THE ENGLISH MANOR V 
 
 fourteenth century the word "manerium" did not 
 convey the same meaning that "manor" does to a 
 modern lawyer. It was rather the principal house of 
 the estate, the " capital messuage " of later convey- 
 ancers. The word describes a material building having 
 a definite situation. A manerium had doors or gates ; 
 it might be in good or in bad repair; it might be 
 burnt down. Feudal jurisdiction survives, in a 
 degenerate and somewhat undignified form, in the 
 Court Baron. The results I have just stated have 
 been worked out independently, on difierent lines of 
 evidence, and I think conclusively, by Professor 
 Maitland^ and Mr. G. H. Blakesley.^ 
 
 To recapitulate : an English manor, as we find it 
 from the Conquest downwards, included the lord, the 
 free tenants who held of the lord by regular feudal 
 tenures and owed suit to the court, and the villeins 
 or customary tenants who held land according to the 
 custom of the manor in villenage or base tenure, 
 being generally bound not only to make stated 
 payments in kind but to furnish work on the lord's 
 own land at stated times. The lands held on these 
 conditions were in the legal theory of post-Norman 
 times part of the lord's domain, or counted, as we 
 should now say, as in hand. There is ample proof 
 that such labour- services were common before the 
 
 1 Introduction to Select Pleas, etc. cited above. 
 
 2 "Manorial Jiirisdiction,'' La/ia Quarterly Review, v. 113. The best 
 and most accurate account of the modern legal manor is still to be found 
 in Serjeant Manning's article under that title in the Penny Gyclopcedia, 
 or its successor the English Gyclopcedia, where the article was reprinted 
 without change. 
 
V THE ENGLISH MANOR 129 
 
 Conquest; there is also sufficient proof that com- 
 mutation of them for money rents began soon after 
 the Conquest if not before. Tenants of this class were 
 commonly, though not always, unfree in person, 
 " bondmen in blood," in technical Latin nativi. They 
 are represented by the copyholders of modern times, 
 though any general difference of condition or rank 
 between freeholders and copyholders has long ceased 
 to exist, and in fact freehold and copyhold land have 
 in many cases been so long held together by the same 
 owners that it is extremely difficult to distinguish 
 them. Kemble's account makes much of an original 
 community of Teutonic freemen which is really con- 
 jectural, and he has very little to say of villenage. 
 Mr. Seebohm has an elaborate account of the incidents 
 of villein tenure, and a most valuable elucidation of 
 the medieval system of English agriculture as con- 
 nected with the administration of a manorial domain. 
 But he has very little to say of the free tenants, and 
 both he and Kemble have almost nothing to say of 
 the jurisdiction. A process of historical reconstruc- 
 tion which ends in a manor with the jurisdiction left 
 out is clearly not final. I will not say it is equiva- 
 lent to leaving out Hamlet, but it is something like 
 propounding a theory of Hamlet's character without 
 any reference to the scene between Hamlet and 
 Ophelia. The history of private jurisdiction seems 
 to be the point on which research may now be most 
 hopefully concentrated. By research I do not mean 
 exclusively or chiefly the search for unpublished court 
 rolls. That work is desirable and laudable ; but we 
 
 K 
 
t 
 130 THE ENGLISH MANOR V 
 
 have no right to expect any startling discoveries 
 from it. The ground is very fairly covered by docu- 
 ments already published or in course of publication, 
 and there is a great deal of material in print which 
 no modern scholar has yet thoroughly examined. 
 
 One thing rather apt to be forgotten is that the 
 manor as we know it cannot have developed out of 
 the township by any uniform process. For the town- 
 ship was not merged in the manor ; it continued to 
 have a distinct though less conspicuous existence. 
 And we know that it is not even the rule for the 
 boundaries of manors to coincide with those of town- 
 ships or parishes. Manors constantly include several 
 townships or parts of townships ; parts of the same 
 township often belong to two or even more manors. 
 It will not do, therefore, to assume that the manor 
 court was made out of an older township court by 
 putting the lord on the top of it and introducing the 
 sharp legal distinction between free and customary 
 tenures. We could not get over the want of any 
 regular territorial coincidence even if we knew that 
 a township court had existed ; and we do not know 
 that. The " mark-moot " of some modern writers is 
 a phantom of unsupported conjecture which only 
 recedes farther and farther into the land of shadows 
 when one endeavours to track it to some solid ground 
 of evidence. It is likely enough that there was from 
 very ancient times some sort of township or village 
 meeting. Such meetings are common enough in 
 other Teutonic lands to this day. But they have not 
 the powers or attributes of a regular court of justice, 
 
V THE ENGLISH MANOE 131 
 
 and there is nothing to show that they ever had. It 
 is not the feudal manor but the ecclesiastical parish 
 that has overlaid, so to speak, the ancient English 
 township ; it is the vestry meeting, and not the Court 
 Baron, that represents the old village meeting if any- 
 thing does. It is true that our law-books say there 
 are two courts, the Court Baron for the free tenants 
 and the customary court for the copyholders, though 
 in fact they are always held at the same time and 
 place ; and this naturally suggests that the customary 
 court represents an ancient popular court of some 
 kind. But examination shows that this distinction is 
 nothing but a pj.ece of comparatively modern formalism. 
 There is no sign of it in early court rolls. As a rule 
 the court is described merely by the name of the lord 
 or of the place, and when there is any epithet it is 
 caUed a " lawful court " without further specification. 
 The place, when named, is seldom if ever described as 
 a manor. We do not know exactly in what manner 
 the customary tenants became attached to the lord's 
 court. But it was evidently good for the lord to have 
 his rights formally recorded by the witness of the 
 tenants themselves, and better for the villeins to 
 be dealt with judicially, though in their own lord's 
 jurisdiction, than to be dealt with merely accord- 
 ing to his power, which was the practical alternative. 
 It may weU be that the thing came about because 
 it seemed obviously convenient, and without its 
 occurring to any one that a theory was wanted. A 
 somewhat similar problem is presented by the law of 
 distress. The right to distrain for rent in arrear was 
 
132 THE ENGLISH MANOR V 
 
 an incident of feudal tenure, but it came to be applied, 
 apparently without question, to leases for a term of 
 years or from year to year, although these, according 
 to the strict feudal theory, were merely a matter of 
 personal contract. Tenant-farming of the modern 
 type is the very opposite of feudal tenure, and it may 
 be said that the introduction of leases for years was 
 the beginning of the end of the manorial system. 
 And yet feudalism left its mark on this least feudal 
 part of our land laws. 
 
 The history of the social and economic processes 
 underlying the legal history of the manor is now 
 much better understood than it was even ten or twelve 
 years ago. With the Conquest we enter on the period 
 of written and formal testimony, and in the succeeding 
 centuries the wealth of materials is almost perplexing. 
 Domesday itself, though it does not give much direct 
 explanation, is capable of affording much guidance : 
 as witness Mr. James F. Morgan's excellent little 
 book, not so well known as it deserves, England 
 under the Norman Occupation (1858). The lately 
 published volume of Domesday Studies (1888) may be 
 of great use to scholars if used with discretion.-^ We 
 may here call attention to the good work of the 
 Devonshire Associa,tion, who are republishing both 
 the Exon and the Exchequer texts' of the survey of 
 their own county in a form convenient for reference 
 and comparison, and promise indices and other helps, 
 besides the translation which already accompanies 
 the extended text. It is much to be wished that the 
 1 See Note B. 
 
V THE ENGLISH MANOR 133 
 
 like work were done for other counties. About 
 a century after Domesday there is a group of 
 local surveys which enables us to compare the terms 
 and usages of northern, eastern, and south-western 
 England. The Durham inquest known as the Boldon 
 book, and published by the Eecord Commission and 
 the Surtees Society, the Peterborough book published 
 many years ago by the Camden Society, and the 
 Glastonbury book lately printed by the Eoxburghe 
 Club, offer as good typical selections as could be 
 wished, and better than archaeologists often dare to 
 expect ; and the fragment of the St. Paul's inquest of 
 the same period, little of it as there is, adds some- 
 thing. For the thirteenth century we have the 
 Domesday of St. Paul's, whose utility is much 
 increased by the late Archdeacon Hale's excellent 
 introduction, the Eegister of Worcester, the Hundred 
 EoUs, the minute instructions for the bailiff and 
 officers of a manor which occur as an interpolation 
 in Fleta,^ and, in the earlier work of Bracton, fhe 
 beginning of legal authority proceeding on a definite 
 legal theory. It is not probable that any further 
 discoveries of early court rolls of manors will give us 
 more detail than we already possess in the surveys. 
 
 In the years after the Black Death, when for the 
 time labour was so scarce that farmers and labourers 
 could make their own terms, many lords made haste 
 to put the old accustomed services on record, either 
 by way of protest or on the chance of one day being 
 able to enforce them again. Sometimes, however, 
 
 ^ Now attributed to Walter of Henley. 
 
134 THE ENGLISH MANOR V 
 
 new terms were formally made with the tenants and 
 recorded. It is written in a still unpublished inquest 
 of sundry manors in the county of Oxford: — "Tem- 
 pore mortalitatis hominum sive pestilencie que fuit 
 anno domini millesimo ccc° xlix° vix remanserunt duo 
 tenentes in dicto manerio, qui recedere voluissent nisi 
 frater Nicholas de Upton tunc abbas dicti manerii 
 cum eisdem et aliis supervenientibus tenentibus [so 
 the prospect of better terms brought in new tenants] 
 de novo composuisset, qui convenit cum eisdem forma 
 qua sequitur." So in the History of the Manor of 
 Castle Combe, by Mr. Poulett Scrope, we read, anno 
 1357, concerning the tenure of a house and yard- 
 land, " et dictum tenementum concessum est ei ad tam 
 parvam finem eo quod dictum tenementum est ruinosum 
 et decassum ; et existebat in manu domini a tempore 
 Pestilentise pro defectu emptorum ; " it was left on hand 
 because nobody would take it, an experience which in 
 late years has been revived for divers landlords, both 
 individual and corporate. This History of the Manor 
 of Castle Combe, privately printed, but accessible in 
 some of our public libraries, gives good examples of 
 the varied and continuous materials which are avail- 
 able from the fourteenth century downwards. 
 
 The medieval documents show at first sight a 
 bewildering variety of nomenclature. Doubtless the 
 same tenure was differently named in different parts 
 of the country ; but, with all' allowance for this, it is 
 evident that the facts were more complex than the 
 legal doctrine which the King's judges imposed upon 
 them at a later time. A man's personal condition 
 
V THE ENGLISH MANOR 135 
 
 must either be free or bond ; but the sharp distinction 
 of the classical law books between free and base or 
 "servile" tenure is hardly settled in the twelfth 
 century. Liability to uncertain services is said to be 
 the test of base tenure ; yet we find in the Peter- 
 borough book free sokemen who at certain seasons 
 are bound to service defined only by the lord's will, 
 " quicquid jusserit dominus." There are other indi- 
 cations that the relation of legal theories to customary 
 facts was unsettled as late as the thirteenth century. 
 But the point of substance is the effect of the Norman 
 Conquest and the Anglo-Norman settlement on the 
 practical condition of the cultivators. We have 
 long ceased to think of the Conquest as a catastrophe 
 breaking up the whole order of society ; perhaps the 
 danger is now the other way, and we are disposed to 
 underrate the disturbance and hardships that must 
 accompany a new administration, even in parts where 
 there is no armed resistance and no intention of 
 interfering with existing usage. New lords are apt 
 to define their rights more closely than old ones, and 
 to enforce their dues with less tact and moderation. 
 It appears on the whole, Mr. Seebohm notwithstanding, 
 that the immediate effect of the Conquest was to 
 depress the smaller occupiers. It is not unlikely, but 
 we do not think it proved, that in this process the state 
 of the bondmen became relatively better. We see 
 no reason to doubt that the actual intention of the 
 Conqueror and his advisers was to deal fairly by all 
 sorts of people, apart from measures of punishment 
 or reprisal for active opposition to his claim. Down 
 
136 THE ENGLISH MANOR V 
 
 to the thirteenth century there was a deliberate 
 endeavour to make the doctrines of the law less 
 favourable to the customary tenant, which has left 
 its mark in curious ways on the text of Bracton. I 
 do not think it had much practical success, judging 
 by the contemporary and subsequent evidence of 
 actual usage. The king's courts knew nothing of the 
 villanus as such ; ^ they knew the nativus as the lord's 
 property. When a man's personal freedom was in 
 dispute, a not uncommon case, his villein tenure of 
 land might come in as matter of evidence, but as 
 evidence only. Yet we are compelled to believe that 
 a tenant in villenage had, through the customary 
 court or otherwise, a fair measure of security. Even 
 in respect of the services due to the lord the position 
 may have been better than it appears. The Glaston- 
 bury book tells us of commutations of work for fixed 
 money payments which were already regarded as 
 ancient (" ex antiquitate," " nunquam viderunt aliter 
 esse"). One thing which seems certain is that the 
 archaisms and variety of tenure in villenage were 
 preserved mainly by the contemptuous indifierence of 
 the king's courts. Had the justices in eire or their 
 successors the justices of assize taken any notice of 
 the rules of alienation and succession in villein lands, 
 they would probably have made as short work of local 
 usage as they did in dealing with the inheritance of 
 freehold lands. When copyhold tenure was definitely 
 brought into the sphere of the superior courts in the 
 
 1 i.e. in the sense of Domesday. Thirteenth - century lawyers 
 doubtless used villanus, nativus, serims, as equivalent. 
 
V THE ENGLISH MANOR 137 
 
 fifteenth century the common law was past its 
 creative period. Unable to assimilate the elements 
 of ancient custom which it had so long ignored, and 
 equally unable wholly to neglect them, it admitted 
 them to a sort of ambiguous toleration. The details 
 which are now precious to antiquaries and comparative 
 jurists were slurred over with perfunctory notice, if 
 noticed at all. Meanwhile personal bondage was on 
 the wane. In the latter part of the sixteenth century 
 it hardly survived except on Church lands, as we 
 know from Sir Thomas Smith's Commonwealth of 
 England, and on some Crown lands ; and after the 
 early part of the seventeenth it is no more heard of. 
 This, no doubt, has contributed to the confusion 
 between villanus and nativus, customary tenant and 
 bondman, for which, in its current form, Blackstone 
 is mainly answerable. But much confusion is of 
 early growth. From the fourteenth century onwards 
 there is frequent haziness about the proper consti- 
 tution and style of private courts. It is almost 
 impossible to define with legal accuracy the courts 
 in which the jurisdiction of the Earldom and Duchy 
 of Cornwall has been exercised over Dartmoor for 
 more than six centuries. 
 
 While text-writers and judges were framing the 
 orthodox legal theory which still nominally prevails, 
 usage went its own way little disturbed. A few 
 words of allowance are given by Coke (in obedience 
 to a then recent decision) to the anomaly of a shifting 
 fee-simple in meadow land subject to allotment ; but 
 it is certain that holdings of acre or half-acre strips 
 
138 THE ENGLISH MANOR V 
 
 dispersed or "lying abroad" in the common fields 
 prevailed in many parts of England after Coke's time ; 
 though probably they had long ceased to be movable, 
 and the great inclosing movement of the sixteenth 
 century had told heavily on the old open-field or 
 " champion " husbandry. We must not suppose that 
 the inclosures consisted wholly of turning plough 
 land into sheep farms. Tusser stoutly defended the 
 new system as making better farming possible and 
 increasing the total produce of the soil. " Good land 
 that is severall crops may have three [in rotation 
 without fallow], In champion country it may not 
 so be." Popular feeling, however, was against the 
 inclosures. " Our inclosiers woolde leaue no such 
 commens," exclaims Eichard Eden, a.d. 1555, in a 
 marginal note to his Decades of the New World or 
 West India. With or against their will, they left 
 a notable residue of common fields which have 
 disappeared only within living memory. Maps of 
 the late eighteenth or early nineteenth century, such 
 as Mr. Seebohm has used for illustration, show them 
 in a state of decay. But there are well-preserved 
 maps in existence, belonging to colleges at Oxford, 
 which show not only common fields as they were laid 
 out about the end of the sixteenth century, but the 
 scattered strips held by every tenant, the tenant's 
 name and the area in terms of the statute acre being 
 written along each strip ; and this in many difierent 
 parts of the country. A tendency to enfranchise 
 copyholds and consolidate adjacent strips is already 
 apparent ; and we may collect that the holdings were 
 
V THE ENGLISH MANOR 139 
 
 often originally fixed with reference not to the statute 
 acre, but to a smaller customary acre. There is 
 nothing to suggest that the arable ground was subject 
 to re-allotment ; but there is not infrequent mention 
 of lot meadows (now and then with shares alternating 
 between lord and tenants), and these, indeed, survive 
 in a few places to this day. The maps of this kind 
 which I have seen belong to Corpus and All Souls ; 
 for aught I know there may be others equally good. 
 A selection of them has been reproduced by subscrip- 
 tion under the direction of Mr. Mowat of Pembroke 
 College. Again, there is ample witness that in spite 
 of the perversely narrow theory laid down in Coke's 
 Eeports, and thereafter in all the received law books, 
 the men of a vill or the tenants of a manor are 
 constantly found acting in the manner of a corpora- 
 tion and treated as such. Now as against their own 
 lord, now as against a neighbouring township, they 
 claim or dispute rights of common and the like on the 
 footing of independent powers ; they make treaties 
 and conventions, and even in formal pleadings we 
 sometimes find rights ascribed to inhabitants as a 
 class which the current legal doctrine does not allow 
 to exist. As late as 1632 a Chancery suit is recorded 
 where such a claim was made in the name of the 
 inhabitants of the parish of Holne on Dartmoor. The 
 orthodox lawyer has to say that the claim must be 
 understood to have been really in respect of tenure. 
 But it is clear that the people concerned, and even 
 the learned persons who put their rights or claims on 
 record, did not at the time so understand. 
 
140 THE ENGLISH MANOR V 
 
 Nowadays a juster historical method is the posses- 
 sion of students, and is making way even in our 
 jurisprudence. Things have been adjudged and said 
 in the House of Lords itself which should have made 
 Coke turn in his grave. As it happens in the long 
 run, the unpractical scholar has prevailed, and the 
 men of practice and common sense are discomfited. 
 Kemble and the Codex Diplomaticus, and the once 
 despised "black-letter learning," have routed Coke 
 and Blackstone. It may seem fantastic to say that 
 we owe to Kemble the preservation of Epping Forest 
 and the reversal of the policy of the Inclosure Acts ; 
 yet one might so speak with no small measure of 
 truth. Kemble worked and wrote for the living, not 
 for the dead, and he knew it. History is not a dumb 
 recorder, but a living witness. She will impartially 
 rebuke those who forget the good of the past and 
 those who put its evil out of sight. Least of all wUl 
 she tolerate those who from her vast storehouse snatch 
 a few crude notions as weapons of political agitation. 
 
 Note A 
 
 One point of substance on whicli there is an approximate agree- 
 ment among scholars is that the modern rights of property which 
 we regard as personal and individual have been developed out of 
 the rights of families. The homestead, held in severalty from the 
 earliest historic times, was long held in the name of a family rather 
 than of a man. Whether the "village community" is to be con- 
 sidered as an aggregation of families, or the family as an institution 
 produced from within a larger and less organised community, may 
 be left over as a question of prehistoric anthropology, though Mr. 
 Kovalevsky has lately gone far towards establishing by the Slavonic 
 evidence and analogies that the village community is a regular 
 development of the "patriarchal" joint family. But one may 
 
V THE ENGLISH MANOR 141 
 
 admit the existence of separate and exclusive enjoyment of houses 
 and land among the early Teutons (which has never been denied, 
 except perhaps by M. de Laveleye in some unguarded passages), 
 and yet not see one's way to admitting the full-blown conception of 
 Roman dominium. Von Maurer's opinion that the Germans had 
 not this until they got it from the Romans appears to us, with all 
 respect for M. Fustel de Coulanges, to have the general proba- 
 bilities of the case in its favour. Mr. Elton has summed up the 
 common sense of the matter : — "It is difficult to see how private 
 ownership can ever have preceded the system of common possession.'' 
 In 1884 Dr. Dargun of Cracow analysed and reviewed a great 
 mass of evidence from all quarters of the world {Zeitschrift fur 
 vergleicliende Rechtswissenschaft, vol. v.) tending, -apparently, to the 
 contrary. According to his authorities private and individual 
 enjoyment of not only goods but land is so common among savage 
 tribes that anything else is exceptional. A common -field system 
 must belong to a society relatively advanced in politics as well as in 
 agriculture. It implies a complex organisation and the habit of 
 submission to constituted authority. At the same time Dr. Dargun 
 regards the common -field system as a normal stage of transition 
 from barbarism to civilisation which we may expect to find some- 
 where in the history of any given people. For the practical pur- 
 poses of history, therefore, he is not far from the Germanic school. 
 With regard to the primitive separate enjoyment which precedes, 
 or may have preceded, common regulation, I will only say that I 
 am not disposed to treat it as equivalent to the ownership we find 
 in a modern civilised State without much more cogent and specific 
 evidence than any that I have yet seen. Pol3rphemus was, without 
 doubt, the sole and exclusive lord of his cave, of his flocks, and of 
 his wives, if he had any. In one sense he was a more absolute 
 owner than any Roman citizen under the laws of Marcus Aurelius 
 or Englishman under those of Victoria, for he paid no more regard 
 to the opinion of the other Cyclopes than they to his — ouS' 
 aXAijAftji' aXkyovtriv. To call Polyphemus a dominus jure Quiri- 
 tium would, nevertheless, be a legal and political solecism. To call 
 him a possessor is inevitable, but in any exact sense only tolerable. 
 It is of the essence of modern ownership to be protected and 
 regulated by the law of the modern State. Thus the order of 
 development would be : — First, several occupation guaranteed only 
 by the occupier's power, the occupier being however more probably 
 a family group than an individual (no law, but habit growing into 
 
142 THE ENGLISH MANOE V 
 
 custom) ; next, communal regulation (custom growing into law) ; 
 lastly, legal ownership, whether of individuals or of subordinate 
 communities within the State considered as "artificial persons." 
 And this is quite analogous to the development of that political 
 freedom of the individual citizen which in English-speaking 
 countries goes along with a freedom of individual ownership and 
 disposing power unknown both to ancient customary laws and to 
 modern Roman law. These liberties were made possible only by a 
 long previous discipline ; and people who try to copy them without 
 having had the discipline are apt to find themselves in danger of a 
 reversion to primitive anarchy. 
 
 Note B — Domesday Studies^ 
 
 Ever since there has been any systematic study of English 
 antiquities Domesday Book has been a puzzle to antiquaries. For 
 a long time before that it was not a puzzle only because no one 
 thought of trying to understand it at all. There has not been, 
 since the thirteenth century at latest, any continuous use of the 
 book, though it has now and then been referred to for evidence of 
 the ancient rights of the Crown, still less any traditional interpre- 
 tation. Only within the present century has the fuU text been 
 made public, .and only within its latter half has something like an 
 apparatus criticus been gradually formed. Now, indeed, not only 
 is the text to be found in every good public and corporate library 
 in England and many private ones, but the facsimile published by 
 the Ordnance Survey is as easily accessible and more easily procur- 
 able. It is hardly less important that we have now in print a con- 
 siderable number of mediaeval surveys and extracts from records 
 which deal with the same matters as Domesday, though not 
 altogether for the same purposes. References to many of these 
 authorities are conveniently collected at the head of the opening 
 chapter of Mr. W. J. Ashley's Economic History ; a chapter, I take 
 this opportunity of saying, which, though not long, represents a 
 great deal of careful work and selection, and will be found an 
 excellent general introduction to the history of the English manor 
 and "village community." Mr. Ashley will send students, in the 
 
 1 Domesday Studies ; being the papers read at the Meetings of tlie Domes- 
 day Gommiemoration, 1886. Edited by P. Edward Dove. Vol. I. 
 London : Longmans, Green, & Co. 1888. A second volume is shortly 
 forthcoming. 
 
V THE ENGLISH MANOR 143 
 
 main, to tlie right authorities and in the right way. Those authori- 
 ties, including many which were practically inaccessible forty, thirty, 
 or even ten years ago, will not enable us to understand Domesday 
 Book without further trouble ; very far from it. They wiU enable 
 us, however, to avoid certain kinds of obvious errors, and to con- 
 centrate work on the really promising lines. 
 
 A good opportunity for such concentration of work, and for 
 forming a nucleus of permanent interest in it, was afforded by the 
 Domesday Commemoration Meeting of 1886. The volume since 
 published shows that the opportunity was well used. It is true 
 that the scholar's first impression may be of something like despair. 
 For the main part of the volume consists of detailed and laborious 
 discussion contributed by those learned persons Canon Isaac Taylor, 
 Mr. J. H. Round, and Mr. O. C. PeU ; certainly there are no other 
 three men in England who have read Domesday more diligently 
 or with more searching comparison of the facts and documents 
 capable of illustrating it ; and on the first reading it is hard to see 
 that these three learned persons, or any two of them, are completely 
 agreed on any point save one, which is that there is still very much 
 to be learnt. We may find, however, that things are better than 
 they look; and meantime the reader may turn to Mr. Stuart 
 Moore's introductory essay on the study of Domesday Book. It 
 will be found as readable as the subject admits of, and there is 
 nothing worse to complain of than a certain excess of zeal in 
 defending the Conqueror's memory. It was needless to administer 
 a solemn rebuke to the English chronicler for allowing himself his 
 grumble about Domesday. Englishmen have always grumbled at 
 taxation and official returns of every sort, and probably always will. 
 And English learned persons, when not in office themselves, have 
 always looked on official interference in the matters of their learning 
 with a certain mixed affection of fear, suspicion, and contempt. 
 Lord St. Leonards used language about the imposition of Succession 
 Duty not less violent than that of the English Chronicle about 
 William's survey, though, one would think, on less provocation. 
 Moreover the grumble of a monastic writer — "growl of the 
 unintelligent unthrifty Saxon monk," as Mr. Stuart Moore calls it 
 — proceeds from the landlord's point of view, not the labouring 
 tenant's. 
 
 With regard to the matters discussed by Canon Taylor, Mr 
 Bound, and Mr. PeU, every one who means really to work at the 
 subject must check their details for himself and exercise his own 
 
144 THE ENGLISH MANOR V 
 
 judgment ; and those who are not prepared to do this would find 
 little or no interest in a mere statement of evidences and inferences 
 which would have to be interrupted at every turn by doubts, 
 exceptions, and qualifications, if it were to represent our existing 
 knowledge with tolerable accuracy.^ I shall therefore give, on my 
 own responsibility, a summary of those results which I believe to 
 be now either accepted as certain, or at least rendered highly 
 probable by the labours of the learned contributors to Domesday 
 Studies. 
 
 The primary object of the Domesday inquest was to ascertain 
 the contributions on which, according to existing law and custom, 
 the king could count for maintaining the armed force of the country. 
 Part of the king's revenue was in the nature of rent, derived from 
 lands of which he was lord. But rent (gafol) due to the king as 
 territorial lord must be carefully distinguished from the public tax 
 {geld) due to him in his political capacity. 
 
 The taxpaying capacity or liability of land was assessed in terms 
 of units of superficial measure, which were the hide, generally speak- 
 ing, in the southern or properly English counties, the carvxxute or 
 ploughland in the northern counties, where Danish influence had 
 been strong. These measures of surface had a real and definite 
 value — that is to say, a hide or a carucate meant, in a given district, 
 a certain number of acres. We need not here and now consider 
 whether they had always been definite. Perhaps we might find that 
 the native English hide began as a term of vague description, and 
 only by degrees acquired a numerical meaning ; whereas the carucate 
 is more likely to have come in, so to speak, ready measured.^ It is 
 certain that the number of acres in a hide or a carucate, and also 
 the actual dimensions of the acre itself, might and did vary from 
 district to district, and there might be different customary acres 
 even in different fields within the same township. Further, the 
 number of hides or carucates for which a given manor is assessed 
 is not necessarily equal to the actual acreage,- any more than the 
 modern rateable value of land or a house is necessarily or usually 
 equal to the full rental. In many cases the assessment is plainly 
 small in proportion, not only to the total extent of land, but to the 
 
 1 Mr. Pell's elaborate numerical theories have failed to command 
 much assent. Cf. Mr. Round's papers in the Archceological Review, 
 June 1888 and Sept. 1889, and Mr. Elton's in the Law Quarterly 
 Review, iv. p. 276. 
 
 2 Cf. Mr. M. Kovalevsky in the Law Quarterly Review, iv. 266, 272. 
 
V THE ENGLISH MANOR 145 
 
 extent of cultivated land. THs may be well seen by turning to 
 any of tte royal manors in Devonshire ; a test which the excellent 
 parallel edition of the Exchequer and Exeter texts of the survey 
 now in course of publication by the Devonshire Association enables 
 us to apply with peculiar convenience. Local and personal consider- 
 ations of policy or favour procured here and elsewhere an assess- 
 ment which might be greatly below the real value. No fixed 
 relation between the assessed or " geldable " value and the actual 
 area can be assigned. Further, it seems probable that even where 
 the assessment was intended to correspond with the actual extent 
 of cultivated land, only the land which was under cultivation at one 
 time was counted — in other words, the fallow was not counted. 
 Thus, under the two-field system of mediaeval tillage which held its 
 own long after the Conquest, only half the ploughland would be 
 reckoned; under the three-field system, only two -thirds. We owe 
 this suggestion to Canon Taylor, who has worked it out in detail 
 for certain parts of the northern counties, and has made it explain 
 many apparent anomalies. Among other things, it accounts at once 
 for the hide being sometimes called 120 acres (the taxable quantity) 
 and sometimes 240 (the full acreage of both the tilled and the fallow 
 fields in a two-field course). In a three-field course the 180 acres 
 assigned to a ploughland by Fleta give for the taxable area the same 
 number of 120 acres. At the same time neither this nor any other 
 explanation vsill hold universally. 
 
 Although the hide, carucate, and so forth had various customary 
 values in diiferent parts of the country, there is a good deal of 
 evidence that at the time of the Conquest there was a tendency to a 
 mean or normal value, and that for the hide this was 1 20 acres (or a 
 long hundred, according to the method of counting then so popular 
 as to be called " anglicus numerus "), divided into four virgates or 
 yardlands. The carucate was normally of the same acreage as the 
 hide, but divided into eight bovates or ox-gangs, implying that the 
 carucate was fixed with reference to the quantity of land which a 
 fuU team of eight oxen (caruca) could till in the year. How far 
 and where this eight-ox team was an existing fact, and how far and 
 where an ideal common denominator used by the surveyors for the 
 comparison of different areas and qualities of land, is one of the 
 questions which seem stUl to demand further and more minute 
 examination. The phrase "aratra f ortissima in dominio," which occurs 
 several times in the Burton Cartulary, should be noted in connection 
 with it. 
 
146 THE ENGLISH MANOR V 
 
 The hide was commonly divided into four yardlands, but we 
 meet with a division into six, pointing perhaps to a change from 
 two-field to three-field tillage, and also (as Mr. Stuart Moore has 
 pointed out) vdth an odd and puzzling division into five. When 
 the number of acres in the virgate is not the normal number of 
 thirty, it is generally a multiple of twelve, such as forty -eight or 
 thirty-six. These cases may be evidence of a two-field system; in 
 the Worcester Kegister virgates of thirty -six acres are expressly 
 said to consist of "xviij in utroque campo." It appears from 
 the Eamsay Cartulary that sometimes Danish influence displaced 
 the measurement by hides and virgates, without putting measure- 
 ment by carucates in its place. As to the dimensions of the local 
 acre, it may always be conceived as formed by a strip of a furlong 
 ( = 40 rods or 10 chains) in length and four rods in breadth. The 
 result varied according to the length taken for the rod, which might 
 be less or more than the statutory rod of 15| feet. Thus the " forest 
 acre," constructed vidth the rod of 18 feet, was in use for measuring 
 woodlands in relatively modern times. Many of us have wondered 
 from our youth up why such a seemingly irrational number as 5 J 
 yards should make one rod, pole, or perch. Mr. PeU suggests that 
 the standard measure was fixed at this value as a kind of com- 
 promise among the many customary measures. 
 
 Finally, Domesday was a survey of estates and their taxpaying 
 capacity, not of population for its own sake. Inferences as to the 
 actual numbers and personal condition of the dwellers on the land 
 must therefore be made with caution. 
 
VI 
 
 SIR HENEY MAINE AND HIS WOEKi 
 
 Sir Henry Maine preceded me in the office which 
 it has pleased the University to confer upon me ; he 
 was its first holder ; its conditions were framed for 
 the purpose of giving scope to his peculiar genius in 
 the lines of inquiry which he had himself opened. 
 This imposes on me, and those who may come after 
 me in this Chair, the duty, no facile one, but there- 
 fore the more honourable, of working, so far as our 
 powers extend, in the spirit of the illustrious leader 
 whom we have this year lost. It is a task that will 
 not be soon exhausted. Through many years to come 
 there will be new discoveries and new conquests to 
 be made in the regions to which Maine pointed the 
 way. For this reason alone it would be natural and 
 fitting that some words should be said in this place 
 and as at this time (though the time is not yet ripe 
 for full judgment) of what we owe to Sir Henry 
 Maine. But I have to speak of more than a pre- 
 decessor, of more than a teacher; of one in whom, 
 seeking the guidance of a master, I found not only 
 
 ^ A Public Lecture delivered in the University of Oxford, November 
 10, 1888. 
 
148 SIR HENRY MAINE AND HIS WORK VI 
 
 a master but a friend. Now good advice is plentiful 
 in the world ; a young man who suffers for want of 
 it must be singularly maladroit or unfortunate. But 
 there is something much less common, the interest 
 and sympathy which turn an older man's advice from 
 a mere benevolent opinion, a more or less profitable 
 direction, into a vital moving force. I know of no 
 more sacred debts than these, and of nothing which 
 goes so near to add to the relation of master and 
 disciple, without abating anything of respect, a charm 
 as of the friendship of equals. 
 
 Thus I am bound by many ties to the memory to 
 which I devote this hour ; and I do so, not for the 
 sake of a remembrance and fame which are of them- 
 selves amply secure, but rather for the sake of the 
 example left to us here, and that we may not be 
 defaulters in a pious and honourable duty. For this 
 purpose it is not needful, as it would hardly be 
 possible, to speak at large of Sir Henry Maine's career 
 and public services. Only those who knew his work 
 intimately can measure its value, and it will be proper 
 to limit our testimony to that which we know, and 
 which directly concerns our studies here. Our studies, 
 I say, not merely legal or historical study. For we 
 have here an admirable example of the effective 
 connection of the Universities with the general life 
 of the nation, and the intimate connection of that 
 efficiency with those branches of their studies which 
 pass for unpractical. It is not too much to say that 
 England and India, so far as human reason can assign 
 causes in this kind, owed Sir Henry Maine to the 
 
VI SIR HENRY MAINE AND HIS "WORK 149 
 
 University of Cambridge. One cannot doubt that 
 under any training, or without any systematic train- 
 ing, he would in some way, at some time, have 
 produced work that would not have been forgotten. 
 But it was Cambridge, and Cambridge alone, that in 
 fact brought him into the light and placed him within 
 reach of opportunities adequate to his power. He 
 started without any advantage of birth, fortune, or 
 interest. He entered the University an unknown 
 young man ; he left it marked as among the mos 
 brilliant scholars of his time ; he returned to it for 
 the last ten years of his life to fill a place of authority 
 and dignity, the Mastership of Trinity Hall, where 
 he had formerly taught — a place for which he was 
 chosen, by a kind of acclamation, as being the one 
 man whose acceptance of it would override all 
 difficulties. Maine would have been singularly want- 
 ing in human affection if he had not loved Cambridge 
 weU ; he would have been singularly above the usual 
 partiality of our affections if he could have learnt to 
 love Oxford so well. He could not pretend an attach- 
 ment he did not feel ; and a somewhat exclusive 
 attachment to his University of origin was in his 
 case, if in any, natural and all but inevitable. In 
 and through Cambridge he won, along with his first 
 crowns of fame, the gifts of life-long friendship with- 
 out which fame is a light thing. 
 
 We may do well to remember that this was in 
 an unreformed University, before even the first 
 University Commission. Maine lived to see the 
 activity, freedom, and healthy influences of the 
 
150 SIR HENRY MAINE AND HIS "WORK VI 
 
 Universities greatly enlarged; but in the earlier 
 days they already did something to select and foster 
 merit which otherwise only some happy accident 
 could have brought forward. Let us also remember 
 that Maine's academical distinctions were not of a 
 narrowly specialised kind. He had taken his degree 
 in Arts before he turned to the province which he 
 afterwards made his own. Not only was he a 
 humanist before he was a jurist, but he never ceased 
 to be a humanist. In this, I venture to think, lay 
 some part of the secret of his method. The value of 
 our accustomed course of classical study, for men who 
 do not profit by it to the extent of becoming finished 
 scholars, is disputable and disputed. In the case of 
 those who can profit by it as Maine did, I conceive 
 that no dispute is possible. He never made any 
 display of scholarship in after-life. He quoted Greek 
 as easily and naturally as French, when the Greek 
 happened to be exactly to his purpose ; but he never 
 went out of his way for it. Having at his command 
 wide and rich domains of literature, he took toll of 
 them for his service, but did not levy nominal 
 tributes for ostentation. Very little reaUy ex- 
 traneous ornament is to be found in his writings. 
 And yet nothing ever came from his hand that was 
 not visibly the work of an accomplished scholar. 
 Village Communities and Early Law and Custom 
 seem remote enough from the excellent Greek 
 verses contributed by Maine to Arundines Cami; 
 but as these might be taken (perhaps they some- 
 times still are) as models of the artistic trans- 
 
VI SIR HENRY MAINE AND HIS "WORK 151 
 
 fusion of thought and style from one language into 
 another, so his later and graver undertakings are 
 models of the art — really a more difficult one — of 
 clothing the higher generalisations of research, with- 
 out apparent effort, in a form both accurate and 
 lucid. In one word, they are themselves classics in , 
 their kind, and accordingly their standing and worth 
 are little or not at all affected by the changes which 
 the learning of posterity may bring to specific pro- 
 positions contained or assumed in them. A book 
 that is a work of art will survive many books of 
 later and better informed authors which are mere 
 storehouses of information. In the Faculties which 
 demand a particular mechanism of learning, a par- 
 ticular intellectual habit, a particular set of terms 
 not only strange but repugnant to the pure man of 
 letters, we are too much tempted to forget the 
 Humanities. There are even some who would 
 counsel us to put them behind us. We may be 
 thankful for Maine's witness that the Humanities 
 are a living power, and the wisdom of the ancients 
 is justified of her children even among the strange 
 people. In this place, at all events, we shall not 
 forget the words spoken by Maine to our sister 
 University — words the more remarkable for their 
 breadth and daring in a speaker usually so cautious : 
 " Except the blind forces of Nature, nothing moves 
 in this world which is not Greek in its origin." ^ 
 
 An author in scientific matter who works as an 
 
 1 Rede Lecture, 1875 : in Village Commmdties, 4th ed. 1881, 
 p. 238. 
 
152 SIR HENRY MAINE AND HIS WORK VI 
 
 artist, and will not produce anything till he has 
 made it complete as a work of art, is not likely to 
 be voluminous. When he is also, like Maine, an 
 active public servant during the best years of his 
 life, we can still less expect a great show of literary 
 production. One shelf, and not a long shelf, will 
 easily hold everything to which Sir Henry Maine 
 set his name.-' But in these few volumes there is 
 nothing ephemeral, nothing which is not in some 
 way a pattern of style, of method, of exposition. It 
 was inevitable that Maine's works should become 
 text-books ; but whoever takes them merely as text- 
 books condemns himself to lose the better half of 
 their value. Thus Ancient Law is of permanent 
 importance as a leading type of the comparative 
 method which has in the present generation become 
 familiar. Its principal instances are taken, and for 
 good reasons, from the history of Eoman law. Maine 
 followed the best authorities then in existence in his 
 presentment of that history, and also with good 
 reason ; for, even if his taste and inclination had 
 been to controvert accepted views in detail, he stUl 
 could not have done so without making his book a 
 critical monograph on the historical problems of 
 Eoman Law, which it was expressly not meant to 
 be. Few of these historical inferences or assump- 
 tions appear, at this day, quite so probable as they 
 did in 1861. Some of them now appear decidedly 
 
 1 Six volumes, including the lectures on International Law delivered 
 in the autumn of 1887, but not published in Sir Henry Maine's 
 lifetime. 
 
VI SIR HENRY MAINE AND HIS WORK 153 
 
 improbable. It might be safe to say that one or two 
 are finally disproved. Yet a student who should 
 think he had nothing to learn from Maine's dis- 
 cussion, for instance, of the early history of Contract 
 would commit a more dangerous error than one who 
 should read the discussion and omit to inquire 
 whether its data could still be trusted. He would 
 err more dangerously, because omissions or mistakes 
 in matters of information may be corrected at any 
 time, but the discipline which comes of tracing the 
 methods of great masters must be acquired while 
 the mind is plastic, and, if omitted then, can hardly 
 be supplied in later life. To Maine, who began his 
 work in the mighty and still present shadow of 
 Savigny, and could as a grown man have seen 
 Savigny alive, Savigny's historical deduction of the 
 Eoman Verbal Contract from an archaic Eoman form 
 of Conveyance appeared conclusive. At this day 
 nearly a generation of active work and discussion 
 has intervened, and the prevailing opinion is that 
 the origin of the Stipulation must be sought in a 
 wholly difierent quarter. But this in no wise afiiects 
 the general interest of the phenomenon with which 
 Maine was concerned, and for the sake of which the 
 origin of the Eoman Stipulation, whatever the true 
 solution may be, is of more than technical importance : 
 nainely, the slowness with which the modern concep- 
 tion of Contract — the right and the duty of the civil 
 magistrate to compel the fulfilment of promises made 
 between citizens of the State — has everywhere been 
 developed. And the final solution will be found, 
 
154 sm HENRY MAINE AND HIS WOKE VI 
 
 whenever it is found, by working with the instruments 
 which Maine has left us. 
 
 Neither do such things affect the interest or the 
 importance of studying Maine's method of work, his 
 apparently simple and really subtle establishment of 
 analogies between facts widely remote in time and 
 place, his faculty of seizing upon the salient points in 
 a mass of details, and the firm and swift strokes, not 
 the less sure for their freedom and seeming ease, with 
 which he completes his structure, and revives for us 
 the dawning of man's political life in the express 
 image, not only of its habits and ordinances, but of 
 its inner workings and struggles, its perplexities and 
 superstitions, its evasions and its compromises. Maine 
 can no more become obsolete through the industry 
 and ingenuity of modern scholars than Montesquieu 
 could be made obsolete by the legislation of Napoleon. 
 Facts will be corrected, the order and proportion of 
 ideas will vary, new difficulties will call for new ways 
 of solution, useful knowledge will serve its turn and 
 be forgotten ; but in all true genius, perhaps, there is 
 a touch of art ; Maine's genius was not only touched 
 with art, but eminently artistic ; and art is immortal. 
 Not only with sight but with spirit we watch the 
 same stars that Job and Odysseus watched, the 
 Pleiades and the bands of Orion, and the sleepless 
 guardian of the Pole, " the Bear which men call the 
 Wain for a byname, which turns on itself as it keeps 
 watch on Orion, and alone goes free of dipping in 
 Ocean." We no longer think that Orion dips in the 
 world-river beyond which there is no world, nor do 
 
VI SIR HENKY MAINE AND HIS WORK 155 
 
 we conceive the warrior God of Israel sitting above 
 the vault of heaven and counting the treasures of his 
 hail. But the Book of Job has outlived many 
 systems of the universe and many departed gods, 
 " les apparitions des dieux qui ne sont plus." ^ The 
 song of the morning stars is as eternally new in the 
 verse of Goethe and the vision of Blake as in the 
 ancient words of that forerunner of ^schylus and 
 Dante whose name and place remain a mystery. 
 Homer has outlived many revolutions in warfare, 
 and seems like to outlive gunpowder ; but no change 
 has abated the force or the truth of Homer's contrast 
 between the silent march of the disciplined Achaian 
 ranks and the clamorous onset of the Asiatic multitude. 
 Yes, among things of human mould art is most surely 
 divine and deathless : 
 
 OLt] 8' d/J,fiopo<; e<TTi Xoerp&v mxeavolo. 
 
 Steadfast as the constellations themselves, the first 
 poem of speculation and the first poem of adventure 
 shine for us through the ages, and will shine for our 
 children so long as the stars look down upon earth 
 and men dwell on the earth to call the stars by their 
 names. 
 
 And by this virtue, if it were by this virtue alone, 
 I am bold to claim immortality for my master's work. 
 Books with a greater show of learning, perhaps even 
 more learned books, wiU be written ; the Twelve 
 Tables may be reconstructed over and over again ; 
 but Ancient Law does not depend on any particular 
 
 1 Leconte de Lisle, La Pa/ix des Dieux. 
 
156 SIR HENRY MAINE AND HIS WORK VI 
 
 reconstruction of the Twelve Tables, and, unless I am 
 sorely mistaken, will survive many such. 
 
 Certain peculiarities in Maine's manner of work are 
 probably due to his constant and exquisite sense of 
 artistic form. He was averse to recasting what he 
 had once put forth, and Ancient Law stands at 
 this day as it was first written, with only a general 
 warning to the reader. When Maine specially wished 
 to explain or qualify anything, he found some separate 
 occasion for doing so. He was exceedingly averse to 
 direct controversy, and seldom allowed himself to be 
 engaged in any discussion leading that way. There 
 is also conspicuous, especially in his earlier writing, 
 an avoidance of specific references and other critical 
 apparatus which can hardly be accidental. It must 
 be allowed that at times this is carried to an incon- 
 venient extent ; but it must be no less allowed that a 
 book ceases to be literature, and becomes a mere tool 
 of science or scholarship, when it is loaded with notes, 
 extracts, and auxiliary discussions. Maine was de- 
 termined, if I may borrow Bentham's expression in 
 praise of Blackstone, that his science should speak the 
 language of a scholar and a gentleman. He would 
 not risk the literary distinction of his work to save 
 a moderate amount of trouble to the small minority 
 of critical readers. In the same way, probably, his 
 objection to serious revision of new editions may be 
 explained. He must have well known that the 
 choice was, in many things, between leaving his 
 former work alone and rewriting it. He may well 
 have felt that the rewriting of chapters and paragraphs 
 
VI SIR HENRY MAINE AND HIS "WORK 157 
 
 "was more likely to spoil an original artistic "whole 
 than to leave it, as remodelled, an adequate expression 
 of his later thoughts. To make such alterations, more- 
 over, "would have been to provoke a kind of minute 
 criticism for "which he had a constitutional dislike. 
 
 There is a kno"wn type of artistic temperament to 
 "which a piece of "work once finally despatched into the 
 "world ceases almost to be interesting. It is no longer 
 part of its maker's life ; it is given to the "world, and 
 the "world must take it as it "will ; for his part it is 
 time for him to be about something else. I should 
 not say that Maine looked on his "works quite in this 
 "way ; but I think his activity "was of the kind that 
 looks for"ward rather than back"ward, and seeks by 
 preference ne"w modes of expression along "with new 
 occasions. 
 
 So far I have spoken of Maine's -work according to 
 its form rather than its matter. The time has not 
 come to sum up the full value of the gifts he has 
 bequeathed not only to jurisprudence, but to history 
 and politics. In his lifetime, ho"wever, evidence "was 
 already forthcoming that he exercised the kind of 
 po"wer "which is perhaps the surest test of generalisa- 
 tion on a great scale — the po"wer of directing further 
 inquiries in lines "which prove to be the right ones. 
 Sir A. Lyall's "words leave no room for doubt on this 
 
 point : 
 
 Sir Henry Maine's remarkable power of insight into the 
 real meaning and connections of archaic customs so alien to 
 modem ideas as to be ordinarily incomprehensible, and his 
 luminous generalisations upon the materials found scattered over 
 these obscure fields of research, have greatly influenced local 
 
158 SIR HENRY MAINE AND HIS WORK VI 
 
 inquiries in India. He surveys and marks out the whole line of 
 penetration into diflScult and entangled subjects, and workers in 
 the field are constantly verifying the extraordinary precision of 
 their chief engineer's rapid alignments.^ 
 
 I am not aware that the maintainers of newer 
 theories of primitive society can yet point to any 
 similar verification. However, I am not concerned 
 here to disQuss any of the theories which have been 
 set up in more or less pronounced opposition to 
 Maine's opinions and method ; and I purposely do 
 not mention any name. It was observed by Maine 
 himself that there was no necessary antagonism, 
 within sufficiently large limits, between his own work 
 and any of the definite results obtained by certain 
 other inquirers. 
 
 For the present we may at least say, looking to 
 our own science of law, that the impulse given by 
 Maine to its intelligent study in England and America 
 can hardly be overrated. Within living memory 
 the Common Law was treated merely as a dogmatic 
 and technical system. Historical explanation, beyond 
 the dates and facts which were manifestly necessary, 
 was regarded as at best an idle ornament, and all 
 singularities and anomalies had to be taken as they 
 stood, either without any reason or (perhaps oftener) 
 with a bad one. It was an unheard-of process to 
 show that they were really natural products in the 
 development of legal conceptions. A superior moral 
 sense was supposed to have been combined in the 
 founders of the law with a strictly logical intellect and 
 
 1 Asiatic Studies, p. 213. 
 
VI SIR HENKY MAINE AND HIS WORK 159 
 
 an almost infallible intuition of practical fitness, and 
 on this more than doubtful assumption were built up 
 phrases of amiable optimism which had not much 
 difficulty in passing for philosophical reflection. A 
 certain amount of awakening was no doubt efiected by . 
 the analytical school, as Maine has taught us to call 
 it. But the analysis of modem political and legal 
 ideas in their latest form could not lead to any 
 rational explanation of an actual historical system. 
 Its immediate result was uncompromising and 
 vehement criticism. This did, in its day, good 
 service. It broke down prejudices and dissolved 
 illusions which stood in the way of needful improve- 
 ments. But the scientific study of legal phenomena, 
 such as we really find them, had no place among us ; 
 at any rate there was no assured place for such study 
 as distinct from the technical logic of a particular 
 system on the one hand, and the classification of legal 
 abstractions supposed common to all systems on the 
 other. Maine not only showed that this was a 
 possible study, but showed that it was not less 
 interesting and fruitful than any in the whole range 
 of the moral sciences. At one master-stroke he forged 
 a new and lasting bond between law, history, and 
 anthropology. Jurisprudence itself has become a 
 study of the living growth of human society through 
 all its stages, and it is no longer possible for law to be 
 dealt with as a collection of rules imposed on societies 
 as it were by accident, nor for the resemblances and 
 differences of the laws of different societies to be 
 regarded as casual. 
 
160 SIR HENKY MAINE AND HIS "WORK VI 
 
 Maine gave us an instalment, but only an instal- 
 ment, of the application of his method to the problems 
 of modern politics. I shall not endeavour on this 
 occasion either to confirm or to mitigate the rather 
 sombre view of the political tendencies of our age 
 which is set forth in Popular Government. I have 
 long thought that the general colour of a man's 
 estimate of the greatest objects of human interest — 
 the characters of his fellow-citizens, the affairs of his 
 country, the nature of man and his relation to the 
 universe — depends much more on temperament than 
 on intellect. No very wide margin of debatable 
 ground is required to enable two thinkers to draw 
 from the same data, without manifest violence either 
 to evidence or to logic, the one optimist and the other 
 pessimist conclusions. Sir Henry Maine's temper was 
 not a sanguine one, and he was not made sanguine 
 by his own personal prosperity. No one, however, can 
 read Popular Government without finding many 
 familiar topics considered in ways that give fresh and 
 striking matter for reflection. It is so far from being 
 a partisan work that its detachment from the usual 
 prepossessions and associations of English party 
 government is positively startling. An author who 
 not only points out that there is no necessary con- 
 nection between popular government and moral or 
 material progress, but sees in the unqualified rule of 
 the majority the gravest danger of stagnation, will 
 not fit into the usual divisions of parties. There is 
 nothing new in telling a Liberal that he will be a 
 Tory when he gets into ofl&ce. But to tell Demos 
 
VI SIR HENRY MAINE AND HIS WORK 161 
 
 himself that he has it in him, without knowing it, 
 to be a worse Tory than any Tories does not suit 
 practical politicians on any side. These things can 
 be said only by some one who, like Maine, is in the 
 world of politics, but not of it. And in order that 
 the saying of them by some one should be beneficial, 
 it is by no means needful that they should be strictly 
 accurate or should contain the whole truth. It is 
 enough if they contain elements of wholesome truth 
 which are likely to be overlooked. For the rest, 
 Maine did not write as a believer in any particular 
 form of government, but as not believing that any form 
 of government is infallible ; and he pointed out to his 
 countrymen the besetting weaknesses of that form 
 which they seemed to him most likely to accept with- 
 out criticism. If he had been writing for Frenchmen 
 under the presidency of Marshal MacMahon, I believe 
 he would have been quite as ready to point out to 
 them the dangers of acquiescing in a monarchical 
 restoration. I need hardly say that acquiescence in 
 something one does not like may be uncritical though 
 reluctant, and that for want of intelligent criticism 
 reluctance may be impotent, -or even worse than 
 useless. 
 
 History, no doubt, had taught Maine, as it teaches 
 most sober students, that many unknown quantities 
 enter into the results of political experiments. Who- 
 ever has realised this must prefer to abide, so long as 
 possible, by known results of experience, or at least 
 to keep within their analogies. If it be conservative 
 to have little faith in political machinery for its own 
 
 M 
 
162 SIR HENRY MAINE AND HIS WORK VI 
 
 sake, and less than little in ready-made political 
 systems on a grand scale, then was Maine a Con- 
 servative. But then he could on occasion give as 
 emphatic warning against credulity based on unveri- 
 fied traditions of the past as against the credulity, 
 now more common, which is based on unverified 
 expectations of the future. I refer in particular 
 to the addresses which he delivered as Vice- 
 Chancellor of the University of Calcutta. Liberal- 
 ism, in any case, has not yet been so defined by 
 authority as to make the ignoring of obvious facts a 
 necessary mark of it. We may or may not admire 
 the decorative eflfect of trees of Liberty in public 
 places. That is a matter of taste. It is matter of 
 fact, nothing more and nothing less, that trees of 
 Liberty, like other trees, have a way of not growing 
 when they are planted at their full stature. Our 
 old English oak is rugged and weather-beaten ; its 
 branches are not symmetrical ; some limbs have 
 spread abroad while others have been stunted ; it 
 savours of its own soil and knows of none other. But 
 in that soil it is fast rooted, and from the deepest 
 fibres that feed it in the secret places of the earth 
 to the topmost leaves that leap to the air and glance 
 in the sun, it still lives and grows. Our Constitution 
 is popular in that the life of the English people, 
 from the greatest to the least, has gone to make it 
 what it is ; and it has at almost all times combined 
 the tenacity of tradition with a great power of 
 assimilating fresh elements, and of adapting existing 
 organs to new purposes. For some considerable time 
 
VI SIR HENRY MAINE AND HIS WORK 163 
 
 our national institutions and our national character 
 have been confirming one another in this habit. One 
 may ask whether Maine did not underrate the 
 moderating virtues of such a habit in the body 
 politic, and the extent to which it can subdue to 
 good uses, or at least render tolerable, innovations 
 that might be dangerous elsewhere. Some observers 
 have found in the pliability of our Constitution, and 
 the quick sensitiveness of our sovereign Legislature 
 to public opinion, rather a safeguard than a danger. 
 It may be asked, on the other hand, whether Maine 
 did not exaggerate both the practical rigidity of the 
 Constitutions of the United States and the several 
 States of the Union, and the benefits which have 
 flowed from the difficulty of making formal altera- 
 tions. We have proof, at all events, in a much 
 nearer country, that the revision of a written Con- 
 stitution may itself become a handle for the agitator's 
 uses. But again I have to point out that all fruitful 
 criticism or correction of Maine's work will have to 
 proceed on his own methods ; and even then we 
 shall be apt to find, for some time to come, that our 
 criticism has been anticipated, and that some sig- 
 nificant reservation lies in a few words overlooked on 
 a first reading. Few great writers are so easy as 
 Maine to criticise superficially, for he constantly 
 seems to be laying himself open by wide assertions. 
 Few are so hard to criticise thoroughly, for the more 
 carefully one studies his language, and with the 
 greater knowledge of the subject-matter, the more 
 real caution and the more subtle discrimination does 
 
164 SIR HENRY MAINE AND HIS WORK VI 
 
 one find, both in what he says and in what he 
 abstains from saying. 
 
 If I may add anything of my own as to the 
 immediate future of comparative historical research, 
 I should say that it is now entering on a less brilliant, 
 though not a less useful or interesting stage. We 
 have to explore point by "point the features which our 
 leaders and masters were the first to discern in their 
 general bearings. We have to disentangle the 
 manifold causes of change in human institutions, 
 and to beware of being satisfied with our explanation 
 of any one eff'ect until we have traced it not merely 
 to a possible cause, but to a cause of which we 
 can prove the existence and watch the operation. 
 Similarity of laws, customs, procedure, even in 
 minute particulars, is only a guide to inquiry ; it is 
 not conclusive evidence of dependence or of a common 
 origin. Like needs are apt to be met, in a general 
 way, by like expedients, but those expedients may 
 turn out to have been arrived at by the modification 
 in widely difi"erent ways of widely different materials. 
 A given result may be produced in one community 
 by straightforward development ; in another by some 
 highly artificial adaptation ; and in a third by direct 
 importation or imitation of a foreign model. And a 
 series of apparently continuous forms may have no 
 real historical connection at all. In man's visible 
 handiwork, in his tools, weapons, and ornaments, this 
 is matter of constant observation. Any one who will 
 spend half an hour in the Pitt-Rivers Museum may 
 convince himself that in these things development 
 
VI SIR HENRY MAINE AND HIS WORK 165 
 
 is far from always following that order which, to us 
 appears natural. Even in modern mechanics ideas 
 are often discarded, after a short trial, as impracti- 
 cable, only to reappear triumphant by the help of some 
 small but vital improvement in the means of execut- 
 ing them. Such vicissitudes are not unknown in the 
 mechanism of government and legislation ; and the 
 life or 'death of national customs may depend on 
 conditions which only patient investigation can 
 detect. If there be any safe general rule, it seems 
 to be that, while the ways of change are seldom 
 simple, and are often so complex as to be baffling, 
 there is a strong presumption against anything being 
 whoUy new. Homo nonfacit saltum. 
 
 The latest work which Maine has left us is the one 
 course of lectures delivered by him from the chair 
 founded by Whewell. These lectures were not finally 
 revised by the author, nor is it known how much 
 further revision and recasting he might have given to 
 them. It was thought better to print them as they 
 stand than to withhold their substance from the 
 public. They cannot, therefore, be fairly compared, 
 in point of form, with the works issued under his own 
 direction. And yet the comparison is profitable as 
 showing how much compression and revision those 
 works received before Maine judged them fit to be 
 issued. The subject is not one which affords much 
 room for historical discoveries or speculation, the 
 history and literature of International Law being 
 altogether modern. I think, however, that Maine's 
 freshness and largeness of view, his wealth of illustra- 
 
166 SIR HENRY MAINE AND HIS WORK VI 
 
 tion, his felicity in comparison, and his sureness of 
 judgment, will be sufficiently recognised in this 
 volume. And there is at least one point of substance 
 of more than academical importance. The weight of 
 Maine's authority is added to the opinion, propounded 
 several years ago by Mr. Seebohm, that England's 
 true interest is to extend the principles of the 
 Declaration of Paris to the total abolition of the 
 capture of private property at sea. 
 
 We are met to-day, not only to do honour to Sir 
 Henry Maine's memory, but to bethink ourselves how 
 we may best keep it in due honour by following his 
 example as he would have wished it to be followed. 
 We ought not, I think, to have much difficulty in 
 knowing what to aim at. Certainly we shall be very 
 dull scholars if we do not know what to avoid. 
 Never shall we increase our master's worship, nor 
 gain any for ourselves, by repeating propositions 
 from his books, or taking his conclusions as if they 
 dispensed us from any further trouble of thinking. 
 Wisdom is not in propositions which can be repeated. 
 And, in the golden words of another wise scholar 
 whom we lost not long ago, Mark Pattison, "The 
 learning of true propositions, dogmatically delivered, 
 is not science." For science is organised knowledge 
 living and acting, and without change there is no 
 action and no life. Whatever has ceased to change 
 is dead. It was said by a great Frenchman whose 
 work Maine knew and prized, that the essence of 
 stupidity is the demand for final opinions. As Maine 
 himself said, the principle of progress, which is the 
 
VI SIR HENRY MAINE AND HIS WORK 167 
 
 same thing as the law of healthy life, is a principle 
 of " destruction tending to construction." The 
 inunortality of a man of genius is not only, nor 
 chiefly, in the work which he leaves for posterity to 
 contemplate, but in the activity which it inspires. 
 There is only one way of paying our debts to the 
 past ; we must look to it that, when our time is 
 done, we depart as creditors of the future. Maine's 
 work has, as it already had in his lifetime, the 
 assurance of long and fruitful survival. It is for us, 
 his countrymen and his disciples, to claim and win 
 the honour of being foremost in that continuance. 
 And in the Universities, of all places, the name and 
 example of Maine ought to be a constant encourage- 
 ment. I know of no recent life which has more 
 completely shown that learning is still a power in 
 the civilised world. The steadfast veracity of Maine's 
 intellect subdued to itself far more even of this 
 world's goods than he could have attained by vulgar 
 ambition ; the reception and the spread of his ideas 
 aflbrd the strongest proof that studies which seem 
 remote from the common interests of mankind may 
 at any time be splendidly justified. He was fortu- 
 nate, but most justly fortunate, both in his career 
 and in his influence. He did not court success, 
 honours, and esteem; they came to him unasked, 
 and he enjoyed them without pride and without 
 aff"ectation. The simplicity of the true scholar never 
 left him. "We cannot all emulate his fortune; we 
 cannot all hope to achieve fame; but the gifts of 
 wisdom are open here to all who will truly seek them. 
 
168 
 
 SIB HENRY MAINE AND HIS WORK 
 
 VI 
 
 and in the true following of such a master as Maine 
 we may all learn to make the dignity of knowledge 
 
 our own. 
 
 It may be convenient to subjoin the chief dates of Sir Henry 
 
 Maine's life : 
 
 
 Birth 
 
 . 1822 
 
 B.A. degree . . ... 
 
 1844 
 
 Regius Professor of Civil Law, Cambridge . 
 
 1847 
 
 Call to the Bar 
 
 1850 
 
 Ancient Law published .... 
 
 1861 
 
 Legal Member of Governor-General's Council 
 
 . 1862 
 
 Corpus Professor of Jurisprudence, Oxford . 
 
 . 1869 
 
 Member of Indian (Secretary of State's) Council 
 
 . 1871 
 
 Master of Trinity Hall .... 
 
 . 1877 
 
 Whewell Professor of International Law 
 
 . 1887 
 
 Death (February 3) . ... 
 
 . 1888 
 
VII 
 EELIGIOUS EQUALITY 
 
 A DIALOGUE BETWEEN A NONCONFOEMING DOCTOR OF DIVINITY 
 AND A STUDENT OF POLITICS 
 
 Doctor. "What cheer this winter's morning, Sir 
 Student ? I have not seen you these many days. 
 
 Student. Well enough, Master Doctor, and none 
 the worse that we are still free to discuss your 
 favourite questions of ecclesiastical polity in a 
 leisurely and academical manner. 
 
 D. In a sense I too can say it is well ; for our 
 cause, being just, will only gather more strength by 
 delay. Time and the education of the mass of citizens 
 will not cease to fight against an institution which 
 violates the principle of religious equality and the 
 fundamental doctrines of Liberalism ; though I know 
 that you, professing Liberal opinions on many things, 
 are worse than lukewarm on this ; I could say (if 
 without offence I might) that you are no better than 
 a Whig. 
 
 S. Let the name pass. I shall not wince even if 
 you utter the horrible word Erastian, supposed by 
 
170 RELIGIOUS EQUALITY VII 
 
 Mr. Gladstone in some magazine article to denote a 
 creature too depraved to exist. 
 
 D. Your indifference or inconsistency puzzles me. 
 You have avowed yourself to me, once and again, 
 as not afraid of democracy ; you have approved in 
 principle the assimilation of our land laws to those of 
 our English-speaking colonies and the United States ; 
 I have heard you speak with levity of the wisdom of 
 Bishops, with scant reverence of the House of Lords, 
 and with less than reverence of the sanctity of 
 parliamentary oaths. 
 
 S. All this may be true. Yet am I no Disestab- 
 lishment-man. My reason has the merit of simplicity, 
 and of being convincing to myself. I fail to see the 
 connection between Disestablishment and any prin- 
 ciple which I accept, or which I believe to be generally 
 accepted by Liberals. 
 
 D. Do you make no account, then, of the principle 
 of religious equality ? Or will you go about, by some 
 sophistry not yet disclosed, to reconcile it with the 
 maintenance of a State-established Church ? 
 
 S. Pardon me if I indulge a foible common 
 among those of my profession. I am afflicted with a 
 certain punctiliousness about the significance of terms, 
 and when a large question is propounded in undefined 
 terms I am fain to nibble it piecemeal. These ideas 
 are so familiar to you that it will doubtless appear 
 pedantic when I turn upon you in the counter- 
 questioner's part, and crave to be fully satisfied what 
 you understand by religious equality, what by a 
 State Establishment, and in what points you conceive 
 
VII RELIGIOUS EQUALITY 171 
 
 the latter, as existing in England, to be incompatible 
 with the former ? 
 
 D. Eeligious equality, or the equality of all 
 religions before the law, which is, in other words, 
 the negation of a privileged form of religion, is surely 
 a plain enough political conception. Establishment 
 is nothing else than the conferring of privileges by 
 the positive laws of the land on a particular form of 
 religion, or the introduction of that which religious 
 equality forbids. 
 
 S. Equality before the law may turn out easier 
 to name than to define ; and, at any rate, it does not 
 involve of necessity that which I suppose you aim at 
 — equality in the opinion of the world and in fact. 
 Certainly we shall agree that it is false policy for the 
 State to molest any subject for the exercise of any 
 moral and decent form of religion in a decent manner 
 and convenient time and place. Here are limitations 
 already ; but you wiU admit them needful ; and, 
 moreover, that morality and decency shall be judged 
 by the standard of the law of the land, not that of 
 the particular religion : otherwise we should make 
 every sectary judge in his own cause, and might have 
 some pious denizen of some Indian Exhibition claim- 
 ing in the name of religious equality to sacrifice a 
 goat on the Thames Embankment or swing himself 
 on a hook on Wimbledon Common. 
 
 D. We claim not, and we have at no time claimed, 
 any such licence ; nor is it to be supposed that in a 
 Christian and law-abiding country 
 
 S. There should be a Salvation Army. Nay, 
 
172 RELIGIOUS EQUALITY VII 
 
 spare your protest; it is anticipated and allowed. 
 And though I will assuredly not seek to make you 
 or your friends answerable for the Salvation Army, 
 I am not concerned to deny that it has respectable 
 advocates. But the conflicting opinions and even 
 judicial decisions to which its proceedings have given 
 occasion are enough to show, whatever be the true 
 estimate of General Booth's value as an ally of the 
 powers that make for righteousness, that the case 
 is on the border-line. 
 
 D. If the Salvation Army break the law, the law 
 may look to its own. It has penalties and remedies 
 that should provide sufficient restraint. 
 
 S. Very well said, and I could not better it. So 
 far we are at one. Religious equality is not an 
 absolute unconditional right, but a rule of lawful 
 liberty within bounds of order, which bounds are 
 determined, in case of doubt, by resort to the 
 ordinary law. 
 
 D. Agreed. 
 
 S. In a well-ordered commonwealth I do not see 
 how any person or sect can be suffered to demand 
 more than this ; and in these realms at present I 
 do not see that any one enjoys less. We need not 
 make an exception, save for form's sake, of sleeping 
 and toothless penalties, fallen into the decay of a 
 premature and ignominious old age, which are as 
 certainly obsolete in fact as they deserve to be 
 repealed in terms. 
 
 D. Within the Established Church the resort is 
 not to ordinary law and jurisdiction. That is one of 
 
VII RELIGIOUS EQUALITY 173 
 
 the many proofs and signs of inequality. Methinks 
 I am not to remind you that the privileged Church 
 is under privileged jurisdiction, and exempt from the 
 common law. 
 
 S. The law of the Church is ultimately controlled 
 by the common law, as well as by Parliament ; and 
 the name of privilege may be literally applicable to 
 the condition of being subject (in addition to those 
 universal limits of public order already mentioned) to 
 a body of regulation and restraint which, if difficult 
 of complete enforcement and cumbrous in operation, 
 is in the main effectual, and for immediate practical 
 purposes must be considered as unalterable. The 
 law will recognise, and more, if so required it will 
 maintain with all its powers, the constitution and 
 ordinances of a voluntary religious community (as of 
 any other lawful association), so far forth as they are 
 founded in agreement, and affect valuable rights. 
 Agreement having made them, the like agreement 
 can dissolve or refashion them. The Church of 
 England belongs to public law ; the covenants of her 
 officers can be released by nothing less than the 
 commandment of the estates of the realm, even if 
 every one of her members consented. A clerk in 
 orders is under disabilities as a citizen, while his 
 immunities have disappeared into the limbo of 
 ancient legal history, after serving their turn as the 
 "first fault" of many lay malefactors. Excuse the 
 old Eton phrase ; such things will come to one's 
 tongue now and again. Now, from the point of view 
 of individual freedom and equality, the privileges I 
 
174 RELIGIOUS EQUALITY VII 
 
 have briefly rehearsed would seem to be of a negative 
 sort. 
 
 D. Well, you are stating our case. We know that 
 the Church is fettered ; that is one of our grievances ; 
 we bring it forward in the interest of the Church 
 itself. You dance in fetters that the State may pipe 
 to you, and the State calls the tune. Or, to use a 
 worthier and more fitting image, you barter the 
 priceless birthright of spiritual freedom for the 
 temporal mess of pottage prepared for you by Acts 
 of Uniformity and Ecclesiastical Commissioners, with 
 a garnish of pomps and vanities like public thanks- 
 givings, coronations, assize sermons, and what else. 
 While you stand upon your bargain, it hardly lies in 
 your mouth to complain of the price. But on higher 
 grounds we deem the compact essentially iniquitous, 
 and therefore we do complain. Our settled purpose 
 is to annul the compact, as the State lawfully may, 
 and to deliver you from all these burdens. We 
 would have the Episcopal Church of England free 
 and honoured among free Churches, even as her sister 
 in America, to dwell in peace with us that we may 
 all be emulous in good works. Her legitimate 
 spiritual traditions, her just renown, will be dis- 
 engaged from the dross and ruinous heaps of legality. 
 Believe me, we are not enemies battering your fortress, 
 but friends crying to you to come out of your dungeon 
 into the field and help us. 
 
 S. Excellent well, Master Doctor, for a discourse 
 ad clerum. But pray remember that I am no clerk, 
 only a plain citizen, and am apt to consider these 
 
VII RELIGIOUS EQUALITY 175 
 
 matters, as an honest statesman has said, as a layman 
 and in the interest of the State. As concerning that 
 trifle of the pottage, which your metaphor rode over 
 somewhat apace, I am not wholly certified that the 
 pottage is all one mess, or that it all belongs, as you 
 seem to assume, to the State. Your demand is for 
 temporal works, for legislation, for the transformation 
 of estates and interests, for the redistribution of 
 property. To this region you call, entreat — nay, 
 summon us ; and therein we must be subdued, with 
 all due regard to your higher spiritual motions, to 
 what we work in, even the filthy works of the 
 law. 
 
 D. By your good leave, I shall not be drawn into 
 a technical discussion. You and I are not to settle a 
 BUI out of hand. When the nation has found a right 
 will and a just power, the ways and means are the 
 business of experts, and will doubtless also be found. 
 For the will I stand upon that principle of religious 
 equality which you have not denied ; for the power, 
 upon the eminent domain of the State which you will 
 scarce deny. For the rest, I may have my opinions 
 of the respective merits of plans. But the principle 
 comes first. 
 
 S. Nay, by your leave, J cannot so lightly soar 
 above details ; I am of the common world,, and 
 hampered by matter of fact. Of the eminent domain 
 of the State (which is indeed one with sovereign 
 power) I seek no demonstration. It is an axiom of 
 politics and law that all property and aU individual 
 rights whatever are in the control, so far as human 
 
176 RELIGIOUS EQUALITY VII 
 
 control can extend, of the supreme governors of the 
 commonwealth. Whether it be wise and equitable 
 to exercise that supreme power in a given case 
 depends first on the cause alleged for its exercise, 
 then on the proposed manner of it. This is a case, 
 as I humbly think, wherein the principle may receive 
 much light from its application in detail. Political 
 action aims at some commensurate result by which it 
 is to be justified ; it is certain, at least, that no other 
 justification will be accepted by the bulk of citizens. 
 You invite us to a vast, complex, and untried action, 
 and such that, once performed, it cannot possibly be 
 reversed. Surely this action and its results will be 
 in substance that which your plan makes them in 
 details. The task is yours to make it probable 
 beforehand (I do not say in every particular, but by 
 reasonably sufiicient particulars) that adequate results, 
 good in themselves, can be attained by just and pro- 
 portionable means. And I am confirmed in this view 
 by observing that, so far as I am aware, few or none 
 of your party have yet adverted to Disestablishment, 
 apart from Disendowment, as an afiair of practical 
 moment. 
 
 D. Then on the practical ground 1 will meet you, 
 and, as I hope, convince you of the soundness of our 
 ideas ,by the justice of their application ; but not now, 
 for time presses. 
 
 S. With a good will, when the time serves again. 
 I too must go my ways, which are yours, if I mistake 
 not, this side the river. Shall we walk through the 
 Abbey ? 
 
VII RELIGIOUS EQUALITY 177 
 
 II 
 
 S. Well met again, Master Doctor. You are ready, 
 I suppose, to convert me by detailed proofs to your 
 project for restoring the equality and freedom of 
 religion by destroying the Church of England as by 
 law established. 
 
 D. Forgive me that I interrupt you so soon ; but 
 you force a protest on me. We are for destroying the 
 parasite growths of legal establishment, and resuming 
 the national property that has been perverted to the 
 maintenance of an exclusive and artificial supremacy. 
 But we say that this distinction will be the renovation 
 of the true spiritual body. 
 
 S. I know it, and therefore was careful to add by 
 law established. Now it may be granted that the 
 Church of England would, as an ecclesiastical body, 
 survive any practicable operation of Disestablishment ; 
 and this not on any ground of inherent and necessary 
 divine authority (for as to reasons of that fashion, I 
 shall not trouble you with any), but as matter of 
 probability on our common grounds of judgment in 
 human affairs. Indeed, I have my suspicions that its 
 vitality might more than answer your expectations. 
 But how far the idea and spirit of a disestablished 
 Anglican Church would resemble those of the Church 
 we know ; how far traditions, of which the best side 
 is nothing if not national, could or would preserve 
 a substantial continuity; how the lay people in 
 general would be aflfected by the letting loose of divers 
 
 N 
 
178 RELIGIOUS EQUALITY VII 
 
 controversies at present restrained, with other con- 
 sequences of the like sort : these are problems of a 
 certain gravity, whereof the solution appears to me, 
 I confess, wholly indeterminate. On your part you 
 seem to be assured that all things will work out for 
 the best. For that comfortable assurance I have not 
 seen any nearer or better verification than the double- 
 faced maxim of average experience, that few plans 
 turn out altogether so well as the promoters hoped, or 
 so ill as opponents feared — a maxim apt, moreover, 
 to break down in critical cases. But to come to a 
 point. You conceive Disestablishment as the annul- 
 ment of a compact between the State and the Church; 
 or, more simply, if you choose, as the withdrawal by 
 the State of benefits and sanctions which it gave. 
 Such, at least, is the conception which passes current 
 on your side, and does duty without contradiction on 
 the platform and in the pamphlet. Thus you seem 
 to point to a time when the State existed in England 
 without the Church, or without any definite relation 
 to the Church ; whereas I find in history that there 
 was one Church in England while there were yet 
 many States ; that there was never any compact 
 between a Church and a State outside the Church, but 
 a series of transactions and adjustments, which were 
 in truth a thinly veiled contest for supremacy between 
 the spiritual and the temporal powers within the 
 State, a State of which both those powers were in 
 common acceptation alike necessary elements ; that 
 this contest was further complicated by the claims of 
 a foreign spiritual potentate to interfere to a large 
 
VII RELIGIOUS EQUALITY It-^ 
 
 extent in spiritual, and to a lesser but undefined 
 extent in temporal matters within this realm ; and 
 that a relatively small incident brought the conflict 
 to a crisis upon this last point, with the result of 
 definitely repudiating foreign claims and fixing 
 sovereignty in the hands of the temporal power. 
 Likewise we find that through all changes the Church 
 did not cease to be an integral constituent part of the 
 commonwealth, and it remains so at this day. The 
 Reformation neither established nor endowed the 
 Church, but largely disendowed the Church (for it 
 was a goodly share of his royal ancestors' gifts to 
 religious uses, and other pious founders' besides, that 
 Henry VIII. was pleased to resume), and established 
 the supremacy of the Crown. I conclude that these 
 glib five syllables of Disestablishment signify nothing 
 less than an alteration in the State itself, which, in 
 form if not in effect, would be more fundamental than 
 any extension of the parliamentary franchise, reform 
 of local administration, or other modifications in the 
 machinery of government. It is the perpetual 
 renunciation of a whole hemisphere of sovereignty — 
 whence and for what ? From the besetting modern 
 fear and impatience of responsibility, and for — well, I 
 do not wish to state it coarsely, but I cannot find a 
 choicer term — for pounds, shillings, and pence. 
 
 D. It is not my fault that most people are ignorant 
 about matters of history which at this day, after all, 
 are irrelevant. We say that the Established Church 
 of England, whatever it may have been, has ceased to 
 be the Church of the nation ; that it is not humanly 
 
180 RELIGIOUS EQUALITY VII 
 
 possible to restore it to that situation in fact, even if 
 it were desirable, which on our general principles we 
 deny ; and that the time has come for the law to be 
 adjusted to the facts. We have never denied that 
 the undertaking is a great one ; but at most we 
 contemplate nothing so violent as the proceedings of 
 Henry VIII. That portion of sovereignty or control 
 of which we seek to relieve the State is in our 
 judgment burdensome and useless. And the State 
 would have its just compensation for the loss (if any) 
 in resuming national property for national purposes — 
 not as lucre, but for good works not much alien, 
 perhaps, from the genuine original designs of the 
 pious founders of churches. 
 
 S. A truce to ancient history, then ; and let us 
 forget Eeformation, Commonwealth, and Eestoration. 
 If you will pass over the hardships of your 
 predecessors under the Stuarts I will make no 
 mention of the Quakers, nor otherwise remind you 
 that the said worthy predecessors in particular, no less 
 than Protestant Churches in general (but for a very 
 few men of exceeding wisdom and charity) discovered 
 the principle of toleration only when dominion was 
 clearly beyond their reach. And yet this same 
 history is a plaguy ghost that will not be laid. You 
 speak of national property ; some of my dry technical 
 notions hinder me in following you. When a Mercian 
 or West- Saxon prince endowed the see of Worces- 
 ter or Winchester, was this nation of England (then 
 only in the making) giving its own goods to itself? 
 Or did the private benefactors of a minster or a 
 
VII RELIGIOUS EQUALITY 181 
 
 cathedral foundation deem that they were giving to 
 the State ? There is true national property created 
 or maintained by deliberate acts of the State, " out of 
 money provided by Parliament," as the ofl&cial phrase 
 goes : for example, a Queen's ship and her armament, 
 the dockyards and arsenals, the British Museum, the 
 National Gallery. Church property is not even the 
 property of the Church of England, for the law knows 
 no such body as capable of holding property : it is the 
 property of many ecclesiastical corporations, adminis- 
 tered under the ultimate control of Parliament, and 
 (like aU property held in trust for public and 
 charitable uses) more obviously and practically subject 
 to the eminent domain of the State than the private 
 property held by individuals in their private right. 
 I grant you that " national property " may be a fair 
 term as against those who deal in such other terms 
 as " sacrilege " and " spoliation ; " but its fair use is 
 only to bring back the discussion to the ground of 
 political justice and expediency. There it leaves you, 
 and you cannot force it to prejudge the merits. 
 
 D. Very well. Put the case, if you will, for the 
 argument's sake, on the footing of an old charitable 
 foundation. We say the institution is no longer of 
 adequate benefit to its real objects (not that we 
 approve the original method), and there must be a 
 new scheme. It is needless to quibble about legal 
 ownership when you are exercising sovereign rights ; 
 and even an owner is bound in conscience to deal 
 justly. We do not shrink from responsibility in a 
 work that is eminently one of conscience. 
 
182 RELIGIOUS EQUALITY VII 
 
 S. Taking property, then, in this larger sense, I 
 conceive there is a somewhat important element of 
 the property, though not a tangible one, which you 
 have overlooked in your estimate. You know what 
 merchants understand by the goodwill of a business ? 
 
 D. I am little conversant with the market-place ; 
 but they mean, I believe, the credit and worth of the 
 business in the hands of a successor, as depending 
 on his right to use the old name, and so forth. One 
 might say, perhaps, that goodwill is the continuity 
 of an undertaking, regarded as adding to its capital 
 value. 
 
 . S. Eight ; and you have doubtless heard also that 
 this addition may be no small part of the whole. 
 Now if you had, as a trustee for others, the manage- 
 ment of a great undertaking with a valuable goodwill, 
 you would scarcely deem it a faithful discharge of the 
 trust to make dispositions which would either destroy 
 the goodwill or throw it into strange and perhaps 
 hostile hands. 
 
 D. Assuredly not ; but in what respect are these 
 matters to our purpose ? 
 
 S. In this, that we are trustees for posterity of 
 our national institutions ; not only of parcels of land 
 and the visible works of men's hands, which are but 
 instruments or symbols, but of the traditions and 
 powers that belong to the continuity of the thing 
 signified. In the case of the Church of England we 
 have a tradition, a power, and an ideal which in their 
 national character are unique. All this you propose, 
 after defacing it as much as you can, to abandon 
 
VII RELIGIOUS EQUALITY 183 
 
 to the transformed and disestablished Church which 
 (you appear to imagine) will become a harmless 
 voluntary sect like any other, and lie down cheerfully 
 with the Wesleyan and the Baptist. I tell you that 
 this is not statesmanship, not the work of a physician 
 of the common weal, but the rough surgery of despair, 
 to be justified only by the imminence of things yet 
 worse. No such imminent peril can be pretended 
 with any plausible show of reason ; and yet, rather 
 than have patience for a generation more, you would 
 commit us and our children to this incalculable 
 experiment. How much of the exclusive character 
 and pretensions of the Church could you destroy by 
 statutes and regulations? How much of zeal and 
 party spirit would be added to Churchmen, think 
 you, by the very strife and stress of your Disestablish- 
 ment campaign ? • You may judge by what the mere 
 threat is already doing. How much of the endowments 
 would be forthwith restored by private munificence ? 
 And would the new terms of communion be more 
 expansive, the formulas less stringent, than under the 
 dispensation of Establishment ? At best it is guess- 
 work, but I take leave to think my guess may be as 
 good as yours ; and methinks I see you face to face, 
 not with a band of peaceful Christian people agreeing 
 to difiier from you in details, but with an orthodox 
 Anglican Church (almost certainly High Anglican) 
 disciplined and consolidated by combat, burning for 
 revenge in the sphere left to it, powerful, rich, and 
 militant. And I fail to perceive how that, or any- 
 thing like it, would contribute to general peace and 
 
184 RELIGIOUS EQUALITY VII 
 
 charity. As for us poor lay folk, my vision is of a 
 disestablished verger demanding the archdeacon's 
 certificate of one's orthodoxy as a condition precedent 
 to the sight of some historic monument. In return 
 for these unknown risks, our consideration in hand is 
 to be something large and dazzling, we know not 
 what : at worst, a transitory squandering on local 
 jobs : at best, let us say, a system of middle-class 
 education. But I confess I should not expect much 
 of rational design or permanent good, for many reasons, 
 one of which is perhaps enough : namely, that the plan 
 must needs be taking at first sight. It would serve 
 the turn as a gilded bait for the constituencies, and 
 vanish in a cloud of Blue Books. 
 
 D. Fantastic alarms, my good Student, and idols 
 of the cloister ; and if they were not, I should still 
 bid you carry them to weaker brethren. We are 
 minded to do right without fear of consequence. 
 Fiat justitia, mat caelum. 
 
 S. But once more, worthy Doctor, you assume 
 the justice. You propose with a light heart to 
 cut down a secular forest in order, as you say, to 
 improve the climate. I humbly suggest that your 
 improvements will give us a climate of alternating 
 droughts and storm-floods, and you cry for answer. 
 Fiat justitia ! By the way, one point of your justice 
 is to leave modern endowments alone, and that is 
 well meant. I know not how you distinguish ancient 
 from modern : for my part, I should call those gifts 
 modern which were conferred on the Church since it was 
 lawfully possible to give to other deliominations ; for 
 
VII RELIGIOUS EQUALITY 185 
 
 since that time it is a fair presumption that Anglican- 
 ism was consciously and freely preferred by the donor. 
 For practical purposes it would not greatly matter 
 whether we drew the line at the date of the Toleration 
 Act or a century later. This discrimination, I say, is 
 in itself equitable and laudable : without it, indeed, 
 your plans would make little way. But it does not 
 tend to diminish the risks of an imperium in imperio. 
 Your so-called liberation would weaken the elements 
 in the Church which want to be strengthened, and 
 strengthen those which ought to be weakened. 
 
 D. We have thought of that, if your political 
 caution must be satisfied. There are possible checks 
 and safeguards. 
 
 S. 0, master Doctor, I feared that your religious 
 equality would prove but a rickety Hercules. Your 
 destroyer of serpents cannot so much as walk alone, 
 or encounter a dog unmuzzled. What! you would 
 dismember the emancipated Anglican Church, debar 
 it from retaining its unity and employing its freedom, 
 lest it be too strong for you, and then talk of 
 equality ? Be these sour workings of the old anti- 
 prelatical Adam the fruits of your new justice and 
 charity ? But to my mind 'tis all one, for it shall 
 need much more than a neatly drawn schedule to 
 persuade me that your safeguards will work, 
 
 D. But what then would you do with the Establish- 
 ment? 
 
 S. That were a new topic, and too long to consider 
 at present. I am not ready with any plan ; it was 
 for you to convert me to yours. The drawbacks and 
 
186 RELIGIOUS EQUALITY VII 
 
 anomalies of our ecclesiastical polity are obvious 
 enough, and capable of being represented with painful 
 or ludicrous effect. But the resulting evils are known, 
 amendable, and, as I believe, tending to amendment, 
 and in the meantime endurable. I will go as far as 
 I can see to mend them, but will not exchange 
 them for unknown ones till amendment is proved 
 impossible. 
 
 D. Well, if you will not be with us, you must 
 even abide with your paradoxical delight of being 
 against the stars in their courses. 
 
 S. I have no skill to read the stars ; but I am old 
 enough to know that they are jealous of mortals, and 
 ill to claim for allies before the event. Only one 
 thing I will prophesy : that if the Church of England 
 falls, it will be through the folly of her own 
 champions. 
 
VIII 
 
 HOME EULE AND IMPEEIAL SOVEREIGNTY ^ 
 
 In the following remarks I shall endeavour to show 
 how and why the question of Home Rule for Ireland 
 is not an ordinary question of domestic policy, nor 
 even a domestic question of constitutional policy, such 
 as Parliamentary Reform, but one involving by its 
 nature much wider issues and consequences. And in 
 so doing I shall at the same time show the grounds on 
 which I think that any serious and effective working 
 out of the idea of Home Rule would import not only 
 a new constitution for Ireland, but a new constitution 
 for the British Empire, and a revolution in the existing 
 relations between the British colonies and possessions 
 and the Imperial Parliament. I do not profess to 
 disclose new facts or urge new arguments. It appears 
 to me that we are in far greater danger of neglecting 
 plain facts and broad principles in this matter than of 
 overlooking any facts not generally known, or reasons 
 not of general validity which are likely to be material 
 to a sound decision. Our business at this juncture is 
 
 1 First published in The Truth about Home Rule (W. Blackwood 
 and Sons, 1888). I do not think the argument is affected .by any- 
 thing that has happened since. 
 
188 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 to insist on essentials, and to insist on them with 
 repetition even to weariness rather than let them fall 
 out of sight. My aim will be to make use of facts 
 which are notorious, and inferences from them which 
 are simple. 
 
 The territories collectively known as the British 
 Empire are not only scattered over the world, but 
 are subject to the ultimate dominion of the Imperial 
 Parliament in rhany diiferent ways. We have in the 
 first place the United Kingdom of Great Britain and 
 Ireland, whose people are directly represented in 
 Parliament. We have a few possessions of the Crown 
 which are geographically adjacent to Great Britain, 
 but are extra-parliamentary (if one may use the word) 
 for historical reasons. They enjoy their ancient local 
 laws and privileges, which are practically guaranteed 
 by the Imperial Parliament. Only the trifling area 
 and population of the Channel Islands and the Isle 
 of Man as compared with the United Kingdom have 
 made the continuance of this state of things practicable. 
 Then we have the colonies founded by English settlers 
 who carried with them the law of England and the 
 rights of British subjects. Lastly, there are the 
 colonies and dependencies acquired at various times 
 by conquest or by cession, or partly in one way and 
 partly in the other, sometimes from native rulers, 
 but more often from princes or rulers who, whether 
 European or not, were themselves conquerors or 
 represented some previous conqueror. Among this 
 
vm HOME EULE AND IMPERIAL SOVEREIGNTY 189 
 
 class of dependencies there are many and important 
 differences of laws, institutions, and government, but 
 the details of these do not concern us here. What 
 does concern us is that directly or indirectly the Queen, 
 with the advice and consent of the estates of the 
 realm — in other words, the Imperial Parliament^ — 
 has admitted and unlimited authority over all these 
 dominions. The legal origin and theory of that 
 authority are not the same in all cases, but that 
 again does not now concern us. No one disputes its 
 existence. It is exercised in various forms and 
 degrees. In some cases it is manifested by direct 
 and frequent interference. In many it has been 
 exercised by framing or sanctioning a constitution, 
 under which government is carried on by persons and 
 bodies who may be said to be delegates of the Crown 
 or of Parliament ; the direct interference of Parlia- 
 ment remains possible, but is exceptional. In some 
 cases not formally distinguishable from the rest — I 
 mean, those of the self-governing English colonies — 
 there is an effectual though undefined understanding 
 by which such interference is limited to matters 
 touching Imperial and not merely local interests. 
 Now the local institutions through which, outside 
 
 1 Some British subjects may be in strictness under the government 
 of the Crown merely by virtue of its general prerogative ; I say may 
 be, because it would be at least rash to assume that there is any part 
 of the British dominions of which the government has not been 
 affected at some time by some Act of the Imperial Parliament. But 
 the Crown can of course do in Parliament whatever it could do with- 
 out Parliament : and inasmuch as it can do nothing save through 
 Ministers responsible to Parliament, the control and supremacy of 
 Parliament are for practical purposes the same. 
 
190 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 the United Kingdom, government and the adminis- 
 tration of justice are regulated (subject always to the 
 ultimate control of Parliament) may be classified as 
 follows : 
 
 They may be institutions imported from England, 
 and more or less modified to suit local circumstances. 
 
 They may be institutions imported from some 
 other civUised country, and preserved for one or 
 another reason under British supremacy. Thus we 
 have held ourselves bound, ever since the period of 
 military occupation immediately following the con- 
 quest, to maintain the laws and customs which the 
 French population of Lower Canada had derived from 
 their mother country. 
 
 Or they may be native institutions — that is, non- 
 European ; for we need not now attend to the dis- 
 tinction between such as are truly indigenous, and 
 such as may have been imposed or imported by 
 non-European conquerors before the commencement 
 of English or European dominion. And these like- 
 wise may be maintained as a matter of express 
 promise, of general good faith and equity, or of 
 simple expediency. 
 
 These difi"erent elements do not always exist simply 
 or separately. On the contrary, they are found in 
 various and more or less complex combinations. In 
 India the same courts administer for difierent purposes 
 English law to Europeans, difi'erent systems, of native 
 law to diflferent races and classes of Asiatics, and 
 English law, modified by special legislation, to Asiatics 
 and Europeans alike. Again, the maintenance of the 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 191 
 
 French institutions of Lower Canada, side by side 
 with, the English institutions imported by the English 
 settlers of Upper Canada, led to very grave political 
 troubles. After the failure of other methods, includ- 
 ing that of a single autonomous government, Canada 
 was endowed by the British North America Act of 
 1867 with an elaborate federal constitution, the in- 
 vention of Canadian statesmen. Considered as a 
 compromise this has worked well, but it must not be 
 supposed that it works without friction.^ In other 
 colonies, such as Mauritius, the competition of English 
 with non-English institutions and customs has been 
 a source of difficulties which only the relatively 
 small scale of the whole affair prevents from being 
 seriously felt in England. The relations to the 
 mother country are simplest in the case of the 
 Australian colonies, where English population and 
 institutions have taken an undisputed possession. 
 Even there, however, they are less simple than they 
 look, for there enter into them in fact, though not in 
 law, the tacit understandings which haVe been already 
 mentioned. 
 
 II 
 
 Ireland is at present a part of the United Kingdom. 
 The advocates of Home Eule say it ought to be some- 
 thing else, but still a part of the British Empire, and 
 they say that the principles of such an arrangement 
 
 1 A conference of delegates from the Provinces of Canada has 
 lately recommended material amendments in the Confederation Act 
 
192 HOME RULE AND IMPEKIAL SOVEREIGNTY VIII 
 
 are easily laid down, and the execution in detail not 
 more difficult than that of any other considerable 
 political reform. So much, I think, they have under- 
 taken (and must undertake) to make good — unless, 
 indeed, they will admit that Home Eule does carry 
 with it known and unknown dangers of grave extent, 
 but, admitting this, nevertheless will support Home 
 Eule on the ground that even a desperate remedy 
 cannot be worse than the present disease. This, the 
 argument of despair, is not of the kind that rouses a 
 cheerful courage in a man's constituents and political 
 friends, nor can it be agreeable to the better sort of 
 Irish Home Eulers. We therefore hear little of it in 
 public, yet we may suspect that, with the more 
 thoughtful English Home Eulers, it has weight — 
 more, perhaps, than they acknowledge even to them- 
 selves. To return, however, to ideas and plans of an 
 Irish constitution, whether proposed as a good thing 
 in itself or as relatively tolerable. In one direction 
 the choice is clearly limited. Ireland has not any 
 native form of government or political institutions 
 which can at this day be preserved or restored. 
 There is no possible form of Irish constitution outside 
 the variation and development of elements which are 
 English in substance and in fact. Irish Nationalists 
 complain that their lawful liberties are violated by the 
 executive authority in Ireland. Those liberties — the 
 rights of free speech, of public meeting, of political 
 association, of trial by jury — are of English name and 
 growth. They are the liberties of Irishmen, not 
 because they are Irish, but because they are British 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 193 
 
 subjects. Even if we regard these liberties, or some 
 of them, as deducible from universal principles of 
 natural justice, England has come very much nearer 
 to the supposed ideal of natural right than any other 
 part of the civilised world, and Ireland has derived 
 from British thinkers her share in the ideal, and from 
 the laws of England her share of practical approxima- 
 tion to it. I say nothing here of the merits of any 
 particular controversy, or of any method of controversy. 
 I merely note an evident fact. Caesar is denounced 
 as a tyrant, but it is to Caesar's laws and Caesar's 
 courts that Brutus and Cassius appeal against Caesar. 
 StUl less do I wish to go back upon historical specu- 
 lation. It is likely enough that the troubles of 
 Ireland are due, in large measure, not to the intro- 
 duction of English institutions in itself, but to that 
 introduction having taken place without due regard to 
 fit causes and occasions, and without any settled pur- 
 pose or continuous policy. It is merely idle to discuss 
 whether the English conquest of Ireland were more or 
 less justified than the English conquest of Britain, or 
 the prehistoric conquests of both Britain and Ireland 
 from tribes of long-forgotten name and speech, them- 
 selves perhaps the supplanters of a still earlier race. 
 Perhaps it would have been well if Edward I. had 
 given his strength to a real conquest of Ireland, 
 instead of an illusory conquest of Scotland. Perhaps 
 it would have been better if some Elizabethan states- 
 man could have had the genius and perseverance to 
 deal with Ireland as the East India Company dealt 
 with province after province, and kingdom after 
 
 
 
194 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 kingdom. But it is too late now to regret that 
 Ireland was not settled like Wales or like the Punjab. 
 It is also too late to regret the extinction of whatever 
 distinctively Irish civilisation existed at any time. 
 So far as the desire for Home Rule includes a longing 
 for the real or apparent restoration in Ireland of 
 political institutions not of English mould, it is a 
 desire which cannot be satisfied by any political or 
 legislative measures whatever. Sentimental griev- 
 ances, as they are called, can be dealt with only by 
 remedies of the same kind. I use the term because 
 it is convenient and understood, and not with any 
 meaning of disparagement, for sentiment is the 
 moving force of human action. Men are moved by 
 things as they appear, and they act on their emotions. 
 It is one of our national defects to underrate the 
 value of the first impression of things, and to spoil 
 even good deeds by an ill manner of doing them. 
 That we have paid and are paying dearly for this fault 
 in Ireland I have no doubt. It has been committed 
 even in our recent dealings with the land question. I 
 will give another example of what I mean, though at 
 the risk of being thought to trifle. I verily believe 
 that if there had been a regiment of Irish Guards at 
 Waterloo and in the Crimea, there would be several 
 regiments the fewer at this day in Ireland. It is not 
 my province to inquire how far the mischief done in 
 this kind can ' at this day be undone by public or 
 private exertions. One thing is clear, that it will not 
 be mended by the clauses and provisos of a Home 
 Rule Bill, be they drafted never so skilfully. There 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 195 
 
 is a harder thing than to make and execute good laws ; 
 it is to revive and foster that spirit of trust and affec- 
 tion in the people which executes the law without an 
 officer. The law must be a terror to evil-doers first, 
 but we shall not be content with that. If I believed 
 that the people of England would rest with no higher 
 aim ; that they were devoid of justice, of generosity, 
 of patience (for the task will need firm and even justice, 
 abundant generosity, and unfailing patience) ; that 
 they would renounce the noblest and most arduous 
 duties of government, declaring themselves, and 
 thereby proving themselves, unfit for empire ; — then 
 I should accept the argument from despair, and 
 acquiesce in Home Rule for Ireland if I could not 
 support it. But I should acquiesce in it as a fatal 
 symptom that English political supremacy had out- 
 lived the English genius for politics, and must ere 
 long follow it to extinction, to be revived (if at 
 all) in some younger and happier branch of our stock. 
 
 Ill 
 
 At present we cannot say in any definite terms 
 what the relation of Irish Home Eule to the Imperial 
 supremacy of Parliament is intended by its advocates 
 to be, for there is not any authentic definition. 
 Home Rulers, including Mr. Gladstone, profess them- 
 selves not bound by the proposals which Mr. Glad- 
 stone's Ministry introduced (we must presume, after 
 the consideration befitting a measure of such import- 
 
196 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 ance) in 1886. It is true that we are not thereby 
 deprived of much guidance, for among the many 
 omissions and ambiguities of the Government of 
 Ireland Bill, not the least striking was its extreme 
 obscurity as to the position of the new Irish Executive, 
 as between the Irish " Legislative Body " on the one 
 hand and the responsible Ministers of the Crown on 
 the other. ^ If Lord Thring's lately published inter- 
 pretation may be accepted, the general intention was 
 to assimilate Ireland, with certain exceptions, to a 
 self-governing colony of the Australian type. I shall 
 not stop to consider whether the exceptions were not 
 really such as to frustrate that intention. The time 
 for minute criticism has been, and we Unionists hope 
 it may not be again. It is enough for us now that 
 any scheme of Home Rule must aim at satisfying the 
 demands of Irish Home Rulers. Home Rule means 
 at least the power of local legislation forlrish affairs, 
 as distinguished from those which touch Imperial 
 interests ; and that, as I shall show, a practically 
 uncontrolled power. The lines of distinction must be 
 laid down in the Act of Parliament establishing the 
 new Irish constitution, and worked out as occasion 
 requires by some judicial authority of imperial char- 
 acter and dignity. Now all this machinery would be 
 of no value if the Imperial Parliament were habitually, 
 or on any common occasion, to interfere in anything 
 outside the departments which had been expressly 
 
 1 TMs statement is made from careful reading of the actual text of 
 tlie Bill, notwitlistandiiig Lord Thring's sweeping assertion that 
 " Bills are never read by their accusers." — (Handbook of Home 
 Rule, p. 71.) 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 197 
 
 reserved. As matter of law, Parliament could inter- 
 fere when it thought fit, or could alter or revoke the 
 constitution it had given — or, at any rate, it is a 
 matter of skilled workmanship to prevent legal doubts 
 from arising on this head ; though even so, to leave 
 no room for reasonable doubt is not the same thing 
 as to prevent doubts from being raised, or from 
 leading to grave trouble, when judgment is obscured 
 by interest and passion. As matter of practice. 
 Parliament would be expected not to interfere : such 
 is the case with the self-g9verning colonies, and 
 Ireland would expect no less. Habitual interference 
 for the purpose of overriding the local legislature 
 would not be acquiesced in. It would be resented 
 on more plausible grounds than exceptional legis- 
 lation for Ireland is resented now, with at least equal 
 determination, and with much better hope of success. 
 But the thing would never be attempted. Not only 
 the Irish legislative body and the Irish executive 
 would expect to be left alone within their com^ 
 petence, but the British House of Commons would 
 expect Ministers not to trouble it with Irish affairs. 
 We must take it that nothing short of overwhelming 
 necessity would induce Ministers to do so. Not that 
 Unionists are concerned to deny that such necessity 
 might occur, and sooner rather than later. But I now 
 try to conceive the case as it would stand if Home 
 Rule were decided upon, and all English parties, being 
 bound by that final decision, were content to give it 
 a fair start. 
 
 Habitual non-intervention of the Imperial Parlia- 
 
198 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 ment, and of the Crown as advised by its Ministers 
 responsible to Parliament, must therefore be the rule. 
 We are told that in the Australasian colonies and in 
 Canada this is found to answer, and no prejudice 
 ensues to the supremacy of the Crown and of Parlia- 
 ment. Why should it not be the same in Ireland ? 
 One must not be afraid of repeating simple things ; 
 and I shall repeat here what has been abeady well 
 said, and may have to be said many times again. 
 Why should not two and two make five ? Because 
 two is not three. Why should not colonial self- 
 government flourish in Ireland as in New Zealand 
 or Victoria ? Because Ireland is not New Zealand 
 or Victoria, and St. George's Channel is not two 
 oceans and a continent. 
 
 Let us see what are the conditions that make the 
 relation of colonial dependence permanently compat- 
 ible with the habitual non-intervention of the supreme 
 power. Two seem to me of the first importance. 
 
 First, the dependent community, and every con- 
 siderable part of it, must frankly accept self-govern- 
 ment with all its consequences. It must be plainly 
 understood that a defeated party is not to appeal to 
 the mother country for relief against anything done 
 within the powers of the local constitution. More- 
 over, disputes as to what is within constitutional 
 powers must be decided in the regular course of 
 justice, either by the local tribunals, or, at need, by 
 regular appeal to the Crown in its judicial capacity. 
 All such communities are provinces of one empire, 
 and may call upon Caesar to protect them against 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 199 
 
 foreign enemies. But in their own matters they shall 
 appeal to Csesar according to the terms of their own 
 covenant, and not otherwise. Their covenanted liberty 
 of self-government implies an equally binding duty 
 of settling internal disputes with their own resources, 
 and not throwing them back on the mother country. 
 
 Secondly, the dependent community must be con- 
 tent to preserve its connection with the Empire of 
 which it is part — nay, it must be more than content ; 
 there must be active willingness to suffer some par- 
 ticular inconvenience on some occasions for the sake 
 of maintaining the connection. The occasional sacri- 
 fice of apparent local interest to the interest of the 
 Empire as a whole is demanded as the price of 
 Imperial citizenship. The demand is not great, nor 
 is it often made, but when made it must be satisfied. 
 A colony which did not set a positive value on the 
 Imperial connection would soon go to work to convert 
 its autonomy into formal independence, if not re- 
 strained by fears of revolution or foreign conquest. 
 The value which our colonies in fact set on their con- 
 nection with the mother country is happily a very 
 high one ; it is perhaps higher in the present genera- 
 tion than it has been at any former time, — it is cer- 
 tainly better understood and appreciated at home. 
 In part it depends on considerations of material 
 convenience and security, but in some part — I think 
 in no small part — it is a matter of sentiment. 
 
 Are these conditions present in Ireland ? It is 
 fairly certain that the first of them is not, and the 
 best we can say of the second is that it is doubtful. 
 
200 HOME RULE AND IMPERIAL SOYEREIGNTY VIII 
 
 As to the first, Ireland is divided by bitterly hostile 
 parties, and each of them has vehement partisans in 
 this country. Any Home Eule constitution settled by 
 the Imperial Parliament would, by the nature of the 
 case, aim at compromise between parties of whom 
 neither has shown much of the spirit of compromise, 
 and each of them would find matter of ofience in 
 some part of it. There is no reason to suppose that 
 either Nationalists or Orangemen would abstain from 
 working on pubHc opinion in England to procure 
 modifications of such parts of the new Irish Constitu- 
 tion as were oflfensive to them, or even interferences 
 by special exercise of the ultimate supreme power of 
 Parliament. As to the second point, it is at least 
 unproved that the local governors of Ireland, under a 
 scheme of colonial autonomy, would take any trouble 
 to preserve the connection with England. So far as 
 we can trust the evidence of public utterances — of 
 nearly all public utterances at times and places where 
 there is not an English audience to be conciliated — 
 the prevailing sentiment of active Irish Nationalists is 
 the other way. Either many prominent Nationalists 
 have been using strong words without any meaning 
 at all, or they have been obtaining the support, both 
 moral and material, of their Irish and Irish- American 
 hearers under something very like false pretences, or 
 they would not stir a finger to prevent Home Eule 
 from being made a stepping-stone to entire separation. 
 They have declared themselves enemies not only of 
 this or that principle, this or that individual concerned 
 in English government of Ireland, but of the English 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 201 
 
 governmeiit and conneetion altogether. Such is not 
 the language of political controversy among fellow- 
 citizens; it is the language of men who put them- 
 selves outside the ties of common citizenship, who 
 lack not the will but the power to be rebels, and who 
 meanwhile use their rights as citizens only for a 
 weapon against the commonwealth itself. If any one 
 thinks I exaggerate, let him look to France, where 
 the division of parties is far more deep and bitter 
 than in England. Let him ask himself whether he 
 can imagine a French Monarchist, of however extreme 
 opinions, speaking of Eepublican France as a foreign 
 and hostile nation, and rejoicing in her diflS.culties and 
 misfortunes. It cannot be imagined. A Bonapartist 
 who dared to express good wishes for insurgents 
 against French authority in Algeria or Tonquin would 
 be hooted down by any Bonapartist audience. But 
 this thing which, to the credit of Frenchmen, is 
 impossible in France, would be no more than Irish 
 Nationalists have done. Notwithstanding that many 
 valiant Irishmen share in whatever good or ill befalls 
 British arms, men professing to speak in the name of 
 Ireland have rejoiced in our real or imagined defeats. 
 They have exulted in our real or imagined troubles 
 in every part of the world. They have spoken of 
 England as an enemy, and of the enemies of England 
 as the friends and allies of their own cause. Not all 
 Nationalists, I am aware, have done this. But some, 
 and those not the least active and conspicuous, have 
 done it ; and I am not aware that those of their 
 colleagues who pass for moderate have uttered any 
 
202 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 word of protest. Moderation, or more than modera- 
 tion, has been conspicuous in the attitude of the 
 leaders toward these over -zealous followers. 
 
 All this may be, for anything that aifects the 
 present argument, legitimate and even laudable from 
 the Nationalist point of view. I care not whether 
 the persons who have uttered such sentiments in 
 speech and writing were or were not members of 
 Parliament bound by a voluntary oath of allegiance 
 to the Sovereign of the British Empire, or, if they 
 were, with what conscience or sense of honour they 
 regarded the obligation of that oath. I simply point 
 out that the temper of these utterances is not the 
 temper by which either the express or the tacit con- 
 ditions of Imperial union between Great Britain and 
 an autonomous colony can be successfully observed. 
 And I further point out that we must look not only 
 to the temper of the speakers and writers of the 
 Nationalist party, but to the temper likely to be 
 begotten in their hearers and readers by a continued 
 course of such matter. Say that this violence were 
 but an imprudent ornament of Irish rhetoric, or the 
 unskilled outpouring of a loyal desire for Home Rule, 
 and nothing but Home Rule : the mischief wrought 
 upon an ignorant multitud'e remains exactly the same. 
 Besides, the maintenance of good relations under any 
 scheme of Home Eule will need discretion as well as 
 good faith on both sides. If this be the loyalty of 
 Home Rule leaders, who shall answer to us for good 
 faith ? If it be their prudence, who shall answer to us 
 for discretion ? It is true that some of the Nationabst 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 203 
 
 orators have taken, late in the day and in a coarse 
 fashion, to flattering the English democracy, or rather 
 a minority of all conditions of the people of England 
 which they choose to call the English democracy. 
 There is no reason from their point of view why they 
 should scruple to foment revolution, or fears of revolu- 
 tion, in England, if they may thereby further their ends 
 in Ireland ; and to that extent I can very well believe 
 that these flatteries are sincere. They are perfectly 
 consistent with that ill-will to the commonweal of 
 England as a whole which is still abundantly expressed 
 when it is thought to be agreeable to the audience. 
 
 But we are told that these things are of no account, 
 for an autonomous Ireland would be too prudent to 
 seek for independence ; the superior power of England 
 is too obvious. What then ? Is the power of Eng- 
 land to maintain the Union, if England be resolved to 
 maintain it, less obvious now ? And has it prevented 
 an agitation for Home Rule from being planned, 
 matured, established in the heart of English politics, 
 and seeming for a time to be within sight of triumph ? 
 Twenty years ago Home Eule was as far from the 
 practical consideration of English statesmen as separa- 
 tion is at this moment. Irish Nationalists may not 
 suppose that England can be compelled by force of 
 arms to grant independence, unless it were in some 
 great conjuncture of foreign trouble such as none of 
 them have openly deprecated and some of them have 
 openly desired. But if England cannot be com- 
 pelled, English constituencies may be cajoled and 
 English Ministers worried. The means which 
 
204 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 procured Home Kule would be effectual to procure 
 separation also in good time. Home Rule could not 
 have a more solemn appearance of finality than the 
 Union had ; why should it have more of the sub- 
 stance ? So it might plausibly seem, at any rate, to 
 a thorough -going Nationalist. And a movement 
 towards separation in Ireland would be a wholly 
 different thing from a movement towards separation 
 in any of our English colonies. In the latter case an 
 inevitable separation, however much to be regretted, 
 might conceivably be accomplished with decency and 
 dignity, and without bloodshed. In Ireland such a 
 movement would be born in internal dissension ; it 
 would probably ripen in civil war, and the ultimate 
 result would be a military reconquest. But let us 
 suppose the resolution of England not to grant 
 independence to be understood, and her power re- 
 spected. Again, what then ? Why, for the result of 
 all our elaborate devices of Home Eule we should 
 have Ireland still attached to the British Empire by 
 coercion but one degree removed — still a source not of 
 strength, but of weakness, in our troubles abroad — 
 still not a credit, but a reproach, to English capacity 
 for government. We should be in no better position 
 than we now are, or may be, by a firm and just 
 administration of the existing plan. Home Rule, not 
 frankly accepted for its own sake, would make things 
 worse for England and no better for Ireland. Prove 
 to us that Home Rule will content the people of Ire- 
 land, and that is one material point made good. But 
 if you tell us that, whether they are content or not. 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 205 
 
 we shall always have the strong hand, then we say that 
 if it must come to the strong hand, we prefer using it 
 to maintain the Union. 
 
 IV 
 
 The truth is, that the difficulties — the insuperable 
 difficulties — of maintaining a just equilibrium between 
 Irish Home Eule and the supremacy of the Imperial 
 Parliament, arise from the peculiar conditions of 
 Ireland. They are not disposed of by telling us that 
 under other and different conditions other arrange- 
 ments of a more or less similar kind have been found 
 practicable. If Ireland were, like Hungary,^ an 
 ancient sovereign state, with ancient national institu- 
 tions ; or if it were, like Victoria or New Zealand, 
 a colony settled by a uniform and like - minded 
 population, — ^the problem of Irish government would 
 be a much simpler one to deal with, or rather would 
 not have arisen in its present form. But Ireland has 
 neither a stock of ancient institutions nor such in- 
 ternal unity as will suffice for the peaceful develop- 
 ment of new ones. It is useless to pretend that 
 conditions exist which notoriously do not exist. Not 
 
 ^ The relations of Ireland to England liave never been at all like 
 those of Hungary to Austria. If Charles I. had first made himself 
 absolute in Scotland, and then subdued English liberties by a com- 
 bination of Scottish and Irish troops with aid from France (a plan of 
 which all the elements existed, at one time or another, in the counsels 
 of the Stuart dynasty), there would have been something like a par- 
 allel to the subjection of Hungary in 1849, but with Scotland in the 
 place of Austria, England in the place of Hungary, not of Austria, and 
 Ireland in that of Croatia. 
 
206 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 one of the usual attributes of a commonwealtli 
 capable of single and uncontrolled self-government 
 can be truly applied to Ireland. There is no 
 substantial unity in religion, in breeding, in manners, 
 or in allegiance to any one person or institution. 
 The one thing certain about any scheme of Home 
 Rule turning on the establishment of a single Irish 
 Legislature at Dublin is that it would be strongly 
 disliked and opposed by a minority of the people of 
 Ireland considerable in numbers alone, and consider- 
 able beyond the proportion of their numbers in 
 wealth, industry, and general ability. 
 
 It is time we should plainly understand that com- 
 monwealths are founded, and institutions established, 
 not with pens and ink but with men. The 
 Constitution of the United States has been often and 
 justly praised. And I would abate no whit of the 
 praise given to the men who framed that Constitution, 
 and procured its adoption in the face of the utmost 
 difl&culties. But there is praise to be given elsewhere 
 too. The work of the founders would long since have 
 come to naught without the good will, good faith, 
 and good sense applied by the people of the United 
 States to the handling of it in practice. "We have 
 there seen a powerful and zealous party submit to a 
 decision which they felt to be unjust, and believed to 
 be illegal, rather than endanger the stability of the 
 federal compact. There party contests run high, and 
 decisions, however authoritative, are freely criticised ; 
 but all parties agree that the law declared and 
 expounded by the proper authority must in every 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 207 
 
 case be obeyed. A much less skilfully framed con- 
 stitution would become a good working instrument 
 of government in the hands of such men as have 
 made the Constitution of the United States a 
 document of universal importance to students of 
 politics. A much more skilful and elaborate one 
 would fail in a community wanting the elements of 
 political training, and the conditions of harmonious 
 political action. South America is strewn with the 
 wrecks of republican constitutions, which inquiry 
 would probably show to look on paper full as well 
 as the Constitution of the United States. Learning, 
 reflection, and skilled expression must all go to the 
 framing of a good constitution ; but if it is to be born 
 alive, the first things needful are good faith and good 
 will. English supporters of Home Eule believe, no 
 doubt, that a sufficient majority of good citizens 
 would be found in Ireland to apply good faith and good 
 will to the working out of a Home Eule constitution 
 under the imperial sovereignty. But they believe it 
 on evidence which appears to Unionists not only to 
 be insufficient, but to point strongly the other way. 
 
 This, however, is not all. In a scheme of this 
 kind minorities have to be thought of. Minorities 
 also are composed of human beings capable of action 
 and passion, and are not to be disposed of by a sum 
 in subtraction. 
 
 One thing which we may learn from our own 
 colonial history is the power of a compact party, 
 working on sentiments of race ^ and religion, which go 
 
 ^ Sentiments of race may exist, and may even be artificially created, 
 
208 HOME RULE AND IMPERIAL SOVEREIGNTY VIU 
 
 deeper than ordinary party divisions, to paralyse the 
 working of a scheme of autonomous government which 
 fails to secure their rights, or what they consider to 
 be such, against a disliked and distrusted rule. This 
 was shown in Canada during the generation beginning 
 approximately with the Queen's accession, which 
 came between the insurrection of 1837 and the 
 federal constitution of 1867. The French Canadians 
 failed in armed resistance, but under the constitution 
 of 1840 they succeeded in making it impossible for 
 the English party, at first barely equal to them in 
 numbers, but afterwards the majority, to work a 
 centralised form of Home Eule. Ultimately, by the 
 British North America Act of 1867, they obtained 
 legislative autonomy for the Province of Quebec, and 
 they have ever since exercised an influence in the 
 afiairs of the Dominion, and enjoyed a practical 
 power of getting their own way, which many English 
 Canadians regard as excessive. Now the position of 
 Ulster in Ireland is by no means unlike that of the 
 Province of Quebec in Canada. There is a Protestant 
 and Teutonic minority face to face with a Catholic 
 and Celtic majority, while in Canada the numbers 
 are the other way. In other respects the scale and 
 proportions of the two cases are fairly comparable. If 
 the Unionist minority in Ireland be less numerous 
 and compact than the French minority in Canada, we 
 must bear in mind that it is they who lean on the 
 
 wliether there is m-uoli real distinction or not. For politics the ques- 
 tion is not one of actual ethnology. What people believe about them- 
 selves is often more important than what they are. 
 
VIII HOME EULE AND IMPERIAL SOVEREIGNTY 209 
 
 English connection, whereas in Canada that advant- 
 age was on the side of the English majority. The 
 minority is in both cases a thriving and vigorous one.^ 
 I do not see why Ulster can be expected to sit down 
 under Home Eule in the hands of a Catholic and anti- 
 English majority, any more than Lower Canada was 
 willing to sit down under the government of an 
 English and Protestant party, or the English settlers, 
 on the other hand, were willing to tolerate French 
 Canadian ascendency. The chances of success would 
 be at least as good for Ulster as for the Province 
 of Quebec. I say nothing here of the claims which 
 the men of Ulster, and others settled in Ireland on 
 the faith of English laws, may urge, on grounds of 
 morality and political justice, to be provided with 
 safeguards for their religion and usages as effectual as 
 those which the Imperial Parliament has provided for 
 the people of Lower Canada. Right or wrong, the 
 French Canadians have gotten their own way ; right 
 or wrong, Ulstermen would surely endeavour to get 
 theirs. I believe they would succeed in the long run, 
 but at a cost both to Ireland and to England which 
 it is the duty of the Imperial Parliament not to suffer. 
 These last considerations may be thought to point 
 
 1 Lower Canada is not a ricli country, but French Canadians have 
 the art of thriving on little. As to the numbers, Ulster has in round 
 numbers 1,743,000, out of 5,174,000. If there are non-Unionists in 
 Ulster, there are Unionists elsewhere in Ireland. The Province of 
 Quebec has 1,460,000, out of a total of about 5,000,000, of which 
 1,925,000 belong to the Province of Ontario, formerly Upper Canada. 
 The addition of the other English provinces to the Dominion seems 
 not to have weakened the position of the French Canadians. 
 
 P 
 
210 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 to the endowment of Ireland with some sort of a 
 federal constitution analogous to that of the Dominion 
 of Canada, by which the rights and usages of Ulster 
 might be secured through provincial autonomy, some- 
 what like those of the Province of Quebec. And I am 
 indeed apt to think that in such an arrangement 
 might be found the least bad form of Home Eule. 
 But we are now considering what is practicable, not 
 what is imaginable : and we are met with the fact 
 that no party in Ireland has expressed a desire for 
 anything of the kind, or even a relative willingness 
 to acquiesce in it. This makes it needless to show at 
 length that such a plan would need far more delicate 
 adjustment than anything yet proposed, or to dwell 
 on the doubt, which seems grave, whether a majority 
 not strongly attached to the English connection would 
 evince the same patience and loyalty as the English 
 population of Canada with regard to the guaranteed 
 rights of the minority. 
 
 V 
 
 Thus are we confronted in every direction with 
 difficulties fully as great as those of maintaining the 
 Union. Home Rule might put off for a season the 
 day of grappling with those difficulties. Like a 
 spendthrift's note of hand, it might purchase a little 
 present ease and accommodation upon usurious terms. 
 On the other hand, it is more than possible that it 
 would not procure us even that. Whatever scheme 
 were adopted, there would be a new constitution for 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 211 
 
 Ireland, creating a new set of relations between 
 Ireland and the Imperial Parliament. If Ireland, 
 having an autonomous legislature at Dublin, continued 
 to be represented at Westminster, these new relations 
 would be quite unlike those now existing between 
 Parliament and any British colony or possession. In 
 any case there would be need of interpretation and 
 development. We are expected to assume that this 
 process would be quietly carried on in a civil and 
 judicial manner, through the means appointed for that 
 purpose by the new constitution, and that the subject 
 would be excluded by common consent from English 
 parliamentary debate and political controversy. We 
 should have lightly cast off our imperial duties, and 
 Ireland and Irish questions, in the cynical phrase of 
 certain Home Eule advocates, would be out of the 
 way. Having regard to the course of affairs in the 
 past, from which alone we can reasonably foretell the 
 future, I see no reason whatever why the expectation 
 should be fulfilled. I have already indicated to some 
 extent the reasons for which I think it would not. 
 Instead of troublesome questions of executive govern- 
 ment and special legislation in Ireland, we should 
 have questions of constitutional competence and 
 imperial discretion which might or might not be 
 debated with greater decency, but which would 
 hardly require less time and attention. Parliament 
 could not refuse to entertain them, and politicians 
 would certainly not abstain from making use of them. 
 There is one way, and it would seem only one, by 
 which a fair chance of growing and taking firm root 
 
212 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 could be secured for any plan of Home Rule. This 
 would be to make the new Anglo-Irish constitution 
 as difficult to alter as the federal constitution of the 
 United States or of Switzerland. But to do this 
 would be to introduce a wholly new element in our 
 institutions. We know nothing of statutes which the 
 Queen and the estates of the realm cannot repeal or 
 amend in the ordinary form of an Act of Parliament. 
 The succession to the Crown, the government of our 
 Indian Empire, the constitutions of our self-governing 
 colonies, all depend on Acts of Parliament indis- 
 tinguishable in manner and form from the Margarine 
 Act, or the last Act which may have been passed to 
 remove doubts as to the validity of three or four 
 marriages celebrated in some remote British consulate. 
 To make a formal distinction between organic or 
 constitutional and ordinary legislation is to destroy 
 the supremacy of the Imperial Parliament, as it at 
 present exists and is understood.^ And therefore 
 (which is more) it is to make a new constitution not 
 only for Ireland and Great Britain in their mutual 
 relations, but for the British Empire. Canada, 
 Victoria, New Zealand, would not submit, and could 
 not be expected to submit, to the supremacy of a 
 Parliament that had made itself incompetent to 
 legislate for Ireland. Some kind of new Imperial 
 
 1 It is possible that the framers of one or both of the Acts of Union 
 with Scotland and Ireland supposed themselves to be framing un- 
 changeable organic laws. Whether they supposed this or not, no 
 competent constitutional lawyer would now maintain that such was 
 the legal effect in either case. 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 213 
 
 Parliament or Council would have to be formed for 
 dealing with affairs of common concern. The 
 Parliament at Westminster would become a local 
 legislature for Great Britain, or perhaps for England 
 alone. England herself would cease to be an imperial 
 state, and would be one among many federated states 
 — the first among equals, but nothing more. 
 
 It is not necessary to assume, nor do I assume, 
 that this is in itself an impossible or absurd result. 
 We cannot tell what the state of the British Empire 
 may be a century hence, and the possibility of some 
 kind of federal constitution being found practicable 
 by our children is fair matter of speculation. It may 
 be pointed out, for instance, that sooner or later the 
 present constant apprehensions of European war must 
 come to an end, either by a settlement following on 
 a warlike trial of strength, or by some peaceable 
 means as yet uncertain. Whenever this happens, 
 one grave objection to a federal system for the British 
 Empire — the executive weakness of such a system in 
 foreign policy — will become of much less importance. 
 But though it be rash to predict absolutely what a 
 later generation may or may not find expedient, 
 there is no rashness in holding that, if the British 
 Empire does ever become a federal union, this will be 
 a transformation greater and more arduous than has 
 yet been accomplished in the history of political 
 societies. An achievement of such scope must be the 
 product of ripe occasion and experience. No good 
 can come of attempting to force it on before its time. 
 And it is certain that the problem of imperial federa- 
 
214 HOME RULE AND IMPERIAL SOVEREIGNTY VIII 
 
 tion, whenever it is taken up seriously, will for more 
 than one or two years leave us but scant leisure for 
 domestic reform. There are a few thinking persons, 
 I believe, who accept Home Kule for Ireland because 
 they find in it a stepping-stone to imperial federation. 
 It seems to me that, on their own principles, they are 
 beginning at the wrong end. They would embark 
 on a vast enterprise under conditions not only un- 
 favourable but perverse. The British Empire does 
 not exist for the sake of Ireland, still less for the sake 
 of one party in Ireland. Home Rule must be Irish 
 and Nationalist, or it is nothing ; federation must be 
 imperial and impartial, or it is nothing. Given a 
 federal system, it might be possible to admit Ireland 
 as a constituent without danger ; but to work out a 
 federal system by starting with the single and excep- 
 tional case of Ireland is a notion exceedingly remote, 
 for both external and internal causes, from any reason- 
 able expectation of success. 
 
 It all comes round to the same issue. By what- 
 ever ideas known to politicians or lawyers we test the 
 shadowy presentment of Home Eule which seems to 
 beckon us to a land of peace and concord, we find 
 nothing but a fool's paradise, with an infinite wilder- 
 ness beyond it. The Parliament of the United 
 Kingdom is called on to abdicate the sovereign power 
 and responsibility in these realms, not in any clear 
 and settled view of good to come, but in sheer weari- 
 ness and despair. The British Empire was not so 
 made, and it cannot be so maintained. If we do not 
 know how to govern Ireland, we must learn. It is a 
 
VIII HOME RULE AND IMPERIAL SOVEREIGNTY 215 
 
 duty we cannot shuffle off. Eemissness in this duty 
 gives the demand for Home Rule its only real strength. 
 The cry is, "You cannot, or you will not, perform 
 the office of rulers in Ireland ; you have only per- 
 plexed matters with legislation, and instead of being 
 firm and gentle in administration, you are violent 
 and feeble by turns. Let an Irish Parliament make 
 what it can of the task you have failed in. If it does 
 no better, it can do no worse. " A just and high- 
 minded nation, a nation that has achieved what 
 England has achieved in the most various undertakings 
 of government, will not be so abject as to give way to 
 such a cry. We cannot in honour abandon our office 
 if we would. Our worst faults, in their effects, have 
 been those of indifference and ignorance. There has 
 been indifference — perhaps culpable indifference — in 
 the public, and ignorance — ^perhaps culpable ignorance 
 — where knowledge was to be looked for. But these 
 faults are not invincible. Englishmen have overcome 
 them before, and can do so again ; the first of them 
 is overcome already. Our people have a mind to be 
 just ; and the will to be informed, that they may do 
 judgment with knowledge, is not lacking. To delegate 
 the whole burden would be a strange and, methinks, 
 no worthy way of repairing what is amiss. I have 
 tried to show that such a course would fail even of 
 its own half-hearted purpose. The way of strenuous 
 and patient justice, turned aside neither by evil nor by 
 good report, will seem the more arduous, as it is the 
 worthier. But the truth of things will not be escaped, 
 and the nobler way is the only safe one at the last. 
 
IX 
 
 EXAMINATIONS AND EDUCATION ^ 
 
 Before criticising a system wliicli in its youth was 
 hailed as a great reform, and to the development and 
 perfection of which there has been devoted as much 
 and as excellent ability as to any modern English 
 institution whatever, it seems no more than fitting to 
 show what opportunities one has had of forming a 
 considered opinion of its merits and its dangers. I 
 must therefore speak of myself so far as is needful for 
 that purpose. For about ten years, namely, from my 
 election as a King's Scholar at Eton to my election, 
 now more than twenty years ago, as a Fellow of 
 Trinity College, Cambridge, I was in the state of 
 being habitually examined. I went through the 
 Mathematical and the Classical Tripos, and competed 
 with more or less success for such university and 
 college prizes as then were and still are usually com- 
 peted for by men who throw the main weight of their 
 university reading on the Greek and Latin classics. 
 For another ten years I had no direct concern with 
 examining except on one or two occasions not worth 
 special mention, though I took a good deal of interest 
 in the reform of the Triposes at Cambridge. Having 
 
 1 Reprinted by permission from the Nineteenth Centmy, Feb. 1889. 
 
IX EXAMINATIONS AND EDUCATION 217 
 
 been called to the Bar before the establishment of 
 the present compulsory examination of Inns of Court 
 students, I have not been examined — save now and 
 again in dreams — since I became a Fellow of Trinity. 
 During the last ten years and more, again, I have 
 been an examiner in the law schools of Cambridge, 
 Oxford, and the Victoria University, and I do not 
 think one of those years has passed without my being 
 thus engaged in one or more of those schools, or in 
 other occasional employment of the same kind. Thus 
 I may claim a fair working experience of the university 
 examination system in its methods and results, both 
 as candidate and as examiner. It is true that as an 
 examiner I can bear witness, of my own knowledge, 
 only to its application in that branch of learning with 
 which my own profession is concerned. Perhaps I 
 may add without presumption that an interval of ten 
 years spent in professional work and study apart from 
 scholastic affairs is not likely, at any rate, to have 
 spoUt my chances of forming a rational judgment. 
 
 Competitive examination, in the literal meaning of 
 the words, would include any trial of strength or skill 
 between several persons or associated bodies of persons 
 of whom some or one are to be in some way preferred 
 to the others in accordance with the result of the 
 trial ; and this whether the preference carry with it 
 some kind of substantial gain or reward, or a purely 
 honorific title or distinction ; and again, whether the 
 distinction in question be conferred by any formal act, 
 or marked by any visible token, or consist only in the 
 reputation of the published and verified result itself. 
 
218 EXAMINATIONS AND EDUCATION IX 
 
 The Isthmian Games, the shooting for the Queen's 
 Prize, the solution of chess problems propounded in a 
 newspaper, come equally within this conception. But 
 in common usage we limit the term to examinations 
 conducted as a test of proficiency in some branch or 
 branches of knowledge, and wholly or mainly by 
 means of identical questions, problems, or exercises 
 proposed to all the candidates in the same subject, to 
 be dealt with in writing within the same limited time, 
 and either without using books or other aids to 
 memory, or with liberty to use only specified aids. 
 Examination of this kind may be directed to " sub- 
 jects " or to " books," or to both. One may be exam- 
 ined in Greek and Latin scholarship without any 
 particular Greek and Latin authors being prescribed, 
 as in the Cambridge Classical Tripos ; or one may be 
 required to show knowledge of a particular book 
 chosen for its authority or importance in its subject, 
 as the Elements of Euclid or the Ethics of Aristotle. 
 Such particular requirements may be and often are 
 combined with the requirement of general knowledge 
 of the subject and of its literature. This is one of 
 the distinctive traditions of the University of Oxford. 
 Cambridge, in its higher examinations, has avoided 
 prescribing fixed books. At both Universities, how- 
 ever, there has of late years grown up a system of 
 officially recommending books as useful in the study 
 of such special subjects as history, law, theology, but 
 without requiring a specific knowledge of the contents 
 of those books. 
 
 It is needful to bear in mind the limits to which 
 
IX EXAMINATIONS AND EDUCATION 219 
 
 the metliod of examination is subject by its very- 
 nature ; these being quite diflferent from the dangers 
 and abuses which may attend it when unskilfully or 
 inopportunely employed. All that examiners can 
 directly learn from the papers sent up to them is 
 how much information and intelligence, and of what 
 quality, the candidates have then and there given 
 proof of in handling their allotted task. Whatever 
 goes beyond this can at most be probable conjecture. 
 It is a very probable inference that a Senior Wrangler 
 is a man either of generally robust constitution or of 
 exceptional nervous energy. Before drawing any 
 further inferences, as, for example, whether he is 
 likely to be a good man of business, or to succeed 
 in any profession he takes up (even in a special 
 application of mathematical knowledge, say practical 
 astronomy or electrical engineering), one must know 
 which of these types prevails in his person, and other 
 things besides. I do not say that the style of his 
 examination work would not, in many cases, give 
 indications to a careful examiner. In practice, when 
 people want to find out these things, they use more 
 obvious and direct means. Now to denounce the 
 Mathematical Tripos because it does not tell us that 
 this one of the Wranglers will make discoveries in 
 geometry, another will be a mechanical engineer, and 
 a third will be a Queen's Counsel with a large practice, 
 is like denouncing the barometer because it does not 
 always enable us to predict the weather. The work 
 of a barometer is to tell us the condition of atmo- 
 spheric pressure, and if it tells that truly there is no 
 
220 EXAMINATIONS AND EDUCATION IX 
 
 other virtue to be expected of it. We must not 
 blame the barometer if we catch a wetting by trust- 
 ing its rise unconditionally when the wind is in the 
 north-east. 
 
 Again, the knowledge and intelligence displayed 
 in an examination are necessarily relative to the 
 prescribed scope of the test, not only in general but 
 in details. And when the terms of competition are 
 once fixed, examiners can and may concern themselves 
 but little, if at all — candidates must and do concern 
 themselves not at all — with any ulterior purpose. 
 While the winner in an Isthmian pancratium went off 
 to bespeak an ode from Pindar, the loser might have 
 argued with the judges that the best man in that 
 form of contest was not necessarily or probably the 
 best man to make a forced march all night and fight 
 the Persians in the morning ; but the judges would 
 clearly have been bound not to listen to him. Now- 
 adays the volunteers who compete for the Queen's 
 Prize regulate their practice according to the conditions 
 laid down by the National Rifle Association. In their 
 quality of competitors they are not free to consider 
 whether those conditions do or do not give adequate 
 weight, or the most that is practicable, to the powers 
 which a marksman would most need in actual warfare, 
 and by which his fire would be most effective. But 
 it is certain that the Queen's Prize is won by the best 
 marksman in the only applicable sense — that is to 
 say, the shooter who makes the highest score by 
 firing the appointed number of shots at the proper 
 ranges, in his appointed turn, and with an arm of the 
 
IX EXAMINATIONS AND EDUCATION 221 
 
 regulation pattern. In short, competitive examination, 
 like any other instrument, has its inherent limits of 
 operation. Within those limits it can be set to do 
 "whatever we think fit. If we set it to do something 
 which does not answer our further purposes when it 
 is done, that is not the fault of the instrument. We 
 examine John Stiles in political economy, and find 
 that he is competently acquainted with the theory of 
 rent, and more competently so than Thomas Nokes. 
 If on the strength of this we conclude that John 
 Stiles is fitter than Thomas Nokes to keep the peace 
 between Hindu and Mahometan fanatics in an Indian 
 village, we may be right or not ; but what we set the 
 examiner to ascertain and report was not whether 
 Nokes or Stiles could govern Asiatics better, but 
 which of them knew the more political economy. 
 For the present we leave aside the further reflections 
 which arise ; for it seems to be our first business to 
 have an opinion how far our instrument, within the 
 limits of its own nature, is to be trusted. 
 
 On this point I have no hesitation in saying that, 
 if any one objects to examinations as being capricious 
 or unfair in their immediate results, I must differ with 
 him. Without entering on detailed reasons which 
 would be uninteresting to most readers (and which 
 moreover have been set forth once for all in Mr. 
 Latham's book),^ it may be said that the art of 
 conducting examinations has been carried to great 
 perfection by the experience of our universities, and 
 
 ^ Tlie Action of Examinations considered as a means of Selection. 
 By Henry Latham, M.A. Cambridge, 1877. 
 
222 EXAMINATIONS AND EDUCATION IX 
 
 of other bodies whicli have adopted their methods, 
 during the present century, and the element of mere 
 accident is, in the ordinary university subjects, pro- 
 bably reduced to a quantity less than any assignable 
 value. No doubt personal accidents may affect the 
 candidates. A man may be below his proper condition 
 or " form " in the Senate House as weU as on the river 
 or in the cricket field. But then it is his business to 
 be in proper condition at the appointed time ; and 
 the power of being fit to do one's best at times not of 
 one's own choosing is perhaps at least as much worth 
 cultivating and encouraging as many kinds of specific 
 knowledge and information. In fact, if candidates for 
 a Tripos or a Fellowship do not train like the crew of 
 a college eight, they know at all events that they also 
 have, at their peril, to be capable of their best per- 
 formance ; and the cases in which they fail to do 
 themselves justice are, to the best of my belief, by no 
 means common. As for the "personal equation" of 
 examiners, it counts, in my experience, for singularly 
 little, certainly for less than is commonly supposed, 
 or than I should myself, without actual experience, 
 have guessed. The general coincidence and mutual 
 confirmation of results independently obtained by a 
 set of examiners testing the work of the same candi- 
 dates in different portions of the same subject are far 
 more striking than the occasional inequalities of 
 performance and differences of impression. 
 
 Somehow the law of averages (I am not sure that 
 the expression is here strictly correct, but it will be 
 understood) neutralises many sources of error which 
 
IX EXAMINATIONS AND EDUCATION 223 
 
 beforehand seem grave. I almost doubt whether it 
 would be possible to devise a scheme of examination 
 bad enough to prevent the best candidates from 
 coming out at the head; and only those who have 
 repeatedly examined can know how hopelessly below 
 the most merciful standard of competence the worst 
 class of candidates, even in honour examinations, are. 
 The man who loses his class, or who is plucked, upon 
 one unlucky paper is but a figment of the disappointed 
 ones, or of their sisters and their cousins and their 
 aunts ; at times also, it is said, of their private tutors. 
 What I am now saying, however, must be understood 
 with a necessary caution. I am speaking of examina- 
 tions competently conducted by examiners who really 
 work together, who exercise real authority and dis- 
 cretion, and among whom an experienced majority is 
 secured by introducing new members of the board in 
 some form of rotation. Such is the settled usage of 
 our ancient universities. Some of the examinations 
 established by other bodies ^ in later times proceed on 
 a different footing ; the examiners are not the final 
 judges, but report their separate results (arrived at, I 
 believe, without opportunity of conference and com- 
 parison, or even with precautions against it) to an 
 extraneous body. This appears to me a thoroughly 
 perverse and mischievous plan. Maybe the law of 
 averages is too much for it even so ; but it shall 
 
 ^ I regret that when this essay first appeared in the Nineteenth 
 Centwry I erroneously included the University of London in this cate- 
 gory, whereas, as I have since been authentically informed, its rules in- 
 sist on the co-operation and collective responsibility of examiners. 
 
224 EXAMINATIONS AND EDUCATION IX 
 
 have from me no word of defence or excuse. It is 
 machinery -worship run mad ; useful after a sort, 
 nevertheless, as a patent reductio ad ahsurdum of 
 the wrong side of examinations. 
 
 For this is the main body of the grievance against 
 the examination system, that a useful servant has 
 been set up as a master, and makes (as was likely) a 
 very bad master. In our eagerness to develop the 
 resources of the instrument we have forgotten that it 
 is only an instrument. This is a besetting fault of our 
 national character as constructors and reformers, and 
 has displayed itself in wider fields than those of the 
 universities and the Civil Service. British public 
 opinion is a weighty mass, and takes much pushing 
 to get started in a given direction ; but when it is 
 once fairly going, the same inertia that was on the 
 side of rest will be on the side of motion, and no less 
 efibrt will be required to arrest the motion than was 
 used to impart it. Thus in 1832 the first reform of 
 the Parliamentary franchise was carried with a great 
 struggle. Since that time our one method of con- 
 stitutional reform has been more and more extension 
 of the franchise, and proposals for improving the 
 representation of the people by any further or other 
 method than the mechanical lowering of the voter's 
 qualification and equalising of constituencies, whether 
 proceeding from political leaders, from disinterested 
 students of politics, or from practical men of the world 
 who were also politicians, have been received at best 
 with respectful indifference. I say nothing of their 
 intrinsic merits, but I say that the fixed ided, of 
 
IX EXAMINATIONS AND EDUCATION 225 
 
 extension of the franchise as a sole and sufficient 
 method of reform has prevented them from ever being 
 adequately considered. We are more superstitious 
 than the men of Athens ; we have no room for altars 
 of unknown gods. After we have found an idol and 
 worshipped it for one or two generations, it already 
 seems " un-English " to dispute the complete efficacy 
 of the ritual. In the case of examinations we have 
 found a useful test of abilities of a certain kind, 
 and a useful guide to selection of persons with 
 regard to such abilities. But we have come to 
 believe, or act as if we had come to believe, that this 
 particular test is necessarily adequate for every and 
 any kind of knowledge and ability, and that the 
 systematic and impartial use of it enables us to 
 dispense with all other methods of encouraging sound 
 learning or discovering exceptional merit. We trust 
 our machine as if it were little less than automatic, 
 and nothing less than infallible. Things have gone 
 so far that whenever it is proposed to recognise a 
 fresh department of human knowledge at either 
 university, the promoters have always to expect the 
 objection that it is not a convenient subject for 
 examination. A mediaeval scholar not having the 
 benefit of our modem lights would have supposed 
 that the first question was whether, in the general 
 interest of education and sound learning, young men 
 ought to be encouraged to pursue such and such a 
 branch of scholarship or science ; that it was a 
 secondary, though important question, by what means 
 that study could, if judged deserving, be best 
 
226 EXAMINATIONS AND EDUCATION IX 
 
 encouraged ; and that, if tiie means already in 
 common use were not sufficient or applicable in any- 
 particular case, it was the duty of those in authority 
 to devise others. Again, examination is a test of 
 producible knowledge, and to that extent it is also a 
 measure, as between candidates on the same level of 
 personal capacity and industry, of the instruction 
 which the candidates have received. More than this, 
 there are ways in which examinations may be and are 
 of real service in setting and keeping up a standard 
 of effi-cient instruction. But we find it supposed, on 
 the strength of this, that the examiner's function is in 
 some way a higher and more important one than the 
 teacher's, which is a mischievous and dangerous 
 delusion. It is like believing that literature exists 
 for the sake of grammar ; but perhaps there are some 
 who do believe this also. Not that a teacher may 
 not profit by his experience as an examiner ; but it is 
 far more important that examination should not be in 
 the hands of persons ignorant of teaching. 
 
 The sufficiency of examination as the controlling 
 method in education is maintained in some quarters 
 on a sort of mechanical hypothesis. Create, by means 
 of prizes and examinations, a demand for a certain 
 kind of information ; the information, and whatever 
 teaching is needed to produce it, will come of them- 
 selves ; and you will have an educated nation. The 
 " useful knowledge " movement of fifty years ago, 
 with which the spread of examinations has been 
 closely connected, was largely based on assumptions 
 of this kind. It is needless to refute them at large. 
 
IX EXAMINATIONS AND EDUCATION 227 
 
 Education cannot be dealt with like an ordinary- 
 commodity purchasable on demand, as J. S. Mill, a 
 witness against the school in which he was trained, 
 showed many years ago ; and moreover the demand 
 created is not for knowledge as such, but for whatever 
 plausible evidence of knowledge will satisfy examiners, 
 or, more accurately, can get the reputation of being 
 likely to satisfy them. The result is that much work 
 is expended, and many respectable incomes are earned, 
 in supplying this demand ; I do not doubt that it is 
 very well and faithfully supplied ; but the process, 
 whatever else it may be, is not a liberal education. 
 An incidental result is that a considerable number of 
 active-minded and vigorous persons have a strong 
 interest in the maintenance of the system which 
 furnishes them with pupils, and in the excellence of 
 which they naturally believe. If any further results 
 in the shape of work of permanent value can be shown 
 as the direct product of the system, or connected with 
 it by any reasonably probable consequence, I have 
 not heard of them. For several years the Inns of 
 Court have spent money with a free hand in awarding 
 studentships and prizes upon examinations in Eoman 
 law. Two books on that subject have been produced 
 in these kingdoms within the last six or seven years 
 which may fairly take rank with the best German 
 manuals. One of these came from Oxford, and the 
 other from Edinburgh. 
 
 Having made competitive examinations a kind of 
 end in themselves as being the sole recognised means 
 of obtaining the reputation of competence at an early 
 
228 EXAMINATIONS AND EDUCATION IX 
 
 age, we have indirectly, but most effectually, dis- 
 couraged at our seats of learning every kind of 
 intellectual activity whicli has not an obvious bearing 
 on them. " Will this pay in the schools ? " is the 
 inevitable check on both learners and teachers. 
 Freedom of learning and research can be secured, 
 under such conditions, only by a constant struggle, 
 and hardly so save by those who are in some specially 
 favoured position. Worst of all is the general 
 lowering of tone in matters of intellect, the enthrone- 
 ment of Banausia in the seat of Philosophy herself. 
 At Oxford, even in the last retreat of the Humanities, 
 in the school where the tradition of learning for its 
 own sake ought to be strongest, it is matter of 
 common fame that tutors adjust their lectures on 
 philosophy to the philosophical predilections, real or 
 imagined, of individual examiners. The fact of such 
 reports being current is almost equally significant 
 whether they are or are not exaggerated. And 
 Oxford, for technical reasons too long to explain here, 
 should offer, in the whole of this matter, by no 
 means an extreme type of the mischief complained of. 
 Even in so practical a study as that of the law we 
 find men bent rather on " getting up " what will 
 serve the immediate purpose of their impending 
 examination than on acquiring knowledge which wUl 
 be of abiding use to them in their profession. It is 
 generally useless to tell them that real knowledge is 
 the surest way to success even in examinations. 
 They will not believe it — and the whole tribe of 
 purveyors of second or third -hand substitutes for 
 
IX EXAMINATIONS AND EDUCATION 229 
 
 knowledge, who by this time are many, are interested 
 in their not believing it. I shall not attempt to 
 consider the evils produced among younger learners, 
 from the promising scholars of Eton or Rugby or the 
 Charterhouse down to Board School children, by 
 setting up an ideal of examination results instead of 
 the ideal of knowledge. These are, I conceive, some- 
 what different in kind from what we see at the 
 universities, and not less grave in degree. But I 
 prefer to leave them to those who can bear witness of 
 their own observation. I will only say that the routine 
 of examination and competitions, assuming it to be, 
 sooner or later, a necessity for the English public 
 school boy, begins much too soon. Madvig, who 
 knew Latin and had some experience of teaching, has 
 recorded his opinion that boys would learn Latin 
 all the better if it were put off to the age of twelve. 
 
 There is another aspect of the examination system 
 which can hardly be realised unless by actual contact 
 with university work, but which ought to be 
 mentioned. I mean the frittering away of valuable 
 time and energy on the mere machinery of examina- 
 tions. This has been going on for twenty years or 
 more, and recent reforms have only aggravated it. 
 By means of examinations we have imposed a 
 monotonous routine on university studies ; and the 
 only approach to a remedy, so far, has been to offer 
 our students the choice of a bewildering number and 
 variety of examinations. There is always a plan 
 afoot for inventing some new examination or 
 tinkering some old one. I do not deny that there 
 
230 EXAMINATIONS AND EDUCATION IX 
 
 have been real improvements in principle, improve- 
 ments which, so far as they go, are valuable checks 
 and safeguards. But we are oppressed throughout by 
 the burden of overmuch belief in machinery which 
 the last generation of reformers has laid upon us, and 
 I am disposed to think that ingenuity has often been 
 wasted on making the machine too fine for the work 
 it has to do.^ Between those who are about to be 
 examined, those who are being examined, those who 
 are examining, and those who are reforming the 
 examinations, a poor scholar of Cambridge or Oxford 
 who has a mind to be a vir doctus just for learning's 
 sake, and to leave his own chosen Faculty, according 
 to his power, in some way richer than he found it, 
 is like to have but scant opportunities as things 
 now go. 
 
 The selection of public servants has to be con- 
 sidered on its own ground. It may be urged that 
 the State is not bound to regard, in the first instance 
 at any rate, the effect of its process of selection on 
 the general standard of education ; and yet, as Mr. 
 Latham has well said, " ujiless it can be so carried 
 out as to do more good than harm to education, we 
 only, get one kind of mischief instead of another." 
 Probably the State is better served on the whole than 
 it was in the old days of patronage. I leave it to 
 those who know more of this matter than I do to 
 judge whether the State itnight not be served better 
 still, and whether the securing of a certain level of 
 
 1 See on one aspect of this point Mr. F. Y. Edgeworth's remarks in 
 the Journal of Education for October 1888. 
 
IX EXAMINATIONS AND EDUCATION 231 
 
 ordinajy competence could not be combined with, a 
 larger discretion in tbe discovery and encouragement 
 of specially serviceable excellence. It is surely a 
 significant fact that the Education Department itself 
 is recruited, in its higher branches, not by examina- 
 tion, not even by any limited or modified form of it, 
 but by unfettered personal selection. It is easy to 
 see what kind of men are selected, and I have never 
 heard of any complaint that the selection works Ul. 
 They are certainly, most or all of them, men of 
 distinguished university standing, and thus in a 
 manner may be said to owe their posts in the public 
 service to success in the university examinations. 
 But here the fellowship or the place in the first class 
 is used as an indication, not as a compulsory direction. 
 In other words, the Department profits by the 
 selecting process of the universities and colleges, and 
 profits by it with discretion, instead of repeating the 
 process not so well and being tied beforehand to a 
 mechanical following of the result. This is a 
 peculiar example, and perhaps could not be largely 
 followed; but it is a good one. To go back to an 
 analogy I have already made use of, the Education 
 Department reads its barometer like a meteorologist ; 
 other departments are too much in the case of the 
 householder who knows nothing of the nature of the 
 instrument, and reads only the conventional marks of 
 "Set Fair "or "Change." 
 
 It will hardly be practicable in our time to abolish 
 competitive examination, either as a scholastic or as 
 an official instrument of selection. I do not know that 
 
232 EXAMINATIONS AND EDUCATION IX 
 
 it would be desirable. Education is a difi&cult art ; 
 not tbe least of the difficulties is to make boys and 
 young men do things which they would not do of 
 themselves, and of which they cannot at the time 
 understand the value. To throw away one of the 
 strongest incentives to human action, an incentive 
 running through the whole life of all living creatures, 
 would be a heroic if not a desperate remedy for its 
 abuses. We do not forbid the use of fire-arms 
 because there are a certain number of gun accidents 
 every year, nor banish powerful drugs from the 
 pharmacopoeia because there are a certain number of 
 cases of poisoning by misadventure. This world is a 
 world of competition, and we cannot make it other- 
 wise. But powerful motives are to be used by 
 legislators and governors with no less care and caution 
 than powerful drugs or explosives are to be handled 
 by the chemist. 
 
 This is not, in my opinion, the time or place for 
 any detailed proposals; but some general principles of 
 caution in the use of examinations may be shortly 
 stated. In some cases the application of them would 
 involve extensive change in existing arrangements, 
 but I think the necessary change ought to be made. 
 
 In all organisation of studies, whether in the way 
 of introducing new subjects or grouping those already 
 recognised, examinations should not be multiplied 
 without necessity. 
 
 More generally, examination by written papers 
 should not be assumed to be the normal method of 
 selection, but it should in every case be considered 
 
IX EXAMINATIONS AND EDUCATION 233 
 
 whether some more appropriate and effectual method 
 may not be found. 
 
 In the case of offices of trust, a qualifying exam- 
 ination admitting to service on probation, subject to 
 discretionary powers of confirmation and promotion, 
 should be preferred to a merely competitive scheme. 
 
 Examination ought to be a judicial and not a 
 mechanical process, and any system of marking is 
 only a guide for the judgment of the examiners : the 
 number of marks obtained by candidates should there- 
 fore in no case be published. Examiners capable of 
 acting unfairly without the supposed check of 
 publishing the marks would be no less capable of 
 falsifying the marks themselves. For like reasons 
 a fixed numerical standard of marks is objection- 
 able ; an approximate standard based on continuous 
 experience, and capable of adjustment to exigencies, 
 is far better. 
 
 Classification in categories should be preferred, 
 wherever possible, to a numerical order of merit. 
 
 Viva voce questioning and discussion, practical 
 work and manipulation, and whatever may bring the 
 order of examination into contact with real life, and 
 make it less of a routine apart, should, so far as 
 possible, be introduced and encouraged. 
 
 I make no claim to novelty for any of these 
 suggestions, and nothing would please me better than 
 that they should be regarded as commonplace. 
 
THE USES AND OEDEEING OF LAW LIBEAEIES^ 
 
 The following notes are those not of a librarian but an 
 outsider. Having found my way into this good 
 company under colour of being the librarian of the 
 Alpine Club, I am permitted to remember (what 
 perhaps in strict regularity I should have forgotten 
 at the door) that in another capacity I am a member 
 of that class of readers who make use of Law Libraries, 
 and that in fact I have constantly done so for a good 
 many years. The place and circumstances of this 
 meeting may be deemed to justify me in putting 
 before you some of the reflections and desires be- 
 gotten of that experience. Even where I use general 
 language, I shall be understood to be speaking of the 
 constitution and working of an English or Anglo- 
 American law library ; and, so far as these notes have 
 any practical object, to be thinking especially of the 
 libraries of the Inns of Court. One of those libraries 
 (Lincoln's Inn) I know, as a reader, pretty well ; of 
 
 1 Read at tte Annual Meeting of the Library Assocation in London, 
 1886. So far as I know, tlie Inns of Court libraries are now (1890) 
 exactly where they were then. 
 
X THE USES AND ORDERING OF LAW LIBRARIES 235 
 
 the Inner Temple I know something ; I have merely 
 visited the libraries of the Middle Temple and Gray's 
 Inn. 
 
 By a law library I do not mean merely a collection 
 of law books, but a collection of books ordered and 
 maintained for the special purpose of being useful to 
 workers in the profession and science of the law. 
 Such workers are either — 
 
 1. Novices in the law, " students " in the particular 
 
 technical sense of the Inns of Court. 
 
 2. Practising lawyers in search of information and 
 
 authorities, to be used for the purposes of their 
 professional business. 
 
 3. "Writers and teachers collecting materials for 
 
 critical, dogmatic, or historical exposition. 
 
 To a considerable extent, but not altogether, the 
 needs of these classes coincide. The requirements 
 of the commencing student are limited within an 
 easily defined range ; those of the practitioner are 
 wider, but in the general run of work they too are 
 within ascertained limits; but the practitioner in 
 extraordinary cases, and the critical inquirer in 
 almost every branch of his undertaking, should have 
 at command many and various kinds of information, 
 often such kinds as at first sight would not be 
 suspected of having anything to do with law. Thus 
 a collection of all the law books ever published would 
 not be an efficient law library. To make a good law 
 library we must have a good collection of law books, 
 
236 THE USES AND ORDERING OF LAW LIBRARIES X 
 
 and a good selection of other books witli a view to the 
 special purposes in hand. 
 
 Again, the task is not like that of forming a 
 library in the interest of any other special science. 
 Chemistry, physics, and astronomy, for instance, are 
 treated of in all the languages of the civilised world, 
 with certain differences of terms and other diversities 
 in detail ; but the things signified and the funda- 
 mental ideas are the same throughout. The results 
 obtained by a French geometer or a German chemist 
 are equally valid for the whole world. The tongues 
 and even the methods may be diverse (thus we stand 
 alone in still resting geometrical instruction on the 
 text of Euclid), but the science is one. In law we 
 have another and less facile state of things : there is 
 not one system but several systems, like one another 
 in some respects and unlike in others, producing more 
 or less analogous results, which may or may not have 
 any definite connection with one another. There is 
 not a French chemistry which an English chemist has 
 to learn. Dr. Williamson needs no interpreter beyond 
 knowledge of the French language to exchange ideas 
 with M. Berthelot. But an English lawyer who has 
 to consider a question of French law finds himself in 
 the presence not only of new terms but of new ideas. 
 He is on the whole less likely to misunderstand them 
 than an Englishman who is not a lawyer, but that is 
 all. Only under specially favourable conditions can 
 a lawyer hope really to know any system besides his 
 own. In a perfectly ordered law library there would 
 be an adequate representation of all existing legal 
 
X THE USES AND ORDERING OF LAW LIBRARIES 237 
 
 systems, having due regard to their respective 
 practical importance and to the general scale of the 
 establishment. But it is evidently very difficult to 
 bring together the special technical and literary 
 knowledge needful to ensure that this should be first 
 performed and afterwards maintained. 
 
 We have to add that the books of ordinary use 
 must be freely accessible to readers (as is the case in 
 the Inns of Court), or else there must be an abundant 
 and well trained staff. No lawyer can teU, when he 
 goes into a library, how many books he may want to 
 refer to before he comes out. One reference leads to 
 others, and a new line of search may be disclosed at 
 any moment. Moreover, the number of volumes 
 necessarily consulted, in proportion to the use made 
 of each volume, is probably greater in an English 
 lawyer's work than in any other kind of literary 
 work whatever. 
 
 Thus law libraries have to provide a highly special 
 kind of service ; they have also to provide for some- 
 what exadting readers. Practising lawyers are apt to 
 be in haste, and expect to be able to lay hands on 
 what they want in the shortest possible time. They 
 do not indeed care, as a rule, for the minuter matters 
 of scholarship and bibliography; but the critical 
 students of legal literature, though a minority, can 
 give quite enough trouble in that kind to make up 
 for the omissions of their brethren. 
 
 So much being premised, let us see what are the 
 necessary departments of an English law library. 
 They may be described roughly thus : 
 
238 THE USES AND OKDEEING OF LAW LIBRARIES X 
 
 (a) Works of general reference. 
 (6) Cosmopolitan literature under such heads as — 
 i. Eoman law (with its offshoots in modern 
 
 civil and canon law), 
 ii. Philosophy of law, 
 
 iii. Historical and comparative jurisprudence, 
 iv. International law. 
 (c) English law literature, under such heads as — 
 i. Text-books, 
 ii. Reports and statutes, 
 iii. Historical documents. 
 {d) American law literature, 
 (e) Foreign law literature. 
 (_/) Legal bibliography. 
 (g) Catalogue. 
 
 To take the last point first, I hold a good classified 
 catalogue or subject-index to be almost indispensable ; 
 and it should be revised if not made by a lawyer, so 
 as not to omit the catchwords that a lawyer naturally 
 looks for, nor insert headings unknown to the 
 language of the law. Among the best examples in 
 this kind is the catalogue of the library of the 
 German Reichstag at Berlin (1882). I may also 
 mention the subject-index of the Law Library of the 
 State of New York (Albany, N.Y., 1883), which 
 includes references to articles in periodicals. For 
 Anglo-American purposes, however, I think it is 
 better to have an alphabetical catalogue with a 
 separate subject-index than to put one's trust in a 
 class catalogue. One advantage of a pretty full 
 
X THE USES AND OEDEEING OF LAW LIBEAEIES 239 
 
 subject-index is that it removes all excuse for making 
 the alphabetical catalogue depart, for any supposed 
 reason of practical convenience, from generally 
 accepted rules. Such variations are sure to cause 
 more trouble to scholars than they save to the 
 general reader or practitioner. Let us by all means 
 be generous, nay lavish, in cross-references and other 
 aids, but let there always be one certain place where 
 the scholar accustomed to use catalogues will know 
 where to find the thing he wants. 
 
 As to books of general reference, the scale on which 
 they are provided must depend on the resources of 
 the establishment. We only have to note that their 
 rank among themselves in order of necessity and 
 usefulness is by no means the same as in a general 
 library. History and politics are of more importance 
 than literature, mediaeval than classical antiquity, 
 Latin than Greek. Milton's Areopagitica may be 
 desirable as a monument of English prose ; it is 
 necessary as a document in the history of copyright. 
 We may dispense at need with the latest edition of 
 Liddell and Scott, but we cannot do without Du- 
 cange. If, indeed, there is a point on which especial 
 weight should be thrown, I should say it is that of 
 mediaeval philology, palaeography, and whatever else 
 is helpful to the study of mediaeval authorities ; a field 
 in which the scholar who comes to legal studies with 
 an ordinary classical education is apt to find some 
 trouble in getting his bearings. Et sic de similibus. 
 
 As to the literature which I call cosmopolitan, the 
 proper maintenance of that department requires a kind 
 
240 THE USES AND ORDERING OF LAW LIBRARIES X 
 
 of special knowledge for which the vast majority of 
 English lawyers have no time. The average Inns of 
 Court man, when his work happens to lead him in 
 this direction, hardly knows where or how to start. 
 For that very reason a sedulously competent provision 
 ought to be made, and the advice of experts freely 
 sought if necessary. Books in our own language in 
 this kind are still meagre in quantity and uncertain 
 in quality, though great advances have been made of 
 late years. Continental literature is voluminous 
 enough, but of all degrees of merit, and it can be 
 made useful to most English workers only by careful 
 selection. I need hardly say that the authentic texts 
 of the Roman law should be accessible in the latest 
 and best editions, both English and Continental, and 
 in more than one copy if wanted. 
 
 English law-books ought to give little trouble. 
 There is not much more choice than on the question 
 whether a club shall take in the Times. A library 
 professing to be complete must have a full set of 
 reports and statutes at any cost, all text-books of 
 established reputation in the current editions, and all 
 new books of apparent merit or utility. The collection 
 is bulky and expensive ; it includes much that be- 
 comes obsolete ; old editions, commentaries on short- 
 lived statutes, and other superseded books accumulate 
 at a monstrous rate. But it cannot be helped. 
 Lawyers must have the tools of their trade ready for 
 the day's use. Indeed, the books of less general and per- 
 manent value are those which the library is most bound 
 to have, just because they are those which individual 
 
X THE USES AND ORDERING OF LAW LIBRARIES 241 
 
 workers are least likely to buy. Doubtless a full array 
 of text-books and monograplis may be distracting and 
 oppressive to beginners, but for that evil I shall 
 presently suggest a remedy. Practice is not quite 
 uniform as to the arrangement of English law books 
 on the shelves. Text-books, reports, and statutes, of 
 course, have each their own place, and statutes go 
 naturally in order of time. For text -books and 
 reports (antecedent to the Law Eeports), I strongly 
 prefer a purely alphabetical arrangement, following 
 the usual manner of citation.^ There is no other way 
 known to me of ensuring certainty in finding a book 
 on the shelf from the reference in another book. A 
 private owner may arrange his reports distributively 
 under the several courts, and in order of time under 
 each court. Such refinements are not, in my opinion 
 as a reader, fit for public use. One word may be said 
 about old editions. The " dumb dread people that sit " 
 in the limbo of remote upper shelves are not all 
 lumber. From time to time there must be a clear- 
 ance ; but I would carefully preserve, first, a copy of 
 every book which has been of serious value in its day ; 
 next, the first edition of every book still current ; and 
 further, in the case of books many times re-edited, 
 every edition which has involved so much revision as 
 
 1 There are one or two minute exceptions wHch I should like to 
 see abolished. We look for the "Queen's Bench" Reports on the 
 shelf under Q, not under A, though they are also "Adolphus and 
 Ellis, New Series." Why should we have to remember that " T. E." 
 (Term Reports) in a foot-note means " Durnford and East " on the 
 shelves ? But this particular anomaly is perhaps too inveterate to 
 be cured. 
 
 R 
 
242 THE USES AND OEDEEING OF LAW LIBRARIES X 
 
 to give a new character to the work.^ Law books, 
 and the current opinions and habits of mind of lawyers 
 from generation to generation, have a history of their 
 own, and the evidences of that history should not be 
 thrown away. Concerning the rarities and incunabula 
 of our legal literature, the possession of them is a 
 matter of good fortune, and their use (when cheaper 
 modern editions are available for ordinary work) a 
 matter of discretion. I do confess to a certain delight 
 in handling the original folios of Blackstone and the 
 other eighteenth-century reporters in the library of AH 
 Souls at Oxford, which, by the way, I take leave to 
 commend as an almost perfect example of a compact 
 and well-ordered law library for the work of both 
 teachers and learners. In some ways (for one must 
 not altogether shrink from specific plain speaking) it 
 is not only relatively but absolutely better equipped 
 than the much larger establishments of Lincoln's Inn 
 and the Temple. 
 
 American law books belong to the same system as 
 our own, with slight exceptions, and American 
 authorities are (as Vice-Chancellor Bacon once said), 
 a kind of Apocrypha for the English lawyer; not 
 canonical, but good for example and illustration. An 
 English lawyer has no difficulty in following them. 
 To what extent they should be found in an English 
 library is an afi'air of space, means, and intelligent 
 selection. Some American reports and text -books 
 
 1 In Woodfall's Landlord and Tenant, e.g., there can now hardly be 
 a plank of the old ship left ; but publishers are loath to lose the good- 
 will of the old name. It is as if Liddell and Scott still professed to be 
 merely editors of Passow. 
 
X THE USES AND ORDERING OF LAW LIBRARIES 243 
 
 clearly ought to be there ; some are to be expected 
 only where the library is on a great scale ; some are 
 so unlikely to be useful that it may be enough if the 
 student can be informed where to find them in Eng- 
 land. Whatever there is, be it more or less, ought to 
 be adapted to the accustomed form of citation in 
 American books ; that is, the reports of each State 
 should be kept together, and those which are usually 
 cited, not by the reporter's name but by consecutive 
 numbers, should be arranged and lettered accordingly. 
 To American lawyers this appears too obvious a rule 
 to be worth mention ; but I can bear witness to the 
 inconvenience given to workers by disregard of it in 
 England. It is pure waste of energy to seek for the 
 continuous series of Supreme Court Reports (invari- 
 ably now cited in America by the simple abbreviation 
 U.S. with a consecutive number), in scattered patches 
 of Wallace, Otto, and Davis — and this after a process 
 of translating the American reference, unless one 
 happens to remember the period indicated by the con- 
 secutive number and the name of the reporter covering 
 that period, in which case one may hit oS the right 
 volume on the shelf at the second or third venture. 
 
 Foreign law literature properly so called — i.e. the 
 literary apparatus of foreign systems of law — comes 
 under much the same conditions as what I have called 
 cosmopolitan. In some ways it is of greater practical 
 importance. It must be remembered that in the 
 regular day's work of our profession the law of foreign 
 countries, especially commercial law, is often of direct 
 and pressing interest ; and besides, there is hardly any 
 
244 THE USES AND ORDERING OF LAW LIBRARIES X 
 
 historical system of law which, is not administered in 
 one or other of the Queen's possessions and pre- 
 sumed to be within the knowledge of the Judicial 
 Committee of the Privy Council. In British India we 
 have bodies of native law and custom which our 
 courts profess not to alter, side by side with a modified 
 and simplified system of English law and procedure. 
 Indian law is already treated as a distinct department 
 in our libraries, and rightly so. In Continental law 
 France gets a conspicuous share, and also rightly ; but 
 I doubt whether we have duly kept pace with the 
 rising activity and importance of Germany and Italy. 
 As to our own colonies, I cannot honestly say that I 
 think they are even decently treated. Any odd 
 corner seems to be thought good enough for colonial 
 law books, if they are to be found at all. It may be 
 a question whether they ought to be in a special de- 
 partment all together, or associated with the systems 
 from which they are derived, and in connection with 
 whose authorities they have to be studied ; the books 
 of Lower Canada and Mauritius might be placed near 
 the French Codes and commentaries, those of the Cape 
 Colony and Ceylon near the older civilians, and those 
 of the common law colonies, Australia, Upper Canada, 
 etc., as near as possible to the English department. 
 This latter arrangement would have some conveniences, 
 but I do not know that it would ever come natural to 
 the practising lawyer. 
 
 Legal bibliography is the department which, next 
 the catalogue and the absolutely indispensable books 
 that are constantly in use, is perhaps most necessary, 
 
X THE USES AND ORDERING OF LAW LIBRARIES 245 
 
 but is not always, I fear, most attended to. There may 
 be many things which a library cannot afford, but at 
 all events it can afford to let workers know not only 
 what books it has, but what it has not, and by what 
 libraries that which it lacks can be supplied. When 
 I add that the number of law books in the world is 
 very great, and their titles not always clear even to 
 experts, I think I have said enough. The late Mr. 
 W. H. Spilsbury, Librarian of Lincoln's Inn, aptly 
 cited on this point the language of a Parliamentary 
 Report : "A great library should in fact contain within 
 it a library of catalogues": Lincoln's Inn, p. 243, 
 2d ed. Much more should a great law library con- 
 tain all published law catalogues of importance. 
 
 By this time I may have gone near to convince you 
 that the ideal law library and its ideal librarian 
 cannot exist in this world. Nevertheless I have some 
 suggestions which may or may not be immediately 
 practicable, but which are, I venture to think, 
 practical. There exist in the Inns of Court four 
 distinct libraries of the same kind, doing the same 
 work for sets of readers who are distributed among 
 them, one may say, by mere accident. I am not 
 aware that co-operation or division of special depart- 
 ments has ever been attempted. A good many years 
 ago the Middle Temple committed itself to taking in 
 all the American State reports, on the supposition, as 
 I am informed, that the shelf-room was practically 
 unlimited. In later times the burden became in- 
 tolerable, and a wiser generation did what ought to 
 have been done at first, took the advice of an 
 
246 THE USES AND OEDEEING OF LAW LIBEAEIES X 
 
 American lawyer (it was the best possible, the late 
 Mr. Benjamin's) as to what was worth keeping. The 
 rest was practically a dead loss to the Society. Now 
 there is much to be said for having somewhere in 
 England one complete set of all the American reports ; 
 but the undertaking is more than any one of the 
 existing libraries, under existing conditions, can bear. 
 In this case an endeavour laudable in purpose and 
 capable, if prudently conducted, of leading to much 
 good, ended in mere waste and trouble. The Honour- 
 able Society of the Middle Temple still seeks a pur- 
 chaser, as I have understood, for a good many volumes 
 of decisions of various American State Courts, which, 
 to put it mildly, ate not quite so much, esteemed as 
 those of New York or Massachusetts. All this would 
 have been saved if the rulers of the Middle Temple 
 in the last generation (they are past human praise or 
 blame, nor do I speak as blaming them) had clearly 
 perceived that, in the management of a technical 
 library, no amount of good intentions will make up 
 for the want of a policy and method. But so things 
 have gone. 
 
 If at present the Inns of Court libraries supplement 
 one another, it is by chance ; yet they do so to some 
 extent. The advantages of each Inn are open, as of 
 right, only to its own members ; one would expect, 
 therefore, to find some understanding of reciprocal 
 comity. But in fact each Inn does what is good in its 
 own eyes. At the Inner Temple it is in practice quite 
 easy for barristers of other Inns to use the library, 
 while at Lincoln's Inn a special introduction is 
 
X THE USES AND OEDEEING OF LAW LIBEAEIES 247 
 
 required. At the Middle Temple I believe it is less 
 easy than at the Inner Temple, but easier than at 
 Lincoln's Inn. As to Gray's Inn I am not a competent 
 witness, for the courtesy of our colleague Mr. Douth- 
 waite has put it wholly beyond my power to report 
 what facilities a simple extraneous member of the Bar 
 would or would not find. Another piece of organ- 
 isation which has not yet effectively occurred to any 
 one (though I learn that it has occurred to persons 
 of greater standing and experience than my own) is 
 the separation of elementary students from advanced 
 workers, by which I do not mean the bare reserving 
 of certain tables for barristers. It would be much for 
 the benefit of all concerned. 
 
 In fine, I should like to see all or some of the 
 following things done, and I cannot see any grave 
 inherent difficulty about any of them. 
 
 1. An elementary students' library to be formed, 
 
 common to the four Inns, provided with a full 
 set of the reports and other books in common 
 use, and duplicates, or even a greater number 
 of copies, of the books most in request. This 
 might be connected with the establishment of 
 a common lecture-room, which I hold to be 
 much wanted. But I must not digress. 
 
 2. The library of each Inn to be open to all 
 
 members of the Bar unconditionally, or on 
 some such simple condition as writing one's 
 name in a book;^ to its own students, for 
 
 1 Such is already the usage of the Inner Temple. 
 
248 THE USES AND OEDERING OF -LAW LIBRARIES X 
 
 advanced work only, at the discretion of the 
 librarian or some easily accessible Bencher, or 
 on specified recommendations ; and to students 
 of other Inns only on special cause shown. I 
 do not think it desirable to give any increased 
 facilities for taking books out of the libraries, 
 unless it were in the case of duplicates. 
 
 3. The authorities of the several Inns to confer and 
 
 arrive at an understanding whereby the library 
 of each Inn should pay particular attention to 
 one or more special departments ; so that each, 
 without renouncing general efficiency, should, 
 in at least one line besides English law, be as 
 complete as reasonable diligence could make it. 
 Thus (by way of mere rough illustration), the 
 Inner Temple might undertake Indian and 
 Colonial law, the Middle Temple American law, 
 Lincoln's Inn modern Roman law and Con- 
 tinental systems, and Gray's Inn historical 
 jurisprudence and antiquities.-' 
 
 4. The working of this quasi-federal scheme would 
 
 require some kind of joint committee of the 
 
 1 Compare Mr. E. C. Thomas's Paper on English Legal Bibliography 
 in the " London and Cambridge " volume of Proceedings of the Associa- 
 tion, at pp. 25, 26. Very much the same proposal is made by a writer 
 in the Times of the same day (September 28) on which the present 
 Paper was read. Of course this does not mean that a member of 
 Lincoln's Inn, e.g., should not be able to find in his own library the 
 United States Reports or the classical American text-books : but that 
 he should be able to find in the Middle Temple such State reports and 
 such monographs on specially American topics as an English law library 
 may be without and yet be generally efficient. 
 
X THE USES AND ORDERING OF LAW LIBRARIES 249 
 
 Inns. Such a committee might be formed on 
 the model of the Council of Legal Education, 
 or perhaps more simply by empowering that 
 body to deal with the matter, and for that 
 special purpose to add to its number. 
 
 5. I purposely abstain from considering the ad- 
 ministration of the several libraries, the 
 position of the librarians, and the like. I will 
 only venture to observe that technical work of 
 other kinds is not commonly found to be in 
 the long run improved by the constant inter- 
 ference of a fluctuating committee, however 
 learned and eminent the individual members 
 of such a committee may be ; and that a 
 librarian who has not some discretion in 
 details and some real voice in general direction 
 is in truth, whatever he may be called, and 
 whatever he might in other conditions be 
 capable of, not a librarian but at best a chief 
 assistant^ 
 
 When I began to put on paper the remarks I have 
 brought before you, I thought I should only set down 
 a few stray notes. My excuse for troubling you thus 
 far must be that the subject has been on my mind for 
 a long time ; and out of the abundance of the heart 
 the mouth speaketh. 
 
 ^ It is proper to state that at Gray's Ina tMngs are otherwise and 
 better ordered. 
 
XI 
 
 THE LIBEAEY OF THE ALPINE CLUBi 
 
 A NOT uncommon belief about the Alpine Club is 
 that it consists of a number of persons who regard 
 mountains merely as objects of athletic ambition, and 
 for whom the historical, scientific, and artistic interest 
 .of the Alps is non-existent or secondary. It is need- 
 less to refute this error here. Certainly we are a 
 society primarily of mountaineers, not of antiquaries, 
 or artists, or men of science. But to say that we 
 ignore all interests but the gymnastic one, that in 
 our collective capacity we treat the Alps as " greased 
 poles," is not even a legitimate caricature. Differing 
 in many respects from the most familiar types of 
 literary and social clubs on the one hand, and 
 athletic or sporting clubs on the other, the Alpine 
 Club approaches the literary and social type in that 
 it possesses a certain number of books. It has there- 
 fore seemed good to the Club to discover among its 
 members one accustomed to reading and writing, and 
 whose mountaineering youth is past, and to constitute 
 him its harmless necessary bookworm, or in ofl&cial 
 
 ^ Read before the Library Association at Plymoutli in 1885, and 
 afterwards before tbe Alpine Club. 
 
XI THE LIBRARY OF THE ALPINE CLUB 251 
 
 terms its honorary librarian. That bookworm now 
 proposes to render to the Club a short account of his 
 stewardship. 
 
 It is unfortunate that no systematic attention was 
 paid to the formation of a library when the Club was 
 first established. So far as can now be guessed, it 
 would have been easy to secure at comparatively little 
 expense the nucleus of a collection of Alpine litera- 
 ture which by this time would be unsurpassed, if not 
 unique. But opportunities of this kind once lost do 
 not return. As things are we can only say that we 
 have a sufiicient working library of reference on 
 mountain travelling and allied subjects, fair specimens 
 of the older and more curious works, and a fair num- 
 ber of modern Continental publications (periodicals, 
 pamphlets, and what not), of which not many copies 
 can be accessible in England. There is to my certain 
 knowledge one private collection — probably enough 
 there are several — with which we cannot compete in 
 books out of the common run. For about twenty 
 years, in fact, the Club library existed rather by 
 accident than on purpose. Books were presented by 
 members and by the authors, English and foreign. As 
 Alpine Clubs were formed on the Continent their 
 periodicals were sent in exchange for the Alpine 
 Journal. These objects occupied space and had to 
 be put on shelves. This was done, and little or 
 nothing more. Every member had access to the 
 Club rooms and to all that was therein ; at cer- 
 tain times the meetings of other social clubs were 
 held there (I need not remind the Club that this 
 
252 THE LIBRARY OF THE ALPINE CLUB XI 
 
 arrangement is no longer in force), and the shelves 
 were equally open in fact, though not of right, to all 
 persons present at those meetings. There was not 
 much to prevent any one from obtaining access at 
 other times who chose to represent himself as a mem- 
 ber of the Alpine Club. The rules did not allow 
 books to be taken away, but there was no explicit 
 prohibition. Under such conditions it is more to be 
 wondered at that any of the books were left than that 
 some were missing. 
 
 Some half-dozen years ago the Committee resolved 
 to take better order in the matter. My predecessor 
 in ofl&ce-, Mr. C. C. Tucker, performed the first indis- 
 pensable task of making a catalogue. It is dated 
 1880. Since that time the number and character of 
 the additions is such that a new issue of the catalogue 
 seems already called for.-' Adding that, without the 
 aid of Mr. Tucker's work, I could not even have begun 
 mine, I proceed to my own experience. 
 
 The most pressing question was the safe keeping 
 of the books. Permanent attendance was out of the 
 question, as the rooms are not laid out for permanent 
 occupation, and a special attendant would have no- 
 thing to do for days or weeks together. Attendance at 
 stated days and hours was thought of, and possibly 
 may be thought of again ; but for the present a sim- 
 pler plan has been adopted. The books are in locked 
 cases; the working catalogue lies on the Secretary's 
 table. A member wishing to use the library obtains 
 
 1 A new catalogue was printed in 1888. It is accessible at the 
 British Museum, the Bodleian, and the Cambridge University Library. 
 
XI THE LIBRARY OF THE ALPINE CLUB ' 253 
 
 the key of the cases from the housekeeper on writing 
 his name in a book kept for that purpose. The Com- 
 mittee can give leave to take out books on good cause 
 shown. Perhaps these precautions do not come up to 
 the mark of what judicial authorities have described 
 as " consummate care," but so far they have been 
 found in the main sufficient. No light has been 
 thrown, however, on the mysterious character of the 
 former losses. One could understand that a costly 
 or rare Alpine book should disappear if there was 
 nothing but the conscience of book-hunters to prevent 
 it. But my chief troubles were not with works of 
 this kind. The missing items were more apt to be 
 little catchpenny books and, what is stranger, odd num- 
 bers of foreign journals. Who can the people be that 
 want to convert to their own use a number here 
 and a number there of those vexatious publications, 
 long-winded of name, flapping of texture, and incon- 
 venient of size, which appear in " zwanglos erschein- 
 enden Heften ? " I do not know — only they exist, 
 for this kind of thing gave me, for a while, more to 
 do than all the rest of the affairs of the library. [The 
 mystery remains, in 1890, as much a mystery as ever.] 
 The next business was to provide for the continu- 
 ance and gradual improvement of our collection. 
 Even in proportion to our modest scale the adminis- 
 trative means were small. I could not devote any 
 certain or considerable amount of time to keeping up 
 the library. Practically, therefore, I had to devise a 
 routine that should be, as near as might be, self-acting. 
 New English books pretty well take care of themselves. 
 
254 THE LIBRARY OF THE ALPINE CLUB XI 
 
 Even if the authors do not present them one is not 
 likely to overlook them. Old books and current 
 Continental books were the things to be looked after. 
 I therefore established relations with a trustworthy 
 and well-informed bookseller in either line, who 
 undertook to report anything of a prima facie Alpine 
 character that came in his way. Besides this, of 
 course, I keep my eyes open for Alpine items in book- 
 sellers' catalogues generally. Not unfrequently my 
 attention is called to valuable works by one or another 
 of those members of the Club who take an interest in 
 Alpine literature and bibliography. These methods 
 are perhaps of an infantine obviousness and simplicity ; 
 but the result is that with a minimum of disposable 
 time and attention, and with a very moderate expen- 
 diture, I have been able in five years to make additions 
 to the library to an extent which, guessing roughly 
 from the general appearance of the interleaved work- 
 ing catalogue, I estimate at from 20 to 25 per cent. 
 The dates of the books I have picked up range from 
 the sixteenth to the present century. First among 
 them I reckon the charming account of the ascent of 
 Pilatus, by Gesner of Ziirich (1555), who was not 
 only an eminent naturalist and humanist, but a true 
 father of mountaineers. I think he is about the 
 earliest Alpine traveller who takes a real pleasure in 
 the mountains for their own sake. He waxes eloquent 
 in scorn of the effeminate town-bred tourist who 
 thinks the hardships and fatigue (much greater in 
 Gesner's time than now, relatively to the results 
 that could be attained) are not amply repaid. The 
 
XI THE LIBRARY OF THE ALPINE CLUB 255 
 
 seventeenth and early eighteenth centuries are gener- 
 ally barren of Alpine works ; but there are a certain 
 number of books of the gazetteer sort, including some 
 rather quaint English ones. In this kind we have 
 acquired the Mercurius Helveticus (1701). In the 
 latter part of the eighteenth century there sprang up 
 a considerable literature of detailed description and 
 exploration, the forerunners of our modern books of 
 travel and Alpine journals. The French-speaking 
 region of Switzerland and Savoy produced most of 
 these works, though some are in German. Our lib- 
 rary now has a good representative collection for this 
 period, though, I fear, not a complete one. We have 
 lately added two contemporary accounts of the great 
 landslip at Goldau, on the lake of Luzern (1806-7). 
 Then the first generation of the nineteenth century 
 produced a crop of elaborately illustrated Alpine 
 portfolios and albums. Napoleon's passage of the 
 Alps and the engineering of the Simplon road had 
 added a military interest to the picturesque one. We 
 have a Promenade pittoresque de Geneve h Milan 
 in honour of the Simplon, in the original large form, 
 and also in a smaller edition a few years later,. I 
 confess to a certain dehght in these pictures ; their 
 texture and scheme of colour, which may be called 
 tea-boardiness in excelsis, resemble nothing in nature 
 and are almost unique in art. Of much the same 
 spirit are the collections of Swiss costumes, in which 
 the figures are all conventionally smart and pic- 
 turesque. 
 
 Scientific papers and tracts on Alpine subjects 
 
256 THE LIBRARY OF THE ALPINE CLUB XI 
 
 form a distinct category. Much matter of this kind 
 naturally finds its place in the publications of the 
 Alpine Club itself and kindred societies ; but some is 
 scattered in the transactions of other learned bodies, 
 and must be picked up piecemeal as occasion serves. 
 A bound volume of papers by Murchison, on various 
 points of mountain physical geography, turned up in 
 a country bookseller's catalogue not long ago. This 
 is the sort of find over which the bookworm of a 
 small collection may be permitted to rejoice in a 
 small way. 
 
 There is also a religious or semi-religious literature 
 of the Alps. During the reigns of their late Majesties 
 George IV. and William IV. many worthy English 
 Protestants went about Europe — as often as not 
 taking Switzerland in their tour between France and 
 Italy — and filled their note-books with remarks on 
 the privileges of those who live under a reformed 
 establishment, and the viciousness, dirtiness, and 
 generally wretched condition of Popish countries. 
 The Vaudois Protestants have also their sub-Alpine 
 evangelical biographies and edifying narrations. 
 Works of this kind add absolutely nothing to our 
 knowledge of the Alps, and are contemptible as 
 literature, being written in the mawkish, jargon 
 which seems, alike in English and French, to be the 
 fitting expression of morbid Calvinistic excitement 
 kept at simmering point. I have not thought it 
 necessary or desirable to acquire more than a few 
 typical specimens of this class. ^ 
 
 1 It will be understood that this refers only to nineteenth century 
 
XI THE LIBRARY OF THE ALPINE CLUB 257 
 
 What I have said of our additions within the last 
 five years may pass as a sample of the general 
 character of our collection. To define Alpine litera- 
 ture is a task I do not feel capable of undertaking ; 
 the more so as no systematic classification of our 
 books has yet been attempted, and no rule has ever 
 been formulated as to the classes of books which come 
 within our scope. The librarian deals with each case 
 on its own footing. In doubtful cases I should my- 
 self lean towards inclusion; if the book were an 
 expensive one I might refer to the Committee, 
 Practically we have aimed at completeness in 
 mountaineering proper, at working utility in the 
 way of general information about the Alps and other 
 great mountains, and at a good choice of specimens 
 in the way of curiosities and miscellanea. We possess 
 a few standard works of reference, and a few more 
 or less curious early works, on the political history, 
 institutions, and general topography of Switzerland ; 
 but we should not go so far with regard to the 
 Caucasus, the Himalayas, or the Andes. In like 
 manner we deem the controversy on Hannibal's 
 passage of the Alps to concern us, and have the 
 tracts of divers learned persons on that subject. 
 There is a grim pleasure in thinking that my friend 
 Mr. Freshfield has lately gone near to show that the 
 learned persons (partly because they had not visited 
 the ground, and knew nothing about mountain passes) 
 
 books. The history of the troubles and final "glorieuse rentr^e" of 
 the Vaudois in the seventeenth-eighteenth centuries is quite another 
 matter. 
 
 S 
 
258 THE LIBRARY OF THE ALPINE CLUB XI 
 
 were all wrong. ^ Observations of the physical 
 structure of glaciers and other masses of ice, in what- 
 ever part of the world, are fairly within our range : 
 Arctic travel, as travel, I think is not, though our 
 borders have been enlarged in this and other directions 
 by presentation copies. 1 may mention that a good 
 general account of early Alpine literature is to be 
 found in a lately published book, Peyer's Geschichte 
 des Reisens in der Schweiz (Basel, 1885). A pretty 
 full Alpine bibliography is published by H. Georg, 
 of Basel (Bibliotheca Alpina Tertia, 1878). A 
 revised edition of the Alpine Club catalogue may one 
 day supply the foundation of a similar work for 
 English reading.^ 
 
 Concerning the technical details of our library 
 I have very little to tell, partly because in divers 
 respects there are not any. The number of printed 
 volumes may be taken as something under one 
 thousand. We have a fair collection of maps, and a 
 useful MS. catalogue of them ; but we have not space 
 for a proper arrangement even of the books, and 
 any one wanting to consult maps with ease and con- 
 venience would probably do better at the Geographi- 
 cal Society. I regret that I have not much.information 
 about the libraries of Continental Alpine Clubs, or 
 how far they have formed libraries at all beyond 
 providing room for their own publications, journals 
 taken in exchange, and presentation copies. [Since 
 
 1 "The Pass of Hannibal," Alpine Journal, xi. 267. 
 
 2 See now Mr. Coolidge's Simss Travel and Stdss Guidebooks, 
 1889. 
 
XI THE LIBRARY OF THE ALPINE CLUB 259 
 
 writing this I have learned of some cases where it has 
 been done.] The fact is that the library of the Alpine 
 Club is very little used. Under the peculiar conditions 
 of its existence it is difi&cult to see how it can be 
 made more useful. Meanwhile there is no scope for 
 refined devices of any kind. All we can do is to 
 preserve the collection for posterity, keeping it up 
 and improving it, as occasion ofi"ers, on the lines I 
 have indicated. But, lest I should end in a tone of 
 over much humility, I shall tell you that the Alpine 
 Club has at least produced one rare book. The third 
 volume of the Alpine Journal has long been out of 
 print ; it is not easy to meet with at all, and it is 
 very difficult to get a perfect copy with the plates. 
 My own is without them, which I lament mainly for 
 the sake of the delightful cat-faced dragon reproduced 
 from Scheuchzer's Itinera Alpina (1723). The 
 original, which we also have in the library, is now, I 
 believe, more easily procurable than the reproduction. 
 
XII 
 
 THE FOEMS AND HISTOEY OF THE SWOED ^ 
 
 There seems to be a culminating point not only in 
 all human arts, but in the fashion of particular 
 instruments. And it so happens that the pre- 
 eminent and typical instruments of war and of music 
 attained their perfection at nearly the same time, in 
 the first quarter of the eighteenth century. Within 
 that period the violin, chief minister of the most 
 captivating of the arts of peace, and the sword, the 
 chosen weapon of skilled single combat and the 
 symbol of military honour, assumed their final and 
 absolute forms — forms on which no improvement has 
 been found possible. Strangely enough, the parallel 
 holds a step further. In each case, although nothing 
 more could be added to the model or the workmanship, 
 it was yet to be long before the full capacities of the 
 instrument were developed. A quartet of Beethoven 
 hardly differs more from the formal suites and gavottes 
 of such composers as Eameau than does the sword- 
 
 1 A Friday evening discourse at the Eoyal Institution of Great 
 Britain, June 1, 1883. Cf. the article "Sword," also by the present 
 writer, in the 9 th ed. of the Encyclopaedia Britannica, vol. xxii. p. 
 800. 
 
XII THE FORMS AND HISTORY OF THE SWORD 261 
 
 play of tte school of Prevost or Cordelois from the 
 nicely balanced movements and counter -movements 
 taught and figured in the works of Liancour or 
 Girard. Nor has fencing been without its modern 
 romantic school ; we may even say that it has had its 
 Berlioz in the brilliant and eccentric Bazancourt, 
 a charming writer on the art, and — as he has been 
 described to me by competent authority — un tireur 
 des plus fantaisistes. And in both cases we may 
 truly say that the period of academic formality was 
 the indispensable predecessor of the more free and 
 adventurous development of our own time. But 
 before the modern small-sword could even exist — the 
 sword, as it is called eminently and without addition 
 in its land of adoption, epSe as opposed to sabre — a 
 long course of growth, variation, and experiment had 
 to be run through. To give some general notion of 
 the forms and history of the sWord is what I shall 
 now attempt; I say some notion, for the subject, 
 narrow as it may seem at first sight, is one that 
 marvellously grows upon consideration. And though 
 there are perhaps not many of us nowadays who 
 would, like Claudio before he fell in love, walk ten 
 mile a -foot to see a good armour, I think we shall 
 find the story not without interest. 
 
 The sword is essentially a metal weapon. Here at 
 the outset we are on disputable ground ; one cannot 
 take a part either way without differing from good 
 authorities. But some part must be taken, and on 
 this point I hold with General Pitt- Rivers. The 
 larger wooden or stone weapons, clubs and the like. 
 
262 THE FORMS AND HISTORY OF THE SWORD XII 
 
 were not and could not be imitated in bronze in the 
 early days of metal- work, for the one sufficient reason 
 that metal was too scarce. We start then with spear- 
 heads of hammered bronze, imitating the pointed 
 flints which doubtless were still used for arrow-heads 
 until bronze was cheap enough to be thrown or shot 
 away without thought of recovering it. The general 
 form of these spear-heads was a kind of pointed oval, 
 a type which has continued with only minor variations 
 in the greater part of the spears, pikes, and lances of 
 historical times. It is difficult to say whether the 
 spears thus headed were oftener used as missile or 
 thrusting weapons, though the javelin has also forms 
 peculiar to itself, of which the most famous example 
 is the Eoman pilum. In the semi-historical warfare 
 of the Homeric poems the spear is almost always 
 thrown ; in the later historical period it is held fast 
 as a pike ; the Romans, carefully practical in all 
 matters of military equipment, had different spears 
 for different kinds of service. In mediaeval Europe 
 the missile use of spears had, I believe, disappeared 
 altogether, except in the defence of walls and in naval 
 combats. However these things may be, the need of 
 a handier weapon than the spear for close quarters, 
 and a readier and more certain one than the club, 
 must have been felt at an early time. A spear 
 broken off short would at once give a hand -weapon 
 like the Zulu "stabbing assegai." When metal 
 becomes more abundant, and skill in working it 
 more common, such weapons are separately designed 
 and made ; the spear-head is enlarged into a blade. 
 
XII THE FORMS AND HISTORY OF THE SWORD 263 
 
 with but little alteration of form, and we have a 
 bronze^ dagger of the type known to English archaeo- 
 logists as " leaf-shaped," the characteristic type of the 
 bronze period everywhere. Some of the Greek bronze 
 daggers, indeed, are rather smaller than the full-sized 
 spear-heads. With increasing command of metal the 
 length of blade is increased ; and w^ have in course 
 of time a true sword. It is impossible to define 
 where the dagger ends and the sword begins, but 
 perhaps the metal -bladed weapon may fairly be 
 called a sword when it is two feet long or upwards, 
 and has a metal grip, or nucleus of a grip (the " tang " 
 of the modern armourer), wrought in the same piece 
 with it, and finished off with a counter -guard or 
 pommel. It may be observed that the prehistoric 
 armourers, as far as one can guess, had no theories 
 as to the most effective length of their weapons. I 
 believe the dimensions were determined (within the 
 limits of practical handling by a man of average 
 stature) almost wholly by the costliness of the 
 material. In the later bronze and earlier iron 
 periods we find the blades attaining almost or quite 
 the length of a modern sabre. And in like manner 
 the bulging curvature towards the point appears not 
 to have been adopted in order to give cutting power 
 (which to some extent it does), but to be a mere 
 imitation of the spear-head, which in turn owes its 
 form to imitation of the earlier chipped flint points. 
 
 ^ It is not universally true that bronze was known and worked before 
 other metals. Iron came first where, as in Africa, it was most access- 
 ible. But I speak here with a view to the European development only., 
 
264 THE FORMS AND HISTORY OF THE SWORD XII 
 
 However produced, and for whatever reasons retained, 
 this leaf- shape is the continuing type of the Greek 
 sword throughout ancient Greek history; and it is 
 not only thus persistent, but now and then recurs 
 at much later times in unexpected ways. It is 
 exactly reproduced in a pattern of short sword for 
 the French dismounted artilleryman, dated 1816, 
 which may be seen in the Musde d'Artillerie at the 
 Invalides, and in some recent experimental sword- 
 bayonets.^ As the blade lengthened, the leaf- shape 
 was less marked, and in the days of the Eoman 
 empire, and the barbarian dynasties which were built 
 up on its ruins, the symmetrical curvature had dis- 
 appeared, leaving a straight and broad blade which 
 became the European sword of the Middle Ages. 
 Meanwhile the leaf-shape had thrown out other off- 
 shoots elsewhere. From the mediaeval type of sword, 
 or in some cases from one of these other forms, are 
 derived all the weapons of this class now employed 
 by the European races of man. 
 
 Even in the prehistoric period the leaf-shape under- 
 went variations. There have lately been found at 
 Mycenae several sword (or rather dagger) blades of 
 unknown antiquity, differing from the common pat- 
 tern in being straight-edged ; as likewise, it is worth 
 while to note, are the swords figured on Assyrian 
 
 1 The Londoner need not even trouble himself to walk into a 
 museum, for the leaf-shaped Greek sword of classical times has been 
 carefully copied from the best authorities in the weapon held by the 
 statue at Hyde Park Corner taken from the group of the Dioscuri on 
 Monte Cavallo, disfigured by a total perversion of the original motive, 
 and absurdly re-named Achilles. 
 
XII THE FORMS AND HISTORY OF THE SWORD 265 
 
 sculptures, narrow and .slender weapons naounted not 
 unlike the Eoman army sword, and apparently taper- 
 ing to a point. There are Etruscan ones of the same 
 type. The Mycenaean examples are elaborately decor- 
 ated, and of the utmost interest as specimens of early 
 artistic metal work. Two of them are considerably 
 shorter than the others, and these are the most finely 
 wrought.^ The blades are covered with hunting 
 scenes and figures of animals, partly real and partly 
 fabulous ; the style of the work is arfihaic, and both 
 the general style and certain details suggest an 
 Egyptian origin for the school from which it came, 
 if not for the artists themselves. The figures are not 
 wrought in one piece with the blades, but made 
 separately and let in. Some process of the nature 
 of enameUing is used in parts, and gold, or alloys of 
 gold and silver of different shades, are employed to 
 give variety, and indicate to some extent the natural 
 colouring of the objects. Whether imported or pro- 
 duced by a naturalised school of craftsmen, arms so 
 richly adorned cannot have been at any time other- 
 wise than a luxury confined to chiefs of the highest 
 rank. These are of an antiquity far greater than that 
 of the Homeric poems ; and in Homer there is nothing 
 that would lead us to expect such work, though decor- 
 ated scabbards and mountings are mentioned. Swords 
 occur now and then as presents, but there is no trace 
 
 ^ Kumanudes, 'A.drjvaiov, vol. ix. p. 162, and x. p. 309 ; Kbhler, 
 Mittheilungen des deutsehen archaologischen Instituts in Athen, vol. vii. 
 p. 241. I am indebted to Mr. Sidney Colvin for the communication of 
 these papers and their illustrations, as also the monograph on the 
 Eoman soldier's equipment cited below. 
 
266 THE FORMS AND HISTORY OF THE SWORD XII 
 
 of their being peculiarly valuable possessions, and 
 still less of any peculiar feeling of honour being 
 associated with them. The spear is the favourite 
 weapon of Homer's mighty men, as witness the spear 
 of, Achilles which none but himself can cast. The 
 sword is used only when the spear has failed, and 
 seems to do little execution then. In historical 
 Greece, and to some extent among the Eomans, the 
 military point of honour was bound up with the 
 shield, probably because the abandonment of it was 
 naturally the first action of defeated troops anxious 
 to lighten themselves in retreat. 
 
 So far as anything can be inferred from the 
 allusions of the Greek tragedians, and from a few 
 historical details like the improvements in equipment 
 introduced by Iphicrates, the. sword had a better 
 relative position among the arms of Greek warriors 
 in post-Homeric times. Probably this was due to the 
 supplanting of bronze by iron — a process which was 
 complete so long before Thucydides wrote that iron 
 was in his language the natural and obvious material 
 of weapons. To wear arms is for him to wear iron : 
 in old times, he says, every man in Greece "wore 
 iron " in everyday life, like the barbarians nowadays. 
 But it is in the Roman armies that we find the first 
 distinct evidence of the use of the sword being studied 
 with anything like system. We learn from Vegetius 
 — a writer of the late fourth century A.D., and of no 
 great authority for his own sake, but likely enough to 
 have preserved genuine traditions of the service — 
 that the Roman soldier was assiduously practised in 
 
XII THE FORMS AND HISTORY OF THE SWORD 267 
 
 sword exercise. What is more important, the Eomans 
 had discovered the advantage of using the point, and 
 regarded enemies who could only strike with the 
 edge as contemptible.^ Vegetius assigns as reasons 
 for this both the greater effectiveness of a thrust and 
 the less exposure of the body and arm in delivering 
 it ; reasons which though not conclusive are plausible, 
 and show that the matter had been thought out. 
 Further, the Roman practice, notwithstanding the 
 temptation to keep the shielded side foremost, was to 
 advance the right side in attacking, as modern swords- 
 men do. The weapon was a thoroughly practical one : 
 the straight and short blade was mounted in a hilt 
 not unlike that of a Scottish dirk, scored with well- 
 marked grooves for the fingers, and balanced with a 
 substantial pommel : this last point, by the way, is 
 too much neglected in our present military swords. 
 A shorter and broader pattern was worn by superior 
 officers, sometimes in a highly ornamented scabbard, 
 of which there is a very fine specimen in the British 
 Museum. Longer swords were used by the cavalry 
 and by the foreign troops in the Roman service.^ 
 There is no evidence, however, that the Romans ever 
 attained the point of cultivating swordsmanship in 
 the proper sense, that is, making the sword a 
 defensive as well as an offensive arm. 
 
 1 In addition to Vegetius, cf. Tac. Agric. 36. 
 
 2 Lindenschmit, Tracht vnd Bewaffnung des romischen Heeres 
 wahrend der Kcdserzeit. Braunschweig, 1882. Complete recon- 
 structions of both Greek and Eoman equipments of various periods 
 (among others) may be seen in the excellent historical collection 
 of Oostv/mes de guerre in the Musee d'Artillerie of Paris. 
 
268 THE FORMS AND HISTORY OF THE SWOED XII 
 
 After the fall of the Roman empire the sword in 
 general use is a longer and larger weapon, but 
 handled, we may suspect, with less skill and effect. 
 It is straight, heavy, double-edged, and of varying 
 length apparently determined by no rule beyond the 
 strength or the fancy of the owner. A good historical 
 specimen of this type is the sword of Charles the 
 Great, exhibited in the Louvre. As often as not the 
 earlier mediaeval swords are rounded off at the end ; 
 and from this, as well as from the fact that some 
 centuries later the " foining fence " of the Italian 
 school was regarded as a whoUy new thing, it appears 
 that the Eoman tradition of preferring the point to 
 the edge had been lost or disregarded. There is 
 every reason, indeed, to believe that the mediaeval 
 form is the continuance of a prehistoric one. Swords 
 dug up in various parts of Europe from several feet of 
 gravel show no essential difference of pattern from those 
 which were common down to the sixteenth century. 
 The hilts of the prehistoric swords do indeed affect 
 (though not invariably) a shortness in the grip which 
 seems to modern Europeans absurd, though a parallel 
 to it may be found in modern Asiatic swords ; and 
 very short handles occur in European weapons as late 
 as the thirteenth century. From three to three and 
 a half inches, or sometimes even less, is all the room 
 given to the hand. The modern European swords- 
 man's grip is flexible ; he requires free space and play 
 for the fingers, and for the directing action of the 
 thumb which is all but indispensable in using the 
 point. The short grip is intended to give a tight- 
 
XII THE FORMS AND HISTORY OF THE SWORD 269 
 
 fitting and rigid grasp, so that the whole motion of 
 the cut comes from the arm and shoulder ; and this 
 is the manner in which Oriental swords are still 
 handled. Apart from this difference in the size of 
 the grip, a mediaeval knight's sword, or one of the 
 Scottish swords to which the name of claymore 
 (commonly usurped by the much later basket-hilted 
 pattern) properly belongs, has little to distinguish it 
 from the arms of unknown date which, for want of 
 a more certain attribution, are vaguely called British 
 in our museums. But one thing of great curiosity 
 happened to the sword in the Middle Ages ; it became 
 a symbol of honour, an object almost of worship, the 
 chosen seat and image of the sentiment of chivalry. 
 This may be accounted for in part by the accident of 
 the cross -guard seeming to the newly converted 
 barbarians to invest it with a sacred character ; 
 I say accident, for the cross -guard is certainly 
 prehistoric and therefore pre-Christian. Still the 
 religious associations of the cross must have given 
 a quite new significance and importance to such 
 customs as that of swearing by the sword — itself a 
 widely spread one, and of extreme antiquity.^ I 
 think that other though not dissimilar influences also 
 came into play. In the Old Testament the sword is 
 
 1 It is common among tlie Rajpiits, and is met with, in conjunction 
 with peculiar formalities, among certain hill tribes. Wilbraham 
 Egerton, Handbook of Indiam, Arms (published by the India Office, 
 1880), pp. 77, 105-6. It is also a very old Teutonic custom. Grimm, 
 Deutsche Eechtsalterthiim-er, pp. 165, 896, cf. Ducange, s.v. Jura- 
 mentum (super arma). The implied imprecation was probably, " May 
 the god of war abandon me in fight if I swear falsely," hardly " May 
 
270 THE FORMS AND HISTORY OF THE SWORD XII 
 
 mucli oftener mentioned than the spear, and is a 
 recognised symbol of war and warlike power. Thus, 
 to take one of the best known passages, we read in 
 the forty-fifth Psalm, " Gird thee with thy sword 
 upon thy thigh, thou most mighty : " in the 
 Vulgate, Accingere gladio tuo super femur tuum, 
 potentissime. Now it is no matter of conjecture that 
 such a passage deeply affected the mediaeval imagina- 
 tion. These words are quoted by a man of peace, our 
 own Bracton, writing in the thirteenth century, when 
 he speaks of the king's power, and of the counsellors 
 and barons who are his companions, girt with swords, 
 assisting him to do judgment and justice. It seems 
 hardly too fanciful to think that the fascination and 
 pre-eminence of the sword which were at their height 
 in Bracton's time, and are not extinct yet, were in 
 some measure derived from that one triumphant note 
 of the Psalmist. Not that others were wanting; 
 there is the two-edged sword in the hands of the 
 saints : Exaltationes Dei in gutture eorum, et 
 gladii ancipites in manibus eorum, a verse that was 
 
 I perish by th.e sword," for it was held disgraceful to a free man 
 to die otherwise than, in battle. In the sixteenth century Spanish 
 fencing-mafiters, on their admission to the guild, took an oath " super 
 signum sanctse crucis factum de pluribus ensibus," Bevue wrcMologique, 
 vi. 589. Not unfrequently the sword itself was the object of worship ; 
 the feeling is more easily revived in fighting times, even now, than 
 men of peace are apt to think, as Korner's well-known sword song 
 shows. Compare General Pitt-Rivers's Catalogue of his collection 
 {Stationery Office, 1887), p. 102. Some of the formulas in Ducange 
 suggest the meaning, " What I assert or promise I am ready to make 
 good with the sword ; " but this I suspect is a later rationalising of 
 the original ceremony. 
 
XII THE FORMS AND HISTORY OF THE SWORD 271 
 
 in time to serve the Puritans as it had served the 
 Crusaders. 
 
 But to follow out the associations of the sword 
 with knighthood, semi-religious military vows and 
 enterprises, and military honour in general, would be 
 matter for a discourse of itself Let us return to the 
 fashion and development of the weapon. There was 
 little variation from the eleventh to the sixteenth 
 century, save that the decoration of the scabbard and 
 mountings (of which I do not propose to speak) grew 
 more elaborate with the growth of art and luxury, 
 and that the average length tended to increase. 
 After the twelfth century the sword is generally 
 pointed as well as two-edged, and the point was 
 sometimes used with effect. In a fourteenth-century 
 MS. in the British Museum, engraved in Hewitt's 
 Ancient Armour and Weapons, a mounted knight is 
 delivering a thrust in quarte (as we now say), which 
 completely pierces his adversary's shield. In the 
 sixteenth century the blade is made narrower and 
 lighter, and the sword-hand is for the first time 
 adequately guarded. First, the plain cross-bar puts 
 on various curved forms intended to arrest or entangle 
 an enemy's blade with greater effect. Then rings 
 project on either side of the root of the blade, and are 
 worked, as time goes on, into a more or less complex 
 system of convolutions according to the costliness of 
 the weapon and the skUl and fancy of the maker. 
 These curved guards are known as pas d'dne, while 
 the cross-pieces in the plane of the blade, now slender 
 and elongated, and often curving towards the point. 
 
272 THE FORMS AND HISTORY OF THE SWORD XII 
 
 are called quillons. Next the guard throws up one 
 or more branches, covering or encircling the exposed 
 outer part of the hand. These branches form a shell 
 or basket pattern, their ends are solidly joined to the 
 pommel (after an interval of hesitating osculation, 
 well exemplified in a sword now in the museum of 
 the United Service Institution, which was borne by 
 Cromwell at Drogheda), and nothing but a process of 
 selection and simplification is now needed to produce 
 all the modern patterns of sword-hilts. It was at 
 Venice that the basket-hilt came first into regular use 
 in the swords named Schiavone, from being worn by 
 the Doge's body-guard {Schiavoni, Slavs, i.e. Dalma- 
 tians). In these it is of a flattened elliptical shape. 
 The Scots, renowned before the middle of the sixteenth 
 century for their careful choice of weapons, took up 
 the model, and in the course of another generation or 
 two developed it into the well-known basket-guard 
 still used by our Highland regiments, the most 
 complete protection for the swordsman's hand ever 
 devised without undue loss of freedom. Meanwhile 
 the pas d'dne solidifies into a hollowed disc or even a 
 deep bell-shaped cup, the characteristic feature of the 
 guard of the Spanish rapier and the modern duelling 
 sword. One cannot help speaking of the works of 
 men's hands, when one traces them in historical order 
 through their several forms, as if they were organic 
 and grew like flowers, or like variations of a natural 
 species ; and in truth it is not an idle conceit, for 
 the development of design and workmanship answers 
 to a real organic development in the men from whose 
 
XII THE FORMS AND HISTORY OF THE SWORD 273 
 
 brain and hand the work proceeds ; every generation 
 takes up from its fathers, if it is worthy of them, a new 
 starting-point of imagination and aptitude, and the 
 strange conservatism of the imitative faculty is a sure 
 warrant of continuity. 
 
 The latter half of the sixteenth century was the 
 time when the sword stood highest in artistic honour. 
 Then it' was that Holbein designed its ornaments for 
 Henry VIII., and that Albert Diirer engraved a 
 crucifixion on a plate of gold for the boss of a sword 
 or dagger of the Emperor Maximilian's. Both the 
 sword and its ornainent disappeared at an early time> 
 the prey of some greatly daring collector, and nothing 
 is now known of their fate : the design survives, 
 for impressions were taken as from an ordinary 
 engraver's plate, and some are still in existence, 
 though a good example is extremely rare. But in the 
 true armourer's or swordsman's eyes the work even of 
 a Holbein and a Diirer is only extraneous adornment, 
 and must yield in interest to the qualities of the 
 blade. And at. this time the sword- smith became 
 again, as he had been in the ruder ages when metal 
 working was the secret of a few craftsmen, a man of 
 renown. In Spain, in France, in Germany, and in 
 Italy, there rose up masters and schools of sword- 
 cutlery. There was a time when the blades of 
 Bordeaux and Poitiers had the best price in the 
 English market ; but soon those of Toledo, combining 
 beauty, strength, and elasticity, gained that eminence 
 of which the tradition still clings to them. Othello's 
 " sword, of Spain, the ice-brook's temper," was such 
 
 T 
 
274 THE FORMS AND HISTORY OF THE SWORD XII 
 
 an one as these now before us. And Shakespeare, be 
 it noted, knew here, as always, exactly what he was 
 speaking of ; for it was long believed that the quality 
 of the finest blades depended on their being tempered 
 in mountain streams. Germany was not far behind 
 in the race either ; the Solingen blades, stouter and 
 rougher than the Spanish ones, but for that reason 
 fitter for common military service, made their trade- 
 mark of a running wolf known throughout the north 
 of Europe. The wolf, or hieroglyphic symbol that 
 passed for one, was easUy taken for a fox. Hence, it 
 should seem, the cant name of fox for a sword, which 
 is current in our Elizabethan literature. " 0, Signieur 
 Dew, thou diest on point of fox," cries Pistol to his 
 captive on the field of Agincourt. A. stUl greater 
 reputation was gained by the strong and keen broad- 
 swords bearing the name of Andrea Ferara, long a 
 puzzle to antiquaries from the want of positive know- 
 ledge whether he was of Italian or Spanish origin. 
 The story that he was invited to Scotland by James 
 V. appears to be mere guess-work. There exists, 
 however, contemporary evidence that some time after 
 1580 two brothers, Giovan Donato and Andrea dei 
 Ferari, were well known sword-makers, working at 
 Belluno in Friuli, the lUyrian territory of Venice ; 
 and this goes far to settle the question between Spain 
 and Italy. ■^ Probably the name of Ferara became a 
 kind of trade-mark, and was used afterwards by many 
 successors or imitators. 
 
 During this time the Spanish and Italian rapier 
 
 ^ Cornkill Magazine, vol. xii. p. 192 (August 1865). 
 
XII THE FORMS AND HISTORY OF THE SWORD 275 
 
 was undergoing its peculiar development, and leading 
 the way to the modern art of fencing. But this 
 takes us out of the general line of history into a 
 distinct branch. We have henceforth to consider 
 the sword, not as the simple following out of a given 
 primitive form, but as a weapon diverging from that 
 form in two directions. It may be specialised as a 
 cutting or as a thrusting arm. In the military sabre 
 of our own time we find both qualities reconciled by 
 a sufficiently ejffective compromise, but only after a 
 long course of experiments. 
 
 For many centuries the armourers and swordsmen 
 of the East have cultivated the edge at the expense 
 of the point, and have attained a partly just and 
 partly fabulous renown. The point, after being 
 neglected since the days of the Romans, has made 
 up its lost time in the West, and made it up triumph- 
 antly; for it is now admitted that the swordsman 
 who would be a complete master of the edge must 
 have learnt the ways of the point also. Let us take 
 the earlier stage first, as shown in the cutting swords 
 of the East. Broadly speaking, their characteristic 
 feature is a decidedly curved blade as opposed to the 
 straight or nearly straight European form. Not that 
 aU old European swords are straight, or all Eastern 
 swords curved. There are curved blades of mediaeval 
 and even earlier times (one prehistoric example is in 
 the Copenhagen Museum), and one remarkable type 
 of Indian sword, the Mahratta gauntlet sword (Patd), 
 is quite straight ; but the contrast holds good in the 
 main. The object of curvature is to gain cutting 
 
276 THE FORMS AND HISTORY OP THE SWORD XII 
 
 power. When a straight sword strikes its object full, 
 the direction of the stroke is at right angles to the 
 length of the blade ; and the amount of resistance, 
 for a given velocity of stroke and substance to be cut, 
 is measured by the acuteness of the angle shown by a 
 transverse section of the cutting blade. The finer 
 this angle, the less the resistance. In the case of an 
 instrument not intended to bear rough usage or cut 
 hard bodies, or much of any substance at one stroke 
 (as a razor), it is only a question of workmanship how 
 fine the angle can be made. But with a sword it is 
 otherwise. Without a certain amount of thickness, 
 the best steel blade would be too fragile or too 
 flexible, so that in practice the limit up to which its 
 cutting power can be increased by fining down the 
 edge is soon reached. But now let the blow be 
 delivered in a direction not at right angles, but 
 oblique to the axis of the blade. The angle of 
 resistance will then be given by an oblique section 
 of the blade, and in proportion to the obliquity it 
 wiU be finer than the angle of a straight cross section. 
 It is on exactly the same principle that the steepness 
 of a road or path on a mountain side is diminished 
 by giving it a zigzag course. With a straight edge 
 this eff"ect can be produced by what is called a 
 drawing cut. But it is far more simply and certainly 
 produced by giving a permanent curvature to the 
 edge in the part where the stroke falls. A weapon 
 thus formed cannot help presenting an oblique section 
 of the blade in the act of cutting, a,nd therefore will 
 cut better than a straight weapoij of similar trans- 
 
XII THE FORMS AND HISTORY OF THE SWORD 277 
 
 verse section. This is the principle of all curved 
 swords, exemplified in the choice Persian blades, in 
 the common Indian sabre (Talwdr), and in the light 
 cavalry sword of almost identical pattern which was 
 used in our own service in the Peninsular and Waterloo 
 campaigns. Near the hilt the blade is nearly straight, 
 but towards the centre of percussion it bends rapidly 
 away. This efi'ect is enhanced by mounting the 
 sword so that the initial direction of the blade, from 
 which the curve falls back, makes a sensible angle 
 with the line of direction of the hilt, and goes before 
 it to meet the object struck at ; in the sword-smith's 
 terms, by making the edge " lead forward." Hence 
 the elegant double curve made by the blade and hilt 
 of the Persian sabre. The same rule is followed, 
 though less obviously, by the most recent European 
 patterns. In Japanese swords it is reversed, for some 
 reason which I have never seen explained. 
 
 The use of a curved blade is of unknown antiquity 
 in the East. Its most ancient form was probably 
 short, and broader at the point than at the handle 
 (the scimitar properly so called) ; an exaggerated 
 representation of this type is the conventional weapon 
 of Orientals and barbarians among the painters of 
 the Renaissance or even later. Passing over earlier 
 stases, however, let us come to the sabre which was 
 made known to Western Europe by the crusades, 
 and whose form and fashion have continued to our 
 own day without notable change. These Indian and 
 Persian arms exhibit the perfection of a specialised 
 type. Great cutting power is gained by the curva- 
 
278 THE FORMS AND HISTORY OF THE SWORD XII 
 
 ture, which ensures an oblique section of the blade, 
 and therefore an acuter angle of resistance, being 
 presented to the object struck. Everything else is 
 sacrificed to the power of the edge, and sacrificed 
 deliberately. The snaall grip and the partial or total 
 neglect of protection for the sword-hand are part of 
 the same plan. Defence is left to the shield and 
 armour. The curious projecting pommel of the 
 commonest pattern of Indian sabre may act, indeed, 
 as a guard for the wrist, but it has other uses ; it 
 may become a weapon of offence at close quarters, 
 it balances the weight of the blade, and it may 
 be grasped with the left hand for a two-handed 
 blow. Scottish broadswords not uncommonly have 
 a kind of outside loop made in the hilt for the same 
 purpose. 
 
 More time and labour have been given to the 
 making and adornment of choice weapons in Syria, 
 Persia, and India than in any other part of the 
 world. The best steel always came, it appears, from 
 India. Damascus has given its name to the character- 
 istic processes of Oriental metal-work, but has long 
 been supplanted by Khorassan as the chief seat of the 
 art : nevertheless, Damascus blades, or what purport 
 to be such are still freely sold to travellers in the 
 East. One such purchaser, I am told, observed that 
 a number of these swords had the same inscription in 
 Arabic characters. He was unable to read it himself 
 but afterwards consulted an Orientalist, who informed 
 him that the writing signified — " I am not a Damas- 
 cus blade." It may be believed that the interpre- 
 
XII THE FORMS AND HISTORY OF THE SWORD 279 
 
 tation was faithful, for the jest is quite in the Persian 
 manner. The damasked or "watered" appearance of 
 the blades which are most highly esteemed in the 
 East appears to have been originally due to an 
 accidental crystallisation of the steel in the process 
 of conversion. The production of it was long 
 thought a secret, but Western experts have now 
 both explained and imitated it.^ 
 
 While we are among Indian weapons, we may 
 learn from them that the development of the sword 
 from the dagger by successive steps and modifications 
 is not a matter of mere archgeological conjecture 
 ■Almost conclusive proof is given by the series of 
 intermediate forms between the straight broad dagger 
 (Katir), with a handle formed by a pair of cross-bars 
 set close together between two other bars parallel to 
 the axis of the blade which serve as hand-guards, and 
 the long sword with gauntlet hilt called Pata. The 
 dagger, as far as the blade goes, is of a widespread 
 type : the mediaeval short swords, for example, called 
 by modem antiquaries "anelace" or "langue-de-boeuf " 
 (though there is some doubt as to what anelace or 
 anlas, a name peculiar to England and of unknown 
 origin, really means), are not unlike it. But the 
 mounting is peculiar, and enables us to follow the 
 transitions. First the blade is made about a third or 
 a half longer. Then a kind of shell covering the back 
 of the hand is added to the bars of the hand-guard. 
 In this form the weapon is called " Bara jamdddii " 
 (death-giver), and seems to be known only in a 
 
 1 Wilkinson, Engines of War (1841), pp. 200 et seq. 
 
'280 THE FORMS AND HISTORY OF THE SWORD XII 
 
 limited part of Southern India. Finally the blade is 
 lengthened into a double-edged sword, and the hand- 
 guard is closed in so as to make a complete gauntlet- 
 shaped hilt. The original cross-bar handle remains, 
 making the grip entirely different from that of an 
 ordinary sword.-' One does not see how an arm thus 
 mounted can be used except for a sweeping blow, no 
 room being given for the slightest play of the wrist. 
 It is not uncommon to find old Spanish or other 
 •European blades mounted in these gauntlet hilts — a 
 fact worth noticing, to correct the popular impression 
 that Eastern swords are better than European ones. 
 This is far from being generally true. Not only may 
 old Spanish, Italian, or German blades be found in 
 collections of Oriental arms, but in quite modern 
 times Indian horsemen have been known to use by 
 preference English light cavalry swords, remounted in 
 their own fashion, and to do terrible execution with 
 them. European swords have been found ineffective 
 in Indian warfare, not because they were bad in 
 themselves, but because they were not kept sharp 
 lik6 the Indian ones. "A sharp sword will cut in 
 any one's hand," said an old native trooper to 
 Captain Nolan in answer to questions as to the secret 
 of the Indian horsemen's blows. And if European 
 sword-smiths do not produce habitually such elaborate 
 work as those of Persia and Damascus, it is not 
 
 1 Examples of all the stages may be seen in the Indian section of 
 the South Kensington Museum, or still better in the Pitt-Eivers 
 collection, now at Oxford, where a case is specially arranged to show 
 the transition. 
 
XII THE FORMS AND HISTORY OF THE SWORD 281 
 
 because they have not the secret of their Eastern 
 fellow-craftsmen, but because the time and expense 
 required for watered blades are such as would not be 
 compensated by the price obtainable in the Western 
 market. Only in the East, where men seem to take no 
 count of time, and where centuries have passed without 
 historians and without any means of fixing dates, 
 could this branch of the armourer's art have arisen, or 
 be regularly practised. 
 
 Similarly, we have all read in Walter Scott's 
 Talisman the spirited (though, it must be con- 
 fessed, inaccurate) ^ description of the sword-feats 
 performed by Richard and Saladin ; and most readers 
 probably imagine the cutting of the cushion and the 
 veil to require some temper to be found only in 
 Oriental blades, or some refinement of address 
 peculiar to Oriental hands. But these and other 
 feats of Eastern swordsmen have been and are re- 
 peated "with success by Europeans in our own time. 
 It is true that a light and very sharp sword, not 
 the service arm, is used for that special purpose. 
 
 Various peculiar types of curved swords and more 
 or less similar weapons occur in different parts of the 
 East. One which deserves special mention, from the 
 distances to which it has travelled, is the yataghan 
 type. The doubly-curved blade of the . yataghan, 
 still a constant part of the armed Albanian's equip- 
 
 1 Richard I. is made to wield a two-handed sword, a weapon 
 unknown in his time, and used only by foot-soldiers when it did come 
 in some three centuries later ; and Saladin's is described as having a 
 narrow curved blade, whereas Indo-Persian sabres are, on the average, 
 broader if anything than European swords. 
 
282 THE FORMS AND HISTORY OF THE SWORD XII 
 
 ment, and a favourite Turkish weapon/ is identical 
 in form with the short sword or falchion (Kopis) 
 figured on sundry Greek monuments, and with the 
 Kukri of Nepal. This last, indeed, is commonly 
 broader and more curved ; but there is an elongated 
 variety of it which cannot be distinguished from the 
 yataghan, and which occurs in Nepal itself, in the 
 Deccan, and in Sind. A precisely similar arm, prob- 
 ably imported by Eoman auxiliaries, has been found 
 at Cordova and elsewhere in Spain, and may be 
 seen in the Pitt-Eivers collection and the Musee 
 d'ArtUlerie. It makes a very handy and formidable 
 weapon, combining, if not too much curved, a strong 
 cutting edge with considerable thrusting power. Of 
 its birthplace, I believe, nothing is known ; it is more 
 or less used in all the Mahometan parts of Asia, and 
 the geographical distribution would point to Persia or 
 thereabouts for a common origin ; but then Persia is 
 just the country where the thing seems to be least 
 common, and the word is purely Turkish. It is not 
 impossible that, notwithstanding the strong tempta- 
 tion to make out a pedigree, we have here a case of 
 independent invention in two or more distinct 
 quarters ; and in fact the Kukri of the Gurkhas is 
 stated (on what authority I do not know) to be 
 derived from a bill-hook used for woodcutter's work 
 in the jungles. In modern times the yataghan has 
 been the parent of the French sword-bayonet, and it 
 
 1 I do not thint it was adopted by the Greeks. In the Klephtic 
 ballads it seems to be opposed, as the Turkish arm, to the Greek sword 
 (cnradt). 
 
XII THE FOEMS AND HISTORY OF THE SWORD 283 
 
 was even proposed by Colonel Marey, the author of 
 a full and ingenious monograph on the forms and 
 qualities of swords, to make the infantry officer's 
 sword of this pattern. 
 
 There are many kinds of outlandish weapons, in 
 Nepal and farther east, of which the edge has a con- 
 cave instead of a convex curvature. I doubt whether 
 these be properly swords ; at all events, they have 
 had no influence on European forms. The Japanese 
 swords also stand by themselves, though they are 
 historically nothing but a superior variety of the 
 general type which is found in China and Burmah, 
 and to some extent in the Malay archipelago. They 
 are exceedingly sharp, but have no flexibility at all. 
 It may be worth noting that the custom of wearing 
 two swords, which has been the occasion of some 
 curiosity and conjectural explanation, is not confined 
 to Japan. Certain Arabs in the Mahratta service are 
 stated to have done the same.-' The two swords of 
 the Japanese, however, are of such different sizes as 
 to be rather comparable to the sword and dagger of 
 Europeans, and perhaps there is really nothing to 
 explain. 
 
 We pass now to the other special line of develop- 
 ment, that of the rapier and small-sword. Whatever 
 difierences of opinion may be possible about the sabre, 
 there can be no doubt that the straight sword which 
 ultimately became a thrusting sword is an extension 
 of the dagger. The East is rich in daggers of many 
 forms, so rich that in India alone a score of distinct 
 
 ^ Egerton, op. dt. p. 114. 
 
284 THE FORMS AND HISTORY OF THE SWORD XII 
 
 names for distinct varieties of the weapon appear to 
 be current. There is a broad difference, however, 
 between the straight and the curved daggers, and the 
 modes of using them ; the straight ones being held 
 like a sword, the curved ones the reverse way, with 
 the little finger next the blade. Among the curved 
 species is one of which the shape would be puzzling if 
 it were not known to be simply copied from a buffalo 
 horn. The proof is that a dagger of this class is 
 sometimes nothing but the split and sharpened buffalo 
 horn itself. I am not sure that all the curved daggers 
 may not be due to some imitation of this kind, and 
 thus be quite unconnected with the course of develop- 
 ment leading up -to the modern sword. That the 
 curved sabre is modified from a straight sword, not 
 enlarged from a curved dagger, is, I think, too plain 
 for discussion. The broad -bladed straight dagger 
 which lengthened into the gauntlet-hUted sword has 
 already been mentioned. But neither in this nor in 
 any other case does the enlargement of the dagger 
 appear to have suggested in the East the fabrication 
 or use of a full -sized sword with thrusting for its 
 chief or sole purpose. The rapier, the duelling sword, 
 and the art of fencing, are purely Western inventions. 
 Before going further, let us put a needful distinction 
 of terms beyond mistake. A duelling sword and a 
 rapier are not the same thing, though they are often 
 confused. The rapier is a cut-and-thrust sword so far 
 modified as to be used chiefly for pointing, but not 
 to the complete exclusion of the edge. The duelling 
 sword is a weapon made, and capable of being used. 
 
XII THE FORMS AND HISTORY OF THE SWbRD 285 
 
 for pointing only. Sucli a construction would be 
 naturally first applied to the dagger, as its cutting 
 edges could never be of much oflFensive service unless 
 it were of a large and clumsy type. Cutting power 
 being once regarded as secondary or superfluous, the 
 two-edged blade is narrowed for convenience of car- 
 riage, perhaps also of concealment, until thickening 
 becomes necessary to make it strong enough. This 
 reinforcement may be efiected by a ridge on either 
 side of the blade, or by a ridge on one side only, 
 which soon becomes as much or as little of an edge 
 as the original and now degraded edges of the blade. 
 From the narrow two-edged blade strengthened by a 
 single "median ridge" we get a purely thrusting 
 blade of triangular section, or an approximately 
 bayonet- shaped blade as we should now call it. 
 From the blade with a double " median ridge " we 
 get a blade of quadrangular section, not corresponding 
 to anything now in familiar use. Both the three- 
 edged and the four-edged shape occur among mediaeval 
 daggers ; they are also found, though exceptionally, 
 in Indian specimens. It is difficult to say when they 
 were introduced. We have a distinct record of three- 
 edged swords or long daggers having been employed 
 at the battle of Bovines (a.d. 1214) ; they are specially 
 described by the chronicler as a novelty.^ But no 
 
 1 Guillelmi Armorid liber (GuiUaume le Breton), anno 1214, § 192 
 (p. 283 of ed. 1882, published by tbe Soci^t6 de I'histoire de France), 
 — " . . . Ante oculos ipsiiis regis ocoiditur Stepbanus de Longo 
 Campo, miles probus et fidei integre, cultello recepto in capite per 
 ocularium galee. Hostes enim quodam genere, armorum utebantur 
 admirabili et bactenus inaudito : babebant enim cultellos longos. 
 
286 THE FORMS AND HISTORY OF THE SWORD XII 
 
 example of so early a date appears to be either 
 preserved or figured any-wliere ; and it was as nearly 
 as possible five centuries afterwards that the bayonet- 
 shaped small-sword prevailed over the rapier. It is 
 worth noticing that some of the Scottish broadswords 
 of the late seventeenth and early eighteenth centuries 
 have a "median ridge" so strongly marked as to 
 make them almost three-edged. 
 
 As for the two-edged rapier, its parentage is 
 obvious. It is the military sword of all work, in the 
 form it had assumed in the first half of the six- 
 teenth century, lengthened, narrowed, and more 
 finely pointed.^ The interesting question is, what 
 led to the use of the point being studied and 
 developed at that particular time. It may seem a 
 paradox to say that the art of fencing is due to the 
 invention of gunpowder ; but I believe it to be true. 
 So long as the body was protected by armour, there 
 was no necessity and no scope for fine swordsmanship. 
 Hard hitting was the only kind of attack worth 
 cultivating. Fire-arms, however, made armour not 
 only of less value, but at short ranges a source of 
 positive danger, just as nowadays, when the side of 
 an ironclad is once penetrated by shot, the splinters 
 make matters worse than if there had been no resist- 
 
 graciles, triacumines, guolibet acwmme indifferenter secantes a cuspide usque 
 ad manubrium, quibus utebantur pro gladiis. Sed per Dei adjutorium 
 prevaluerunt gladii Francorum," etc. The estoc of the Middle Ages 
 ■was a staff-weapon. 
 
 1 It has been said that the rapier and its distinctive manner of use 
 were derived from an elongated dagger employed for piercing the 
 joiats of plate armour ; but I have met with nothing to support this 
 
Xir THE FORMS AND HISTORY OF THE SWORD 287 
 
 ance at all. Armour being abandoned as worse than 
 useless against fire-arms, it became needful to resort 
 to skill instead of mechanical protection for defence 
 against cold steel at close quarters. Various experi- 
 ments were tried ; the shield was reduced in dimensions 
 to make it more manageable, and in England sword 
 and buckler play, which had long been a favourite 
 national pastime, still had, at the very end of the six- 
 teenth century, its zealous advocates against the new- 
 fangled rapier. But the point, of no avail against 
 complete armour, soon manifested its superior power 
 when this barrier was removed. There is some 
 obscurity about the local origin of the rapier and of 
 fencing. The finest old rapiers are Spanish, and 
 there is mention of very early Spanish books on the 
 subject, which, however, do not seem to be extant.-' 
 And it has been said that the rapier was imported 
 into Italy by the Spanish armies early in the six- 
 teenth century. So far as I have been able to learn, 
 however, there is no real evidence of this. 
 
 From Italy the fashion came into France and 
 England, and spread apace, not without grumbling 
 
 1 See Mcolao Antonio, Bibl. Hispana Vetus, torn. 2, p. 305, and 
 Eihl.. Kispcma Nova, torn. 1, p. 468, and torn. 2, p. 57, wlio names 
 two Spanish, authors, Jacobus or Jaume Pons (or Pona) of Perpignan, 
 and Petrus de Turri, as having written in 1474. He does not profess 
 to have seen their books, but gives as his authority a work of Luis 
 Pacheoo de Narvaez (Engcm) y desengano de los errores, que se an 
 querido introducir en la destreza de las armas, Madrid, 1635), which 
 I have not been able to consult. The same names are given by 
 Morsicato Pallavicini, a Sicilian author of the late seventeenth 
 century, but without any reference. It is possible that these books 
 exist or existed in MS. only. 
 
288 THE FORMS AND HISTORY OF THE SWORD XII 
 
 from the older sort of gentlemen and soldiers, of 
 which the echoes are yet audible to us in sundry 
 passages of Shakespeare. At some time between 
 1570 and 1580 the rapier became the favourite 
 companion of the exquisites of London. " Shortly 
 after (the twelfth or thirteenth year of Queen Eliza- 
 beth)," says Howes, the continuer of Stow's Annals, 
 " began long tucks, and long rapiers, and he was held 
 the greatest gallant, that had the deepest ruff and 
 longest rapier ; the offence to the eye of the one, and 
 the hurt unto the life of the subject that came by the 
 other, caused her Majesty to make proclamation 
 against them both, and to place selected grave citizens 
 at every gate to cut the ruffs and break the rapiers' 
 points of all passengers that exceeded a yard in length 
 of their rapiers, and a naU of a yard in depth of their 
 ruffs." A later writer fixes the date of this proclama- 
 tion to 1586, and adds that it forbad rapiers to be 
 "carried, as they had been before, upwards in a 
 hectoring manner," but says nothing of the ruffs.-' 
 In 1594-95 two English treatises appeared on the new 
 art of fence, one translated from the Italian of Giacomo 
 di Grassi, the other the work of Vincentio Saviolo,^ 
 
 ''■ Stow, Annals, continued by Edmond Howes, Lend. 1614, p. 869 ; 
 Survey of London, ed. 1755, vol. ii. p. 543 (in Strype's additional 
 matter). Such, a proclamation was, according to modern ideas, quite 
 illegal ; but mucb else of the same kind was acquiesced in all through 
 Elizabeth's reign. 
 
 2 There is a second book of this treatise with a separate title-page; 
 " Of honor and honorable quarrels," supposed by Warburton to be 
 alluded to in Touchstone's exposition of the lie, seven times removed. 
 I cannot think this at all certain ; the coincidence of matter is not 
 very close, and it appears from Saviolo that other books of the kind 
 
XII THE FOEMS AND HISTOEY OF THE SWOED 289 
 
 an Italian master established in England. The 
 translator of Grassi tells us in his " Advertisement to 
 the Eeader," that " the sword and buckler fight was 
 long while allowed in England (and yet practice in all 
 sorts of weapons is praiseworthy), but now being laid 
 down, the sword, but with serving-men, is not much 
 regarded,^ and the rapier fight generally allowed, as a 
 weapon because most perilous, therefore most feared, 
 and thereupon private quarrels and common frays most 
 shunned." On the other hand, some partisans of the 
 old sword and buckler play maintained its excellence 
 on the express ground that men skilled in it might 
 fight as long as they pleased without hurting one 
 another ; and others denounced the rapier as " that 
 mischievous and imperfect weapon which serves to 
 kill our friends in peace, but cannot much hurt our 
 foes in war " (George Silver, Paradoxes of Defence, 
 1599). But they were soon discomfited. In 1617 
 we find one Joseph Swetnam, a garrulous and not 
 original author, declaring that the short sword or 
 back-sword (a stout sword so called from having only 
 one edge) is against the rapier " little better than a 
 tobacco pipe or a fox tail." We must not suppose 
 that the rapier fight of the sixteenth century re- 
 sembled modern fencing. It was the commoner 
 practice to hold a dagger in the left hand for parry- 
 ing ; this, by the way, has an odd analogy in China, 
 
 were in existence. At least one other, Muzio's, had a European 
 reputation. 
 
 1 C£ Florio, First Fruits (1573), cited by Malone on King Henry 
 IV., Part I. act i. sc. 3, where the buckler is called " a clownish, 
 dastardly weapon, and not fit for a gentleman." 
 
 U 
 
290 THE FORMS AND HISTORY OF THE SWORD XII 
 
 where instruments like blunt skewers are used for the 
 same purpose. And not only did the use of the 
 dagger, or in its absence of the gauntleted left hand, 
 make the conditions different from those of the 
 modern fencing-school, but the principles and methods 
 were as yet crude and unformed. The fencing-match 
 in Hamlet is commonly presented according to the 
 modern fashion, though M. Mounet-Sully's treatment 
 of it constitutes a distinguished exception, and Dumas 
 and Gautier, both of whom knew the historic truth well 
 enough, freely introduce the modern terms and rules 
 into the single combats of their novels. In each case 
 this course may be justified by artistic necessity. But 
 if we look to the engravings in Saviolo or Grassi, we 
 shall find that Hamlet and Laertes, when the play 
 was a novelty at the Globe Theatre, stood at what 
 would now be thought an absurdly short distance (for 
 the lunge, or delivery of the thrust by a swift forward 
 movement of the right foot and body, with the left 
 foot as a fixed point, was not yet invented), with their 
 sword-hands down at their knees, the points of their 
 rapiers directed not to the breast but to the face of 
 the adversary, and their left hands held up in front 
 of the shoulder in a singularly awkward attitude. 
 A great object was to seize the adversary's sword- 
 hilt with the left hand ; and this probably ex- 
 plains the " scuffling " in which Hamlet and Laertes 
 change foils — a thing barely possible in a fencing- 
 match of the present day.^ An incidental illus- 
 tration of the part of the left hand in defence 
 
 1 See Mr. Egerton Castle's Schools and Masters of Fence, pp. 59, 60. 
 
XII THE FORMS AND HISTORY OF THE SWORD 291 
 
 is given in Romeo and Juliet, where it is related 
 that Mercutio 
 
 with one hand beats 
 Cold death aside, and with the other sends 
 It back to Tybalt. 
 
 The duel with rapier and dagger had particular rules 
 of its own ; and the handling of a " case of rapiers " 
 (that is, a rapier in either hand) was also taught, but, 
 one would think, only for display. 
 
 During this period the use of the edge was 
 combined with that of the point, but the point was 
 preferred. " To tell the truth," says Saviolo, " I 
 would not advise any friend of mine, if he were to 
 fight for his credit and life, to strike neither man- 
 drittas nor riversas" (the technical names of direct 
 and back-handed cuts), "because he puts himself in 
 danger of his life ; for to use the point is more ready, 
 and spends not the like time." In the books of the 
 seventeenth century the instructions for mandrittas 
 and riversas disappear accordingly, and at the be- 
 ginning of the eighteenth we find the small-sword in 
 existence and the rapier gradually giving place to it. 
 Experiments had already been made with thrusting 
 blades of triangular or quadrangular section ; at least, 
 specimens of such, ascribed to the early seventeenth 
 or even the end of the sixteenth century, may be seen 
 in museums. In some of these cases, however, one 
 would like to ascertain that a more recent blade has 
 not been mounted in a hilt of the period attributed to 
 the weapon. Be that as it may, the small-sword 
 completely prevailed over the two-edged rapier some 
 
292 THE FORMS AND HISTORY OF THE SWOED XII 
 
 time about 1715. At the same time that the form of 
 the blade was changed, its length, which had been 
 excessive, was reduced to a handier and not less 
 eflfective compass. A sword 36 inches long was 
 reckoned short at the beginning of the seventeenth 
 century, and some rapiers extend to four feet and 
 more. The standard length of the modern small- 
 sword and its representative for fencing purposes, the 
 foil, is from 32 to 34 inches only. Sir William Hope, 
 of Edinburgh, writing in 1692, considers three- 
 quarters of an ell to be " an indifferent good length," 
 that is, "neither too long, which would be unhand- 
 some (i.e. unhandy or clumsy), nor too short, which 
 would be very inconvenient " : taking the ell at 45 
 inches, this comes very near the present measure. As 
 regards the mounting and guard also, there was a 
 marked return to simplicity. The elaborate work of 
 the Spanish rapier-hilts disappears, to be replaced by 
 a plain shell guard for the duelling sword, and a very- 
 light hilt, capable, however, of much decoration if 
 desired, for the walking-sword which every gentleman 
 habitually wore untU near the end of the last century. 
 Meanwhile the art of fencing made rapid progress, 
 and may be said to have been fixed in substance upon 
 its modern lines by 1750 or thereabouts. To give an 
 account of its development before and since that time 
 would require not a part of a discourse, nor a whole 
 discourse, but a book. Such a book, strange to say, 
 does not yet exist,^ not even in France, the chief seat 
 
 1 Mr. Egerton Castle has now given us the history down to the end 
 
XII THE FOEMS AND HISTORY OF THE SWORD 293 
 
 of the art ever since the first half of the seventeenth 
 century, when the supremacy passed to her from Italy. 
 The lunge had, indeed, been taught and figured by 
 Italian masters; but the riposte, which is the very 
 life of modern fencing as a system of combined 
 defence and offence, is undoubtedly a French inven- 
 tion. All the modern authorities of much value are 
 either French or openly founded on the French school. 
 It must not be forgotten, however, that there exists 
 a distinct Italian school, which has never adopted 
 the three -edged sword. Its weapon is a two-edged 
 rapier with cup guard and cross-bar, and its play, 
 though less various than the French, is perhaps not 
 less formidable. 
 
 One is tempted in the various forms and uses of 
 the sword to see a reflection of the general temper, 
 and even the tastes and style of the age. The sword 
 of each period seems fitted' by no mere accident to the 
 gentlemen, both scholars and soldiers, like Bassanio, 
 who wore and handled it. The long rapier, with its 
 quillons and cunningly wrought metal-work, and the 
 rigid hand-hold which the modern Italian swordsmen 
 still use, is a kind of visible image of the stately and 
 involved periods of Elizabethan prose. I can per- 
 suade myself that it was not in the nature of things 
 for Sidney or Raleigh to be otherwise armed. When 
 we come to the great forerunners of modern English, 
 Hobbes (who has in nowise forgotten to put a sword 
 in the right hand of the mystical figure representing 
 
 of the eigMeenth. century. A French version of his work appeared 
 in 1888. 
 
294 THE FORMS AND HISTORY OF THE SWORD XII 
 
 the might of the State in the frontispiece to his 
 Leviathan) seems to wield an Andrea Ferara, such a 
 blade and so mounted as Cromwell's, dealing nimbly 
 and shrewdly with both edge and point. And in the 
 exquisite dialectic of Berkeley and Hume, as clear and 
 graceful as it is subtle, and without a superfluous 
 word, we surely have the true counterpart of the 
 finished play of the small-sword, the perfection of 
 single combat. Warfare is on a grander scale now, 
 the controversies of philosophers as well as the cam- 
 paigns of generals. There are modern philosophical 
 arguments which profess to be more weighty, as they 
 are certainly more voluminous, than Hume's or 
 Berkeley's, and which remind one not of an assault 
 between two strong and supple fencers in which every 
 movement can be followed, but of a modern field-day, 
 where there is much hurrying to and fro, much din, 
 dust, and smoke, and extreme difl&culty in discovering 
 what is really going on. 
 
 But our story is not fully done. At the same 
 time, or almost the same time, with the small-sword 
 there came in an offshoot of this class of weapons 
 which has a curious little history of its own, namely 
 the bayonet, a modified dagger in its immediate origin, 
 but influenced in its settled ordinary form by the 
 small-sword, and by the sabre and yataghan in 
 various experimental forms which have ended ia the 
 sword-bayonet largely used in Continental services, 
 and to some extent in our own. There is a recent 
 French pattern of this weapon in which the yataghan 
 curve is abandoned; though quite straight, it still 
 
XII THE FORMS AND HISTORY OF THE SWORD 295 
 
 has only one edge. It seems a considerable improve- 
 ment on the shape which we copied many years ago 
 from an older French model, and have now discarded 
 to return to a simple dagger form. Thefe have been 
 some rather pretentious writings in France and else- 
 where about the reduction of bayonet practice to a 
 system;-^ I am inclined to think that a man who 
 knows how to use the point of a sword (the necessary 
 foundation of all skUl in hand -weapons) will very 
 soon learn what the bayonet is and is not capable of. 
 A word is also due to the modern military sabre. 
 This, broadly speaking, is a continuation of the 
 straight European military sword of the sixteenth 
 century, lengthened and lightened after the example 
 of the rapier, but one -edged instead of two-edged 
 (which, according to the French authorities, is the 
 decisive mark of sabre as distinguished from epee), 
 and in many cases more or less curved after the 
 fashion of the Eastern swords. Meanwhile, the long 
 straight sword has thrown out a most eccentric 
 development, or even "sport," in the shape of the 
 German Schlager with which students' duels are 
 fought. This is too remotely connected with the 
 main part of the subject to be dwelt upon here ; the 
 duels in question, for the rest, have been often and' 
 pretty recently described by English observers. The 
 rapier and the small-sword are weapons of single 
 combat, not of general military use ; the small sword is 
 too fragile, the rapier both too fragile and too long, for 
 
 ^ Capt. Hutton's concise and thoroughly practical works, Gold Steel 
 and Fixed Bayonets, are by no means included in this category. 
 
296 THE FORMS AND HISTORY OF THE SWORD XII 
 
 a soldier's convenience. It is true that it was proposed 
 by no less an authority than Marshal Saxe to arm 
 cavalry with long bayonet-shaped swords, and his 
 opinion has been followed by at least one modern 
 writer.^ But it is founded on the erroneous notion 
 that a good cutting sabre cannot have a good point, 
 and therefore either the edge or the point must be 
 whoUy sacrificed ; a notion which has so far prevailed 
 that late in the eighteenth century an excessively 
 curved light cavalry sabre (apparently copied with 
 close fidelity from an Indian model) was introduced 
 throughout the armies of Europe. It was the weapon 
 of our light dragoons all through the Peninsular 
 and Waterloo campaigns, and effective for cutting, 
 but almost or quite useless for pointing. Even now 
 there remains a certain difference in most services 
 between the shape of the light and the heavy cavalry 
 swords, the heavy cavalry sword being straighter, or 
 sometimes perfectly straight. But it is pretty well 
 understood by this time that one and the same sword 
 can be made, though not so perfect for thrusting as the 
 duelling sword, nor so powerful for cutting as an 
 Indian talw^r or the old dragoon sabre, yet a very 
 sufficient weapon for both purposes. A blade of 
 moderate length, not too broad, and lightened by one 
 or more grooves running nearly from hilt to point, 
 may be shaped with a curve too slight to interfere 
 gravely with the use of the point, yet sensible enough 
 to make a difference in favour of the edge. This 
 plan is now generally followed. It may stiU be doubted 
 
 ^ Col. Luard, History of the Dress of the British Soldier, 1852. 
 
XII THE FORMS AND HISTORY OF THE SWORD 297 
 
 whether for effective fighting purposes we have im- 
 proved much or at all on the cavalry swords of the 
 sixteenth and early seventeenth centuries. 
 
 The use of the edge, after being unduly neglected 
 in consequence of the startling effectiveness of the 
 rapier-point, has also been more carefully studied in 
 modern times. Closely connected with the error 
 just now mentioned, that the same blade cannot be 
 good for both cutting or thrusting, is an equally 
 erroneous belief that a cut cannot be delivered with 
 sufficient force except by exposing one's whole body. 
 The old masters of rapier -fence already knew better. 
 What says Grassi in the contemporary English 
 version? "By my counsel he that would deliver 
 an edge-blow shall fetch no compass with his shoulder, 
 because whilst he beareth his sword far off, he giveth 
 time to the wary enemy to enter first ; but he shall 
 only use the compass of the elbow and the wrist : 
 which, as they be most swift, so are they strong 
 enough if they be orderly handled." This is exactly 
 what the best modern teachers say. Though saTjre- 
 play cannot rival the refinements of the lighter and 
 more subtle small -sword, there is much more science 
 in it than would be supposed by any one not 
 acquainted with the matter ; and it may easUy be 
 seen that a pair of players who have learnt from a 
 good master do, in fact, expose themselves wonder- 
 fully, little. Nor is it easy to say on which side the 
 advantage ought to be in a combat between duelling 
 sword and sabre, the players being of fairly equal skill, 
 and each acquainted with the use of both weapons. 
 
298 THE FORMS AND HISTORY OF THE SWORD XII 
 
 My final word, albeit it savour of egotism, shall 
 be one of practical testimony and counsel to a gener- 
 ation of students. I must add my voice to those of 
 a long chain of authorities, medical and other, to 
 bear witness that the exercise of arms, whether in 
 the school of the small-sword, or in the practice, more 
 congenial, perhaps, to the English nature, of the 
 sturdier sabre, is the most admirable of regular 
 correctives for the ill habits of a sedentary life. It 
 is as true now as when George Silver wrote it under 
 Queen Elizabeth that "the exercising of weapons 
 putteth away aches, griefs, and diseases, it increaseth 
 strength and sharpeneth the wits, it giveth a perfect 
 judgment, it expelleth melancholy, chpleric and evil 
 conceits, it keepeth a man in breath, perfect health, 
 and long hfe." 
 
 The Baron de Cosson has kindly made notes on 
 some of the points mentioned in the foregoing essay, 
 of which the communication has been accidentally 
 delayed. I can now state on his authority that 
 thrusting swords of triangular and quadrangular 
 section certainly occur in genuine examples as early 
 as the end of the fifteenth century. Most of these 
 examples are German : they were called Panzerstecher, 
 and were made for penetrating between the plates of 
 sheet armour or breaking through chain-mail. Swords 
 with short, rigid, four-sided blades, tapering to a very 
 acute point, occur as early as the fourteenth century. 
 These would seem to be descendants of the cuUelli 
 triacumines of Bovines. 
 
INDEX 
 
 Acre, customary varieties of, 138 
 All Souls' College, Oxford, its law 
 
 library, 96, 242 
 Alpine Glut), formation, of its 
 
 library, 251 
 Alps, various kinds of literature of, 
 
 255, 256, 258 
 Anglo-Saxon laws, as to breach, of 
 
 peace, 70 
 Austria not related to Hungary 
 
 as England to Ireland, 205 
 Averages, importance of, in working 
 
 of examination, 223 
 
 Bayonet, forms of, 294 
 Biblioklepts, why they take odd 
 
 numbers, 253 
 Black Death, scarcity of labour 
 
 caused by, 133 
 Blackstone, William, 26, 29 
 Bondmen, in Anglo-Saxon law, 
 
 123, 128 
 Bovines, cultelli triacwmines used 
 
 at battle o^ 285 
 Bracton, Henry of, his application 
 
 of Accmgere gladio tuo, 270 
 Buckler, use of, with sword, 2 8 7, 28 9 
 
 Cambetdge, Sir H. Maine's re- 
 lations to, 149 
 
 Canada, constitution of, 191 ; 
 position and power of province 
 of Quebec in, 208 
 
 Carucate, nature and value of, 144, 
 145 
 
 Catalogue, alphabetical or classed, 
 
 238; of Alpine Club 'library, 
 252 
 Chancery, ethical element brought 
 
 into English law by, 27 
 Church, mediaeval, jurisdiction of, 
 in cases of promise, 60 ; peace 
 of, 74 ; of England, its relation 
 to secular law, 173 ; its relation 
 to the State, 178 
 Civil Service, examinations for, 230 
 Codex Biplomaticus, Kemble's, 121 
 Colonies, British, varieties of law 
 in, 57 ; different kinds of, 188; 
 attachment of, to mother 
 country, 199 ; law of, in English 
 libraries, 244 
 Common fields, 113,137, 138 
 Common Law, the extension of the, 
 
 46, 48 
 Commonplace books, English 
 
 lawyers', 104 
 Competition a universal motive, 
 
 232 
 Conquest, the Norman, social effects 
 
 of, 135 
 Constitution, the English, elas- 
 ticity of, 162 
 Contract, archaic law of, 59 ; early 
 
 history of, 153 
 Copyhold tenure, 115, 116, 136 
 Court Baron, 114, 130 
 Court, customary, 115, 131 
 Crown, Pleas of the, the first appear- 
 ance of, in early English laws, 85 
 Curses, in archaic legal forms, 62 
 Curvature of sword blade, its effect, 
 276 
 
300 
 
 INDEX 
 
 Dagger, development of sword 
 from, 279; Asiatic forms of, 283 
 
 Damascus, swords of, 278 
 
 Dargun, Dr., on primitive property, 
 140 
 
 Darwin, Charles, Ms work com- 
 pared with that of historical 
 jurists, 41 
 
 Democracy, Sir H. Maine on, 160; 
 English, flattery of, by Irish 
 Nationalists, 203 
 
 Devonshire, Domesday survey of, 
 132 ; assessment of manors in, 
 144 ; jurisdiction of Duchy of 
 Cornwall in, 137 
 
 Disestablishment, 169 sqq. ; its 
 probable eflfect, 177, 183 
 
 Domesday Book, recent illustrations 
 of, 132, 142 
 
 Elizabeth, Queen, corrects ex- 
 cessive length of rapiers, 288 
 
 Eminent domain, 175 
 
 Empire, British, relation of colonies 
 to, 199 
 
 Endowments of Church of Eng- 
 land, their nature, 1 80 ; ancient 
 and modern, 184 
 
 England, her law centralised and 
 insular, 25, 47; legal archaisms 
 preserved in, 44 ; empire of, in 
 India, 54 
 
 Equality, religious, what, 171 
 
 Examination, its relation to 
 education, 216 sqq. ; com- 
 petitive, its nature, 217 ; how 
 practised at universities, 218, 
 
 221 ; necessary limitations of, 
 219; errors of, how compensated, 
 
 222 ; a good servant and bad 
 master, 224 ; facility of, not ade- 
 quate measure of value of studies, 
 225 ; will not produce educa- 
 tion, 226 ; system of, oppresses 
 learning at universities, 229; 
 in Civil Service, 230 ; not used 
 in higher branches of Education 
 
 Department, 231 ; suggestions 
 for improving, 232 
 Examiners, office and duties of, 223 
 
 FAMlLT,asunitofearlylaw, 119, 141 
 
 Federation, imperial, 213 
 
 Fencing, abandonment of armour led 
 to, 286 ; alleged early Spanish 
 books on, 287 ; early English 
 books on, 288 ; French and 
 Italian schools of, 293 ; health- 
 fulness of, 298 
 
 Ferara, Andrea, 274 
 
 "Fox," as name of sword, 274 
 
 France, no anti-patriotic parties in, 
 201 
 
 Gaius, historical and critical 
 passages in, 24 
 
 Gesner, Conrad, his ascent of 
 Pilatus, 254 
 
 Goodwill of business, its political 
 analogies, 182 
 
 Grassi, Giacomo di, English trans- 
 lation of his treatise on fencing, 
 288 
 
 Hamlet, the fencing scene in, 290 
 " Hand-peace," the king's, 75, 76 
 Hannibal, his passage of the Alps, 
 
 257 
 Hide, measurement and assessment 
 
 of, 144 
 Highway, the King's, 82 
 History, relations of, to law, 45 
 Holmes, Judge 0. W., 44, 45 
 Home Eule in Ireland, the con- 
 stitutional problem of 187 sqq. 
 House, peace of, and right to defend, 
 
 70, 73 
 Humanities compatible with study 
 
 of law, 107 
 Hungary, case of, unlike that of 
 Ireland, 205 
 
 Inclosures of sixteenth century, 
 137 
 
INDEX 
 
 301 
 
 India, ideal Brahmanioal law in, 
 32 ; Britisli empire in, 53 ; legal 
 antiquities of, 56 ; village 
 communities in, 117 
 
 Inns of Court, their libraries, 234, 
 242, 245, 247 
 
 International Law is really law, 
 18 
 
 Ireland, Home Rule question in, 1 8 7 
 sqq. ; has not native institutions, 
 192 ; English conquest of, 193 ; 
 Government of, Mr. Gladstone's 
 BiU for, 196 ; colonial self- 
 government not practical)le in, 
 198, 202 ; Home Eule would 
 not be final in, 204 ; whether 
 federal constitution possible for, 
 210 
 
 Jura regalia, grants of, 86 
 
 Jurisdiction, private, in feudal 
 system, 125 
 
 Jurisprudence, art and science of, 
 1, 2 ; different conceptions of, 
 4 ; Ulpian's definition of, 5 ; 
 the species of, 9, 11, 19 ; Eng- 
 lish and Continental methods 
 in, 14, 30, 35 ; Roman, ana- 
 lytical and historical elements 
 in, 23 ; historical and compara- 
 tive, 40 ; historical, its present 
 stage, 164 
 
 Jus gentiwm, 10 
 
 King, privileges of his house, 73 ; 
 pea<» of his court, 80, 83 
 
 King's Peace, the, 64 sqq^. ; per- 
 petual succession of, 87 
 
 Kukri (the Gurkha weapon), 282 
 
 Law, distinction of, from morality, 
 6, 7; the general ideas of, 10, 
 11 ; of nature, 14, 28 ; inter- 
 national, 18 ; Roman attempts 
 to define, 22 ; academic study 
 of, 94 ; different kinds of know- 
 ledge required in practice of. 
 
 101 ; literature of, peculiar, 
 236; foreign and colonial, pro- 
 vision for, in English libraries, 
 244 ; bibliography of, 244, 
 248 
 
 Legislation, theory of, its relation 
 to general jurisprudence, 12 
 
 Libraries, law, special character of, 
 235 ; their necessary depart- 
 ments, 237 ; scale of import- 
 ance of subjects in, 239 ; books 
 required in, 240 
 
 Library of Alpine Club, 250 
 
 Lyall, Sir Alfred, on fruitfulness 
 of Maine's generalisation, 157 
 
 Maine, Sir Henry, \4:1,sqq. ; his 
 scholarship, 150 ; permanent 
 characters of his work, 153 ; its 
 artistic quality, 154; its effect 
 on local research, 157 ; his 
 enlargement of methods of legal 
 study, 159 ; his treatment of 
 modern politics, 160; of inter- 
 national law, 165 ; the example 
 of his life, 167 
 
 Maitland, F. W., on manorial 
 courts, 115 
 
 Manor, constitution of English, 
 112 sjg.; not regiilarly conter- 
 minous with township, 116, 
 130 ; change of meaning in the 
 word, 127 
 
 " Mark" ( = village community), no 
 real English authority for, 121, 
 124 
 
 Marks in examinations, 233 
 
 Merchants, peace specially granted 
 to, 77, 78, 79 
 
 Micah of Mount Ephraim, the 
 story of, 67 
 
 Minorities, political power of, 207 
 
 Mycenae, ornamented blades found 
 at, 265 
 
 Nationalists, Irish, anti-English 
 utterances of, 200, 202 
 
302 
 
 INDEX 
 
 Nature, the law of, 14, 1 7, 28 
 NatwrrecU, 14, 15, 17 
 
 Oath, confirmation of promises by, 
 in early law, 6 1 ; taken on 
 sword or arms, 269 
 
 Ossian, on what occasion afraid, 
 73 
 
 Oxford, University of, its Law 
 School, 96, 102 ; adjustment of 
 teaching to examinations in, 228 
 
 Paeish, relation of, to township and 
 manor, 130 
 
 Parliament, supremacy of, through- 
 out British possessions, 188 ; 
 in constitutional matters, 212 ; 
 reform of, 224 
 
 Peace, of homestead, etc., in old 
 English law, 70 ; justices of 
 the, 88 ; security of the, 89 
 
 Philosophy, Greek, its influence in 
 Eoman law, 21 ; relation of 
 historical method to, 42 
 
 Politics, relation of, to jurispru- 
 dence, 4 
 
 Property, private, a relatively late 
 conception, 118 
 
 Protestants, travelling, zeal of, 
 256 
 
 Quebec, province of, its position in 
 Canada, 208 
 
 Rapibe, distinction of, from 
 duelling sword, 284 ; intro- 
 duction of, 286; English 
 objections to, 289 ; superseded 
 by small-sword, 291 
 
 Reform, mechanical conception of, 
 in England, 224 
 
 Reformation, the, in England, 
 179 
 
 Research, endowment of, 96 
 
 Roads, the Roman, in Britain, 75, 
 80 ; peace of, 80, 82 
 
 Roman law, prevalence of, on the 
 Continent, 30, 46 ; recent 
 English works on, 97 ; value of, 
 in legal education, 104 
 
 Romans, their military weapons, 
 262, 266 
 
 Saviolo, Vincentio, his treatise, 
 288 
 
 Science, functions of imagination 
 in, 109 
 
 Scotland, law of, 50 
 
 Sentiment, power of in practical 
 affairs, 194 
 
 Silver, George, his objections to 
 the rapier, 289 
 
 Sports, lawful, 108 
 
 Stipulation in Roman law, its 
 religious character, 60 
 
 Sword, eailiest forms of, 261 ; 
 leaf-shaped, 263 ; in Greece, 
 265 ; in Roman armies, 266 ; 
 mediaeval, 268 ; symbolism of, 
 269 ; Renaissance forms of, 
 271, 273 j basket-hilted, 272; 
 Spanish and German, 274 ; 
 Asiatic, 275 ; talwars and 
 scimitars, 277; relation to 
 dagger, 279 ; Japanese and 
 Malay, 283 ; three-edged duelling 
 or "small," 285 ; eighteenth- 
 century form of, 292 ; modern 
 military, 295 
 
 Talisman, Sir W. Scott's, sword- 
 feats in, 281 
 Tenure, services incident to, 122, 
 
 128, 133 ; free and base, 134 
 Toledo, swords of, 273 
 Township, early English, 124, 130 
 Trespass, contra pacem, 84, 90 
 Tristram Shandy, the " curse of 
 Ernulphus " in, 62 
 
 Ulpian, his definition of iuris- 
 prudentia, 5 
 
INDEX 
 
 303 
 
 Ulster situated in Ireland like pro- 
 vince of Quebec in Ceinada, 208 
 
 United States, position of the 
 Common Law in, 33 ; con- 
 stitution of, 206, 212 ; law- 
 books of, in English libraries, 
 242, 245, 248 
 
 Universities, office of, with regard 
 
 to special sciences, 92 ; method 
 of examination at, 218 
 
 ViLLENAGE, 136 
 
 Virgates, 145 
 
 Yardlands, 145 
 Yataghan, 281 
 
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