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 Ancient law :its connection with the eai 
 
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BY THE SAME AUTHOR. 
 
 LECTURES ON THE EARLY HISTORY OF 
 INSTITUTIONS. 8vo, cloth, $3.50. 
 
 ANCIENT LAW. Its Connections with the Early 
 History of Society, and its Relation to Modern 
 Ideas. Third American from the Fifth London 
 edition. 8vo, cloth, $3.50. 
 
 VILLAGE COMMUNITIES IN THE EAST AND 
 WEST, to which are added other Lectures, 
 Addresses and Essays. 8vo, cloth, $3 50. 
 
 BY THE LATE JOHN AUSTIN. 
 
 LECTURES ON JURISPRUDENCE; or. The 
 Philosophy of Positive Law. By the late John 
 Austin, of the Inner Temple, Barrister-at-Law. 
 Abridged from the larger work for the use of 
 students. By Robert Campbeli,, of Lincoln's 
 Inn, Barrister-at-Law. i vol. 8vo, $3.00. 
 
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AIsrOIENT LA 
 
 ITS CONNECTION WITH THE EARLY HISTOHr ^>, 
 
 SOCIETY, AND ITS RELATION TO MODERN 
 
 IDEAS 
 
 "^^ 
 
 HENEY SUMNER MAINE 
 
 Member of the Supreme Council of India; formerly Reader on Jurisp-rudeuce c:nu 
 Civil Law at the Middle Temple^ and Regius Profensor oftfie Civil Luio 
 in tlie University of Cambridge. 
 
 WITH AN INTHODTTOTION BY 
 
 THEODORE W. DWIGHT, LL.D.. 
 
 FBOFEBBOR OP MUNICIPAL LAW, COLUMBIA COLLEGE, NEW YOHE 
 
 TBIBD AMERICAN— from: FIFTH LONDON EDITION, 
 
 
 
 NEW YOEK 
 HENRY HOLT AND COMPANY 
 
 1878 
 
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^^^ 
 
 iiU-oi^-] 
 
 Entered, according to Act of Congress, in the year 1864, by 
 
 CHARLES SCBIBNBR, 
 
 '^r the Clerk's Office of the District Court of the United States for the Southern 
 
 DiBOrict of New York, 
 
 Trow's 
 Printing and Bookbinding CohpanV; 
 205-213 A'rt.f/ TsM St., 
 
 NKW YORK. 
 
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 PREFACE 
 
 I 
 
 TO 
 
 THE FIFTH EDITION. 
 
 While further reflection and research have not 
 led the Author of this work to alter his views on 
 most of the matters of which it treats, he has con- 
 vinced himself that the opinions expressed in the 
 First Chapter on the difficult and still obscure 
 siibject of the oidgin of Customary Law require 
 correction and modification. He has attempted to 
 supply a pai't of the necessary corrections and 
 modifications in a volume called " Village Com- 
 munities in the East and West " (London : Mur- 
 ray, 1871).* . 
 
 H. S. M. 
 
 London, December, 1873. 
 
 * This work will be published in the United States as soon as the 
 next edition of it is called for in England. — Am. Pub. 
 
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PREFACE 
 
 TO 
 
 THE THIRD EDITION. 
 
 The Second and Third Editions of this work have 
 been substantially reprints of the First. Some 
 few errors have, however, been corrected. 
 
 It is necessary to remind the reader that tlie 
 First Edition was published in 1861. The cmirse 
 of events since that period in Russia and in Koi'th- 
 ern America has taken away much of its applica- 
 tion to existing facts from the language employed 
 by the writer on the subject of serfage in Russia, 
 of the Russian village-communities, and of negro- 
 slavery in the United States. It may perhaps he 
 interesting to the reader to observe tlie bearing of 
 the changes which have taken place on the argu 
 nient of that part of the work. 
 
 H S. M. 
 
 Calcutta, November, 1865. 
 
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PREFACE 
 
 TO 
 
 THE FIRST EDITION. 
 
 The chief object of the following pages is to indi 
 cate some of the earliest ideas of mankind, as they 
 are reflected in Ancient Law, and to point out the 
 relation of those ideas to modern thought. Much 
 of the inquiry attempted could not have been pros- 
 ecuted with the slightest hope of a useful result if 
 there had not existed a body of law, like that of 
 the Romans, bearing in its earliest portions the 
 traces of the most remote antiquity, and supplying 
 fi'om its later rules the stajale of the civil institu- 
 tions by which modern society is even now con- 
 trolled. The necessity of taking the Roman Law as 
 a typical system has compelled the Author to draw 
 from it what may appear a disproportionate mim- 
 ber of his illustrations ; but it has not been his 
 intention to write a treatise on Roma;i Jurispru- 
 dence, and he has as much as possible avoided all 
 
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vi PREFACE. 
 
 discussions which might give that appearance to 
 his work. The space allotted in the Third and 
 Fourth Chapters to certain philosophical theories 
 of the Roman Jurisconsults has been appropriated 
 to them for two reasons. In the first place, those 
 theories appear to the Author to have had a much 
 wider and more permanent influence on the thought 
 and action of the world than is usually supposed. 
 Secondly, they are believed to be the ultimate 
 source of most of the views which have been pi'e- 
 valent, till quite recently, on the subjects treated 
 of in this volume. It was impossible for the Au 
 thor to proceed far with his undertaking, without 
 stating his opinion on the origin, meaning, and 
 value of those speculations. 
 
 H. S. M 
 
 LOHDON, January, 1861. 
 
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/ '/v.'- 
 
 '. '^\ 
 
 CONTENTS 
 
 -AOl 
 
 Intkoduotion, . , \T — Ixis 
 
 CHAP. 
 
 I. Anoient Codes, '. 1 
 
 II. Legal Fictions, 20 
 
 III. Law of Natuee and Equity, 42 
 
 IV. The Modeen Histoet of the Law of N'atueb, . 70 
 V. Peimitive Society and Ancient Law, . . .109 
 
 VI. The Eaelt Histoet of Testamentaey Suookssion, 166 
 
 VII. Ancient and Modern Ideas eespecting Wills and 
 
 Successions, 209 
 
 VIII. The Eaely Histoet of Peopeett, .... 237 
 
 IX. The Eaelt Histoey of Conteaot, .... 295 
 
 X. The Eaklt History of Delict and Crime, . . 855 
 
 Index S87 
 
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INTEODUOTION. 
 
 Tpie work of Professor Maine on "Ancient 
 Law " is almost the only one in the English, lan- 
 guage in which general jurisprudence is regarded 
 from the historical point of view. The text books 
 prepared by lawyers both in England and this 
 country, have only aimed to present a view of legal 
 history, so far as it was necessary for practical pur- 
 poses. The professed treatises on the " History of 
 the English Law," such as those of Reeves and 
 Crabbe, make no claim to philosophical deductions, 
 and while the former is especially accurate and re- 
 liable, it is written in a manner altogether dry 
 and uninteresting. Mr. Maine's work is vitalized 
 throughout by the true spirit of philosophy. It is 
 not, however, a philosophy which bases itself on an 
 inspection of the present condition of society. It is 
 founded on facts derived from the most patient and 
 thorough historical investigation. It is to be hoped 
 
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X INTEODUOTION. 
 
 that he, or some other equally competent peisoiL 
 will do that for the Englisli common law, which has 
 already been done in so masterly a manner for 
 " ancient law." It is a remarkable fact that many 
 of the early books of the common law are nearly 
 inaccessible to the student. Some of them are in 
 manuscript, hidden away in legal libraries. Those 
 which are printed are composed in a language now 
 obsolete, and with abbreviations which the general 
 scholar does not easily understand. Mr. Wallace, 
 of Philadelphia, in his learned work on the Eng- 
 lish Reporters has pointed out that the Parliament 
 of England could do no more important work, than 
 to reproduce in an accessible and intelligible form, 
 these antique works which illustrate the early com- 
 mon law. He has truly said, that no philosophical 
 knowledge of the law can ever be had without ref- 
 erence to its origin and history. Has not the time 
 arrived when the materials for a comprehensive 
 view of the common law should be furnished to the 
 scholars of England ? 
 
 Mr. Maine's work may be said to consist of two 
 parts ; the first part, embracing four chapters, con- 
 tains the philosophy of legal history. No more 
 accurate and profound genei-alization was probably 
 ever made in jurisprudence, than that which sums 
 up the agencies of legal progress : Fiction, Equity, 
 and Legislation. Its truth strikes the attention of 
 one versed only in the English common law. The 
 first two agencies, especially, accomplished all the 
 
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INTEOBUOTIOK. xi 
 
 eaily advancement in ttat system of jurisprudence 
 It is tbrougli them that public opinion gradually 
 modified the law. Without them, the English nation 
 would have remained stationary, or have been 
 driven to a revolution. Sometimes fiction affects 
 the law without consciousness on the part of the 
 judge. Instances of this are giveii by Mr. Maine. 
 At other times, the judiciary cover their intent to 
 alter the law with a thin and transparent veil of 
 fiction. • When the English Parliament had passed 
 the Statute of Entailments, by which the nobility 
 expected to secure their landed possessions to their 
 families, the judges, who did not sympathize with 
 the legislature, eluded its effect by a fictitious legal 
 proceeding, called a common recovery. It came to 
 be a rule that no express words could be used in 
 creating an entailment, which would prevent its 
 destruction by this pretended action. 
 
 It was an early complaint, that by the growth 
 of Equity, the " heart of the common law was eaten 
 out."-- An excellent illustration of its workings is 
 derived from the law of trusts. The ancient com- 
 mon law made the validity of a conveyance depend 
 upon a visible act. The owner gave the intended 
 purchaser a clod of earth, or other symbol of pos- 
 session. The ownership thus created admitted of 
 no qualification. The visible owner was to all in- 
 tents and purposes the aotiial proprietor. On this 
 simple conception, Equity grafted the notion of 
 ' uses." An owner of land could transfer it to an 
 
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XII INTRODUCTION, 
 
 indiflerent person by a visible symbol, and charge 
 the transferree to hold it for the use of another. 
 The " conscience " of the transferree was said to be 
 affected by this transaction, and he was equitably 
 bound to perform the trust imposed upon him. 
 This obligation could only be enforced in a Court 
 of Chancery, the presiding judge being an ecclesias- 
 tic. That Court was supposed to proceed upon 
 those principles which affect the moral sense. In 
 all the old law Abridgments, Chancery law is 
 found under the title " Conscience." Chief Justice 
 Fortescue, in the reign of Henry VI., a. d. 1453, 
 derives Equity from the two words con-scio, which he 
 explains to mean the case where men have the same 
 knowledge as God possesses, that is, they know His 
 will as nearly as possible by reason. He further 
 remarks that a man may have a claim at common 
 law, when by " conscience " he would be condemned. 
 In another case, occurring in the year 1474, the 
 Chancellor said that a case before him must be de- 
 termined according to the law of nature in the 
 Chancery.* 
 
 When this principle came to be fully estab- 
 lished, rights were recognized in one court, which 
 were denied. in the other. Thus in the case under 
 contemplation, the transferree of the land was said 
 to have the legal title, and the owner of the " use " 
 
 * Tear Book, 13 Ed. IV. fol. 9, case 6. This is an earlier recogni- 
 tion of the duty of modern Courts of Equity to follow the Eomac 
 * law of nature " than any noticed by Mr. Maine. 
 
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INTEODUOTIOK. xui 
 
 an equitable interest, and tie Court of Chancery 
 substantially protected Mm in the enjoyment of the 
 rights of ownership. He could, in general, insist 
 on having the legal title made over to him by a 
 formal conveyance. This doctrine was soon seized 
 upon to create other modifications of property. For 
 example, no owner of land could, by the common 
 law, dispose of it by will, except in certain local- 
 ities where a custom permitting a will prevailed. 
 An evasion of this rule of law could be made through 
 uses. If a man wished to make a will, he trans- 
 ferred his land to another to bold to his use. This 
 person was in conscience bound to hold it for the 
 grantor, who was said to have a " use." He could 
 make a will of the use, and the devisee could then, 
 by a resort to Chancery, compel the grantee to give 
 him a deed of the land. If the grantor died with- 
 out making a will, the " use " descended to his heir, 
 who could in like manner exact a deed from the 
 grantee. For many years, men were in the constant 
 practice of evading in Equity the legal rule that an 
 owner of land could not make a will. Every initel- 
 ligent person knew of this double rule, but no steps 
 were taken to remove the anomaly. Even Parlia- 
 ment passed special statutes facilitating the exercise 
 by the king of the power to make a will in accord- 
 ance with tbis device. 
 
 The time came when the fact was recognized that 
 the difference between law and equity upon this 
 and other points connected with uses was a mere 
 
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snr INTEODUCTIOK 
 
 form. The third agency indicated by Mr. Maine 
 then interferes. Legislation corrects the anomaly 
 He who has the use, is declared to be the owner of 
 the land, and a statute is passed conferring the 
 power to make wills. 
 
 When the statute of uses is brought before the 
 courts, a narrow construction is adopted. It is 
 decided that certain uses shall not be turned into 
 legal OAvnership. Chancery seizes upon these re- 
 jected uses, and upholds them as trusts, fastening 
 itself on the " conscience " of the legal owner. These 
 trusts had become in certain cases purely formal, 
 when after three centuries, the legislature of I^ew 
 York caiTies out the principle of the original statute, 
 and declares that by no device shall there be a mere 
 formal trust in land. 
 
 This topic might be pursued to an indefinite 
 length, and many similar instances summoned from 
 English legal history. Mr, Maine deserves the ere 
 dit of being the first to give body and form to tht 
 principle, which every student of law perceives as 
 soon as it is stated to him. 
 
 The second part of his book is equally striking. 
 It contains an account of the origin and progress 
 of leading rules in legal science. In its method, it 
 is in direct antagonism to the loose declamatory 
 style in which many discourse of legal principles. 
 The work throughout has a high and cheerful tone. 
 It maintains the steady pi . gress of mankind in 
 jm-isprudence from an age . " formalities and cere- 
 
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INTRODUCTION. xt 
 
 monies to an era of simplicity and symmetrica] 
 development. It asserts tlie continuity of the human 
 race, and we are permitted to feel nearly every 
 link of the chain v^^hich binds the men of our day 
 to the nations of the remotest antiquity. 
 
 The chapters on conveyances, wills, and con- 
 tracts have an especial value, and will serve to 
 dispel many- erroneous views concerning transac- 
 tions Avhich make up a large part of the business 
 of human life. 
 
 In the hope of facilitating the use of this book 
 in law schools and colleges, the writer has prepared 
 an abstract of its contents. He only vouches for 
 its general accuracy. The special qualifications and 
 limitations of the principal propositions must, of 
 course, be sought in the body of the work. It ia 
 confidently believed that this treatise is worthy of 
 the careful study of all young men who desire to 
 make the law an honorable pursuit, and not a mere 
 trade or calling. It may also be warmly commended 
 to the general scholar, who cannot faU to derive 
 instruction and stimulation from its weighty and 
 earnest words. 
 
 The earliest notion of law is not an enunciation 
 of a principle, but a judgment in a particular case. 
 When pronounced, in the early ages, by a king, it 
 was assumed to be the result of a direct divine 
 
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XTi INTRODUCTION. 
 
 inspiration. Afterward came the notion of a cus 
 torn which a judgment afBrms, or punishes its 
 breach. In the outset, however, the only author 
 itative statement of right and wrong is a judicial 
 sentence rendered after the fticts have occurred. It 
 does not presuppose a law to have been violated, 
 but is breathed for the first time by a higher power 
 into the judge's mind at the moment of adjudication; 
 
 When aristocracies succeeded to the power of 
 the kings, they became depositaries and administra- 
 tors of law, without claiming direct inspiration for 
 each sentence. They monopolize the knowledge of 
 law. Customary law now exists, which is assumed 
 to be precisely known to the privileged order or 
 caste. This is the era of true unwritten law. Be- 
 fore the invention of writing, this was the only 
 expedient by which there could be an approximation 
 to an accurate preservation of the customs of a race 
 or tribe. 
 
 Next we arrive at the era of the Codes, of which 
 the Twelve Tables are best known. Everywhere 
 law graven on tablets takes the place of usages 
 announced by the oligarchy. This movement was 
 not due to any notion of the superiority of codifi- 
 cation, but to the fact that writing was a better 
 depositary of law than the memory of individuals. 
 The importance of the codes can not be denied. 
 They aflPorded protection against the frauds of the 
 oligarchy and the debasement of the national insti- 
 tutions. A gi-eat mark of distinction between the 
 
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INTRODUOTION". xvr. 
 
 Romans and the Hindoos consists in the feet that 
 the Eomans had a code early in their history, while 
 customs were wholesome, and before that usage 
 which was reasonable had generated that which was 
 unreasonable. 
 
 As soon as a code is produced, there is no lon- 
 ger a spontaneous development of law. Hereafter, 
 investigations must be confined to progressive races 
 of men. With these, social necessities and social 
 opinion are always more or less in advance of law, 
 Law is stable; society is jDrogressive. How shall 
 this gulf be narrowed which has a perpetual tend- 
 ency to re-open ? 
 
 • There are three agencies with which law is 
 brought into harmony with society — Legal Fiction, 
 Equity, and Legislation. Their historic order follows 
 this arrangement. (1) By Legal Fiction is meant 
 an assumption which conceals or affects to conceal 
 the fact that a rule of law has undergone alteration, 
 the letter remaining unchanged, but its operation 
 being modified. This is a rude device absolutely 
 necessary in the early stages of society ; but fictions 
 have had their day. (2) The next instrumentality 
 by which law is adapted to social wants is called 
 Equity. This is a body of rules existing by the 
 side of the original law, founded on distinct princi- 
 ples, and claiming incidentally to supersede the civil 
 law by virtue of a superior sanctity in its principles. 
 This doctrine of Equity is found in the Roman law, 
 and in the English law under, the direction of the 
 
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xTin INTKODUOTIOIsr. 
 
 Court of Chauceiy. It differs on the one hand frcm 
 fiction, for its interference with the law is open and 
 avowed, and on the other from legislation, for it 
 does not lay claim to authority on the prerogative 
 of any external person or body, but rests only on 
 the special nature of its principles. (3) !N^ext in 
 order is Legislation. This derives its authority from 
 an external body or person. It is not necessarily 
 governed by any principle. The external body 
 may legislate in the wantonness . of caprice, or its 
 action may be dictated by some principles of equity. 
 In either case, its binding power depends solely 
 upon its external authority. 
 
 In the youth and infancy of a nation it is a rare 
 thing for legislation to be called into action for the 
 general reform of private law. Its development 
 must depend on the first two agencies which have 
 been described. 
 
 Having thus stated the difference between these 
 terms, the method in which they act upon positive 
 law may now be noticed. This will be best disclosed 
 by illustrations. 
 
 (1) Fiction. A striking instance of fiction is 
 found in the case law of England. When a case is 
 about to be decided under the common law, the 
 assumption on the argument is that its decision will 
 sail only for the application of principles and distinc- 
 tions which have long since been allowed. It is 
 assumed that there is a rule of law which will govern 
 the question now litigated, and which may be dis- 
 
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INTRODUCTION. xix 
 
 covered by tte exercise of sufficient skill and know- 
 ledge. As soon as the case has been decided, a new 
 train of thought is adopted, and it is admitted that 
 the decision has modified the law. Though the law 
 has been changed, men fail to notice that the old 
 rule has been repealed. Even lawyers convey the 
 paradoxical proposition that, except by equity and 
 statute law, nothing has been added to the basis 
 of common law since it was first constituted. They 
 maintain that its rules, with some assistance from the 
 Court of Chancery and Parliament, are co-extensive 
 with the interests of modern society. 
 
 A similar illustration may be derived from the 
 Koman law. " The Responsa prudentum," or answers 
 of the learned in the law, consisted of explanations 
 of authoritative written documents. It was assumed 
 that the written law was binding, but the responses 
 practicallj'- modified and even overruled it. A great 
 variety of rules was thus supposed to be educed 
 from the Twelve Tables, which were not in fact to 
 be found there. Tbey could be announced by any 
 jurisconsult whose opinions might, if he were distin- 
 guished, have a binding force nearly equal to enact- 
 ments of the legislature. The responses were not 
 published by their author, but were recorded and 
 edited by his pupils, and to this fact the world is 
 indebted for the educational treatises, called Institutes 
 or Commentaries, which are among the most remark- 
 able features of the Roman system. The distinction 
 between the "responses" and the "case law" of 
 
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XX INTRODUCTION. 
 
 Engknd should be noticed. The one consists of 
 expositions by the hai% and the other by the hmich 
 It might have been expected that such a system 
 would have popularized the law. This was not the 
 fact. Weight was only attached to the responses 
 of conspicuous men who were masters of the prin- 
 ciples as well as details of jurisprudence. The great 
 development of legal principles at Rome was due 
 to this method of producing law. Under the Eng- 
 lish system no judge can enunciate a principle until 
 an actual controversy arises to ■which the rule can 
 be applied ; under the Roman theory, there was no 
 limit to the question to which a response might be 
 given, except the skill and ingenuity of the ques- 
 tioner. Every possible phase of a legal principle 
 could thus be examined, and the result would show 
 the symmetrical j^roduct of a single master mind. 
 This method of developing law nearly ceased at the 
 fall of the republic. The Responses were systematized 
 and reduced into compendia. The right to make 
 responses was limited by Augustus to a few juris- 
 consults. The edict of the Prsetor became a source 
 of law, and a great school of jurists, containing such 
 men as Ulpian, Paulus, Gains, and Papinian, arose, 
 who were authors of treatises rather than of le- 
 Bponses. 
 
 (2) Equity. The theories of Equity obtainf>d 
 an early currency, both in Rome and in England 
 
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INTRODUCTION. xxi 
 
 (A) Equity Law of England. A discussion of 
 the jurisprudei/ce of the English Court of Chancery 
 would require a separate treatise. It is complex in 
 its texture, and derives its materials from heteroge- 
 neous sources, such as the canon law, Roman law 
 and the mixed systems of jurisprudence and morals 
 constructed by the publicists of the low countries. 
 It was greatly controlled in its growth by the neces- 
 sitj of conforming itself to the analogies of the 
 common law, although it claimed in many respects 
 to override it on the strength of an intrinsic ethical 
 superiority. 
 
 (B) Equity Law of Home. — (a) Lts General 
 Principles, f he Equity of Rome was a much sim 
 pier structure and its development can be more 
 easily traced. The Roman legal system consisted 
 of two ingredients : one, the law which the people 
 enacts for itself, called the civil law, and the other 
 that which natural reason appoints for all men, and 
 which is called the Law of Nations^ because all 
 men use it. This latter element is elsewhere called 
 the Law of Nature, and is said to be the offspring 
 of natural equity as well as of natural reason. 
 
 It was a peculiar feature in Roman history that 
 -he fortunes of the republic were greatly affected 
 by the presence of foreigners. This fact is partly 
 attributable to a disposition to seek refuge in a 
 strong government from the instability of unsettled 
 go-jiety, and partly to the active commercial relations 
 
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xxn INTRODUOTIOK 
 
 which Tirere had with Carthage and the interior of 
 Italy. The alien, however, had no share in the purely 
 Roman institutions. He could not make a strictly 
 Eoman conveyance nor bring a formal legal action. 
 Controversies involving his interests could not be 
 decided by pure Roman civil law. The Roman 
 lawyers in this difficulty resorted to the expedient 
 of selecting the rules of law common to Rome and 
 to the different Italian communities in which the 
 foreigners were born. This common element was 
 called the Jus Gentium^ or the law common to all 
 nations. The result was that whenever a particular 
 usage was seen to be practised by a lai'ge number 
 of separate races, it was set down as a part of the 
 law common to all nations. 
 
 It must not be supposed that the early Roman 
 lawyer had any special respect for this law. It was 
 forced on his attention by a j^olitical necessity. He 
 was attached to the civil law with its ceremonies and 
 formalities, and cared no more for the " law of na- 
 tions " than for the foreigners for whose benefit it 
 was intended. The " law of nations " must not be 
 confounded with international law, or the law he- 
 Pween nations. 
 
 At a later period, the law of nations was consid 
 ered as the model to which all law ought as nearlv 
 as possible to conform. This result was brought 
 about by the Greek theory of a law of nature. 
 Under this theory, nature denoted the physical world 
 
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INTEODUOTION. xxin 
 
 regarded as the result of some original element or 
 law. The later sects added the moral to the physi 
 cal world in the conception of nature. It was not 
 merely the phenomena of human society, but pheno- 
 mena resolvable into some general and simple laws 
 Greek Philosophers imagined that but for some 
 accident, the human race would have conformed 
 itself to simple rules of conduct, and have lived 
 according to nature. This was the end for which man 
 was created ; it was the substance of the stoic phi- 
 losophy. On the subjugation of Greece, this philoso- 
 phy made the most rapid progress in Roman society. 
 The Roman lawyers were the leading disciples of the 
 new school, who affected the stoic principles of life 
 according to nature. The alliance of the lawyers 
 with the philosophers lasted for centuries. The 
 influence of the stoic philosophy is not to be meas- 
 ured by the specific legal rules which it contributed 
 to jurispi'udence, but by the single assumption that 
 the old jus gentium was the lost code of nature, and 
 that the equity jurisprudence of the praetor was the 
 restoration of a type froni which law had departed. 
 From this moment, the law improved with great 
 rapidity. The simplicity and symmetry associate 
 with the conception of nature were regarded as the 
 characteristics of a good legal system. Ceremonies 
 and useless formalities disappeared, and finally the 
 law assumed its present shape under the superin- 
 tendence of Justinian. 
 
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XXIV INTEODUCTION. 
 
 The pc int of contact between the law of nations 
 and the law of nature was equity. Some have 
 dei'ived this term from a Greek word which indicates 
 the principle of equal distribution. We prefer that 
 oi'igin which gives if the sense of levelling. The 
 civil law of Kome recognized many arbitrary dis- 
 tinctions between classes of men and property. The 
 neglect of these distinctions was that feature of the 
 law of nature which is depicted in equity. It was 
 at first applied to foreign litigants without ethical 
 meaning, and to the early Romans was without doubt 
 extremely distasteful. When the " law of nature " 
 was fully recognized a different view prevailed. 
 Nature implied symmetrical order, and equity came 
 to have associations with the idea of equal distribu- 
 tion. This may be inferred from the language of 
 Cicero, and it is the first stage of a transmutation 
 of the conception of equity which has been carried 
 on by nearly every ethical system of later times. 
 
 t. The formal instrumentality hy whicli tlie law 
 of nations and of nature was incorjporated into th6 
 Roman law. 
 
 After the expulsion of the Tarquins, the supreme 
 judicial ofiice devolved on the praetor. He had an 
 undefined supremacy over law and legislation which 
 had always attached to ancient sovereigns. This 
 indefinite portion of his functions was the more im- 
 portant on account of the multitude of persons who 
 
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INTEODUOllOlT. xxv 
 
 were not indigenous Romans, and who would have 
 been without remedies, had not the praetor under- 
 taken to decide upon their rights. It was a rule at 
 Rome, as a matter of precaution, that everj- nmgis- 
 trate having indefinite powers should publish, on 
 commencing his year of office, an edict or proclama- 
 tion in which he declared the manner in which 
 his department would be administered. The praetor 
 was governed by this rule. It soon became the 
 practice for each prgetor to publish his predecessor's 
 edict, with such modifications as he deemed neces- 
 sary. The proclamation obtained the name of the 
 edictum perpetuum, or the continmms or unhroJcen 
 edict. The practice of increasing the edict, ceased 
 in the reign of the Empei'or Hadrian, under the 
 magistracy of Salvius Julianus, and the perpetual 
 edict was then called the edict of Julianus. 
 
 It might seem at first th"bught that there was 
 no limit by which this extensive power was con- 
 fined, and that the action of the praetor might be- 
 come dangerous to social order. Practically, his 
 power was restrained by the ideas and views of the 
 legal profession to which he belonged. At first his 
 intervention was dictated by simple concern for the 
 safety of the State. Afterward, he used the " re 
 spouses " as a means of applying fundamental prin- 
 ciples. Still subsequently, he acted under the influ- 
 ence of Greek philosophical theories which marked 
 out the line of his progress. 
 
 After the edict of Julianus, the equity jurispru- 
 
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XXVI INTEODUOTION. 
 
 dence of Kome was developed by the labors of a 
 succession of great lawyers wbo flourished between 
 the reign of Hadrian and that of Alexander Severus. 
 Their treatises chiefly took the form of commenta- 
 ries on the edict. The same tribunal administered 
 law and equity. As soon as an equitable rule was 
 evolved, the praetor applied it by the side of the old 
 rule, which was substantially repealed without any 
 act of the legislature. Although thei-e was no com- 
 plete fusion of law and equity, yet the latter sup- 
 plied the jurist with all his materials for genei-aliza- 
 tion, with all his methods of interi)retation, with 
 his elucidations of first principles, and with the 
 great mass of limiting rules which seriously control 
 the application of every legislative act. 
 
 In the reign of Alexander Severus, the power 
 of growth in Roman equity was exhausted. Then 
 follow imperial constitutions, and finally the attempts 
 to codify the unwieldy mass of Roman jurispru- 
 dence, the most celebrated of which is the Corpus 
 Juris of Justinian. 
 
 (c). Features common to English and Roman 
 equity. These systems of jurisprudence had two 
 features in common. First, each of them tended 
 to exactly the same state in which the old common 
 law was when equity first interfered with it. "When 
 the moral principles adopted by courts of equity 
 have been carried out to their kgitimate conse- 
 quences, the system becomes rigid and unexpansive, 
 
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INTKODUCTION. xxvii 
 
 and as liable to fall behind moral rules as a strict 
 legal code. This hiippened at Kome, in the reign 
 of Alexander Severus. The same period arrived in 
 England during the chancellorship of Lord Eldon, 
 whose task it was to explain and harmonize the 
 jurisprudence of his court. Its morality is not the 
 morality of our own day, but of past centuries. 
 Further improvement is not to be had by this agen- 
 cy, but by legislation. Second : in each of these sys- 
 tems there was a false assumption upon which th« 
 claim of the superiority of the equitable rule was 
 founded. The moral progress made was explained 
 as the recovery of a lost perfection, and as a return 
 to a state from which the race had lapsed. The 
 Roman lawyers accounted for the improvement in 
 their jurisprudence by the Greek doctrine of a 
 natural society. In England, the claim of equity 
 to override the common law, was explained by a 
 supposed jjaternal authority vested in the king, 
 "(snabling him to superintend the administration of 
 justice. Another mode of expressing the same idea 
 was that equity flowed from the king's conscience. 
 The- true reason was overlooked, that there was an 
 injprovement in the moral standard of the com- 
 munity. 
 
 (d). Modern History of the Law of Nature. 
 The Roman theory of the law of nature, though 
 deficient in philosophical precision, was very impor- 
 tant to mankind. There are two dangers to which 
 
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XXVIII INTRODUCTION. 
 
 law and society are liable in their infancy. One of 
 them is that law may be too rapidly developed 
 This occurred with the codes of the Greek com- 
 munities. If the Romans were in danger of it, they 
 had adequate protection in their theory of natural 
 law. It kept before the mental vision a type of 
 perfect law, to which there might be an indefinite 
 approximation. This system was not entirely the 
 product of imagination, but it was supposed to 
 underlie existing law. Unlike the modern notion 
 of a law of nature, its functions were remedial, not 
 revolutionary or anarchical. 
 
 The other liability to which the infancy of so- 
 ciety is exposed, is the identification of law with 
 religion. The perfection of law has been considered 
 as consisting in an adherence to the plan marked 
 out by the original legislator. The great advantage 
 which the Romans possessed, was that through their 
 theory of natural law they had a distinct object to 
 aim at, like that which Bentham gave to English 
 lawyers, when he announced that the true object of 
 jurisprudence was to secure the general good of the 
 community. It was not from motives of philanthropy, 
 l)ut from a sense of simplicity and symmetry, that 
 the Roman lawyers held up the law of nature as an 
 ideal and perfect law. 
 
 The influence of the Roman theory of " natui-al 
 
 law " in modern times has been very great. It is 
 
 -the source of most of the special ideas as to law, 
 
 politics, and society which'France during the last 
 
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INTEODUOTION. xxix 
 
 hundred years has diffused oyer the Western world 
 From various causes, natural law in the eighteenth 
 century had become the common law of France. Ita 
 influence would probably have been checked by 
 Montesquieu's "Spirit of the Laws," had not Rous- 
 seau appeared. In all his speculations, the centra] 
 figure is man in a supposed state of nature. It is the 
 theory of the Roman lawyers inverted. The subject 
 of contemplation is not the law of natui'e, but the 
 state of nature. Though Rousseau's philosophy in 
 its grosser forms lias fallen low in general esteem, 
 yet in its disguises it still possesses popularity and 
 power. The doctrines of nature and her law have 
 preserved their energy by allying themselves with 
 political and social tendencies. They enter largely 
 into the ideas which radiate from France over. the 
 civilized world. From this source is derived the 
 doctrine of the fundamental equality of human 
 beings. The proposition in the Roman law, that all 
 men are equal, is a legal rule ; in modern times, it 
 is a political dogma. In the American Declaration of 
 Independence, the French assumption that "all men 
 are born equal," is joined with the English idea 
 that " all men are born free." 
 
 The greatest function of the Law of Nature was 
 discharged in giving birth to Intei'nationalLaw and 
 the Law of War. The principal postulates of inter- 
 national law are : first, that there is a determinable 
 aw of nature ; next, that Natural Law is binding 
 on states. As a corollary from the second proposi 
 
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XXX INTEODUOTION. 
 
 tion, the several states must be absolutely equaL 
 Third, in reference to acquisition of proj^erty, sove- 
 reigns are related to each other like a group of 
 Roman proprietors. This may be resolved into the 
 propositions that sovereignty is territorial, and that 
 sovereigns as between themselves are absolute owneri3 
 of the state's territory. The doctrine of territorial 
 sovereignty, by which is meant the view which con- 
 nects sovereignty with the possession of a limited 
 portion of the earth's surface, is the product of feu- 
 dalism. Without this doctrine, Grotius' labors upon 
 international law would have been in vain. The 
 existence of an imperial power ruling over the states 
 of Europe, even in theory, would not have admitted 
 of the application of the principles of natural law. 
 It was essential that they should be insulated and 
 independent of each other in order that they might 
 be equal. Had there been a common superior over 
 them, the notion of positive law would have been 
 introduced and the natural law excluded. 
 
 (3) Legislation. The Statute Law of Rome was 
 scanty during the republic, but voluminous under 
 the empire. In the youth of a nation, the interfe- 
 rence of the legislative body is commonly directed 
 to the removal of some abuse, or the decision of 
 some quarrel between classes and dynasties. In 
 this way society was settled after a great civil com- 
 motion. The true period of statute law does not 
 begin till the establishment of the empire, and in 
 
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INTRODUCTION. xxxi 
 
 tlie reign of the second emperor considerable approx 
 imation had been made to that condition of the law 
 with which men are familiar at the present day. / 
 
 TI. 
 
 The true method of investigating the principles 
 of ancient law has often been overlooked. That 
 which has hitherto stood in the place of science has 
 been for the most part a series of guesses. The 
 mistake which has been committed is analogous to 
 the error of one who, in investigating the laws of 
 the material universe, should commence by contem- 
 plating the existing physical world as a whole, 
 instead of beginning with the particles which are 
 its simplest ingredients. Our proper course is to 
 penetrate as far up as we can in the histories of 
 primitive societies. 
 
 There are only three sources of knowledge upon 
 the rudiments of the social state : (a) accounts by 
 contemporary observers ; (b) records which particu- 
 lar races have preserved concerning their primitive 
 history ; (c) ancient law. An instance of the first 
 kind is the Germania of Tacitus. The amount of 
 testimony from the first two sources is exceedingly 
 small. Contempt, negligence, pride of race, and the 
 religious sentiment of a newer age, have each in their 
 tarn impaired the value of such accounts as wc have. 
 These suspicions do not attach to Anciejstt IjAW 
 o 
 
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xxKit INTRODUCTIOK. 
 
 Much of this was preserved because it was old, and 
 those who retained it offered no account of it except 
 that it had come down to them from their ancestors. 
 Inquiries may therefore be confined to the effect of 
 evidence deiived from comparative jurisprudence. 
 
 This evidence establishes that view of the race 
 which is known as the Pateiaechal Theoet. This 
 theory is based on the Scriptural history of the 
 Hebrew patriarchs. All known societies were ori- 
 ginally organized on this model. The eldest male 
 j)arent is absolutely supreme in his household. His 
 dominion extends to life and death, and is as 
 unqualified over his childi'en as over his slaves. 
 The flocks and herds of the children are the flocks 
 and herds of the father. These he holds in a repre- 
 sentative rather than in a proprietary character. 
 
 When society came to be formed, it was not as 
 now a collection of individuals, but an aggregation 
 of families. The unit of an ancient society was the 
 family; of a modern society, the individual. Law 
 is scantj'^, because it is supplemented by the despotic 
 commands of the heads of households. It is cere- 
 monious, because the transactions to which it pays 
 regard resemble international concerns much more 
 than the quick play of intercourse between individ- 
 uals. On this simple society, fiction soon beo-an to 
 operate. New comers were incorporated into it by 
 the law of Adoption, which consists in feigning 
 themselves to be of the same stock as the people on 
 which they were engrafted. When this fiction 
 
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INTEODUOTIOK xxxuj 
 
 ceased to operate, these societies became aristocra 
 cies, and a new law came into play, viz., Local Con 
 tiguity. 
 
 The leading developments of this organization 
 will now be indicated. 
 
 1. TJie life-long Authority of the Father over the 
 Pennon and Property of his Descendants. This au- 
 thority the Romans called Patria Potestas, or as it 
 may be briefly termed, " the child under power." 
 There is an important distinction to be noticed 
 between the relations created by public and by 
 private law. In reference to the public, the son 
 " under power " was as free as his father ; in all the 
 relations created by private law, he lived under a 
 domestic despotism. The progress of civilization as 
 to this subject is best shown in the Roman law. 
 
 The early Roman law adopted the most rigid 
 form of this doctrine. While in the later period 
 of the empire, the power over the person became 
 nominal, that over the property was always exer- 
 cised to the full extent sanctioned by law. The 
 father could enjoy the whole of the son's acquisitions 
 and the benefit of his contracts. The first innova- 
 tion upon this rule took place in the acquisitions of 
 soldiers on service ; afterward, the earnings of per- 
 sons in the civil employments of the state were 
 secured to them. Even in the latest days of the 
 empire, the father was entitled to a life interest in 
 the acquisitions of his child. 
 
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INTRODUCTION. 
 
 This power of the father imposed upon him a 
 corresponding duty. He was liable for the wrong- 
 ful acts of his son while under power. He had a 
 representative ownership which was coextensive with 
 his liability to provide for all the members of th? 
 brotherhood out of a common fund. This was a 
 duty enforced rather by instinct and habit, than by 
 definite sanctions. 
 
 The universality of "power" (patria potestas) 
 may be shown by the examination of some other 
 topics of ancient law. Among these, the most 
 prominent is kinship. The Romans regarded 
 kinship as Agnatic or Cognatic. Cognates are 
 those whom we term blood relations, being all such 
 persons as trace their descent from the legitimate 
 marriage of a single pair. Agnates are those blood 
 relations who trace their connection exclusively 
 through males. This distinction will be made clear 
 by the following table : 
 
 John, his son. 
 Agnate. 
 
 Edward, grand- 
 son. 
 Agnate. 
 
 Father, 
 having patt-ia potestas. 
 
 
 
 
 
 < 
 
 \ 
 
 
 
 James, his son. 
 Agnate. 
 
 
 Jane, his mar- 
 ried daughter. 
 Agnate. 
 
 
 
 
 
 
 
 
 
 Mart, grand- 
 daughter. 
 Agnate. 
 
 
 1 
 Richard, grand- 
 son. Cognate, 
 but not Agnate. 
 
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INTRODUCTION. 
 
 xxxrv 
 
 All the children of male Agnates, whether male 
 or female, are themselves Agnates ; all the children 
 of female Agnates are Cognates to their mother's 
 father and his other descendants. Under some 
 systems of jurisprudence, as for example the Eo 
 \nan, Agnatic kindred may be introduced into 
 the family by the fiction of Adoption. This ar 
 rangement of relationship appears entirely arbitrary. 
 Its true principle is the "power" of the father. 
 Wherever " power " (potestas) begins, relationship 
 begins. The reason why descendants of a female 
 were excluded from Agnatic relationship was, be- 
 cause after marriage her children fell under the 
 power of her husband. The same person could not 
 be under two jurisdictions.* 
 
 The doctrine of Agnation has much historical 
 
 * The question of Agnatic and Oognatio relationship has recently 
 excited interest in connection with the acceptance by Maximilian^ 
 Archduke of Ai'stria, of the position of Emperor of Mexico. A family 
 law imposes on every Archduchess contracting marriage, the obliga 
 fcion of signing for herj-elf, or her descendants, an act of renunciation 
 of any pretension to the eventual succession to the Austrian throne, 
 and to certain other rights. A family council resolved to apply the 
 principle of this law to Maximilian, claiming that the acceptance 
 of the foreign throne was analogous in its effect to a marriage by an 
 Archduchess. The Archduke objected on the ground that he was 
 the first Agnate to the Emperor Francis Joseph, and, on his death 
 without a male heir, entitled to the Austrian throne. He urged that 
 while a princess on her marriage loses her quality of Agnate to such 
 an extent, that her heirs are only entitled to the title of Cognates, he 
 Btill retained, though Emperor of Mexico, his title of Agnate. The 
 matter was compromised by a renunciation for himself and his heirs 
 of aU right to the throne of Austria, so long as the new Mexican 
 dynasty shall continue to reign. — Memorial Diplomatique, quoted in 
 U ew York Times, April 28 1864. 
 
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xxxTi INTRODUCTION. 
 
 importance. It can be traced to modern law. It 
 explains the harsh rule of the common law of Eng- 
 land, that brothers of the half blood cannot inherit 
 from each other. This doctrine in ancient law was 
 projoerly confined to children of the same mother 
 by different fathers (uterine brothers). In Eng- 
 land, through a want of knowledge of the origin of 
 the rule, it was extended to brothers having the 
 same father, but different mothers (consanguineous 
 brothers). The position of woman in the ancient 
 law is also explained by the patria potestas. The 
 Agnatic bond was not released in her case by the 
 death of her parent. She could never become the 
 head of a family, as her brother might be. When 
 her father died, she came under perpetual guardian- 
 ship to her nearest male relatives. This rule of 
 ancient law disappeared from the matui-ed j urispru- 
 dence of the Eoman Empire 
 
 At this point, we observe a remarkable contrast 
 between ancient and modern law. Under the early 
 system, woman was subordinated to her relatives; 
 under the modern, to her husband. There are in 
 fact three periods of jurisprudence to be noticed: 
 the early Roman law, the later Roman la^/, and 
 modern systems. Under the early Roman law, 
 marriage could be contracted in three forms, one of 
 which was religious, and the other two, civil. In 
 view of the law, the wife became her husband's 
 daughter^ and he exercised over her the patria 
 
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INTRODUCTION. xxxva 
 
 potestas. He could appoint guardians over her 
 whose authority continued, after his death. In the 
 later Roman law, a form of marriage was recognized, 
 which left the wife theoretically under the care of 
 guardians whom her parents had appointed, but 
 practically, when that guardianship became obsolete, 
 under no control whatever. In modern law, therf 
 is a twofold element. The later Roman jnrispru 
 dence has been adopted so far as to emancipate 
 unmarried women from the control of their male 
 relatives ; while married women, through the influ- 
 ence of religious sentiment and early notions preva- 
 lent among the dominant races from which modern 
 nations have sprung, are governed by the rules of 
 an imperfect civilization. Those systems of law are 
 the most severe upon married women, which bor- 
 rowed their rules from the canon law, or which 
 came latest in contact with European civilization, 
 as for instance, the Scandinavian. 
 
 A clear understanding of the patria potestas maj^ 
 be obtained from the position of married women in 
 the English law. The details upon this topic will be 
 found, in a note.* 
 
 * A summary of the common law concerning the disabilities of 
 I arried women, and the duties of their husbands. 
 ' ■ I. The Husband's Right ovee the Wife's Peopeett, whioii 
 MiSHT consist OF Eeal Estatb, Leases, Rights of Action, oh 
 Pbesonal Peopeett. 
 
 a. As to her real estate, he became life tenant for the joint lives 
 of himself and wife. He was entitled to the profits of the land, and: 
 thej- could be seized by his creditors. If any children of the marriage 
 were born alive duiing the wife's life, he had an estate for his own. 
 
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sxxviii INTEODUOTIOK 
 
 The doctrine of pati-ia potestas is still furthei 
 illustrated by the law of guardianshit) concerning 
 
 life, though he outlived his wife. He was then called tenant by the 
 courtesy of England. 
 
 5. Her leases belonged to him absolutely in case he survived his 
 ■wife. If she survived, they belonged to her. Any disposition of them 
 by him during marriage, would defeat her right of survivorship. 
 
 c. II er rights of action became his absolutely, iJA^eiiced them 
 to possession while the wife was living. By this ^^^H^ ^ receipt 
 of their amount, either by payment or collection Trir^^^^Jawsuit, 
 or by sale to a purchaser for valuable consideration.^^^fc could 
 even be taken by his creditors for the payment of debts, alt»igh in 
 that case, if not reduced to possession, they would revert to the wife, 
 if she survived her husband. If the wife died before the claims were 
 collected, the husband received them as administrator, in which case, 
 after payment of her debts, the surplus belonged to him absolutely. 
 If the wife survived, the uncollected claims belonged to her. 
 
 d. Her personal property of a tangible nature vested in the hus- 
 band absolutely at the moment of marriage. 
 
 II. The Wife's Oapaoitt to Oonteaot. 
 
 The wife had no power to make a contract. Her legal personality 
 was merged in that of her husband. She could not deal with her 
 husband, for husband and wife were in law one person. If she dealt 
 with third parties, the transaction could only be supported on the 
 ground that she was her husband's agent. Her earnings belonged 
 to him, and he could collect them by action. In one or two cases, the 
 wife might act as a single woman. These were w^here her husband 
 was an alien, always living abroad, or he had been banished, or 
 had abjured the realm. 
 
 HI. Othee Disabilities. 
 
 A wife could not convey her land except by the fictitious judicial 
 proceedings called fine and recovery. She could not make a will of her 
 land, for she was excepted from the Statute of Wills. Nor could she 
 make a testament of personal property, except by the permission of 
 ■aer husband. She could not be a witness against or for her husband, 
 ,either in a civil or criminal case. Her domicile followed that of the 
 husband. The husband, being entitled to her services, could bring 
 actions against one who harbored the wife, or who wrongfully inflicted 
 an injury upon her person. There were in some instances two 
 actions : one by the husband and wife for the personal injury done 
 to the wife, and one by the husband alone for the injury occasioned 
 
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INTRODUOTIOK xxxn 
 
 ma]e orphans. A person whose wardship had 
 terminated by the death of his father or grandfather 
 was placed at his fifteenth year in the fall enjoyment 
 of personal and proprietary independence. This 
 rule does not depend upon any consideration of 
 public convenience, but upon the ground that the 
 child wa^jjryposed to be capable of becoming a 
 parent^^Mjp Guardianship ended with puberty. 
 This^^^soon found to be an inconvenient rule, 
 and ^statute was passed creating a new kind of 
 
 J?y the loss of service. The entire pecuniary results of these actions 
 belonged to him. 
 
 IV. Duties of the Husband. 
 
 a. He was under a duty to maintain his wife in accordance witli 
 her rank and station. She became in such a case, presumptively, the 
 husband's agent ; and under proper circumstances, she could incur bills 
 with tradesmen, which could be collected from the husband. 
 
 J. He was bound to pay her debts contracted before marriage 
 This duty resulted from the fact that her legal personality was 
 merged in his. It followed, that lie must be sued with her, while 
 both lived. He would then be compelled to pay her debts, though 
 he had received nothing from her. If slie died before an action were 
 brought, he could only be sued as administrator, and be liable to tlie 
 extent of the assets which he received in that character from lier 
 estate. 
 
 c. He was liable for the wife's wrongs committed after marriage. 
 If she was guilty of slander or libel, the damages could be collected 
 from him by action. He might be sent to jail if the judgment was 
 not paid. 
 
 d. He was presumptively responsible for her felonious acts, and 
 could be indicted for crimes of that- grade committed by the wife in 
 his presence. He could, however, introduce evidence to rebut the 
 presumption. 
 
 These principles were affected by the rules adopted in Courts of 
 Equity, which are not within the view of this note. They have 
 been largely modified in the several Statis of this country by legisla- 
 tion. They are the law of most of the United States, except so far as 
 thev have been changed by statute. 
 
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XL INTRODUCTION. 
 
 guardian (Curator) to protect the infant againsi 
 intellectual incapacity. 
 
 Finally, the slave was also included in the family. 
 This was well for him, as he was not degraded to the 
 footing of inanimate property. He had in the last 
 resort a capacity for inheritance. Those states which 
 have adopted the rules of the Roman law have left 
 the slave not so intolerably wretched as those which 
 have adopted a different theory. 
 
 The movement of the progressive societies has 
 been, in one respect, uniform. There has been a 
 gradual dissolution of family dependency, and the 
 growth of individual obligation has taken its place. 
 The tie between man and man which replaces those 
 rights and duties which have their origin in the 
 family is contract. It was the tendency of former 
 law to fix the condition or " status " of persons by 
 positive rules ; in modern times, the condition of 
 persons is commonly the immediate or remote result 
 of agreement. The movement has been from status 
 to contract. 
 
 2. Testamentary Succession. The conception of 
 a will in modern times is taken from Eoman testa- 
 mentary jurisprudence. It came into the Eno'lish 
 law through the medium of the church. Wills of 
 personal property were administered in the ecclesi- 
 astical courts, which applied, though in an imper- 
 fect manner, the principles of Roman jurisprudence 
 The English law of testamentary succession is thus 
 
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INTRODUCTION. xi,i 
 
 a modified form of the rules under which Roman 
 inheritances were administered. 
 
 At this point, one may see the advantages of a 
 historical treatment of the subject. Men who should 
 simply reason upon a will would argue that it would 
 take effect at death only ; that it would be secret ; 
 and revocable during the testator's life. JSTone of 
 these characteristics originally belonged to a will. It 
 was not sepret, nor revocable, and took effect during 
 the testator's life. 
 
 Many jui'ists have asserted that the right to 
 make a will is conferred by the law of nature. 
 They, would imply either that the right is universal 
 or that nations are prompted to it by an original 
 instinct or impulse. On the contrary, experience 
 teaches us that it is not universal, and history dis- 
 closes to us that in all the early societies, the condi- 
 tion of jurisprudence in which testamentary privi- 
 leges are not allowed precedes that in which they 
 are permitted to supersede the rights of kindred 
 by blood. 
 
 This subject can only be understood by glancing 
 at the doctrine of Universal Succession. By " uni- 
 versal succession " is meant the case where one is 
 invested with the legal character of anothei', subject 
 to all his liabilities and entitled to all his rights. 
 He becomes the representative of the person to 
 whom he succeeds. Under the Roman law, at the 
 death of a person, his heir became by inheritance 
 Lis " universal successor." We cannot perhaps easily 
 
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shJX INTEODUOTION. 
 
 comprehend this notion, for we have no instances in 
 modern law of this kind of succession. Even in a 
 bankruptcy, the assignee who takes all the debtor's 
 assets, does not assume his responsibilities. If he 
 did, we would have the notion of a "universal 
 succession." 
 
 Now, the theory of a will in ancient law was to 
 put the devisee in the position of a universal suc- 
 cessor. He was the representative of the testator 
 a^ completely as the heir was of an intestate. 
 Though the testator had ceased to live, his legal 
 personality continued in his successor. An executor 
 in our law only partially resembles such a successor, 
 for he only takes the personal property, and is 
 responsible only to the extent of the assets which 
 he receives. 
 
 What, then, is the true theory of an ancient 
 succession ? Kecur for a moment to the idea of the 
 family. It was a corporation, with the patriarch 
 at its head. He was the representative of its rights 
 and obligations. When he died, the family — the 
 corporation — did not die. Another representative 
 took his position with all the corporate rights and 
 duties. This feature of the law of family was ulti- 
 mately transferred to the individual, and when 
 society was resolved into its component parts, it 
 continued to be the rule that on the death of an 
 individual, his heirs or testamentary successors took 
 his own legal position. We may state the position 
 of the testator with sufficient accuracy if we describe 
 
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INTRODUOTION". xLiii 
 
 him as a corporation sole, as a king, who never dies 
 is a corporation sole. 
 
 ^hen a Roman citizen died without a will, his 
 heirs did not merely represent him. They continued 
 his civil existence. This theory of universal succes- 
 sion is peculiar to Roman jurisprudence. 
 
 A will at the outset was a proceeding by which 
 the devolution of a family was regulated. It was 
 a mode of declaring the person who was to have 
 the chieftainship in succession to the testator. This 
 view explains the connection between wills and the 
 sacra or family rites. No testament was allowed 
 to distribute an inheritance without a strict appor- 
 tionment of the expenses of these religious cere- 
 monies among the co-heirs. Doubtless, Intestate 
 Inheritance was more ancient than Testamentary 
 Succession, and testaments wei'e at first only allowed 
 to take effect on failure of the persons entitled by 
 blood relationship. In fact, the only methods of 
 continuing a family where there was no succession 
 of kindred, was either a will or adoption. In the 
 Hindoo law the place filled by wills is occupied by 
 / Adoptions. To the Romans belongs the invention 
 (^ of a will. 
 
 We are thus enabled to explain the primitive 
 Roman will, which was executed in the Comitia 
 Curiata, or Parliament of Patricians, when asseml)led 
 forprivate business. The key to this proceeding is 
 to be sought in the ancient law of intestate succes- 
 Bion. The order of descent was as follows : first, 
 
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XMV INTRODUCTION". 
 
 the direct descendants who had not been emancipa. 
 ted ; second^ the nearest Agnate, the nearest person 
 under the same power (patria potestas) as the de- 
 ceased ; third, on the failure of these, the inheritance 
 devolved on the gentiles or the collective members 
 of the dead man's gens or House. This House was 
 composed of all the Roman Patricians who bore the 
 same name, and who were supposed to be descended 
 from a common ancestor. As the Parliament con- 
 sisted of a representation of these very Houses, the 
 object of bringing the will before it was to determine 
 whether the testator had any gentiles whose claims 
 were affected by his will. It might be rejected or 
 allowed, according as the circumstances of the case 
 might demand. 
 
 The modern will was derived fi-om a transaction 
 /<^hich was a conveyance inter vivos. It was a com- 
 plete and irrevocable alienation of the testator's 
 family and substance to the person intended to be 
 his heir. It was derived from the Mancipium or 
 Mancijpation. This transaction required the presence 
 of a vendor and vendee as well as five witnesses, 
 together with a person called a libripens, who held 
 a pair of scales to weigh the money employed in 
 the proceeding. The testator assumed the place of 
 a vendor, and the intended successor pretended to 
 strike the scales with a piece of money. By this 
 proceeding he became, in contemplation of law, the 
 purchaser of all the testator's property and privi- 
 lesres, and assumed all his oblio'ations. This trans 
 
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INTRODUCTION. xl> 
 
 action vested the property in tlie heir immediately, 
 even though the testator survived ; and the latter 
 could only continue to govern his household by the 
 sufferance of the former. It was the abdication of 
 the corporator in favor of his successor. When the 
 Twelve Tables were established, the testator could 
 not give any legacies which would bind the " uni 
 versal successor." The doctrine finally came into 
 vogue that he must take the inheritance subject to 
 any burdens imposed upon it by the testator, which 
 might be created, as legacies, either orally or in 
 wi'iting. 
 
 In the course of -jurisprudence, the Prgetors or 
 judges introduced another kind of will depending 
 on Equity. The requirements of the Mancipatory 
 Will were observed so far as they furnished security 
 against fraud. Seven witnesses were present; the 
 will was recited, and each of the witnesses affixed 
 his seal to the outside. This kind of will did not 
 confer the legal title to the inheritance. It gave 
 the "successor" an equitable right to the property, 
 which, after a year of undisturbed possession, by 
 force of a principle known as prescription (usuca- 
 pion), ripened into a legal right to the property. 
 
 The Mancipatory Will was not displaced by the 
 will of the Praetor. At the time of the Empire, an 
 indifferent person was made the "purchaser" of the 
 testator's i-ights, who was called the emptor fatnilm, 
 The person who was to receive the actual benefit 
 was named by the testator. Wills thus became secret 
 
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XLVI INTRODUOTIOIT. 
 
 A will then consisted of two parts ; the conveyance 
 and a publication. By the " publication " the testa 
 tor declared his intentions either orally or in writ- 
 ing. The conveyance having now degenerated into 
 a mere form, the intention was regarded as the 
 principal feature in the transaction, and wills became 
 revocable. 
 
 At the time of Justinian, a will was introduced 
 into the Eastern Empire, which combined the two 
 already described, but it was employed in that em- 
 pire only, and the maucipatory testament, with all 
 its forms of conveyance, continued to be used in 
 Western Europe, far down into the middle ages. 
 
 3. Differences hetween Ancient and Modern Suc- 
 cession. — There are some differences between 
 ancient and modern ideas on this subject, which 
 should be noticed. Though the text of the Twelve 
 Tables allows the utmost liberty of testation, yet a 
 will does not seem to have been regarded by the 
 Romans as a means of disinheriting a family. The 
 principal value of the power of testation was deemed 
 to be the assistance it gave in making provision for 
 a family, and in dividing the pi'operty more fairly 
 than would have been done by the law of intestate 
 succession. There was a strange dread of intestacy 
 among the Eomans. It is difficult to account for 
 this sentiment at first thought. A close examination 
 will reveal its origin. The Roman law consisted of 
 two parts : the civil law, and the equity law Bj 
 
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INTRODUCTION. xlvh 
 
 tlie civil law, only three classes of persons were 
 called to the succession— unemancipated children, 
 the nearest class of Agnatic kindred, or members 
 of the gens or family to which the intestate be- 
 longed. The emancipated sons had no share in the 
 inheritance. So if a man died childless, it might 
 happen that all his property would devolve on a 
 class of persons with whom he had no connection, 
 except the fiction which assumed that all members 
 of a gens or class had descended from a common 
 ancestor. There was thus a conflict between natu- 
 ral affection and legal theories, and men felt an 
 enthusiasm for an institution which permitted them 
 to escape from the thraldom of legal rules, and to 
 give their property to the objects of their love. 
 
 The Prsetor by his equity law ultimately per- 
 mitted some persons to succeed who were not in- 
 cluded in the civil law, but the sentiment which had 
 caused a will to be so much regarded in the mind 
 of a Roman outlived the necessity which had called 
 it forth. 
 
 The opposite view, which values a will because 
 it enables the testator to divert his property from 
 his family, or to distribute it among his relations in, 
 such form or proportions as he may desire, is of 
 modern origin. It can be unhesitatingly traced to 
 the influence of Primogeniture. "When the law had 
 established that all the land should pass to one of 
 the heirs, to the exclusion of the rest, it was easy to 
 reach the result that the excluded persons had no 
 s 
 
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XLxni INTRODUCTION. 
 
 claim upon the other items of property. Prirao 
 geniture itself is modern. There is not the faintest 
 trace of it among the E-omans, or other ancient na 
 tions. Among the Hindoos, when a son is born, he 
 acquires a vested right in his father's property, 
 which cannot be sold without a recognition of his 
 joint ownership. It may even be divided during the 
 father's life, between him and his children. Similar 
 principles prevailed among the ancient Romans. The 
 history of primogeniture thus becomes exceedingly 
 obscure. 
 
 The origin of primogeniture must be sought in 
 the beneficiary gifts of the barbarian chieftains who 
 invaded the Roman Empire. Similar gifts were made 
 on a great scale by Charlemagne, and were grants 
 of Roman provincial land to be holden by the 
 beneficiary on condition of military service. Origi- 
 nally held at the pleasure of the grantor, the gran- 
 tees ultimately succeeded in causing them to become 
 hereditary. They sometimes descended to the 
 eldest son, and in other cases a different rule pre- 
 vailed. The method of descent depended upon 
 agreement. Similar phenomena occur when the 
 feudal law impressed itself on all estates of land. 
 Primogeniture once admitted as to some estates, was 
 seen to possess some marked advantages, and spread 
 with great rapidity over Europe, largely through 
 the instrumentality of family settlements. 
 
 The question recurs, why should primogeniture 
 diffuse itself so rapidly ? Doubtless it had an his- 
 
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INTRODUCTION. xux 
 
 toric origin in some ancient theories based on the 
 idea that, whenever political power or public office 
 passes by succession, it follows the rule of primo- 
 geniture. Proofs of this are found in the Hindoo 
 law. It spread rapidly, because European society 
 had retrograded. Civil society having no coherence 
 men threw themselves on a patriarchal institution 
 older than existing organizations. It was a source 
 of strength to hold the entire propei'ty together 
 for the use of the family. Power was concentrated 
 in a single hand. After a time the notion that the 
 land was held for the behoof of the whole family 
 wore away. The refined idea that uncontrolled 
 power over property is equivalent to ownership 
 came in contact with the patriarchal theory, and 
 the eldest son becanje legal proprietor of the inher- 
 itance. The younger brother ceased to participate 
 in the property of his kinsman, and became the 
 priest, soldier, or dependant. 
 
 There are two forms of primogeniture, of which 
 that already described is the normal one. In tho 
 Celtic societies, the eldest line succeeds. An uncle 
 may inherit rather than an infant son of the last 
 owner. This is principally true in the case of devo- 
 lution of political power, such as the chieftainship 
 of a clan. This modification was doubtless derived 
 from the fact that it is better to be governed by a 
 grown-up chieftain than by a child, and that a 
 younger brother is much more likely to have reached 
 maturity than any of an elder brother's descendants, 
 
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L INTEODUCTION. 
 
 4. TTie Early History of Property. — Historical 
 investigations lead ns to depart from the idea 
 shadowed forth in Roman jurisprudence and adopted 
 by Blackstone and others, that the origin of prop- 
 erty is to be traced to occupancy. This notion ia 
 found in the later Roman law, and is the product of 
 a refined jurisprudence and of a settled condition 
 of the laws. It does not arise until the rights of 
 property have gained a sanction from long practical 
 inviolability, and is occasioned by the presumption 
 that everything ought to have an owner. This 
 view is directly contradicted by history. The social 
 compact, which admits occupancy, is made by indi- 
 viduals. Ancient law, however, knows nothing of 
 individuals. It is concerned only with families and 
 groups of beings. This notion of occupancy as a 
 natural right has had a powerful influence on 
 modern law. From it, some of the great rules of 
 international law have been derived, such as the righ 
 of capture in war, and the claim to new countries 
 by discovery. As an account of the origin of prop- 
 erty it possesses no historical value. 
 
 We cannot look for the germ of the right of 
 property in the Roman law. We must go to an 
 older system, and inspect the customs of the Hin- 
 doos. The village community is there an organized 
 patriai-chal society and an assemblage of co-proprie- 
 tors. Co-ownership by the family was the, original 
 law of property. At the present ti^e, co-ownership is 
 -egarded as the exceptional condition. In its simplest 
 
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INTRODUCTION. li 
 
 form, the " community " was a body of kindred 
 holding a domain in common. It was, however, 
 more than a brotherhood of relatives. It is an 
 organized society, with a common fund and completfl 
 machinery for internal government. 
 
 More complicated forms also appear. Men of 
 foreign extraction are admitted, and the purchaser 
 of a share may become a member of the brother- 
 hood. The fiction is still preserved that all these 
 persons had. a common parentage. If a family be- 
 comes extinct, its share returns to the common stock. 
 We have here a reproduction of the Roman gens or 
 clan. Similar inferences are derived from recent 
 researches into Russian villages which closely resem- 
 ble ancient types. 
 
 From these various communities we may get 
 some conception of the manner in which the right 
 of individual property grew up. It was chiefly 
 formed by the gradual disentanglement of the sep 
 arate rights of individuals from the blended rights 
 of a community. It would appear that ownership 
 followed the law which has already been noticed 
 in respect to the family. As the family became dis- 
 integrated, ownership became several as well as 
 joint. 
 
 The difficulties in the way of the transfer of 
 property in ancient times were very great. Convey- 
 ances, being transactions between organized compa- 
 nies of men rather than individuals, were in a high 
 degree ceremonious, requiring many symbolical act^ 
 
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MI INTKODUOTION. 
 
 and a great number of witnesses. Not an item ol 
 this ceremony could be safely omitted, not a gesture, 
 not a syllable, not a witness. If there were an omis- 
 sion, the conveyance was void. 
 
 The change gradually produced was due to a 
 classification of property. One kind of property 
 was considered of more dignity than another, and 
 demanded more form. The transfer of the other 
 class of objects could be made more simply. After 
 a time the superior convenience of the simple rules 
 leads to their extension to more dignified objects, 
 and the ceremonious forms become obsolete. The 
 classification of objects was often quite arbitrary. It 
 is in vain to attempt to refer it to any philosophical 
 principle. It must simply be viewed historically. 
 The most probable explanation is that those articles 
 were especially honored which were first known to 
 each community. Other articles were placed on a 
 lower standing, because the knowledge of their 
 value did not exist until after the classification waa 
 made. The Eomans in this spirit divided all prop- 
 erty into res mancipi and res nee mancipi, or, in other 
 words, property which could only be sold by the 
 ceremony called " Mancipation " and property which 
 could be transferred without that form. [This is 
 much the same as if we should classify all propei'ty 
 into that which can be sold by deed, and that which 
 can be transferred without a deed.] The res man- 
 dpi were Italian lands, slaves, and beasts of burden. 
 They are the instruments of agricultural labor, and 
 
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INTRODUCTION. liu 
 
 were mwer extended. The res nee mmicipi admit 
 ted of indefinite expansion. Such property waa 
 transferred by simple delivery. As its items in- 
 creased in number and importance, the advantages 
 of the simpler forms became apparent, and finally 
 the cumbersome ceremony of mancipation entirely 
 disappeared, and delivery became the one great 
 conveyance of the law. 
 
 It is true, however, that there were some posi- 
 tive restrictions on alienation, which could not be 
 overcome in this manner. In some countries, prop- 
 erty could only be transferred with the consent of 
 children ; in others, alienation was altogether prohib- 
 ited. In some, inherited property could not be sold, 
 while one's own acquisitions were transferable 
 Very extensive classifications of this kind are found 
 among the ancient Germans. Ultimately there was 
 only one distinction of importance, that between 
 land and chattels, land being considered of more 
 importance than personal objects of enjoyment. 
 
 Another mode in which the trammels of ancient 
 law were relaxed, was by prescription. It was a 
 positive rule of the Twelve Tables, that commodi 
 ties which had been for a very short period in pos- 
 session of a person became his property. This was 
 a most useful security against a cumbrous system of 
 conveyance. If the act of mancipation had been 
 performed in an irregular manner, after two year* 
 of possession, the title became perfect. This was an 
 exceedingly important principle, because it quickly 
 
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Liv mXEODUOTIOK 
 
 healed all defects in tlie title to objects of enjoy 
 nient. 
 
 Still another method was by collusive actioa 
 The plaintiff in a fictitious action, claimed that the 
 pi'operty belonged to him. The defendant, who 
 was the real owner, made no defence, whereupon 
 the court adjudged that the property belocged to 
 the plaintiff. This was quite analogous to the ficti- 
 tious action in the common law of England, which 
 was employed to destroy entailments, and known 
 as a Common Recovery. 
 
 The influence of courts of law and their proce- 
 dure upon property has been very great. We can 
 only notice the importance of the legal distinction 
 between property and possession. In the Roman 
 law, the word possession did not merely conve}' the 
 idea of physical detention, but it also included the 
 intent to insist upon the ownership of the thing 
 detained. Such possessors were protected by the 
 Praetor's interdict or injunction, which was ultimately 
 moulded into a shape fitted to try conflicting claims 
 to a disputed possession. Ultimately, owners vin- 
 dicated their claims to property by the same pro 
 Deeding. In the same way, the old real actions ot 
 the English common law, whose office was to try 
 the title to land, have been supei'seded by the pos- 
 sessory action of ejectment, which is now employed 
 to try not only the question of possession, but also 
 of ownership. 
 
 Courts of Equity have also acted powerfully upon 
 
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INTEODUOTION. m 
 
 property, by meano of the distinction taken between 
 legal and equitable ownership. The Courts of 
 Equity in England, as well as in Rome, created ne-n 
 rights in various forms. This is a topic too extensive 
 to be followed. It has been alluded to, merely for 
 the purpose of showing that the peculiar notions of 
 feudal ownership are not . o be traced to the equity 
 law of the Roman Praetor. The true ori2:in of feu 
 dal ownership is the emphyteusis, or perpetual rent 
 of the Roman law. The lessee was there treated as 
 a true proprietor, and could not be disturbed, so 
 long as his rent was paid. The owner of the rent 
 could reenter upon the land, if payment was not 
 made. He also had a right of preemption in case of 
 sale. There is clear evidence that this system was 
 introduced into Germany, in favor of Roman vete- 
 rans, who settled upon the land, with an agreement 
 to render garrison duty, as a substitute for the or- 
 dinary quitrent. The special services rendered to 
 the feudal lord, which were not common to the 
 Roman quitrent, were doubtless borrowed from the 
 relation of patron and client. 
 
 5. The History of Contract. — ^The present con- 
 dition of society makes it diiBcult to comprehend 
 the early history of contract. The archaic rules of 
 imperative law have almost everywhere given way 
 to obligations founded on contract. The mind is 
 apt to transfer this condition to ancient times, and 
 even to have misgivings whether morality is advan- 
 
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Lvi INTEODUOTION. 
 
 cing. This feeling is often occasioned by some special 
 instances of stupendous fraud. The fact, however, 
 is that social morality has advanced from a rude to 
 a highly refined conception, and we look upon 
 rights growing out of the repose of confidence in 
 others, as entitled to the protection of the penal 
 law. 
 
 Jurists have been led into the same error as 
 other thinkers. Even the later Roman lawyers re- 
 garded those contracts, which involved no other 
 ingredient than that of assent, as of earlier origin 
 than those whicli were made ceremoniously, and 
 looked upon them as contracts, known to man ':n. a 
 state of nature. This twofold error was adopted 
 by Rousseau. He regarded the earlier ages as the 
 times of innocence, which had given way to modern 
 degeneracy, and based his speculations on the theory 
 of a " social contract." English lawyers laid hold of 
 this theory, and, careless of its historical relations, 
 insisted on the "social contract" as an historical 
 fact. 
 
 This theory has but little influence at the pres- 
 ent time, partly because it is not satisfactory, 
 and partly because men have ceased to theorize 
 altogether. Men love to analyze society as it exists, 
 and reach no results from an omission to call in the 
 assistance of history. Tke patriarchal origin of 
 society leaves but little room for the notion of con^ 
 tract. Under that system, two members of a family 
 cannot contract with each other, nor can the family 
 
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INTEODUOTION. lvh 
 
 itself be bound by the engagements of its subor 
 dinate members. One family may contract with ano 
 ther, but only in the most ceremonious manner. 
 The duty resulting from one man's reliance on the 
 word of another is one of the slowest conquests of 
 civilization. There is nothing in early times like 
 the interposition of law to compel the performance 
 of a promise. That promise only is sanctioned which 
 is accompanied with a ceremonial ; and if the cere- 
 monies be performed, the promise will be carried 
 out, though obtained through duress or deception. 
 This strictness slowly gives way — steps in the cere- 
 mony are dispensed w.th or simplified, some con- 
 tracts of the most practical importance are separated 
 from the rest, and entered into without cumbrous 
 forms. Ultimately the mental engagement is 
 principally regarded. The Romans distinguished 
 between the two classes of cases, calling the cere- 
 monious engagements, contracts, and those in which 
 no ceremonies were necessary, pacts. In the pro- 
 gress of jurisprudence, contracts were absorbed by 
 pacts. 
 
 The progress of this change it is important to 
 notice. The early term for contracts was nexuin, 
 and the parties to a contract were said to be con- 
 nected by a strong bond or chain. The definition 
 of neamin is " every transaction with the copper 
 and balance." This is also the definition of a con- 
 veyance. We thus have a contract confounded 
 with ». conveyance. This view is in entire opposi 
 
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Lviu INTRODUCTION. 
 
 tion to inod( rn notions. We carefully distinguisli 
 between tlie proprietary rights created by convey 
 ances and the obligations created by contracts. In 
 the ancient law, the same forms were used in a con- 
 veyance as were employed in a contract. After a 
 time, the notion of a contract is disengaged fi-om 
 that of a conveyance. Conveyances are called by a 
 new name, mancipation., while nexum designates 
 the ceremony when applied to a contract. The 
 process may be conjectured to have taken place in 
 this manner : If, for example, the transaction con- 
 cerned the sale of a slave, the purchaser was present 
 with his money, and a third person with scales to 
 weigh it. While the transfer was being made, the 
 bond (nexum) continued, but when the sale was 
 completed, the " bond " was at an end. If the slave 
 was transferred, but the money was not paid., the 
 " nexum " continued on the purchaser's part, but not 
 on that of the seller. If neither party completed 
 the transaction, the ordinary executory contract of 
 sale is made. Under tljis view, a contract was re- 
 garded as an incomplete conveyance. If this view be 
 correct, we I'each a conclusion in direct opposition to 
 that of many modern theorists, who regard contracts 
 as of paramount importance in the early law. Wt 
 also see why the ancient law was so severe upon 
 debtors, and why it gave such extravagant powers 
 to creditors. Indebtedness was considered as an 
 anomaly, and looked upon with disfavor, for accord- 
 
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INTEODTJOTIOK lis 
 
 ing to principle, the price of a commodity should 
 have been paid when the sale was made. 
 
 It is necessary, however to analyze more closely, 
 and to distinguish between contracts and pacts. A 
 pact was only the engagement of individuals, without 
 those solemnities which were necessary to a contract. 
 An obligation must have been attached by law to a 
 pact before it became a contract. It is very import- 
 ant to notice, that in the old law, an engagement 
 does not constitute a contract. An obligation must 
 be annexed by the law in the plenitude of its power. 
 The law bound the parties together, and the chain 
 could only be broken by a legal process. It is 
 singular that obligation meant the right to have a 
 debt paid, as well as the duty to pay it. 
 
 In thq later Roman law, pacts were nearly in 
 every case connected with legal obligations, but in 
 tracing the history of the subject, we find in the 
 course of its development, the contract classified 
 into four kinds : verbal, literal, real, and consensual. 
 These names were given from the formalities which 
 were required beyond mere consent. 
 
 (1). The Verbal Contract. — Here a particular 
 form of words must be employed. This was doubt- 
 less the most ancient form of contract. It involved 
 the necessity of a question and an answer. The 
 question was always put by the promisee, and the 
 anawer given by the promisor. It was technical 
 in its form, and must be scrupulously followed. 
 
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LX IlTTEODUOTIOlSr. 
 
 ThoTigli not. framed for any reasons of convenience, 
 it had its practical advantages. It arrested the 
 promisor's attention, and fixed his mind on the exact 
 engagement which he was making. This is in direct 
 opposition to modern theories, for we look at a con- 
 tract from the point of view of the promisor. The 
 person who asks the question, is called the stipulator, 
 and the act of asking it and receiving the answer, 
 stipidatio. 
 
 (2). The Literal Contract. — ^This consisted of 
 the entry of the amount due on the debit side of a 
 ledger. This contract depended on the great regu- 
 larity of ancient book-keeping. It was the practice 
 for each member of a family, after entering items of 
 receipt and expenditure in a waste book, to transfer 
 them to a general ledger. It is not known whether 
 the entry in the creditor's books was sufficient to 
 constitute the contract, or whether it was also ne- 
 cessary that the debtor should make a correspond- 
 ing statement. At all events, if a proper entry was 
 made, formalities essential in the verbal contract 
 were not required. We thus have a second relaxa- 
 tion of the rigid law of early contracts. 
 
 (3). Real Contracts. — The delivery of the thing 
 agreed upon, raised an obligation on the part of the 
 receiver to complete the contract. This view was a 
 great departure from the law of "ceremonious'' 
 
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INTEODUOTION. lxi 
 
 contracts, and for the first time introduced the ele- 
 ment of mora] obligation into this branch of law. 
 
 (4). Consensual Contracts. — These very import- 
 ant contracts depend for their validity, purely upon 
 mutual assent. There are four of this class, which 
 embraces those contracts that are the most impoi't- 
 aut in the intercourse of life. No formalities are 
 requisite. The law attaches its obligation or chain 
 to the mere assent or pact. The mere consent draws 
 with it the obligation in the same manner, as the 
 question, book entry, and delivery attract it in other 
 contracts. Contracts belonging to this class are 
 agency, sale, partnership, and letting and hiring 
 (bailment). The great importance and frequency 
 of these transactions, without doubt, led the Romans 
 to relieve them from all technical rules. This was 
 doubtless the case with other nations, so that these 
 contracts were deemed to be contracts by the " law 
 of nations," and ultimately by the " law of nature," 
 until the singular notion prevailed, that the earlier ' 
 the civilization, the simpler the contract. 
 
 From this time forward, consent came to be re- 
 garded as the principal ingi-edient in a contract. 
 The " consensual " contracts were looked upon with 
 peculiar favor. Although the Praetors could not 
 extend their number, it was determined to give 
 equitable actions in every case in which a pact was 
 founded on a consideration. In this way new con- 
 sensual contracts were introduced, although not so 
 
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Lxii TNTEODUCTION. 
 
 termed. If they were without consideration, the 
 Praetors wo^ld not enforce them. It was then ne- 
 cessary to make the contract formal, by means of 
 " question aud answer." 
 
 This history of the progress of Koman Law, is 
 probably typical of all ancient law in its progress 
 up to a certain point. Some of its features are ex- 
 clusively Roman, such as the nature of " Obligation " 
 and the "Theory of Natural Law." 
 
 The influence of Jurisprudence upon other 
 branches of science has been remarkable. It is es- 
 pecially noticeable in Politics, Moral Philosophy, and 
 Theology. That part of the law which has been 
 most extensively influential, is the law of obligation, 
 or contract, and the law of wrongs (delicts). In 
 politics, from a confusion of distinct legal notions 
 was derived the error which attributed political 
 rights and duties to an original compact between 
 the governors and governed. The law furnished a 
 body of words and phrases, which approximated in 
 meaning td the ideas which were forming on the 
 subject of political obligation. 
 
 In Moral Philosophy, ancient law has been more 
 directly laid under contribution. As long as ethical 
 science concerned itself with the practical rules of 
 conduct, it was affected by Eoman law. Moral 
 Philosophy was originally incorporated with Theo- 
 logy. Its relation to Jurisprudence was less close 
 when it came to be cultivated by the great Spanish 
 moralists. " Moral Theology " then degenerated intc 
 
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INTRODUCTION. Lxin 
 
 Casuistry, Under the guidance of Protestants, a 
 new science of Moral Philosophy abandoned the 
 path which the " Moral Theologians " had followed, 
 and Roman law again exercised its influence on 
 ethical inquiry. 
 
 There is no branch of knowledge which has been 
 80 little affected by Roman law as Metaphysics. 
 Discussions upon metaphysical questions were con- 
 ducted in Greek, or in a dialect constructed to give 
 expression to Greek conceptions. The problems of 
 Metaphysics which have been most strongly agitated 
 in Western Europe, betray a legal parentage. No 
 Greek-speaking people has ever been seriously per- 
 plexed by the question of free will and necessity. 
 No such people ever showed the smallest capacity 
 for producing a philosophy of law. The problem 
 of free will arises when we contemplate a metaphys- 
 ical conception under a legal aspect. . This concep- 
 tion was theological before it became philosophical. 
 Note the difference between tte various topics of 
 theological speculation in the two branches of the 
 Roman Empire. The Greek mind engaged in pro- 
 found controversies as to the divine person, the 
 divine substance and the divine nature." The 
 Western Church discussed the nature of sin, and 
 its transmission by inheritance, the atonement, the 
 antagonism between free will and divine Providence. 
 Why are these problems so strikingly different? 
 We answer unhesitatingly that in the West, theolo 
 gical speculation had passed from a region of Greek 
 
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Lxiv INTEODUOTIOK 
 
 metapLysics to Eoman law. The substratum of la-w 
 in Western theology lies exceedingly deep. Though 
 for a time its doctrines were almost buried undei 
 Aristotelian philosophy, yet at the Keformation 
 they were extricated. It is difficult to say whether 
 the system of Calvin or of Arminius has the more 
 marked legal character. 
 
 Besides, the Roman law of contracts had a strong 
 influence upon institutions. Feudalism is com- 
 pounded of barbaric usage and Roman law. While 
 it resembled in some respects a Hindoo village com- 
 munity, it is in other respects quite different. The 
 Hindoo communities gathered together by instinct, 
 and new/ comers were introduced by fiction. The 
 feudal obligation was created by contract. The 
 feudal communities were, for this reason, more 
 durable and varied in character than the ancient 
 societies. Some would hold that the variety of 
 modern civilization is due to the exuberant and 
 erratic genius of Germanic races. In opposition to 
 this error, it may be asserted that the Roman Em- 
 pire bequeathed to society the legal conception to 
 which all this variety is attributable. The one 
 striking and characteristic fact in the customs and 
 institutions of barbaric races is their extreme uni- 
 formity. 
 
 6. Delict or Grime— All known collections of 
 ancient law are characterized by a feature whict 
 bioadly distinguishes them from matured systems 
 
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INTEODUCTION. ixv 
 
 of jurisprudence. The proportion of civil to crimi- 
 nal law is veiy different in the two cases. The 
 elder the system, the fuller and more minute the 
 penal legislation. The poverty of civil law is due 
 to the plan on which the family is organized. There 
 is no corresponding limitation in reference to penal 
 law, and it is also probable that the infancy of na- 
 tions is a period of ungoverned violence. 
 
 This early penal law is not a true criminal law. 
 In all matured systems, a sharp distinction is drawn 
 between crimes and wrongs. In the one, the act is 
 regarded with reference to the State ; in the other, 
 with reference to the individual injured. In ancient 
 law, the act was only regarded with reference to the 
 individual. He proceeds by a civil action, and 
 recovers compensation in the shape of money. In 
 the Twelve Tables, the chief civil wrong is theft. 
 Those offences which are now termed crimes, were 
 treated exclusively as torts or wrongs. The same 
 fact is perceived in the consolidated laws of the 
 Germanic tribes. In the infancy of jurisprudence, 
 the citizen depends for protection against violence 
 or fraud, not on the law of crime, but on the law of 
 tort. It should also be noticed that sins are known 
 to primitive societies. There were in the Athenian 
 and Roman States laws punishing sins as well as 
 torts. The ordinances against the former were based 
 on the conception of an offence against God ; the 
 provisions against the latter, on the conception of 
 an offence against one's neighbor. The idea of an 
 
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LXTi INTEODUCTION. 
 
 offence against the State did not at first produce a 
 true criminal jurisprudence. 
 
 The conception of a wrong done to the State, 
 however, was not wanting. The State was thought 
 to suffer a personal injury, and avenged itself on 
 the criminal by a single act. Every offence was 
 punished by a special act of the legislative power. 
 The trial of an offender was wholly irregular. The 
 proceeding was the same in form as the enactment 
 of an ordinary statute. After regular criminal 
 procedui'e came into vogue, the people still retained 
 the power of punishing offences by a special law. 
 
 It may be urged that the State has from the 
 earliest period compelled the wrong doer to com- 
 pound for his wrong, and that this interference must 
 have depended upon the fact that it was injured. The 
 State, however, only interfered in the character of 
 arbitrator between two litigants, and received com- 
 pensation for its trouble and loss of time. This is 
 shown by the sums paid in the progress of an action 
 in the Eoman law (Sacramenta), and by the sub- 
 jects described by Homer on the shield of Achilles. 
 It is still further shown by the fact that the court, 
 in awarding damages, took a its guide the measui-e 
 of vengeance likely to be exacted by the aggrieved 
 person under all the circumstances. This is the ex- 
 planation of the different penalties imposed on 
 offenders caught in the act of committing crime, and 
 on those detected after considerable delay. The 
 men of ancient times had none of the scruples of 
 
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INTRODUCTION. lxto 
 
 modern judges in discriminating between the de- 
 grees of criminality wliicli belong to ofEences falling 
 within the same description. They look only at 
 the impulses of the injured person, and follow the 
 rise and fall of his passions. 
 
 The earliest criminal tribunals were mere com- 
 mittees of the legislature. The popular assembly 
 delegated its functions to a commission quite analo- 
 gous to the committee of a modern legislative body, 
 except that it did not report to the legislature, 
 but itself rendered a final decision. Some of these 
 commissions resembled modern standing committees, 
 and were appointed regularly every year. There 
 was no true criminal law at Rome, until B. 0. 149. 
 A Calpurnian law then provided a permanent com- 
 mission for the trial of ofEences under that act, and 
 judges were selected from particular classes, and 
 renewed in conformity with definite rules. This 
 was a regular criminal judicature. These commis- 
 sions were always regarded as mere committees of 
 the popular assembly. Two important consequences 
 followed. One was that the legislature could always 
 try the case as a special offence, and the other that 
 the punishment of death could not be inflicted by 
 the commission, because it could have no greater 
 powers than the legislative body whence it ema- 
 nated, which could not itself inflict death. 
 
 Two additional peculiarities should be men- 
 tioned ; the great number of Roman tribunals, and 
 the capricious classification of crimes. Both of these 
 
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Lxviii INTRODUCTION. 
 
 are exj)Iained by the historical accour.: already 
 ffiven. As each commission for the tria,l of crime 
 had its origin in a distinct statute, which was pass- 
 ed to meet an existing emergency, the commissions 
 were naturally very numerous, and without any 
 connection. It became very difficult to draw auy 
 exact lines betwee:n the difEerent commissions. This 
 result was not only inconvenient but oppressive, 
 for if there was doubt as to the particular statute 
 under whichi a crime should be ranged, an alleged 
 criminal could be indicted before several commis- 
 sions, so that if he was acquitted by one, he could 
 be condemned by another. Though this anomaly 
 Avas abolished by the Emperors, yet the classifica- 
 tion of crimes remained remarkably capricious. The 
 only princiijle on which acts were associated, was 
 that they had been made criminal offences at 
 the same time, and by tlie same statute. Thus 
 perjury was classed with cutting, wounding, and 
 poisoning, because a law of Sylla had given juris- 
 diction over these foj-ms of crime to the same com- 
 mission. Finally, criminal law was extended by a 
 new description of offences called crimina extraor- 
 dinaria. These were offences originally treated 
 merely as wrongs. In the progress of social ideas, 
 the injured party was allowed to pursue them as 
 crimes ; adopting a mode of redress differing from 
 the ordinary procedure. 
 
 The theory and practice of criminal justice under 
 the Empire has had a powerful effect on modern 
 
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INTRODUCTION. lxis 
 
 society. There was at first committed to the Senate 
 an extensive criminal jurisdicitou ; it was ultimately 
 transferred to magistrates, nominated by the Em- 
 peror, with an appeal to the Imperial Privy Council. 
 From this source was derived the doctrine, familiar 
 to modern peoples, that the sovereign is the fountain 
 of all justice, and the depositary of all grace. This 
 theory was the fruit of the centralization of the Em- 
 pire. It saved modern society from passing through 
 the series of changes illustrated by the history of 
 the commissions {jjumstiones). The development 
 of criminal law was hastened by two causes ; the 
 memory of the Roman Empire, and the influence 
 of the Church. Two assumptions were contended 
 for by the Church, one that each feudal ruler might 
 be assimilated to the Roman magistrates spoken of 
 by St. Paul, and the other that the offences wliich 
 he was to chastise were those selected in the Mo- 
 siac commandments. Thus heresy and perjury were 
 ecclesiastical offences, and the Church only admitted 
 the co-operation of the secular arm ; while murder 
 and robbery were under the jurisdiction of civil 
 rulers, not by the accident of their position, but as 
 an express ordinance of God. 
 
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ANCIENT LAW. 
 
 CHAPTER I. 
 
 ANCIENT CODES. 
 
 The most celebrated system of jurisprudence known 
 to the world begins, as it ends, with a Code. From 
 the commencement to the close of its history, the 
 expositors of Roman Law consistently employed 
 language which implied that the body of their 
 system rested on the Twelve Decemviral Tables, 
 and thei-efore on a basis of written law. Except 
 in one particular, no institutions anterior to the 
 Twelve Tables were recognised at Rome. The 
 theoretical descent of Roman jurisprudence from a 
 code, the theoretical asci'iption of English law to 
 immemorial unwritten tradition, were the chief 
 reasons why the development of their system dif- 
 fered from the development of ours. Neither the- 
 ory corresponded exactly with the facts, but each 
 produced consequences of the utmost importance. 
 
 I need hardly say that the publication of the 
 1 
 
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2 ANCIENT CODES. oeap. i 
 
 Twelve Tables is not the earliest point at which we 
 can take up the history of law. The ancient Eoman 
 code belongs to a class of which almost eveiy civil 
 ised nation in the world can show a sample, and 
 which, so far as the Roman and Hellenic worlds 
 were concerned, were largely diffused over ^iiem at 
 epochs not widely distant from one another. They 
 appeared under exceedingly similar circumstances, 
 and were produced, to our knowledge, by very 
 similar causes. Unquestionably, many jural phe- 
 nomena lie behind these codes and preceded them 
 in point of time. Not a few documentary records 
 exist which profess to give us information concern- 
 ing the early phenomena of law ; but, until philology| 
 has effected a complete analysis of the Sanskrit lit- 
 erature, our best sources of knowledge are undoubt-! 
 edly the Greek Homeric poems, considered of course j 
 not as a history of actual occurrences, but as a de- 
 scription, not wholly idealised, of a state of society 
 known to the writer. However the fancy of the 
 poet may have exaggerated certain features of the 
 heroic age, the prowess of warriors and the potency 
 of gods, there is no reason to believe that it has 
 tampered with moral or metaphysical conceptions 
 wliich were not yet the subjects of conscious obser- 
 vation ; and in this respect the Homeric literature 
 is far more trustworthy than those relatively later 
 documents which pretend to give an account of 
 times similarly early, but which were compiled un- 
 der philosophical or theological influences. If h\ 
 
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LUAP. I. RUDIMENTARY JURAL IDEAS. S 
 
 auy means we can determine the early forms of 
 jural conceptions, they will be invaluable to us. 
 These rudimentary ideas are to the jurist what the 
 pi-imary crusts of the earth are to the geologist. 
 They contaiu, potentially, all the forms in which law 
 has subsequently exhibited itself. The haste or tho 
 prejudice which has generally refused them all but 
 the most superficial examination, must bear the 
 blame of the unsatisfactory condition in which we 
 find the science of jurisprudence. The inquiries of 
 the jurist are in truth prosecuted much as inquiry 
 in physics and physiology was prosecuted before 
 observation had taken the place of assumption. 
 Theories, plausible and comprehensive, but absolu- 
 tely unverified, such as the Law of Nature or the 
 Social Compact, enjoy a universal preference over 
 sober research into the primitive history of society 
 and law ; and they obscure the truth not only by 
 diverting attention from the only quarter in which 
 it can be found, but by that most real and most im- 
 portant influence which, when once entertained and 
 believed in, they are enabled to exercise on the later 
 stages of jurisprudence. 
 
 The earliest notions connected with the concep- 
 tion, now so fully developed, of a law or rule of life, 
 are those contained in the Homeric words "Themis" 
 and " Themistes." " Themis," it is well known, ap- 
 pears in the later Greek pantheon as the Goddess of 
 Justice, but this is a modern and much developed 
 idea, and it is in a very different sense that Themis 
 
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4 ANCIENT CODES. chap. i. 
 
 is described in the Iliad as the assessor of Zeus. It 
 is now clearly seen by all trustworthy observers of 
 the primitive condition of mankind that, in the in 
 fancy of the race, men could only account for sus- 
 tained or periodically recurring action by supposing 
 a personal agent. Thus, the wind blowing was a 
 person and of course a divine person ; the sun 
 rising, culminating, and setting was a person and a 
 divine person ; the earth yielding her increase was 
 a person and divine. As, then, in the physical 
 world, so in the moral. When a king decided a 
 dispute by a sentence, the judgment was assumed to 
 be the result of direct inspiration. The divine 
 agent, suggesting judicial awards to kings or to 
 gods, the greatest of kings, was Themis. The pecu- 
 liarity of the conception is brought out by the use 
 of the plural. Themistes, Themises, the plural of 
 Themis, are the awards themselves, divinely dic- 
 tated to the judge. Kings are spoken of as if they 
 had a store of " Themistes " ready to hand for use ; 
 but it must be distinctly understood that they are 
 not laws, but judgments, or, to take the exact Teu- 
 tonic equivalent, "dooms." "Zeus, or the human 
 king on earth," says Mr. Grrote, in his History of 
 Greece, "is not aflaw-maker, but a judge." He is 
 provided with Themistes, but, consistently with 
 the belief in their emanation fi'om above, they can- 
 not be supposed to be connected by any thread of 
 principle ; they are separate, isolated judgments. 
 Even in the Homeric poems, we can see that 
 
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OHAP. I. THEMISTES. 5 
 
 these ideas are transient. • Parities of circumstance 
 were probably commoner in the simple mechanism 
 of ancient society than they ai'e now, and in the 
 succession of similar cases awards are likely to fol- 
 low and resemble each other. • Plere we have the 
 germ or rudiment of a custom, a conception j)oste- 
 I'ior to that of Themistes or judgments. However 
 strongly we, with our modern associations, may be 
 inclined to lay down a priori that the notion of a 
 Custom must precede that of a judicial sentence, 
 and that a judgment must affirm a Custom or pun- 
 ish its breach, it seems quite certain that the his- 
 torical order of the ideas is that in which I have 
 placed them. The Homeric word for a custom in 
 the embryo is sometimes " Themis " in the singular 
 — more often " Dike,'' the meaning of which visibly 
 fluctnates between a "judgment" and a "custom" 
 or " usage." Noftog, a Law, so great and famous a 
 term in the political vocabulary of the later Greek 
 society, does not occur in Homer. 
 
 The notion of a divine agency, suggesting the 
 Themistes, and itself impersonated in Themis, must 
 be kept a2:)art from other primitive beliefs with 
 which a superficial inquirer might confound it. The 
 conception of the Deity dictating an entire code or 
 body of law, as in the case of the Hindoo laws of 
 Menu, seems to belong to a range of ideas more re- 
 cent and more advancefd. "Themis" and "Themis 
 tes"are much less remotely linked with that per- 
 suasion which clung so long and so tenaciously to 
 
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6 ANCIENT CODES. ouap. i. 
 
 the Imman mind, of a divine influence underlying 
 and supporting every relation of life, every social 
 institutioi. In early law, and amid the rudiments 
 of political thought, symptoms of this belief meet 
 us on all sides. A supernatui-al presidency is sup- 
 posed to consecrate and keep together all the cardi- 
 nal institutions of those times, the State, the Kace, 
 and the Family. Men, grouped together in the dif- 
 ferent relations which those institutions imply, are 
 hound to celebrate periodically common rites and 
 to offer common sacrifices ; and every now and then 
 the same duty is even more significantly recognised 
 in the purifications and expiations which they per- 
 form, and which appear intended to deprecate pun- 
 ishment for involuntary or neglectful disrespect. 
 Evei-ybody acquainted with ordinary classical lit- 
 erature will i-emeraber the sacra gentilicia, which 
 exercised so important an influence on the early 
 Roman law of adoption aud of wills. And to this 
 hour the Hindoo Customary Law, in which some of 
 the most curious features of primitive society are ste- 
 reotyped, makes almost all the rights of persons and 
 all the rules of succession hinge on the due solemni- 
 sation of fixed ceremonies at the dead man's funeral, 
 that is, at every point where a breach occurs in the 
 continuity of the family. 
 
 Before we cpit this stage of jurisprudence, a 
 caution may be usefully given to the English stu- 
 dent. Bentham, in his " Fragment on Govci'nment," 
 and Austin, in his " Provinco of Jurisprudence De- 
 
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CHAP. I. BENTHAM'S ANALYSIS. 1 
 
 termined," resolve every law into a command of 
 the lawgiver, an obligation imposed thereby on the 
 citizen, and a sanation threatened in the event of 
 disobedience ; and it is further predicated of the 
 command, which is the first element in a law, that 
 it must prescribe, not a single act, but a series or 
 number of acts of the same class or kind. The 
 results of this separation of ingredients tally exactly 
 with the facts of mature jurisprudence ; and, by a 
 little straining of language, they may be made to 
 correspond in form with all law, of all kinds, at all 
 epochs. It is not, however, asserted that the notion 
 of law entertained by the generality is even now 
 quite in conformity with this dissection ; and it is 
 curious that, the farther we penetrate into the prim- 
 itive histoiy of thought, the farther we find our- 
 selves from a conception of law which at all resem- 
 bles a compound of the elements which Bentham 
 determined. It is certain that, in the infancy of 
 mankind, no sort of legislature, not even a distinct 
 author of law, is contemplated or conceived of. 
 Law has scarcely reached the footing of custom ; it 
 is rather a habit. It is, to use a French phrase, " in 
 the air." The only authoritative statement of right 
 and wrong is a judicial sentence after the facts, not 
 one presupposing a law which has been violated, 
 but one which is breathed for the first time by a 
 higher power into the judge's mind at the moment 
 of adjudication. It is of course extremely difficult 
 for us to realise a view so far removed from us ir 
 
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8 ANCIENT CODES. cnAP. i 
 
 point both of time and of association, but it w;]l be- 
 come more credible when we dwell more at length 
 on the constitution of ancient society, in which every 
 man, living during the greater part of his life under 
 the patriarchal despotism, was practically controlled 
 in all his actions by a regimen not of law but of ca- 
 price. I may add that an Englishman should be 
 better able than a foreigner to appreciate the his- 
 torical fact that the " Themistes" preceded any con- 
 ception of law, because, amid the many inconsistent 
 theories which prevail concerning the character of 
 English jurisprudence, the most popular, or at all 
 events the one which most aflPects practice, is cer- 
 tainly a theory which assumes that adjudged cases 
 and precedents exist antecedently to rules, princi- 
 ples, and distinctions. The " Themistes " have too, 
 it should be remarked, the characteristic which, in 
 the view of Bentham and Austin, distinguishes 
 single or mere commands from laws. A ti-ue law 
 enjoins on all the citizens indifferently a number of 
 acts similar in class or kind ; and this is exactly the 
 feature of a law which has most deeply impressed 
 itself on the popular mind, causing the term " law " 
 to be applied to mere uniformities, successions, and 
 similitudes. A command prescribes only a single 
 act, and it is to commands, therefore, that "The- 
 mistes" are more akin than to laws. They are 
 simply adjudications on insulated states of fact, and 
 do not necessarily follow each other in any orderly 
 sequence. 
 
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OHAP. I. OUSTOMAET LAW. S 
 
 The literature of the her<:)ic age discloses to ug 
 law in the germ under the "Themistes" and a little 
 more developed in the conception of "Dike." The 
 next stage which we reach in the history of juris 
 prudence is strongly marked and surrounded by the 
 utmost interest. Mr. Grote, in the second part and 
 second chapter of his History, has fully described 
 the mode in which society gradually clothed itself 
 with a different character from that delineated by 
 Homer. Heroic kingship depended partly on di 
 vinely given prerogative, and partly on the posseS' 
 sion of supereminent strength, courage, and wisdom 
 Gradually, as the impression of the monarch's sacred' 
 ness became weakened, and feeble members occur- 
 red in the series of hereditary kings, the royal 
 power decayed, and at last gave way to the domin- 
 ion of aristocracies. If language so precise can be 
 used of the revolution, we might say that the office 
 of the king was usurped by that council of chiefs 
 which Homer repeatedly alludes to and depicts. 
 At all events from an epoch of kingly rule we come 
 everywhere in Europe to an era of oligarchies ; and 
 even where the name of the monarchical functions 
 does not absolutely disappear, the authority of the 
 king is reduced to a mere shadow. He becomes a 
 mere hereditary general, as in Lacedsemon, a mere 
 functionary, as the King Archon at Athens, or a 
 mei-e formal hierophant, like the Rex Sacrifioulus 
 at Kome. In Greece, Italy, and Asia Minor, the 
 dominant orders seem to have universally consisted, 
 
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10 ANCIENT CODES. chap. i. 
 
 ot a number of families united by an assumed rela- 
 tionship in blood, and, thougla they all appear at 
 first to have laid claim to a quasi-sacred character, 
 their strength does not seem to have resided in 
 their pretended sanctity. Unless they were prema- 
 turely ovei'thrown by the popular party, they all 
 ultimately approached very closely to what we 
 should now understand by a political aristocracy. 
 The changes which society underwent in the com- 
 munities of the further Asia occurred of course at 
 periods long anterior in point of time to these revo- 
 lutions of the Italian and Hellenic worlds; but their 
 ]-elative place in civilisation appears to have been 
 the same, and they seem to have been exceedingly 
 similar in general character. There is some evidence 
 that the races which were subsequently united under 
 the Persian monarchy, and those which peopled the 
 peninsula of India, had all their heroic age and their 
 era of ai-istocracies ; but a military and a religious 
 oligarchy appear to have grown up separately, nor 
 was the authority of the king generally superseded. 
 Contrary, too, to the course of events in the West* 
 the religious element in the East tended to get the 
 better of the military and political. Military and 
 civil aristocracies disappear, annihilated or crushed 
 into insignificance between the kings and the sacer- 
 dot\l order; and the ultimate result at which we 
 arri; e is, a monarch enjoying great power, but cir- 
 cumscribed by the privileges of a caste of priests. 
 With these differences, however, that in the East 
 
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CHAP. I. AEISTOCRATIO PEEIOD. 11 
 
 aristocracies became religious, in the AVest civil or 
 political, the proposition that a historical era of aris- 
 tocracies succeeded a historical era of heroic kings 
 may be considered as true, if not of all mankind, at 
 all events of all branches of the Indo-European 
 family of nations. 
 
 The important point for the jurist is that these 
 aristocracies were usually the depositaries and ad- 
 ministrators of law. They seem to have succeeded 
 to the prerogatives of the king, with the important 
 difference, howevei-, that they do not appear to have 
 pretended to direct inspiration for each sentence. 
 The connection of ideas which caused the judgments 
 of the patriarchal chieftain to be attributed to su- 
 perhuman dictation still shows itself here and there 
 in the claim of a divine origin for the entire body 
 of rules, or for certain parts of it, but the progress 
 of thought no longer permits the solution of partic- 
 ular disputes to be explained by supposing an extra- 
 human interposition. What the juristical oligarchy 
 now claims is to monopolise the hnowledge of the 
 laws, to have the exclusive possession of the prin- 
 ciples by which quarrels are decided. We have in 
 fact arrived at the epoch of Customary Law. Cus- 
 toms or Observances now exist as a substantive 
 aggregate, and are assumed to be precisely known 
 to the aristocratic order or caste. Our authorities 
 leave us no doubt that the trust lodged with the 
 oligarchy was sometimes abused, but it certainly 
 ought not to be regarded as a mere usurpation or 
 
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12 ANCIENT CODES. chap. i. 
 
 engine of tyranny. Before the invention of writing, 
 and during tlie infancy of the art, an aristocracy in- 
 vested with judicial privileges formed the only ex 
 pedient by which accurate preservation of the cus 
 toms of the race or tribe could be at all approxi 
 mated to. Their genuineness was, so far as possible, 
 insured by confiding them to the recollection of a 
 limited portion of the community. 
 
 The epoch of Customary Law, and of its custody 
 by a privileged order, is a very remarkable one. 
 The condition of jurisprudence which it implies has 
 left traces which may still be detected in legal and 
 popular phraseology. The law, thus known exclu- 
 sively to a privileged minority, whether a caste, an 
 aristocracy, a priestly tribe, or a sacerdotal college, 
 is true unwritten law. Except this, there is no such 
 thing as unwritten law in the world. English case- 
 law is sometimes spoken of as unwritten, and there 
 are some English theorists who assui'e us that if 
 code of English jurisprudence were prepared, we 
 should be turning unwritten law into written — a 
 conversion, as they insist, if not of doubtful policy, 
 .at all events of the greatest seriousness. Now, it is 
 quite true that there was once a period at which the 
 English common law might reasonably have been 
 termed unwritten. The elder English judges did 
 really pretend to knowledge of rules, principles, and 
 distinctions which were not entii'ely revealed to the 
 bar and to the lay-public. Whether all the law 
 which they claimed to monopolise was really un 
 
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CHAP. I. OUSTOMAKY LAW. 18 
 
 written is exceedingly questionable; but at all 
 events, on the assumption that there was once a 
 large mass of civil and criminal rules known exclu 
 sively to the judges, it presently ceased to be unwrit 
 ten law. As soon as the Courts at Westminster Hall 
 began to base their judgments on cases recorded, 
 whether in the year books or elsewhere, the law 
 which they administered became written law. At 
 the present moment a rule of English law has first 
 to be disentangled from the recorded facts of ad- 
 judged printed precedents, then thrown into a form 
 of words, varying with the taste, precision, and 
 knowledge of the particular judge, and then applied 
 to the circumstances of the case for adjudication. 
 But at no stage of this process has it any character- 
 istic which distinguishes it from written law. It is 
 written case-law, and only different from code-law 
 because it is written in a different way. 
 
 From the period of Customary Law we come to 
 another sharply defined epoch in the history of ju- 
 risprudence. We arrive at the era of Codes, those 
 ancient codes of which the Twelve Tables of Eome 
 were the most falnous specimen. In Greece, in Italy, 
 on the Hellenised sea-board of Western Asia, these 
 codes all made their appearance at periods much the 
 same everywhere, not, I mean, at periods identical 
 in point of time, but similar in point of the relative 
 progress of each community. Everywhere, in the 
 countries I have named, laws engraven on tablets 
 and published to the people take the place of usages 
 
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U ANOIEISTT CODES. chap, i 
 
 (le})Osited witli the recollection of a privileged oli- 
 garchy. It must not for a moment be supposed that 
 the refined considerations now urged in favour of 
 what is called codification had any part or place in 
 the change I have described. The ancient codes 
 were doubtless originally suggested by the discovery 
 and diffusion of the art of writing. It is true that 
 the aristocracies seem to have abused their monopoly 
 of legal knowledge ; and at all events their exclusive 
 possession of the law was a formidable impediment to 
 the success of those popular movements which began 
 to be universal in the western world. But, though 
 democratic sentiment may have added to their popu- 
 larity, the codes were certainly in the main a direct 
 result of the invention of writing. Inscribed tablets 
 were seen to be a better depositary of law, and a 
 better security for its accurate preservation, than 
 the memory of a number of persons however 
 strengthened by habitual exercise. 
 
 The Roman code belongs to the class of codes I 
 have been describing. Their value did not consist 
 in any approach to symmetrical classifications, or to 
 terseness and clearness of expression, but in their 
 publicity, and in the knowledge which they fur- 
 nished to everybody, as to what he was to do, and 
 what not to do. It is indeed true that the Twelve 
 Tables of Rome do exhibit some traces of systematic 
 arrangement, but this is pi-obably explained by the 
 tradition that the fraraers of that body of law called 
 in the assistance of Greeks who enjoyed the later 
 
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CFiAP. I. ANCIENT CODES. 18 
 
 Greek experience in tile art of law-making. The 
 fragments of the Attic Code of Solon show, how- 
 ever, that it had but little order, and probably the 
 iau's of Draco had even less. Quite enough too 
 remains of these collections, both in the East and 
 in the West, to show that they mingled up religious 
 civil, and merely moral ordinances, without any 
 regard to differences in their essential character ; 
 and this is consistent with all we know of early 
 thought from other sources, the severance of law 
 from morality, and of religion from law, belonging 
 very distinctly to the later stages of mental progress. 
 But, whatever to a modern eye are the singu- 
 larities of these Codes, their importance to ancient 
 societies was unspeakable. The question — and it was 
 one which affected the whole future of each com- 
 munity — was not so much whether there should be 
 a code at all, for the majority of ancient societies 
 seem to have obtained them sooner or later, and, but 
 for the great interruption in the history of j urispru- 
 dence created by feudalism, it is likely that all 
 modern law would be distinctly traceable to one or 
 more of those fountain-heads. But the point on 
 which turned the history of the race was, at what 
 period, at what stage of their social progress, they 
 should have their laws put into writing. In the 
 western world the plebeian or popular element in. 
 each State successfully assailed the oligarchical mo- 
 nopoly, and a code was nearly universally obtained 
 gar^y in the history of the Commonwealth. But, \v 
 
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16 , ANCIENT CODES. chap, i 
 
 tlie East, as I have before mentioned, the ruling 
 aristocracies tended to become religious rather than 
 military or political, and gained, therefore, rather 
 th^n lost in powei-; while in some instances the 
 phj'sical conformation of Asiatic countries had the 
 effect of making individual communities larger and 
 more numerous than in the West ; and it is a known 
 social law that the larger the space over which a 
 particular set of institutions is diifused, the greater 
 is its tenacity and vitality. From whatever cause, 
 the codes obtained by Eastern societies were ob- 
 tained, relatively, much later than by Western, and 
 wore a very different character. The religious 
 oligarchies of Asia, either for their own guidance, or 
 for the relief of their memory, or for the instruction 
 of their disciples, seem in all cases to have ultimately 
 embodied their legal learning in a code ; but the 
 opportunity of increasing and consolidating their 
 influence was probably too tempting to be resisted. 
 Their complete monopoly of legal knowledge ap- 
 pears to have enabled them to put off on the world 
 collections, not so much of the rules actually observed 
 as of the rules which the priestly order considered 
 proper to be observed. The Hindoo Code, called the 
 Laws of Menu, Avhich is certainly a Brahmin com- 
 pilation, undoubtedly enshrines many genuine ob- 
 servances of the Hindoo race, but the opinion of the 
 best contemporary orientalists is, that it does not, 
 as a whole, represent a set of rules ever actually ad 
 ministered in Hindostan. It is, in great part, an 
 
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OHAP. I. J.AWS OF MENU. 17 
 
 ideal picture of that whicb, in the view of the 
 Brahmins, ought to be the law. It is consistent 
 with human nature and with the special motives of 
 their authors, that codes like that of Menu should 
 pretend to the highest antiquity and claim to have 
 emanated in their complete form from the Deity. 
 Menn, according t^ Hindoo mythology, is an ema- 
 nation from the supreme God ; but the compila- 
 tion which bears his name, though its exact date 
 is not easily discovered, is, in point of the relative 
 progress of Hindoo jurisprudence, a recent pro- 
 duction. 
 
 Among the chief advantages which the Twelve 
 Tables and similar codes conferred on the societies 
 which obtained them, was the protection which they 
 afforded against the frauds of the privileged oligar- 
 chy and also against the spontaneous depravation 
 and debasement of the national institutions. The 
 Roman Code was merely an enunciation in words of 
 the existing customs of the Roman people. Rela- 
 tively to the progress of the Romans in civilization, 
 it was a remarkably early code, and it was published 
 at a time when Roman society had barely emerged 
 from that intellectual condition in which civil 
 obligation and religious duty are inevitably con- 
 founded. Now a barbarous society practising a 
 body of customs, is exposed to some especial dangei's 
 which may be absolutely fatal to its progress in 
 civilisation. The usages which a pai-ticular commu- 
 nity is found to have adopted in its infancy and in 
 
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18 ANOIEXT CODES. oiiap. i 
 
 its ])i"imitive seats are generally those which are on 
 the whole best suited to pi-omote its ])hysical and 
 moral well-being; and, if they are retained in tbeir 
 integrity until new social wants have taught new 
 practices, the upward march of society is almost 
 certain. But unhappily there is a law of develop- 
 ment which ever threatens to operate upon unwrit- 
 ten usage. The customs are of course obeyed by 
 multitudes who are incapable of understanding the 
 true grcjund of their expediency, and who are there- 
 fore left inevitably to invent superstitious reasons 
 for their permanence. A process then commences 
 which may be shortly described by saying that 
 usage which is reasonable generates usage which is 
 unreasonable. Analogy, the most valuable of in- 
 struments in the maturity of jurisprudence, is the 
 most dangerous of snares in its infancy. Prohibi- 
 tions and ordinances, originally confined, for good 
 reasons, to a simple description of acts, are made to 
 apply to all acts of the same class, because a man 
 menaced with the anger of the gods for doing one 
 thing, feels a natural terror in doing any other thing 
 which is remotely like it. After one kind of food 
 has been interdicted for sanitary reasons, the prohi- 
 1 )ition is extended to all food resembling it, thouo'h 
 the resemblance occasionally depends on analogies 
 the most fanciful. So, again, a wise provision for 
 insuring general cleanliness dictates in time long 
 routines of ceremonial ablution ; and that division 
 into classes which at a particular crisis of social his- 
 
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OIIA.P. I. VALUE OE THE CODES. 15 
 
 toiy is necessary for the maintenance of the nation 
 al existence degenerates into the most disastrous and 
 blighting of all human institutions — Caste. The 
 fate of the Hindoo law is, in fact, the measure of the 
 value of the Roman Code. Ethnology shows us 
 that the Romans and the Hindoos sprang from the 
 same original stock, and there is indeed a striking 
 resemblance between what appear to have been 
 their original customs. Even now, Hindoo juris- 
 prudence has a substratum of forethought and sound 
 judgment, but irrational imitation has engrafted in 
 it an immense apparatus of cruel absurdities. From 
 these corruptions the Romans were protected by 
 their code. It was compiled while usage was still 
 wholesome, and a hundred years afterwards it might 
 have been too late. The Hindoo law has been to a 
 great extent embodied in writing, but ancient as in 
 one sense are the compendia which still exist in 
 Sanskrit, they contain ample evidence that they 
 were drawn up after the mischief had been done. 
 We are not of course entitled to say that if the 
 Twelve Tables had not been published the Romans 
 would have been condemned to a civilisation as 
 feeble and perverted as that of the Hindoos, but 
 thus much at least is certain, that with their code 
 they were exempt from the very chance of so un- 
 happy a destiny. 
 
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CHAPTER II. 
 
 LEGAL F I T I NS- 
 
 -When primitive law has once been embodied in a 
 Code, there is an end to what may be called its spon- 
 taneous development. Henceforward the changes 
 effected in it, if effected at all, are effected delibe- 
 rately and from without. - It is impossible to sup- 
 pose that the customs of any race or tribe remained 
 * unaltered during the whole of the long — in some 
 instances the immense — interval between their de- 
 claration by a patriarchal monarch and their publi- 
 cation in writing. It would be unsafe too to affirm 
 that no part of the alteration was effected deliber- 
 ately. But from the little we know of the progress 
 of law during this period, we are justified in assum- 
 ing that set purpose had the very smallest share 
 in producing change. Such innovations on the ear- 
 liest usages as disclose themselves appear to have 
 been dictated by feelings and modes of thought 
 which, under our present mental conditions, we are 
 unable to comprehend. A new era begins, how 
 
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CTAP. II. LEGAL FICTIONS. 2] 
 
 ever, with the Codes. Wherever, after this epoch, 
 we trace the course of leo^al modification we are able 
 to attribute it to the conscious desire of improve- 
 ment, or at all events of compassing objects other 
 than those which were aimed at in the primitive 
 times. ' ■' 
 
 It may seem at first sight that no general propo- 
 sitions worth trusting can be elicited from the his- 
 tory of legal systems subsequent to the codes. The 
 field is too vast. • We cannot be sure that we have 
 included a sufiicient number of phenomena in our 
 observations, or that we accurately understand those 
 which we have observed. But the undertaking will 
 be seen to be more feasible, if we consider that after 
 the epoch of codes the distinction between station- 
 ary and progressive societies begins to make itself 
 felt. It is only with the progressive societies that 
 we are concerned, and nothing is more i-emai'kable 
 than their extreme fewness. In spite of oveerwhjlm- 
 ing evidence, it is most difficult for a citizen of 
 western Europe to bring thoroughly home to him- 
 self the truth that the civilisation which surrounds 
 him is a rare exception in the history of the world. 
 •The tone of thought common among us, all our 
 hopes, fears, and speculations, would be materially 
 affected, if we had vividly before us the relation of 
 the progressive races to the totality of human life. 
 It is indisputable that much the greatest part of 
 mankind has never shown a particle of desire that 
 its civil institutions should be improved since the 
 
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22 LEGAL FICTIONS. chap, n 
 
 moment when external completeness was first given 
 to tliem by their embodiment in some permanent 
 record. ■ One set of usages has occasionally been 
 violently overthrown and superseded by another; 
 liere and there a primitive code, pretending to a 
 supernatural origin, has been greatly extended, and 
 distorted into the most surprising forms, by the per- 
 versity of sacerdotal commentators ; but, except in a 
 small section of the world, there has been nothing 
 like the gradual amelioration of a legal system. 
 There has been material civilisation, but, instead of 
 the civilisation expanding the law, the law has limit- 
 ed the civilisation. The study of races in their primi- 
 tive condition affords us some clue to the point at 
 which the development of certain societies has 
 stopped. We can see that Brahminical India has 
 not passed beyond a stage which occurs in the his- 
 tory of all the families of mankind, the stage at 
 which a rule of law is not yet discriminated from a 
 rule of religion. The members of su"ch a society 
 consider that the transgression of a religious ordi- 
 nance should be punished by civil penalties, and that 
 the violation of a civil duty exposes the delinquent 
 to divine correction. In China this point has been 
 past, but progress seems to have been there arrest- 
 ed, because the civil laws are coextensive with all 
 the ideas of which the race is capable. The differ- 
 ence between the stationary and progressive socie- 
 ties is, however, one of the great secrets which 
 inquiry has yet to penetrate. - Among partial ex 
 
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CHAP. II. STATIONARY AND I'ROGRESSIVE SOCIETIES. 
 
 23 
 
 planations of it I venture to place the considerationa 
 urged at the end of the last chapter. It maj- fur- 
 ther be remarked that no one is likely to succeed in 
 the investigation who does not clearly realise that 
 the stationary condition of the human race is the 
 rule, the pi-ogressive the exception. And another 
 indispensable condition of success is an accurate 
 knowledge of Roman law in all its principal stages. 
 The Roman jurisprudence has the longest known 
 history of any set of human institutions. The char- 
 acter of lall the changes which it underwent is tole- 
 rably well ascertained. From its commencement 
 to its close, it was progressively modified for the 
 better, or for what the authors of the modification 
 conceived to be the better, and the course of im- 
 pi'ovement was continued through periods at which 
 all the rest of human thought and action materially 
 slackened its space, and repeatedly threatened to 
 settle down into stagnation. 
 
 I confine myself in what follows to the progres- 
 sive societies. With respect to them it may be laid 
 down that social necessities and social opinion are 
 always more or less in advance of. Law. We may 
 come indefinitely near to the closing of the gap be- 
 tween them, but it has a perpetual tendency to re- 
 open. -Law is stable; the societies we are spe:iking 
 of are progressive. The greater or less happiness 
 of a people depends on the degree of promptitude 
 with which the gulf is narrowed. 
 
 A general proposition of some value may be ad- 
 
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24 LEGAL FICTIONS. oeap. n 
 
 vanced Tvitli respect to the agencies by which Law 
 is brought into harmony with society. These in 
 strumentalities seem to me to be three in number, 
 Legal Fictions, Equity, and Legislation. Their his 
 torical order is that in which I have placed them. ' 
 Sometimes two of them will be seen operating to- 
 gether, and there are legal systems which have es- 
 caped the influence of one or other of them. ■ But 
 I know of no instance in which the order of their 
 appearance has been changed or inverted; - The 
 early history of one of them, Equity, is universally 
 obscure, and hence it may be thought by some that 
 certain isolated statutes, reformatory of the civil 
 law, are older than any equitable jurisdiction. - My 
 own belief is that remedial Equity is everywhere 
 older than remedial Legislation ; -but, should this 
 be not strictly true, it would only be necessary to 
 limit the proposition respecting their order of se- 
 quence to the periods at which they exercise a sus- 
 tained and substantial influence in transforming the 
 original law. 
 
 • I employ the word " fiction " in a sense consid- 
 erably wider than that in which English lawyers are 
 accustomed to use it, and with a meaninof much more 
 extensive than that which belonged to the Romaji 
 " fi(3tiones." Fictio, in old Roman law, is properly a 
 term of pleading, and. signifies a false averment on 
 the part of the plaintiff which the defendant was 
 not allowed to traverse ; such, for example, as an 
 averment that the plaintiff was a Roman citizen 
 
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OHAF. IT. LEGAL FICTIONS. 25 
 
 when in truth lie was a foreigner. • The object of 
 these " fictiones " was, of course, to give jurisdiction, 
 and they therefore strongly resembled the allega- 
 tions in the writs of the English Queen's Bench and 
 Exchequer, by which those Courts contrived to 
 usurp th€ jurisdiction of the Common Pleas:— the 
 allegation that the defendant was in custody of the 
 king's marshal, or that the plaintiff was the king's 
 debtor, and could not pay his debt by reason of the 
 defendant's default. - But I now employ the expres- 
 sion " Legal Fiction " to signify any assumption 
 which conceals, or affects to conceal, the fact that a 
 rule of law has undergone alteration, its letter re- 
 maining unchanged, its operation being modified. 
 The words, therefore, include the instances of fic- 
 tions which I have cited from the English and Eo- 
 man law, but they embrace much more, for I should 
 speak both of the English Case-law and of the Ro- 
 man Eesponsa Prudentum as resting on fictions. 
 Both these examples will be examined presently. 
 The fact is in both cases that the law has been 
 wholly changed; ih.e fiction is that it remains what 
 it always was. -It is not difficult to understand why 
 fictions in all their forms are particularly congenial 
 to the infancy of society. They satisfy the desire 
 for improvement, which is not quite wanting, at the 
 same time that they do not offend the superstitious 
 disrelish for change which is always present. ■ At 
 a pai'ticular stage of social progress they are invalu- 
 able expedients for overcoming the rigidity of law 
 
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26 LEGAL FICTION'S. wiap. u 
 
 and, indeed, without one of them, the Fiction of 
 Adoption which permits the family tie to be ai-tifi 
 cially created, it is difficult to understand how soci- 
 :^tj would ever have escaped from its swaddling 
 clothes, and taken its first steps towards civilisation. 
 We must, therefore, not suffer ourselves to be af- 
 fected by the ridicule which Bentham pours on le- 
 gal fictions wherever he meets them. To revile 
 them as merely fraudulent is to betray ignorance of 
 their peculiar office in the historical development of 
 law. But at the same time it would be equally 
 foolish to agi'ee with those theorists who, discerning 
 that fictions have had their uses, argue that they 
 ought to be stereotyped in our system. ' There are 
 several Fictions still exercising powerful influence 
 on English jurisprudence which could not be dis- 
 carded without a severe shock to the ideas, and con- 
 siderable change in the language, of English practi- 
 tioners ; ■ but there can be no doubt of the general 
 truth that it is unworthy of us to effect an admit- 
 tedly beneficial object by so rude a device as a 
 legal fiction. I cannot admit any anomaly to be in- 
 nocent, which makes the law either more difficult to 
 understand or harder to arrange in harmonious 
 order. Now, among other disadvantages, legal fic- 
 tions are the greatest of obstacles to symmetrical 
 classification. The rule of law remains stickino- in 
 the system, but it is a mere shell. It has been long 
 ago undei'mined, and a new rule hides itself under 
 its cover. • Hence there is at once a difficulty iu 
 
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CHAP. u. EQUITY. S7 
 
 knowing whether the rule which is actually operative 
 should be classed in its true or in its apparent place, 
 and minds of different casts will differ as to the 
 branch of the alternative which oudit to be se 
 lected. If the English law is ever to assume an or^ 
 derly distribution, it will be necessary to prune 
 away the legal fictions which, in spite of some 
 recent legislative improvements, are still abundant 
 in it. 
 
 The next instrumentality by which the adapta- 
 tion of law to social wants is carried on I call Equi- 
 ty, meaning by that word any body of i-ules exist- ^ 
 ing by the side of the original civil law, founded on 
 distinct principles and claiming incidentally to su 
 persede the civil law in virtue of a superior sanctity \ 
 inherent in those principles. • The Equity whether 
 of the Roman Praetors or of the English Chancellors, 
 differs from the Fictions which in each case preced- 
 ed it, in that the interference with law is open and 
 avowed. On the other hand, it differs from Legis- 
 lation, the agent of legal improvement which comes 
 after it, in that its claim to authority, is grounded, 
 not on the prerogative of any external person or 
 body, not even on that of the magistrate who eimn- 
 ciates it, but on the special nature of its principles, 
 to which it is alleged that all law ought to conform. 
 The very conception of a set of principles, invested 
 with a higher sacredness than those of the original 
 laiw and demanding application independently of 
 the consent of any external body, belongs to a much 
 
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28 LEGAL FICTIONS. ohai>. ii 
 
 more advanced stasre of thoTio'lit than that to which 
 
 o o 
 
 legal fictions originally suggested themselves. • 
 
 Legislation, the enactments of a legislature which, 
 whether it take the form of an autocratic prince or 
 of a parliamentary assembly, is the assumed orgau 
 t)f the entire society, is the last of the ameliorating 
 instrumentalities. It differs from Legal Fictions 
 just as Equity differs from them, and it is also dis- 
 tinguished from Equity, as deriving its authority 
 from an external body or person. Its obligatory 
 force is independent of its principles. The legisla- 
 ture, whatever be the actual restraints imposed on it 
 by public opinion, is in theory empowered to im- 
 pose what obligations it pleases on the members of 
 the community. There is. nothing to prevent its 
 legislating in the wantonness of caprice. Legisla- 
 tion may be dictated by equity, if that last word be 
 used to indicate some standard of right and wrong 
 to which its enactments happen to be adjusted ; but 
 then these enactments are indebted for their binding 
 force to the authority of the legislature, and not to 
 that of the principles on which the legislature acted ; 
 ': and thus they differ from rules of Equity, in the 
 technical sense of the word, which pretend to a para- 
 mount sacredness entitling them at once to the 
 recognition of the courts even without the concur- 
 rence of prince or parliamentary assembly. It is 
 the more necessary to note these differences because 
 a student of Bentham would be apt to confound 
 Fictions, Equity, and Statute law under the single 
 
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OHAP. u. CASE-LAW. 29 
 
 head of legislation. They all, lie would say, involve 
 law-maldng • they diffei' only in respect of tlie ma- 
 cliinery by which the new law is produced. That 
 is perfectly true, and we naust never forget it ; but 
 it furnishes no reason why we should deprive our 
 selves of so convenient a term as Legislation in the 
 special sense. ■ Legislation and Equity are disjoined 
 in the popular mind and in the minds of most law- 
 yers ; and it will never do to neglect the distinction 
 between them, however conventional, when impor- 
 tant practical consequences follow from it. 
 
 It would be easy to select from almost any regu- 
 larly developed body of rules examples of legal fie- 
 tione^ whicb at once betray their true character to 
 the modern observer. In the two instances which I 
 proceed to consider, the nature of the expedient 
 employed is not so readily detected. The first 
 authors of these fictions did not perhaps intend to 
 innovate, certainly did not wish to be suspected of 
 innovating. There are, moreover, and always have 
 been, persons who refuse to see any fiction in the 
 process, and conventional language bears out their 
 refusal. No examples, therefore, can be better cal- 
 culated to illustrate the wide diffusion of legal fic- 
 tions, and the efficiency with which they perform 
 tln^ir two-fold office of transforming a system of laws 
 and of concealing the transformation. . 
 
 We in England are well accustomed to the ex- 
 tension, modification, and improvement of law by a 
 machinery which, in theory, is incapable of altering 
 
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30 LEG.VL FICTIONS. chap, n 
 
 one jot or one line of existing jurisprudence. The 
 process by whicli this virtual legislation is effected 
 is not so much insensible as unacknowledged. "With 
 respect to that great portion of our legal system 
 ■which is enshrined in cases and recorded in law re- 
 ports, we habitually employ a double language, and 
 entertain, as it would appear, a double and incon- 
 sistent set of ideas. When a group of facts come 
 before an English Court for adjudication, the whole 
 course of the discussion between the judge and the 
 advocate assumes that no question is, or can be, 
 raised which will call for the application of any 
 principles but old ones, or of any distinctions but 
 such as have long since been allowed. It is taken 
 absolutely for granted that there is somewhere a 
 rule of known law which will cover the facts of the 
 dispute now litigated, and that, if such a rule be 
 not discovered, it is only that the necessary patience, 
 knowledge or acumen, is not forthcoming to detect 
 it. Yet the moment the judgment has been ren- 
 dered and reported, we slide unconsciously or una- 
 vowedly into a new language and a new train of 
 thought. We now admit that the new decision has 
 modified the law. The rules applicable have, to use 
 the very inaccurate expression sometimes employed, 
 become more elastic. In fact they have been changed. 
 A clear addition has been made to the precedents, 
 and the canon of law elicited by comparing the 
 precedents is not the same with that which would 
 have been obtained if the series of cases had been 
 
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CHAP- n. CASE-LAW. 31 
 
 cuvtailed by a single example. The fact that the old 
 rule has been repealed, and that a new one has re- 
 placed it, eludes us, because we are not in the habit 
 of throwing into precise language the legal formulaa 
 which we derive from the precedents, so that a 
 change in their tenor is not easily detected unless it 
 is violent and glaring. I shall not now pause to 
 consider at length the causes which have led Eng- 
 lish lawyers to acquiesce in these curious anomalies. 
 Probably it will be found that originally it was the 
 received doctrine that somewhere, in nvhihus or in 
 gremio magistratuicm^ there existed a complete, co- 
 herent, symmetrical body of English law, of an am- 
 plitude sufficient to furnish principles which would 
 apply to any conceivable combination of circum- 
 stances. \ The theory was at first much more 
 thoroughly believed in than it is now, and indeed it 
 may have had a better foundation. The judges of 
 the thirteenth century may have really had at theii 
 command a mine of law unrevealed to the bar and 
 to the lay-public, for there is some reason for sus- 
 pecting that in secret they borrowed freely, though 
 not always wisely, from current compendia of the 
 Roman and Canon laws. But that storehouse was 
 closed as soon as the points decided at Westminster 
 Jlall became numerous enough to supply a basis foi 
 a substantive system of jurisprudence; and now for 
 centuries English practitioners have so expi'essed 
 themselves as to convey the paradoxical proposition 
 that, except by Equity and Statute law, nothing ha« 
 
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32 LEGAL FICTIONS. chap, n 
 
 been added to the basis since it was first constittited. 
 We do not admit that our tribunals legislate ; we 
 imply that they have never legislated ; and yet we 
 maintain that the rules of the English common law 
 with some assistance from the Court of Chancery 
 and from Parliament, are coextensive with the com- 
 plicated interests of modern society. 
 
 A body of law bearing a very close and very in- 
 structive resemblance to our case-law in those par- 
 ticulars which I have noticed, was known to the 
 Romans under the name of the Responsa Pruden- 
 tum, the " answers of the learned in the law." The 
 form of these Jiesponses varied a good deal at dif- 
 ferent periods of the Roman jurisprudence, but 
 throughout its whole course they consisted of ex- 
 planatory glosses on authoritative written docu- 
 ments, and at first they were exclusively collections 
 of opinions interpretative of the Twelve Tables. As 
 with us, all legal language adjusted itself to the as- 
 sumption that the text of the old Code remained 
 unchanged. There was the express rule. It over- 
 rode all glosses and comments, and no one openly 
 admitted that any interpretation of it, however emi- 
 nent the interpreter, was safe from revision on ap- 
 peal to the venerable texts. Yet in point of fact, 
 Books of Responses bearing the names of leading 
 jurisconsults obtained an authority at least equal to 
 that of our reported cases, and constantly modified, 
 extended, limited or practically overruled the pro- 
 visions of the Decemviral law. The authors of the 
 
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OUAP. 11. , ANS'WEKS OF THE LEARNED. 33 
 
 new jurisprudence during the whole progress of its 
 formation professed the most sedulous respect for 
 the letter of the Code. They were merely explain- 
 ing it, deciphering it, bringing out its full meaning; 
 but then, in the result, by piecing texts together, by 
 adjusting the law to states of fact which actually pre- 
 sented themselves and by speculating on its possible 
 application to others which might occur, by intro 
 ducing principles of interpretation derived from the 
 exegesis of other written documents which fell 
 under their observation, they educed a vast variety 
 of canons which had never been dreamed of by the 
 compilers of the Twelve Tables and which were in 
 truth rarely or never to be found there. All these 
 treatises of the jurisconsults claimed respect on the 
 gix)und of- their assumed conformity with the Code, 
 but their comparative authority depended on the 
 reputation of the particular jurisconsults who gave 
 them to the world. Any name of universally ac- 
 knowledged greatness clothed a Book of Responses 
 with a binding firce hardly less than that which 
 belonged to enactments of the legislature ; and such 
 a book in its turn constituted a new foundation on 
 which a further body of jurisprudence might rest. 
 The Responses of the earlj'- lawyers were not how- 
 ever published, in the modern sense, by their au- 
 thor. They were recorded and edited by his pupils, 
 and were not therefore in all probability arranged 
 according to any scheme of classification. The part 
 of the students in these publications must be care- 
 
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34 LEGAL FICTIONS. chap, u 
 
 fully noted, because the service they rendered to 
 their teacher seenjs to have been generally repaid 
 by his sedulous attention to the pupils' education. 
 The educational treatises called Institutes or Com 
 inentaries, which are a later fruit of the duty then 
 recognised, are among the most remarkable features 
 of the Eoman system. It was appai'ently in these 
 Institutional works, and not in the books intended 
 for trained lawyers, that the jurisconsults gave to 
 the public their classifications and their proposals 
 for modifying and improving the technical phraseo- 
 logy. 
 
 In comparing the Eoman Responsa Prudentum 
 with their nearest English counterpart, it must be 
 carefully borne in mind that the authority by which 
 this part of the Roman jurisprudence was expounded 
 was not the hencJi^ but the haQ\ The decision of a 
 Roman tribunal, though conclusive in the particular 
 case, had no ulterior authority except such as was 
 given by the professional repute of the magistrate 
 who happened to be in office for the time. Pro- 
 perly speaking, there was no institution at Rome 
 during the republic analogous to the English Bench, 
 the Chambers of Imperial Germany, or the Parlia- 
 ments of Monarchical France. There were magis- 
 trates indeed, invested with momentous judicial 
 functions in their several departments, but the ten 
 ure of the magistracies was but for a single year, so 
 that they are much less aptly compared to a perma- 
 nent judicature than to a cycle of offices briskly oil'- 
 
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CHAP. n. AKSWEES OF THE LEARNED. 35 
 
 culating among the leaders of the bar. Much might 
 be said on the origin of a condition of things which 
 looks to us like a startling anomaly, but which was 
 in fact much more congenial than our own system 
 to the spirit of ancient societies, tending, as they 
 always did, to split into distinct orders which, how- 
 ever exclusive themselves, tolerated no professional 
 hierarchy above them. 
 
 It is remarkable that this system did not pro- 
 duce certain effects which might on the whole have 
 been expected from it. It did not, for example, 
 popularise the Eoman law, — it did not, as in some 
 of the Greek republics, lessen the effort of intellect 
 required for the mastery of the science, although its 
 diffusion and authoritative exposition were opposed 
 by no artificial barriers. On the contrary, if it had 
 not been for the operation of a separate set of 
 causes, there were strong probabilities that the Ro- 
 man jurisprudence would have become as minute, 
 technical, and difficult as any system which has since 
 prevailed. Again, a consequence which might still 
 more naturally have been looked for, does not ap- 
 pear at any time to have exhibited itself. The juris- 
 consults, until the liberties of Rome were over- 
 thrown, formed a class which was quite undefined 
 and must have fluctuated greatly in numbers ; never- 
 theless, there does not seem to have existed a doubt 
 as to the particular individuals w^hose opinion, in 
 their generation, was conclusive on the cases sub- 
 mitted to them. The vivid pictures of a leading 
 
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36 LEGAL FICTIONS. chap, n' 
 
 jurisconsult's daily practice whicli abound in Latin 
 literature — the clients from the country flocking to 
 his antechamber in the early morning, and the stu 
 dents standing round with their note-books to re- 
 cord the great lawyer's replies — are seldom or never 
 identified at any given period with more than one 
 or two conspicuous names. Owing too to the di- 
 rect contact of the client and the advocate, the Ro- 
 man people itself seems to have been always alive 
 to the rise and fall of professional reputation and 
 there is abundance of proof, more particularly in 
 the well-known oration of Cicero, " Pro Murgena," 
 that the reverence of the commons for forensic suc- 
 cess was apt to be excessive rather than deficient. 
 
 We cannot doubt that the peculiarities which 
 have been noticed in the instrumentality by which 
 the development of the Roman law was first effect- 
 ed, were the source of its characteristic excellence, 
 its early wealth in principles. The growth and exu- 
 berance of principle was fostered, in part, by the 
 competition among the expositors of the law, an 
 influence wholly unknown where there exists a 
 Bench, the depositaries instrusted by king or com- 
 monwealth with the prerogative of justice. But 
 the chief agency, no doubt, was the uncontrolled 
 multiplication of cases for legal decision. The state 
 of facts which caused genuine perplexity to a coun- 
 try client was not a whit more entitled to form the 
 basis of the jurisconsult's Response, or legal deci- 
 sion, than a set of hypothetical circumstances pro- 
 
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CHAP. n. ANSWERS OF THE LEARNED. 37 
 
 pounded by an ingenious pupil. All combinations 
 of fact -were on precisely the same footing, whether 
 they were real or imaginary. It was nothing to the 
 jurisconsult that his opinion was overruled for the 
 moment by the magistrate who adjudicated on his 
 client's case, unless that magistrate happened to rank 
 above him in legal knowledge or the esteem of his 
 profession. I do not, indeed, mean it to be inferred 
 that he would wholly omit to consider his client's 
 advantage, for the client was in earlier times the 
 great lawyer's constituent and at a later period his 
 paymaster, but the main road to the rewards of 
 ambition lay through the good opinion of his order, 
 and it is obvious that under such a system as I have 
 been describing this was much more likely to be 
 secured by viewing each case as an illustration of a 
 great principle, oi- an exemplification of a broad 
 rule, than by merely shaping it for an insulated 
 forensic triumph. It is evident that powerful influ- 
 ence must have been exercised by the want of any 
 distinct check on the suggestion or invention of pos- 
 sible questions. Where the data can be multiplied 
 at pleasure, the facilities for evolving a general rule 
 are immensely increased. As the law is adminis- 
 tered among ourselves, the judge cannot travel out 
 of the sets of facts exhibited before him or before his 
 predecessors. Accordingly each group of circum- 
 stances which is adjudicated upon receives, to em- 
 ploy a Gallicism, a sort of consecration. It acquires 
 certain qualities which distinguish it fi'om every 
 
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88 LEGAL FICTIONS. CEiP. ii 
 
 other case genuine or hypothetical. But at Rome 
 as I have attempted to explain, there was nothing 
 resembling a Bench or Chamber of judges ; and 
 therefore no combination of facts possessed any par 
 ticularTalue more than another. When a difficulty 
 came for opinion before the jurisconsult, there was 
 nothing to prevent a person endowed with a nice 
 perception of analogy from at once proceeding to 
 adduce and consider an entire class of supposed 
 questions with which a particular feature connected 
 it. Whatever were the practical advice given to 
 the client, the responsuni treasured up in the note- 
 books of listening pupils would doubtless contem- 
 plate the circumstances as governed by a great 
 principle, or included in a sweeping rule. ISTothing 
 like this has ever been possible among ourselves, 
 and it should be acknowledged that in many criti- 
 cisms passed on the English law the manner in which 
 it has been enunciated seems to have been lost sight 
 of The hesitation of our courts in declaring prin- 
 ciples may be much more reasonably attributed to 
 the comparative scantiness of our precedents, vo- 
 luminous as they appear to him who is acquainted 
 with no other system, than to the temper of our 
 judges. It is true that in the wealth of legal princi- 
 ple we are considerably poorer than several modern 
 European nations. But they, it must be remem- 
 bered, took the Eoman jurisprudence for the foun 
 dation of their civil institutions. They built the 
 debris of the Roman law into their walls ; but in 
 
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CHAP. II. LATER JURISCONSULTS. 89 
 
 the materials and workmanship of the residue there 
 is not much which distinguishes it favourably from 
 the sti'ucture erected by the English judicature. 
 
 The period of Eoman freedom was the period 
 during which the stamp of a distinctive character 
 was impressed on the Eoman jurisprudence ; and 
 through all the earlier part of it, it was by the Ee- 
 sponses of the jurisconsults that the development of 
 the law was mainly carried on. But as we approach 
 the fall of the republic there are signs that the Ee- 
 sponses are assuming a form which must have been 
 fatal to their farther expansion. They are becom- 
 ing systematised and reduced into compendia. Q. 
 Mucins Scaevola, the Pontifex, is said to have pub- 
 lished a manual of the entire Civil Law, and there 
 are traces in the writings of Cicero of growing dis- 
 relish for the old methods, as compared with the 
 more active instruments of legal innovation. Other 
 agencies had in fact by this time been brought to 
 bear on the law. The Edict, or annual proclama- 
 tion of the Praetor, had risen, into credit as the 
 principal engine of law reform, and L. Cornelius 
 Sylla, by causing to be enacted the great group of 
 statutes called the Leges Cornelioe^ had shown what 
 rapid and speedy improvements can be effected by 
 direct legislation. The final blow to the Eesponses 
 was dealt by Augustus, who limited to a few lead- 
 ing jurisconsults the right of giving binding opin- 
 ions on cases submitted to them, a change which, 
 though it brings us nearer the ideas of the modern 
 
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40 LEGAL FICTIONS. on^p. ii 
 
 world, must obviously have altered fundaraeDtdily 
 the characteristics of the legal profession and the 
 nature of its influence on Roman law. At a latei 
 period another school of jurisconsults arose, the 
 great lights of jurispi'odence for all time. But 
 Ulpian and Paulus, Gains and Papinian, were not 
 authors of Responses. Their works were regular 
 ti'eatises on particular dejsartments of the law, more 
 especially on the Praetor's Edict. 
 
 The Equity of the Romans and the Pr?etorian 
 Edict by which it was worked into their system, will' 
 be considered in the nest chapter. Of the Statute 
 Law it is only necessary to say that it was scanty 
 during the republic, lut became very voluminous 
 under the empire. In the youth and infancy of a 
 nation it is a rare thing for the legislature to be 
 called into action for the general reform of private 
 law. The cry of the people is not for change in 
 the laws, which are usually valued above their real 
 worth, but solely for their pure, complete and easy 
 administration ; and recourse to the legislative body 
 is generally directed to the removal of some great 
 abuse, or the decision of some incurable quarrel be- 
 tween classes or dynasties. There seems in the minds 
 of the Romans to have been some association be- 
 tween the enactment of a large body of statutes and 
 the settlement of society after a great civil commo- 
 tion. Sylla signalised his reconstitution of the repub- 
 lic by the Leges Cornelise; Julius Caesar contemplat- 
 ed vast additions to the Statute Law; Augustus caused 
 
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CHAP. II. ROMAN STATUTES. 41 
 
 to be passed the all-important group of Leges Julise 
 aud among later emperors the most active promul 
 gators of constitutions are princes who, like Con 
 Stan tine, have the concerns of the world to readjust 
 The true period of Roman Statute Law does not 
 begin till the establishment of the empire. The 
 enactments of the emperors, clothed at first in the 
 pretence of popular sanction, but afterwards ema- 
 nating undisguisedly from the imperial prerogative, 
 extend in increasing massiveness from the consolida- 
 tion of Augustus's power to the publication of the 
 Code of Justinian. It will be seen that even in the 
 reign of the second emperor a considerable approxi- 
 mation is made to that condition of the law and 
 that mode of administering it with which we are all 
 familiar. A statute law and a limited board of ex- 
 positors have arisen into being ; a permanent court 
 of appeal and a collection of approved commenta- 
 ries will very shortly be added ; and thus we are 
 brought close on the ideas of our own day. 
 
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CHAPTEE m. 
 
 £AW OF NATFBF A N J) . E QTT I T T. 
 
 The theory of a set of legal principles entitled by 
 their intrinsic superiority to supersede the older 
 law, very early obtained curi'ency both in the Ro- 
 man State and in England. Such a body of prin- 
 ciples, existing in any system, has in the foregoing 
 chapters been denominated Equity, a term which, as 
 will presently be seen, was one (though only one) of 
 the designations by which this agent of legal change 
 was known to the Roman jurisconsults. The juris- 
 prudence of the Court of Chancery, which bears the 
 name of Equity in England, could only be adequate- 
 ly discussed in a separate treatise. It is extremely 
 complex in its texture, and derives its materials 
 from several heterogeneous sources. The early ec- 
 clesiastical chancellors contributed to it, from the 
 Canon Law, many of the principles which lie deep- 
 est in its structure. The Roman Law, more fertile 
 than the Canon Law in rules applicable to secular 
 disputes, was not seldom resorted to by a later gene 
 
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OHAP. m. EQUITY. 43 
 
 ration of Chancery judges, amid whose recorded dicta 
 we often find entire texts from the Corpus Jurin 
 Civilie imbedded, with their terms unaltered, though 
 their origin is never acknowledged. Still more re- 
 cently, and particularly at the middle and during 
 the latter half of the eighteenth century, the mixed 
 systems of jurisprudence and morals constructed by 
 the publicists of the Low Countries appear to have 
 been much studied by English lawyers, and from the 
 chancellorship of Lord Talbot to the commencement 
 of Lord Eldon's chancellorship these works had 
 considerable .effect on the rulings of the Court of 
 Chancery. The system, which obtained its ingre- 
 dients from these various quartei-s, was greatly con- 
 trolled in its growth by the necessity imposed on it 
 of conforming itself to the analogies of the common 
 law, but it has always answered the description of a 
 body of comparatively novel legal principles claim- 
 ing to override the older jurisprudence of the coun-. 
 try on the strength of an intrinsic ethical supe- 
 riority. 
 
 The Equity of Rome was a much simpler struc- 
 ture, and its development from its first appearance 
 can be much more easily traced. Both its character 
 and its history deserve attentive examination. It is 
 the root of several conceptions which have exercised 
 profound influence on human thought, and through 
 human thought have seriously affected the destinies 
 of mankind. 
 
 The Romans described their legal system as con- 
 
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44 LAW or NATIONS AND OF NATURE. chap, in 
 
 sisting of two ingredients. "All nations," says the 
 Institutional Treatise published under the authority 
 of the Emperor Justinian, " who are ruled by laws 
 and customs, are governed partly by their own par 
 ticular laws, and partly by those laws which are 
 common to ail mankind. The law which a people 
 enacts is called the Civil Law of that people, but 
 that which natural reason appoints for all mankind 
 is called the Law of Nations, because all nations u^e 
 it." The part of the law " which natural reason ap- 
 points for all mankind" was the element which the 
 Edict of the Praetor was supposed to have worked 
 into Roman jurisprudence. Elsewhere it is styled 
 more simply Jus Naturale, or the Law of Nature ; 
 and its ordinances are said to be directed by Natural 
 Equity (iiaturalis oequitai) as well as by natural 
 reason. I shall attempt to discover the oria:in of 
 these famous phrases, Law of Nations, Law of Na- 
 .ture, Equity, and to determine how the conceptions 
 which they indicate are related to one another. 
 
 The most superficial student of Roman history 
 must be struck by the extraordinary degree in which 
 the fortunes of the republic were affected by the 
 presence of foreigners, under different names, on her 
 soil. The causes of this immigration are discernible 
 enough at a later period, for we can readily under- 
 stand why men of all races should flock to the mis 
 tress of the world ; but the same phenomenon of a 
 large population of foreigners and denizens meets us 
 in the very earliest records of the Roman State. No 
 
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CHAP. III. LAW OF NATIONS AND OF NATURE. 45 
 
 doubt, the instability of society in ancient Italy, 
 composed as it was in great measure of robber 
 tribes, gave men considerable inducement to locate 
 themselves in the territory of any community strong 
 enongh to protect itself and them from externa 
 attack, even though protection should be purchased 
 at the cost of heavy taxation, political disfranchise- 
 ment, and much social humiliation. It is probable, 
 however, that this explanation is imperfect, and- that 
 it could only be completed by taking into account 
 those active commercial relations which, though they 
 are little reflected in the military traditions of the 
 republic, Home appears certainly to have had with 
 Carthage and with the interior of Italy in pre-historic 
 times. Whatever were the circumstances to which 
 it was attributable, the foreign element in the com- 
 monwealth determined the whole course of its his- 
 toiy, which, at all its stages, is little more than a 
 narrative of conflicts between a stubborn nationality 
 and an alien population. Nothing like this has been 
 Been in modern times ; on the one hand, because 
 modern European communities have seldom or never 
 received any accession of foreign immigrants which 
 was large enough to make itself felt by the bulk of 
 the native citizens, and on the other, because mod- 
 ern states, being held together by allegiance to a 
 king or political superior, absorb considerable bodies 
 of immigrant settlers with a quickness unknoAvn to 
 the ancient world, where the original citizens of a 
 commonwealth always believed themselves to be 
 
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t6 LAW OF NATIONS. oh^p. ni 
 
 united by kinship in blood, and resented a claim to 
 equality of privilege as a usurpation of their birth- 
 right. In the early Roman republic the principle 
 of the absolute exclusion of foreigners pervaded the 
 Civil Law no less than the constitution. The alien 
 or denizen could have no share in any institutiou 
 supposed to be coeval with the State. He could not 
 have the benefit of Quiritarian law. He could not 
 be a party to the nexuin which was at once the 
 conveyance and the contract of the primitive Ro- 
 mans. He could not sue by the Sacramental Ac- 
 tion, a mode of litigation of which the origin mounts 
 up to the very infancy of civilisation. Still, neither 
 the interest nor the security of Rome permitted 
 him to be quite outlawed. All ancient communi- 
 ties ran the risk of being overthrown by a very 
 slight disturbance of equilibrium, and the mere in- 
 stinct of self-preservation would force the Romans 
 to devise some method of adjusting the rights and 
 duties of foreigners, who might otherwise — and this 
 was a danger of real importance in the ancient 
 world — have decided their controversies by armed 
 strife. Moreover, at no period of Roman history 
 was foreign trade entirely neglected. It was there- 
 fore probably half as a measure of police and half 
 in furtherance of commerce that jurisdiction was first 
 assumed in disputes to which the parties were either 
 foreigners or a native and a foreigner. The assump- 
 tion of such a -jurisdiction brought with it the im- 
 mediate necessity of discovering some principles on 
 
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•JiiAP. III. LAW OF NATIONS. 
 
 « 
 
 which tne questions to be adjudicated upon could 
 be settled, and the principles applied to this ob- 
 ject by thp Roman lawyers were eminently char- 
 acteristic of the time. They refused, as I have said 
 before, to decide the new cases by pure Roman 
 Civil Law. They refused, no doubt because it 
 seemed to involve some kind of degradation, to ap- 
 ply the law of the particular State from which the 
 foreign litigant came. The expedient to which they 
 resorted was that of selecting the rules of law com- 
 mon to Rome and to the different Italian communi- 
 ties in which the immigrants were born. In other 
 woi'ds, they set themselves to form a system ^- 
 swering to the primitive and literal meaning of Jus 
 Gentium, that is, Law common to all Nations. Jus 
 Gentium was, in fact, the sum of the common ingre- 
 dients in the customs of the old Italian tribes, for 
 they were all the nations whom the Romans had 
 the means of observing, and who sent successive 
 swarms of immigrants to Roman soil. Whenever a 
 particular usage was seen to be practised by a large 
 number of separate races in common it was set 
 down as part of the Law common to all Nations, or 
 Jus Gentium. Thus, although the conveyance of 
 property was certainly accompanied by very differ- 
 ent forms in the different commonwealths surround- 
 ing Rome, the actual transfer, tradition, or delivery 
 of the article intended to be convej^ed was a part 
 of the ceremonial in all of them. It was, for in- 
 stance, a pai't, though a subordinate part, in the' 
 
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48 LAW OF NATIONS. chap, ni 
 
 Mancipation or conveyance peculiar to Rome. Tra^ 
 dition, therefore, being in all probability the only 
 common ingredient in the modes of conveyance 
 which the jurisconsults had the means of observing 
 was set down as an institution Juris Gentium, or 
 rule of the Law common to all Nations. A vast 
 number of other observances were scrutinised with 
 the same result. Some common characteristic was 
 discovered in all of them, which had a common 
 object, and this characteristic was classed in the 
 Jus Gentium. The Jus Gentium was accordingly 
 a collection of rules and principles, determined by 
 observation to be common to the institutions which 
 prevailed among the various ItaUan tribes. 
 
 The circumstances of the origin of the Jus Gen- 
 tium are probably a sufficient safeguard against the 
 mistake of supposing that the Koman lawyers had 
 any special respect for it. It was the fruit in pai't 
 of their disdain for all foreign law, and in part of 
 their disinclination to give the foreigner the advan- 
 tage of their own indigenous Jus Civile. It is true 
 that we, at the present day, should probably take a 
 very different view of the Jus Gentium, if we were 
 performing the operation which was effected by the 
 Roman jurisconsults. "We should attach some vague 
 superiority or precedence to the element which we 
 had thus discerned underlying and pervading so 
 great a variety of usage. We should have a sort of 
 respect for rules and principles so univereal. Per- 
 haps we should speak of the common ingredient as 
 
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CHAP. m. LAW OF NATIONS. 49 
 
 being of the essence of tlie transaction into whicL it 
 entered, and should stigmatise the remaining appa- 
 I'atus of ceremony, which varied in different commu- 
 nities, as adventitious and accidental. Or it may 
 be, we should infer that the races which we were 
 comparing at once obeyed a great system of com- 
 mon institutions of which the Jus Gentium was the 
 reproduction, and that the complicated usages of 
 separate commonwealths were only corruptions and 
 depravations of the simpler ordinances which had 
 once regulated their primitive state. But the results 
 to which modern ideas conduct the observer are, as 
 nearly as possible, the reverse of those which were 
 instinctively brought home to the primitive Roman. 
 What we respect or admire, he disliked or regarded 
 with jealous dread. The parts of jurisprudence 
 which he looked upon with affection were exactly 
 those which a modern theorist leaves out of consid- 
 eration as accidental and transitory; the solemn 
 gestures of the mancipation ; the nicely adjusted 
 pestions and an=;wers of the verbal contract; the 
 fudless formalities of pleading and procedure. The 
 Jus Gentium was merely a system forced on his at- 
 tention by a political necessity. He loved it as little 
 as he loved the foreigners from whose institutions it 
 was derived and for whose benefit it was intended. 
 A. complete revolution in his ideas was required be- 
 fore it could challenge his respect, but so complete 
 was it when it did occur, that the true reason why 
 our modern estimate of the Jus Gentium differs from 
 
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BO LAW OF NATURE. chap, m 
 
 that which has just been described, is that both 
 modern jurisprudence and modern philosophy have 
 inherited the matured views of the later juriscon- 
 sults on this subject. There did come a time when, 
 from an ignoble appendage of the Jus Civile, th 
 Jus Gentium came to be considered a great though 
 as yet imperfectly developed model to which all law 
 ought as far as possible to conform. This crisis ar- 
 rived when the Greek theory of a Law of Nature 
 was applied to the practical Homan administi-ation 
 of the Law common to all Nations. 
 
 The Jus Naturale, or Law of Nature, is simply 
 the Jus Gentium or Law of Nations seen in the light 
 of a peculiar theory. An unfortunate attempt to 
 discriminate them was made by the jurisconsult 
 Ulpian, with the propensity to distinguish charac- 
 teristic of a lawyer, but the language of Gains, a 
 much higher authority, and the passage quoted be- 
 fore from the Institutes, leave no room for doubt 
 that the expressions were practically convertible 
 The difference between them was entirely historical,' 
 and no distinction in essence could ever be estab- 
 lished between them. It is almost unnecessary to 
 add that the confusion between Jus Gentium, or Lavv^ 
 common to all nations, and international law is en- 
 tirely modern. The classical expression for inter- 
 national law is Jus Feciale, or the law of negotiation 
 and diplomacy. It is, however, unquestionable 
 that indistinct impressions as to the meaning of Jus 
 Gentium had considerable share in producing the 
 
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nuAP. III. NATURE. 51 
 
 moderr. theory that the relations of independent 
 states are governed by the Law of Nature. 
 
 It becomes necessary to investigate the Greek 
 conceptions of Nature and her law. The word 
 fpvois, which was rendered in the Latin natura and 
 our nature, denoted beyond all doubt originally 
 the material universe contemplated under an as- 
 pect which — such is our intellectual distance from 
 those times — it is not very easy to delineate in 
 modern language. Nature signified the physical 
 world regarded as the result of some primordial 
 element or law. The oldest Greek philosophers 
 have been accustomed to explain the fabric of crea- 
 tion as the manifestation of some single principle 
 which they variously asserted to be movement, 
 force, fire, moisture, or generation. In its simplest 
 and most ancient sense. Nature is precisely the 
 physical universe looked upon in this way as the 
 manifestation of a principle. Afterwards, the later 
 Greek sects, returning to a path from which the 
 greatest intellects of Greece had meanwhile strayed, 
 added the moral to the physical world in the con- 
 ception of Nature. They extended the term till it 
 embraced not merely the visible creation, but the 
 thoughts, observances, and aspirations of mankind. 
 Stm, as before, it was not solely the moral phe- 
 nomena of human society which they understood 
 by Nature, but these phenomena considered as re- 
 solvable into some general and simple laws. 
 
 Now, just as the oldest Greek theorists sup 
 
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52 NATURE. chap, ni 
 
 posed that the sports of chance had changed the 
 material universe from its simple primitive form 
 into its present heterogeneous condition, so their 
 intellectual descendants imagined that but for un 
 toward accident the human race would have con 
 formed itself to simpler rules of conduct and a less 
 tempestuous life. To live according to nature came 
 to be considered as the end for which man was 
 created, and which the best men were bound to 
 compass. To live according to nature was to rise 
 above the disorderly habits and gross indulgences 
 of the vulgar to higher laws of action which noth- 
 ing but self-denial and self-command would enable 
 the aspirant to observe. It is notorious that this 
 proposition — ^live according to natui^e — was the sum 
 of the tenets of the famous Stoic philosophy. Now 
 on the subjugation of Greece that philosophy made 
 instantaneous progress in Eoman society. It pos- 
 sessed natural fascinations for the powerful class 
 who, in theory at least, adhered to the simple 
 habits of the ancient Italian race, and disdained to 
 surrender themselves to the innovations of foreis'n 
 fashion. Such persons began immediately to affect 
 the Stoic precepts of life according to nature — an 
 affectation all the more grateful, and, I may add, all 
 the more noble, from its contrast with the unbound- 
 ed profligacy which was being diffused through the 
 imperial city by the pillage of the world and by the 
 example of its most luxurious races. In the front 
 of the disciples of the new Greek s:;hool, we mio-ht 
 
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3HiP. III. THE STOICS. 5a 
 
 be sure, even if we did not know it historically, 
 that the Eoman lawyers figured. We have abun- 
 dant proof that, there being substantially but two 
 professions in the Eoman republic, the military men 
 were generally identified with the party of move- 
 ment, but the lawyers were universally at the head 
 of the party of resistance. 
 
 The alliance of the lawyers with the Stoic phi- 
 losophers lasted through many centuries. Some of 
 the earliest names in the seiies of renowned juris- 
 consults are associated with Stoicism, and ultimate- 
 ly we have the golden age of Roman jurisprudence 
 fixed by general consent at the era of the Antonine 
 Caesars, the most famous disciples to whom that 
 philosophy has given a rule of life. The long 
 diffusion of these doctrines among the members of a 
 particular profession was sure to affect the art which 
 they practised and influenced. Several positions 
 which we find in the remains of the Roman juris- 
 consults are scarcely intelligible unless we use the 
 Stoic tenets as our key ; but at the same time it is 
 a serious, though a very common, error to measure 
 the influence of Stoicism on Roman law by counting 
 up the number of legal rules which can be con- 
 fidently affiliated on Stoical dogmas. * It has often 
 been observed that the strength of Stoicism resided 
 not in its canons of conduct, which were often re- 
 pulsive and ridiculous, but in the great though 
 vague principle which it inculcated of resistance to 
 passion. Just in the same way the influence on 
 
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54 LAW OF NATURE. chap, in 
 
 jurisprudence of the Greek theories, which had theii 
 most distinct expression in Stoicism, consisted not 
 in the number of specific positions which they con- 
 tributed to Eoman law, but in the single funda- 
 mental assumption which they lent to it. After 
 Nature had become a household word in the mouths 
 of the Romans, the belief gradually prevailed among 
 the Eoman lawyers that the old Jus Grentium was 
 in fact the lost code of Nature, and that the Praetor 
 in framing an Edictal jurisprudence on the prin- 
 ciples of the Jus Gentium was gradually restoring 
 a type from which law had only departed to de- 
 teriorate. The inference from this belief was imme- 
 diate that it was the Praetor's duty to supersede the 
 Civil Law as much as possible by the Edict, to re- 
 vive as far as might be the institutions by which 
 Nature had governed man in the primitive state. 
 Of course there were many impediments to the 
 amelioration of law by this agency. There may 
 have been prejudices to overcome even in the legal 
 profession itself, and Eoman habits were far too 
 tenacious to give way at once to mere philosophical 
 theory. The indirect methods by which the Edici 
 combated certain technical anomalies, show the cau- 
 tion which its authors were compelled to observe, 
 and down to the very days of Justinian there was 
 some part of the old law which had obstinately re- 
 sisted its influence. But on the whole, the progress 
 of the Eomans in legal improvement was astonish- 
 ingly rapid as soon as stimulus was applied to it by 
 
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cnii>. in. EQUITY. 51 
 
 tJie th(!ory of ISTatural Law. The ideas of simpli 
 fication and generalization bad always been asso 
 ciated with the conception of Nature ; simplicity, 
 symmetry, and intelligibility came therefore to be 
 regarded as the characteristics of a good legal sys- 
 tem, and the taste for involved language, multiplied 
 ceremonials, and useless difficulties disappeared al- 
 together. The strong will and unusual opportuni- 
 ties of Justinian were needed to bring the. Roman 
 law into its existing shape, but the ground plan of 
 the system had been sketched long before the im- 
 perial reforms were effected. 
 
 What was the exact point of contact between 
 the old Jus Gentium and the Law of Nature ? I 
 think that they touch and blend through vEquitas, 
 or Equity in its original sense ; and here we seem to 
 come to the first appearance in jurisprudence of this 
 famous term. Equity. In examining an expression 
 which has so remote an origin and so long a history 
 as this, it is always safest to penetrate, if possible, 
 to the simple metaphor or figure which at first 
 shadowed forth the conception. It has generally 
 been supposed that JEquitas is the equivalent of the 
 Greek loorr/g, i. e. the principle of equal or propor- 
 tionate distiibution. The equal division of num- 
 bers or physical magnitudes is doubtless closely en- 
 twined with our perceptions of justice; there are 
 few associations which keep their ground in the 
 mind so stubbornly or are dismissed from it with 
 such difficulty by the deepest thinkers. Yet in 
 
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56 EQUITY. oiiAP. iii 
 
 tracing tlie history of tMs association, it certainly 
 doe,s not seem to have suggested itself to very early 
 thought, but is rather the offspring of a compara- 
 tively late philosophy. It is remarkable too that 
 the " equality " of laws on which the Greek democ- 
 racies prided themselves — ^that equality which, in 
 -the beautiful drinking song of Callistratus, Harmo- 
 dius and Aristogiton are said to have given to 
 Athens-r— had little in common with the " equity " 
 of the Romans. The first was an equal adminis- 
 tration of civil laws among the citizens, however 
 limited the class of citizens might be ; the last im- 
 plied the applicability of a law, which was not civil 
 law, to a class which did not necessarily consist of 
 citizens. The first excluded a despot ; the last in- 
 cluded foreigners, and for some purposes slaves. 
 On the whole, I should be disposed to look in 
 another direction for the germ of the Roman 
 " Equity." The Latin word " sequus " carries with 
 it more distinctly than the Greek " I'aos " the sense 
 of levelling. Now its levelling tendency was exact- 
 ly the characteristic of the Jus Gentium, which 
 would be most striking to a primitive Roman. The 
 pure Quiritarian law recognised a multitude of ar- 
 bitrary distinctions between classes of men and 
 kinds of property ; the Jus Gentium, generalised 
 from a comparison of various customs, neglected the 
 Quiritarian divisions. The old Roman law estab 
 lished, for example, a fundamental diiference be- 
 tween "Agnatic " and " Cognatic " relationship, that 
 
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3HAP. ni. LAW OF NATURE. 57 
 
 is, between the Family considered as based iipon 
 common subjection to patriarchal aiithority and the 
 Family considered (in conformity with modern 
 ideas) as united through the mere fact of a com 
 mon descent. This distinction disappears in the 
 " laAv common to all nations," as also does the dif 
 ference between the archaic forms of property. 
 Things " Mancipi " and Things " nee Mancipi." The 
 neglect of demarcations and boundaries seems to 
 me, therefore, the feature of the Jus Gentium ^yhich 
 was depicted in JEquitas. I imagine that the word" 
 was at first a mere description of that constant lev- 
 elling or removal of irregularities which went on 
 wherever the praetorian system was applied to the 
 cases of foreign litigants. Probably no colour of 
 ethical meaning belonged at first to the expression ; 
 nor is there any reason to believe that the process 
 which it indicated was otherwise than extremely 
 distasteful to the primitive Roman mind. 
 
 On the other hand, the feature of the Jus Gen- 
 tium which was presented to the apprehension of a 
 Roman by the word Equity, was exactly the first 
 and most vividly realised characteristic of the hypo- 
 thetical state of nature. Nature implied symmetri 
 cal order, first in the physical world, and next in 
 the moral, and the earliest notion of order doubt- 
 less involved straight lines, even surfaces, and meas 
 ured distances. The same sort of picture or figm-e 
 would be unconsciously before the mind's eye 
 whether it strove to form the outlines of the sup 
 
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58 EQUITY. CHAP iii 
 
 posed natural state, or whetler it took in at a glance 
 the actual administration of the " law common to 
 all nations ; " and all \^'e know of primitive tkougbt 
 would lead us to conclude tkat this ideal similarity 
 would do muck to encourage tke belief in . an iden- 
 tity of tke two conceptions. But tken, wkile tke 
 Jus Gentium kad little or no antecedent credit at 
 Rome, tke tkeory of a Law of Nature came in sur 
 i-ounded Avitk all tke prestige of pkilosopkical au 
 tkority, and invested witk tke ckarms of association 
 witk an elder and more blissful condition of tke 
 race. It is easy to understand kow tke difference in 
 tke point of view would affect tke dignity of tke 
 term wkick at once described tke operation of tke 
 old principles and tke results of tke new tkeory. 
 Even to modern ears it is not at all tke same tking 
 to describe a process as one of " levelling " and to 
 call it tke " correction of anomalies," tkougk tke 
 metapkor is precisely tke same. N"or do I doubt 
 that, wken once ^quitas was understood to con- 
 vey an allusion ,to tke Greek tkeory, associations 
 wkick grew out of tke Greek notion of loonj^ began 
 to cluster round it. Tke language of Cicero renders 
 it more tkan likely tkat this was so, and it was the 
 first stage of a transmutation of the conception of 
 Equity, which almost every ethical system -^hich 
 has appeared since those days has more or less 
 helped to carry on. 
 
 Something must be said of tke formal instru- 
 mentality by wkick tke principles and distinctions 
 
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CHAP. III. THE PK^TOR. 59 
 
 associated, first witli the Law common to all Na- 
 tions, and afterwards with, the Law of Nature, were 
 gradually incorporated with the Koman law. At 
 the crisis of primitive Roman history which ia 
 marked by the expulsion of the Tarquins, a change 
 occurred which has its parallel in the early annals 
 of many an(>ient states, but which had little in com- 
 mon with those passages of political affairs which 
 we now term revolutions. It may best be described 
 by saying that the monarchy was put into commis- 
 sion. The powers heretofore accumulated in the 
 hands of a single person were parcelled out among 
 a number of elective functionaries, the very name 
 of the kingly office being retained and imposed on 
 a personage known subsequently as the Rex Sac- 
 rorum or Rex Sacrificulus. As part of the change, 
 the settled duties of the supreme judicial office de- 
 volved on the Praetor, at the time the first function- 
 ary in the commonwealth, and together with these 
 duties was transferred the undefined supremacy 
 over law and legislation which always attached to 
 ancient sovereigns, and which is not obscurely re- 
 lated to the patriarchal and heroic authority they 
 had once enjoyed. The circumstances of Rome gave 
 great importance to the more indefinite portion of 
 the functions thus transferred, as with the establish- 
 ment of the republic began that series of recurrent 
 trials which overtook the state, in the difficulty of 
 dealing with a multitude of persons who, not com- 
 ing within the technical description of indigenou? 
 
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60 THE EDICT. onAP. in 
 
 Romans, were nevertlieless permanently locate:! 
 within Roman jurisdiction. Controversies betwee:i 
 sucli persons, or between sucli persons and native- 
 born citizens, could have remained without the ])ale 
 of the remedies provided by Roman law, if tht 
 Prsetor had not undertaken to decide them, and he 
 must soon have addressed himself to the more crit 
 ical disputes which in the extension of commerce 
 arose between Roman subjects and avowed foreign- 
 ers. The great increase of such cases in the Roman 
 Courts about the period of the first Punic War is 
 marked by the appointment of a special Prsetor, 
 known subsequently as the Praetor Peregrinus, who 
 gave them his undivided attention. Meantime, one 
 precaution of the Roman people against the revival 
 of oppression, had consisted in obliging every ma;- 
 gistrate whose duties had any tendency to expand 
 their sphere, to publish, on commencing his year of 
 office, an Edict or proclamation, in which he declai-ei 
 the manner in which he intended to administer his 
 department. The Prsetor fell under the rule with 
 other magistrates ; but as it was necessarily impos- 
 sible to construct each year a separate system of 
 principles, he seems to have regularly republished 
 his predecessor's Edict with such additions and 
 changes as the exigency of the moment or his o-^j^T] 
 views of the law compelled him to introduce. The 
 Prsetor's proclamation, thus lengthened by a new 
 portion every year, obtained the name of the Edic- 
 tum Perpetuum, that is, the continuous or unhrohm 
 
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CHAP. 111. THE PE^TOE. 61 
 
 edict. The immense lengtli to wMcli it extended, 
 together perhaps with some distaste for its neces- 
 sarily disorderly texture, caused the practice of in- 
 creasing it to be stopped in the year of Salvius 
 Julianus, who occupied the magistracy in the reign 
 of the Emperor Hadrian. The edict of that Praetor 
 embraced therefore the whole body of equity juris- 
 prudence, which it probably disposed in new and 
 symmetrical order, and the perpetual edict is there- 
 fore often cited in Roman law merely as the Edict 
 of Julianus. 
 
 Perhaps the first inquiry which occurs to an Eng- 
 lishman who considers the peculiar mechanism of 
 the Edict is, what were the limitations by which 
 these extensive powers of the Praetor were restrain- 
 ed ? How was authority so little definite to be 
 reconciled with a settled condition of society and 
 law ? The answer can only be supplied by careful 
 observation of the conditions under which our own 
 English law is administered. The Praetor, it should 
 be recollected, was a jurisconsult himself, or a per- 
 son entirely in the hands of advisers who were 
 jurisconsults, and it is probable that every Roman 
 lawyer waited impatiently for the time when he 
 should fill or control the great judicial magistracy. 
 In the interval, his tastes, feelings, prejudices, and 
 degree of enlightenment were inevitably those of 
 his own order, and the qualifications which he ulti- 
 mately brought to office were those which he had 
 acquired in the practice and study of his profession 
 
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C2 KESTEAINTS ON THE PE^TOR. chap, la 
 
 An Englisli Chancellor goes tlirougli precisely the 
 same training, and carries to tlie woolsack tlie same 
 qualifications. It is certain when he assumes office 
 that he will have, to some extent, modified the law 
 before he leaves it ; but until he has quitted his 
 seat, and the series of his decisions in the Law Re- 
 ports has been completed, we cannot discover how 
 far he has elucidated or added to the principles 
 which his predecessors bequeathed to him. The in- 
 fluence of the Praetor on Roman jurisprudence dif- 
 fered only in respect of the period at which its 
 amount was .ascertained. As was before stated, he 
 was in office but for a year, and his decisions ren- 
 dered during his year, th-ough of course irreversible 
 as regarded the litigants, were of no ulterior value. 
 The most natural moment for declaring the changes 
 he proposed to effect, occurred therefore at his en- 
 trance on the prsetorship ; and hence, when com- 
 mencing his duties, he did openly and avowedly 
 that which in the end his English representative 
 does insensibly and sometimes unconsciously. The 
 checks on his apparent liberty are precisely those 
 imposed on an English judge. Theoretically there 
 seems to be hardly any limit to the powers of either 
 of them, but practically the Roman Praetor, no less 
 than the English Chancellor, was kept within the 
 aari'owest bounds by the prepossessions imbibed 
 from early training, and by the strong restraints of 
 professional opinion, restraints of which the strin- 
 gency can only be appreciated by those who have 
 
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CHAP. HI. EQUITY. G? 
 
 personally experienced them. It may be added 
 that the lines within which movement is permitted, 
 and beyond which there is to be no travelling, 
 were chalked with as much distinctness in the one 
 c;ase as in the other. In England the judge follows 
 the analogies of reported decisions on insulated 
 groups of facts. At Eome, as the intervention of 
 the Praetor was at first dictated by simple concern 
 for the safety of the state, it is likely that in the 
 earliest times it was proportioned to the difficulty 
 which it attempted to get rid of Afterwards, 
 when the taste for principle had been diffused by 
 the Responses, he no doubt used the Edict as the 
 means of giving a wider application to those funda- 
 mental principles which he and the other practising 
 jurisconsults, his contemporaries, believed them- 
 selves to have detected underlying the law. Lat- 
 terly he acted wholly under the influence of Greek 
 philosophical theories, which at once tempted him 
 to advance and confined him to a particular course 
 of progi'ess. 
 
 The nature of the measures attributed to Salvius 
 Julianus has been much disputed. Whatever they 
 were, their effects on the Edict are sufficiently plain. 
 It ceased to be extended by annual additions, and 
 henceforward the equity jurisprudence of Rome was 
 developed by the labours of a succession of great 
 jurisconsults who fill with their writings the inter- 
 val between the reign of Hadrian and the reign of 
 Alexander Severus. A fragment of the wonderful. 
 
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64 ROMAN EQUITY. chap, m 
 
 system whicli tliey built up survives in tlie Pan- 
 dects of Justinian, and supplies evidence tliat their 
 works took the form of treatises on all parts of Ro- 
 man law, but ckiefly tbat of commentaries on tlie 
 Edict. Indeed, whatever be the immediate subject 
 of a jurisconsult of this epoch, he may always be 
 called an expositor of Equity. The principles of 
 the Edict had, before the epoch of its cessation, 
 made their way into every part of Roman jurispru- 
 dence. The Equity of Rome, it should be under- 
 stood, even when most distinct from the Civil Law, 
 was always administered by the same tribunals. 
 The Praetor was the chief equity judge as well as 
 the great common law magistrate, and as soon as 
 the Edict had evolved an equitable rule the Prae- 
 tor's court began to apply it in place of or hj the 
 side of the old rule of the Civil Law, which was 
 thus directly or indirectly rejDealed without any ex- 
 press enactment of the legislature. , The result, of 
 course, fell considerably short of a complete fusion 
 of law and equity, which was not carried out til] 
 the reforms of Justinian. The technical severance 
 of the two elements of jurisprudence entailed some 
 confusion and some inconvenience, and there were 
 certain of the stubborner doctrines of the Civil Law 
 with which neither the authors nor the expositors 
 of the Edict had ventured to interfere. But at the 
 same time there was no corner of the field of juris- 
 prudence which was not more or less swept over by 
 the influence of Equity. It supplied the jurist with 
 
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OHAP. 111. EQUITY. 65 
 
 all his materials for generalisation, witli all Ids 
 methods of interpretation, with his elucidations of 
 first principles, and with that great mass of limiting 
 rules which are rarely interfered with by the legis 
 lator, but which seriously control the application 
 of every legislative act. 
 
 The period of jurists ends with Alexander Sev- 
 erus. From Hadrian to that emperor the improve- 
 ment of law was carried on, as it is at the present 
 moment in most continental countries, partly by 
 approved commentaries and partly by direct ■ legis- 
 lation. / But in the reign of Alexander Severus the 
 power of growth in Roman Equity seems to be ex- 
 hausted, and the succession of jurisconsults comes 
 to a close. The remaining history of the Roman 
 law is the history of the imperial constitutions, and, 
 at the last, of attempts to codify what had now be- 
 come the unwieldy body of Roman jurisprudence. 
 We have the latest and most celebrated experiment 
 of this kind in the Corpus Juris of Justinian. 
 
 It would be v/earisome to enter on a detailed 
 comparison or contrast of English and Roman 
 Equity ; but it may be worth while to mention two 
 features which they have in conmion. The first 
 may- be stated as follows. Each of them tended, 
 and all such systems tend, to exactly the same state 
 in which the old common law was when Equity 
 first interfered with it. A time always conies at 
 which the, moral principles originally adopted have 
 been carried out to all their legitimate consequences. 
 
 o 
 
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66 ENGLISH AND ROMAN EQUITY. chap, hi 
 
 and tlien tLe system founded on them becomes as 
 rigid, as unexpansive, and as liable to fall behind 
 moral progress as the sternest code of rules avoAved- 
 ly legal. Such an epoch was reached at Kome in the 
 reign of Alexander Severus ; after which, though 
 the Ti'hole Roman world was undergoing a moral 
 I'evolution, the Equity of Kome ceased to expand. 
 The same point of legal history was attained in 
 England under the chancellorshij) of Lord Eldon, 
 the :first of oiir equity judges who, instead of en- 
 larging the jurisprudence of his court by indirect 
 legislation, devoted himself through life to explain- 
 ing and harmonising it. If the philosophy of legal 
 history were better understood in England, Lord 
 Eldon's services would be less exaggerated on the 
 one hand and better appreciated on the other than 
 they appear to be among contemporary lawyers. 
 Other misapprehensions too, which bear some prac- 
 tical fruit, would perhaps be avoided. It is easily 
 seen by English lawyers that English Equity is a 
 system founded on moral rules ; but it is forgotten 
 that these rules are the morality of past centuries — 
 not of the present — that they have received nearly 
 as much application as they are capable of, and 
 that, though of course they do not differ largely 
 from the ethical creed of our own day, they are not 
 necessarily on a level with it. The imperfect theo- 
 ries of the subject which are commonly adopted 
 have generated errors of opposite sorts. Many 
 writers of treatises on Equity, struck with the com 
 
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CHAP. III. EQUITY. 07 
 
 pleteness of the system in its present state, commit 
 themselves expressly or implicitly to the paradox- 
 ical assertion that the founders of the chancery ju- 
 risprudence contemplated its present fixity of form 
 when they were settling its first bases. Others, 
 again, complain — and this is a grievance frequent- 
 1}^ observed upon in forensic arguments — that the 
 moral rules enforced by the Court of Chancery fall 
 short of the ethical standard of the present day. 
 They would have each Lord Chancellor perform 
 precisely the same office for the jurisprudence which 
 he finds ready to his hand, which was performed 
 for the old common law by the fathers of English 
 equity. But this is to invert the order of the agen- 
 cies by wliich the improvement of the law is carried 
 on. Equity has its place and its time ; but I have 
 pointed op.t that another instrumentality is read}' 
 to succeed it when its energies are spent. 
 
 Another remarkable characteristic of both Eng- 
 lish and Roman Equity is the falsehood of the as- 
 sumptions upon which the claim of the equitable to 
 superiority over the legal rule is originally defend- 
 ed. Nothing is more distasteful to men, either as 
 individuals or as masses, than the admission of their 
 moral progress as a substantive reality. This un- | 
 willingness shows itself, as regards individuals, in 
 the exaggerated respect which is ordinarily paid to 
 the doubtful virtue of consistency. The movement 
 of the collective opinion of a whole society is too 
 palpable to be ignored, and is generally too visibly 
 
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68 ENGLISH AND KOMAN EQUITY. chap, hi, 
 
 for the better to "be decried ; but there is the great- 
 est disinclination to accept it as a primary phenom- 
 enon, and it is commonly explained as the recov- 
 ery of a lost perfection — the gradual return to a 
 state from which the race had lapsed. This tend- 
 ency to look backward instead of forward for the 
 goal of moral progress produced anciently, as we 
 have seen, on Roman jurisprudence effects the most 
 serious and pennanent. The Roman jurisconsults, 
 in order to account for the improvement of their 
 jurisprudence by the Praetor, borrowed from Greece 
 the doctrine of a Natiiral state of man — a Natural 
 society — anterior to the organization of common- 
 wealths governed by positive laws. In England, 
 on the other hand, a range of ideas especially con- 
 genial to Englishmen of that day, explained the 
 claim of Equity to override the common law by sup- 
 posing a general right to superintend the adminis- 
 tration of justice which was assumed to be vested 
 in the king as a natural result of his paternal au- 
 thority. The same view appears in a different and 
 quainter form in the old doctrine that Equity flowed 
 from the king's conscience — the improvement which 
 had in fact taken place in the moral standard of the 
 community being thus referred to an inherent ele- 
 vation in the moral sense of the sovereign. The 
 growth of the English constitution rendered such a 
 theory unpalatable after a time ; but, as the juris, 
 diction of the Chancery was then firmly established- 
 it was not worth while to devise any formal sub 
 
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CHAP. 111. EQUITY. 69 
 
 stitute for it. The theories found in modern man- 
 uals of Equity are very various, but all alike in 
 their untenability. Most of them are modifications 
 of the Koman doctrine of a natural law, which is 
 indeed adopted in terms by those writers who be- 
 gin a discussion of the jurisdiction of the Court of 
 Chancery by laying down a distinction between 
 natural justice and civil. 
 
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CHAPTER IV. 
 
 THE MODERN HISTORY OF THE LAW OP NATURE. 
 
 It will be inferred from what has been said that 
 the theory which transformed the Roman jurispru- 
 dence had no claim to philosophical precision. It 
 involved, in fact, one of those " mixed modes of 
 thought" which are now acknowledged to have 
 characterized all but the highest minds duiing the 
 infancy of speculation, and which are far from uu- 
 discoverab^e even in the mental efforts of our own 
 day. The La\y of Nature confused the Past and 
 the Present. Logically, it implied a state of Na- 
 ture whicli had once been regulated by natural 
 law ; yet the jurisconsults do not speak clearly or 
 confidently of the existence of such a state, which 
 indeed is little noticed by the ancients except 
 \vhere it finds a poetical expression in the fancy 
 of a golden age. Natural law, for all practical 
 purposes, was something belonging to the present, 
 something entwined with existing institutions, 
 something which could be distinguished from 
 
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CHAP. IV. MODERN HISTORY OF NATURx!lL LAW. 71 
 
 them by a competent observer. The test which 
 separated the ordinances of Nature from the grosh 
 ingredients with which they were mingled was a 
 sense of simplicity and harmony ; yet it was not 
 on account of their simplicity and harmony that 
 these finer elements were primarily respected, but 
 on the score of their descent from the aboriginal 
 reign of Natiire. This confusion has not been suc- 
 cessfully explained away by the modern disciples 
 of the jurisconsults, and in truth modern specula- 
 tions on the Law of Nature betray much more 
 indistinctness of perception and are vitiated by 
 much more hopeless ambiguity of language than 
 the Roman lawyers can be justly charged with. 
 There are some writers on the subject who attempt 
 to evade the fundamental difficulty by contending 
 that the code of Nature exists in the future and is 
 the goal to which all civil laws are moving, but 
 this is to reverse the assumptions on which the old 
 theory rested, or rather perhaps to mix together 
 two inconsistent theories. The tendency to look 
 not to the past but to the future for types of per- 
 fection was brought into the world by Christianity. 
 Ancient literature gives few or no hints of a belief 
 that the progress of society is necessarily from 
 worse to, better. 
 
 But the importance of this theory to mankind 
 has been very much greater than its philosophical 
 deficiencies ^vould lead us to expect. Indeed, it 
 is not easy to say what turn the history of thought^ 
 
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72 PERILS OF EARLY SOCIETT. cnAp. iv 
 
 and therefore, of the human race, would have 
 taken, if the belief in a law natural had not hecome 
 universal in the ancient world. 
 
 There are two special dangers to Avhich law 
 and society which is held together by law, appear 
 to be liable in their infancy. One of them is that 
 law may be too rapidly developed. This occui'red 
 with the codes of the more progressive Greek com- 
 munities, which disembarrassed themselves with 
 astonishing facility from cumbrous forms of proce- 
 dure and needless terms of art, and soon ceased to 
 attach any superstitious value to rigid rules and 
 prescriptions. It was not for the ultimate advan- 
 tage of mankind that they did so, though the imme- 
 diate benefit conferred on their citizens may have 
 been considerable. One of the rarest qualities of 
 national character is the capacity for applying and 
 working out the law, as such, at the cost of con- 
 stant miscarriages of abstract justice, without at the 
 same time losing the hope or the wish that law 
 may be conformed to a higher ideal. The Greek 
 intellect, with all its nobility and elasticity, was 
 quite unable to confine itself within the strait 
 waistcoat of a legal formula ; and, if we may judge 
 them by the popular courts of Athens, of whose 
 working we possess accurate knowledge, the Greek 
 tribunals exhibited the strongest tendency to con- 
 found law and fact. The remains of the Oiators 
 and the forensic commonplaces preserved by Aris' 
 totle in his Treatise on Rhetoric, show that ques 
 
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CHAP. IV. NATURAL LAW OF THE JURISCONSULTS. 78 
 
 tioiis of pure law were constantly argued on eveiy 
 consideration wliicli could possibly influence tlie 
 mind of the judges. No durable system of juris- 
 prudence could be produced in this way.- A com- 
 munity which never hesitated to relax rules of 
 written law whenever they stood in the way of an 
 ideally perfect decision on the facts of particular 
 cases, would only, if it bequeathed any body of 
 judicial principles to posterity, bequeath one con- 
 sisting of the ideas of right and wrong which hap- 
 pened to be prevalent at the time. Such jurispru- 
 dence would contain no framework to which the 
 more advanced conceptions of subsequent ages 
 could be fitted. It would amount at best to a 
 philosophy, marked with the imperfections of the 
 civilisation under which it grew up. 
 
 Few national societies have had their jurispru- 
 dence menaced by this peculiar danger of precocious 
 maturity and untimely disintegration. It is cer- 
 tainly doubtfal whether the Komans were ever 
 seriously threatened by it, but at any rate they had 
 adequate protection in their theory of Natural Law. 
 For the Natmal Law of the jurisconsults was dis- 
 tinctly conceived by them as a system which ought 
 gradually to absorb civil laws, without superseding 
 them so long as they remained unrepealed. There 
 was no such impression of its sanctity abroad, that 
 an appeal to it would be likely to overpower the 
 mind of a judge who was charged with the superin- 
 tendence of a particular litigation The value audi 
 
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74 LAW OF NATUEE. ouap. iv. 
 
 serviceableness of the conception arose from its 
 keeping before the mental vision a type of perfect 
 law, and from its inspiring tie hope of an indefinite 
 approximation to it, at the same time that it nevei 
 tempted the practitioner or the citizen to deny the 
 obligation of existing laws which had not yet been 
 adjusted to the theory. It is important too to ob- 
 serve that this model system, unlike many of those 
 which have mocked men's hopes in later days, was' 
 not entirely the product of imagination. It was 
 never thought of as founded on quite untested prin- 
 ciples. The notion was that it underlay existing 
 law and must be looked for through it. Its func- 
 tions were in short remedial, not revolutionary or 
 anarchical. And this, unfortunately, is the exact 
 point at which the modern view of a Law of Na- 
 ture has often ceased to resemble the ancient. 
 
 The other liability to which the infancy of socie- 
 ty is exposed has prevented or arrested the progress 
 of far the greater part of mankind. The rigidity of 
 primitive law, arising chiefly from its early associa- 
 tion and identification with religion, has chained 
 down the mass of the human race to those views 
 of life and conduct which they entertained at the 
 time when their usages were first consolidated into 
 a systematic form. There were one or two races 
 exempted by a marvellous fate from this calamity, 
 and grafts from these stocks have fertilised a few 
 modern societies; but it is still true that, over the 
 larger part of the world, the perfection of law has 
 
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OHAP. IV. HISTORY OF LAW OF NATURE. 76 
 
 alwaj^s been considered as consisting in adherence to 
 the ground plan supposed to have been marked out 
 by the original legislator. If intellect has in such 
 cases been exercised on jurisprudence, it has uni- 
 formly prided itself on the subtle perversity of the 
 conclusions it could build on ancient texts, without 
 discoverable departure from their literal tenour. I 
 know no reason why the law of the Romans should 
 be superior to the laws of the Hindoos, unless the 
 theory of Natural Law had given it a type of excel- 
 lence different from the usual one. In this one ex- 
 ceptional instance, simplicity and symmetry were 
 kept before the eyes of a society whose influence on 
 mankind was destined to be prodigious from other 
 causes, as the characteristics of ^n ideal and abso- 
 lutely perfect law. It is impossible to overrate the 
 importance to a nation or profession of having a dis- 
 tinct object to aim at in the pursuit of improvement. 
 The secret of Bentham's immense influence in Eng- 
 land during the past thirty years is his success in 
 placing such an object before the country. He gave 
 us a clear rule of reform. English lawyers of the 
 last century were probably too acute to be blinde'd 
 by the paradoxical commonplace that English law 
 was the perfection of human reason, but they acted 
 as if they believed it, for want of any other prin- 
 ciple to proceed upon. Bentham made the good of 
 the community take precedence of every other ob- 
 ject, and thus gave escape to a current which had 
 long been trying to find its way outwards. 
 
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76 HISTOET OF LAW OF NATURE. oha.i-. it. 
 
 It is not an altogether fanciful comparison if vre 
 call the assumptions we have been describing the 
 ancient counterpart of Benthamism. The Roman 
 theory guided men's efforts in the same direction as 
 the theory put into shape by the Englishman ; its 
 practical results were not widely different from 
 those which -would have been attained by a sect of 
 law-reformers who maintained a steady pursuit of 
 the general good of the community. It would be a 
 mistake, however, to suppose it a' conscious anticipa- 
 tion of Bentham's principles. The happiness of 
 mankind is, no doubt, sometimes assigned both in 
 the popular and in the legal literature of the Ro- 
 mans, as the proper object of remedial legislation, 
 but it is very remai^kable how few and faint are the 
 testimonies to this principle compared with the trib- 
 utes which are constantly offered to the over- 
 shadowing claims of the Law of Nature. It was 
 not to anything resembling philanthropy, but tc 
 their sense of simplicity and harmony — of what 
 they significantly termed " elegance " — that the 
 Roman jurisconsults freely surrendered themselves. 
 The coincidence of their labours with those which 
 a more precise philosophy would have counselled 
 has been part of the good fortune of mankind. 
 
 Turning to the modern history of the law of na- 
 ture, we find it easier to convince ourselves of the 
 vastness of its influence than to pronounce confi- 
 dently whether that influence has been exerted for 
 good or for evil. Tie doctrines and institutions 
 
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OHAP. IV. THE FRENCH LAWYERS. 71J 
 
 which may be attributed «o it are the material of 
 some of the most violent controversies debated in 
 our time, as will be seen when it is stated that the 
 theory of ISTatural Law is the source of almost all the 
 special ideas as to law, politics, and society which 
 France during the last hundred years has been the 
 instrument of diffusing over the western world. 
 The part played by jurists in French history, and 
 the sphere of jural conceptions in French thought, 
 have always been remarkably large. It was not in- 
 deed in France, but in Italy, that the juridical science 
 of modern Europe took its rise, but of the schools 
 founded by emissaries of the Italian universities in 
 all parts of the continent, and attempted (though 
 vainly) to be set up in our island, that established 
 in France produced the greatest effect on the for- 
 tunes of the country. The lawyers of France imme- 
 diately formed a strict alliance with the kings of the 
 houses of Capet and Valois, and it was as much 
 through their assertions of royal prerogative, and 
 through their interpretations of the rules of feudal 
 succession, as by the power of the sword, that the 
 French monarchy at last grew together out of the 
 agglomeration of provinces and dependencies. The 
 enormous advantage which their understanding with 
 the lawyers conferred on the French kings in the 
 prosecution of their struggle with the great feuda- 
 tories, the aristocracy, and the churish, can only be 
 appreciated if we take into account the ideas which 
 prevailed in Europe far down into the middle ages, 
 
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78 HISTOET OF LAW OF NATCTEE. chap, rv 
 
 There was, in the first place, a great enthusiasm foi 
 generalisation and a curious admiration for^all gen< 
 eral propositions, and consequently, in the field of 
 ]aw, an involuntary reverence for every general 
 formula which seemed to embrace and sum up a 
 number of the insulated rules which were practised 
 as usages in various localities. Such general formu- 
 las it was, of course, not difficult for practitioners 
 familiar with the Corpus Juris or the Grlosses to 
 supply in almost any quantity. There was, however, 
 another cause which added yet more considerably 
 to the lawyers' power. At the period of which we 
 are speaking, there was universal vagueness of ideas 
 as to the degree and nature of the authority residing 
 in written texts of law. For the most part, the 
 peremptory preface, Ita scrvptum est^ seems to have 
 been sufficient to silence all objections. Where a 
 mind of our own day would jealously scrutinise the 
 formula which had been quoted, would inquire its 
 source, and would (if necessary) deny that the body 
 of law to which it belonged had any authority to 
 supersede local customs, the elder jurist would not 
 probably have ventured to do more than question 
 the applicability of the rule, or at best cite some 
 counter-proposition from the Pandects or the Canon 
 Law. It is extremely necessary to bear in mind the 
 uncertainty of men's notions on this most important 
 side of juridical controversies, not only because it 
 helps to explain the weight which the lawyers 
 threw into the monarchical scale, but on account of 
 
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CBAP. IV THE FEENCH LAWYERS. 79 
 
 the light which it sheds on several curious historical 
 problems. The motives of the author of the Forged 
 Decretals aud his extraordinary success are rendered 
 more intelligible by it. And, to take a phenomenon 
 of smaller interest, it assists us, though only partially 
 to understand the plagiarisms of Bracton. That an 
 English writer of the time of Henry III. should have 
 been able to put off on his countrymen as a com- 
 pendium of pure English law a treatise of which the 
 entire form and a third of the contents were directly- 
 borrowed from the Corpus Juris, and that he should 
 have ventured on this experiment in a country 
 where the systematic study of the Roman law was 
 formally proscribed, will always be among the most 
 hopeless enigmas in the history of jurisprudence ; 
 but still it is something to lessen our surprise when 
 we comprehend the state of opinion at the period 
 as to the obligatory force of written texts, apai-t 
 from all consideration of the source whence they 
 were derived. 
 
 When the kings of France had brought their 
 long struggle for supremacy to a successful close, an 
 epoch which may be placed roughly at the accession 
 of the branch of Valois-Angouleme to the throne, 
 the situation of the French jurists was peculiar, and 
 continued to be so down to the outbreak of the 
 i-evolution. On the one hand, they formed the best 
 instructed and nearly the most powerful class in the 
 nation. They had made good their footing as a 
 privileged order by the side of the feudal aristoc- 
 
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80 HISTOBY OF LAW OF NATURE. chap, iv 
 
 racy, and they had assured their influence by an 
 organisation which dif;tributed their profession over 
 France in great chartered corporations possessing 
 large defined powers and still larger indefinite claims. 
 In all the qualities of the advocate, the judge, and the 
 legislator, they far excelled their compeers through- 
 out Europe. Their juridical tact, their ease of ex- 
 pression, their fine sense of analogy and harmony, 
 and (if they may be judged by the highest names 
 among them) their passionate devotion to their 
 conceptions of justice, were as remarkable as the 
 singular variety of talent which they included, a 
 variety covering the whole ground between the op- 
 posite poles of Cujas and Montesquieu, of D'Agues- 
 seau and Dumoulin. But, on the other hand, the 
 system of laws which they had to administer stood 
 in striking contrast with the habits of mind which 
 they had cultivated. The France which had been 
 in great part constituted by their efforts was smitten 
 with the curse of an anomalous and dissonant juris- 
 prudence beyond every other country in Europe. 
 One great division ran through the country and 
 separated it into Pays du Droit JEcrit and Pays du 
 Droit Ooutumier^ the first acknowledging the writ- 
 ten Koman law as the basis of their jurisprudence, 
 the last admitting it only so far as it supplied gen- 
 eral forms of expression, and courses of juridical 
 reasoning, which were reconcileable with the local 
 usages. The sections thus formed were again vari 
 ously subdivided. In the Pays du Droit Coutn 
 
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CHAP. IT. THE FRENCH LAWYERS. 81 
 
 mier province differed from province, county from 
 '.ounty, municipality from municipality, in the nature 
 of its customs. In the Pays du Droit Ecrit the 
 stratum of feudal rules which ovei'lay the Roman 
 law was of the most miscellaneous composition. No 
 such confusion as this ever existed in England. In 
 Germany it did exist, but was too much in harmony 
 with the deep political and religious divisions of the 
 country to be lamented or even felt. It was the 
 special peculiarity of France that an extraordinary 
 diversity of laws continued without sensible altera- 
 tion while the central authority of the monarchy 
 was constantly strengthening itself, while rapid ap- 
 proaches were being made to complete administra- 
 tive unity, and while a fervid national spirit had 
 been developed among the people. The contrast 
 was one which fi-uctified in many serious results, and 
 among them we must rank the effect which it pro- 
 duced on the minds of the French lawyers. Their 
 speculative opinions and their intellectua! bias were 
 in the strongest opposition to their interests and 
 professional habits. With the keenest sense and 
 the fullest recognition of those perfections of juris- 
 prudence which consist in simplicity and uniformity, 
 they believed, or seemed to believe, that the vices 
 which actually invested French law were ineradica- 
 ble ; and in practice they often resisted the reforma- 
 tion of abuses with an obstinacy which was not 
 Bhown by many among their less enlightened coun- 
 trymen. But there was a way to reconcile these 
 6 
 
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82 HISTORY OF LAW OF NATURE. chap. it. 
 
 contradictions. They became passionate enthusiasts 
 for Natural Law. The Law of Nature overleapt all 
 provincial and municipal boundaries; it disregarded 
 all distinctions between noble and burgess, between 
 burgess and peasant ; it gave the most exalted place 
 to lucidity, simplicity, and system ; but it committed 
 its devotees to no specific improvement, and did not 
 directly threaten any venerable or lucrative techni- 
 cality. Natural law may be said to have become 
 the common law of France, or, at all events, the 
 admission of its dignity and claims was the one 
 tenet which all French practitioners alike sub- 
 scribed to. The language of the prse-revolution- 
 ary jurists in its eulogy is singularly unqualified, 
 and it is remarkable that the writers on the Cus- 
 toms, who often made it their duty to speak dis- 
 paragingly of the pure Roman law, speak even 
 more fervidly of Nature and her rules than the 
 civilians who professed an exclusive respect for the 
 Digest and the Code. Dumoulin, the highest of all 
 authorities on old French Customary Law, has some 
 extravagant passages on the Law of Nature ; and 
 his panegyrics have a peculiar rhetorical turn which 
 indicates a considerable departure from the caution 
 of the Eoman jurisconsults. The hypothesis of a 
 Natural Law had become not so much a theory 
 guiding practice as an article of speculative faith, 
 and accordingly we shall find that, in the transfor- 
 mation which it more recently underwent, its weak- 
 
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CHAP. IV. KODSSEAU. 8£ 
 
 est parts rose to the level of its strongest in the 
 esteem of its supporters. 
 
 The eighteenth century was half over when the 
 most critical period in the history of Natural Law 
 was reached. Had the discussion of the theory and 
 of its consequences continued to be exclusively the 
 employment of the legal profession, there would 
 possibly have been an abatement of the respect 
 which it commanded ; for by this time the Esprit 
 des Lois had appeared. Bearing in some exaggera- 
 tions the marks of the excessive violence with which 
 its author's mind had recoiled from assumptions 
 usually suffered to pass without scrutiny, yet show- 
 ing in some ambiguities the traces of a desire to 
 compromise with existing prejudice, the book of 
 Montesquieu, with all its defects, still proceeded on 
 that Historical Method before which the Law of 
 Nature has never maintained its footing for an in- 
 stant. Its influence on thought ought to have been 
 as great as its general popularity; but, in fact, it 
 was never allowed time to put it forth, for the 
 counter-hypothesis which it seemed destined to de 
 stroy passed suddenly from the forum to the street, 
 and became the key-note of controversies far more 
 exciting than are ever agitated in the courts or the 
 schools. The person who launched it on its new 
 career was that remarkable man who, without learn- 
 ing, with few virtues, and with no strength of char- 
 actei", has nevertheless stamped himself ineffaceably 
 on history by the force of a vivid imagination, and 
 
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84 HISTORY OF LAW OF NATURE. ohap. iv. 
 
 by the help of a genuine and burning love for his fel 
 low-men, for which much will always have to be for 
 given him. We have never seen in our own genera- 
 tion — ^indeed the world has not seen more than once 
 or twice in all the course of history — a literature 
 which has exercised such prodigious influence ovei 
 the minds of men, over every cast and shade of in- 
 tellect, as that which emanated from Rousseau be- 
 tween 1749 and 1762. It was the first attempt to 
 re-erect the edifice of human belief after the purely 
 iconoclastic efforts commenced by Bayle, and in part 
 by our own Locke, and consummated by Voltaire ; 
 and besides the superiority which every constructive 
 effort will always enjoy over one that is merely de- 
 structive, it possessed the immense advantage of ap- 
 pearing amid an all but universal scepticism as to 
 the soundness of all foregone knowledge in matters 
 speculative. Now, in all the speculations of Rous- 
 seau, the central figure, whether arrayed in an Eng- 
 lish dress as the signatary of a social compact, or 
 simply stripped naked of all historical qualities, is 
 uniformly Man, in a supposed state of nature. Every 
 law or institution which would misbeseem this 
 imaginary being under these ideal circumstances is 
 to be condemned as having lapsed from an original 
 perfection; every transformation of society which 
 would give it a closer resemblance to the world 
 over which the creature of Nature reigned, is ad 
 mirable and worthy to be effected at any apparent 
 cost. The theory is still that of the Roman laW' 
 
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CHAP. IV. THEOEIES OF EOTJSSEAU. 85 
 
 yers, for in the phantasmagoria with which the 
 Natural Condition is peopled, every feature and 
 characteristic eludes the mind except the simplicity 
 and harmony which possessed such charms for thi 
 jurisconsult ; hut the theory is, as it were, turned up. 
 side down. It is not the Law of Nature, but the 
 State of Nature, which is now the primary subject 
 of contemplation. The Eoman had conceived that 
 by careful observation of existing institutions parts 
 of them could be singled out which either exhibited 
 already, or could by judicious purification be made 
 to exhibit, the vestiges of that reign of nature whose 
 reality he faintly affirmed. Rousseau's belief was 
 that a perfect social order could be evolved from 
 the unassisted consideration of the natural state, a 
 social order wholly irrespective of the actual con- 
 dition of the world and wholly unlike it. The 
 great difference between the views is that one bit- 
 terly and broadly condemns the present for its un- 
 likeness to the ideal past ; while the other, assuming 
 the present to be as necessary as the past, does not 
 affect to disregard or censure it. It is not worth 
 our while to analyse with any particularity that 
 philosophy of politics, art, education, ethics, and 
 social relation which was constructed on the basis 
 of a state of nature. It still possesses singular fasci- 
 nation for the looser thinkers of every country, and 
 is no doubt the parent, more or less remote, of al- 
 most all the prepossessions which impede the em- 
 ployment of the Historical Method of inquiry, but 
 
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86 HISTORY OF LAW OF NATUKE. ohap. iv, 
 
 its discredit with the higher minds of oiir day is 
 deep enough to astonish those who are familiar with 
 the extraordinary vitality of speculative error. 
 Perhaps the question most frequently asked nowa 
 days is not what is the value of these opinions, but 
 what were the causes which gave them such over- 
 shadowing prominence a hundred years ago. The 
 answer is, I conceive, a simple one. The study 
 which in the last century would best have corrected 
 the misapprehensions into which an exclusive atten- 
 tion to legal antiquities is apt to betray was the 
 study of religion. But Greek religion, as then un- 
 derstood, was dissipated in imaginative myths. The 
 Oriental religions, if noticed at all, appeared to be 
 lost in vain cosmogonies. There was but one body 
 of primitive records which was worth studying — 
 the early history of the Jews. But resort to this 
 was prevented by the prejudices of the time. One 
 of the few characteristics which the school of Rous- 
 seau had in common with the school of Voltaire 
 was an utter disdain of all religious antiquities ; and, 
 more than all, of those of the Hebrew race. It is 
 well known that it was a point of honour with the 
 reasoners of that day to assume not merely that the 
 institutions called after Moses were not divinely dic- 
 tated, nor even that they were codified at a later 
 date than that attributed to them, but that they and 
 the entire Pentateuch were a gratuitous forgery, ex- 
 ecuted after the return from the Captivity. Debar- 
 red, therefore, from one chief security against specu 
 
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CHAP. IT. THEORIES OF EOUKSEATJ. 87 
 
 lative delusion, the philosophers of France, in theii 
 eagerness to escape from what they deemed a super 
 stitioh of the priests, flung themselves headlong into 
 a superstition of the lawyers. 
 
 But though the philosophy founded on the hypo- 
 thesis of a state of nature has fallen low in general 
 esteem, in so far as it is looked upon under its coarser 
 and more palpable aspect, it does not follow that in 
 its subtler disguises it has lost plausibility, popular- 
 ity, or power. I believe, as I have said, that it is 
 still the great antagonist of the Historical Method; 
 and whenever (religious objections apart) any mind 
 is seen to resist or contemn that mode of investiga- 
 tion, it will generally be found under the influence 
 of a prejudice or vicious bias traceable to a conscious 
 or unconscious reliance on a non-historic, natural, 
 condition of society or the individual. It is chiefly, 
 however, by allying themselves with political and 
 social tendencies that the doctrines of Nature and 
 her law have preserved their energy. Some of these 
 tendencies they have stimulated, others they have 
 actually created, to a great number they have given 
 expression and form. They visibly enter largely 
 into the ideas which constantly radiate from France 
 over the civilised world, and thus become part of the 
 general body of thought by which its civilisation is 
 modified. The value of the influence which they 
 thus exercise over the fortunes of the race is of 
 course one of the points which our age debates most 
 wai'mly, and it is beside the purpose of this treatise 
 
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88 HISTORY OF LAW OF NATURE. oitip. iv. 
 
 to discuss it. Looking back, however, to the period 
 at which the theory of the state of nature acquired 
 the maximum of political importance, there are few 
 who flill deny that it helped most powerfully to 
 bring about the grosser disappointments of which 
 the first French revolution was fertile. It gave Vjirth, 
 or intense stimulus, to the vices of mental habit all 
 but universal at the time, disdain of positive law, im- 
 patience of experience, and the preference of a pri- 
 ori to all other reasoning. In proportion too as this 
 philosophy fixes its grasp on minds which have 
 thought less than others and fortified themselves 
 with smaller observation, its tendency is to become 
 distinctly anarchical. It is surprising to note how 
 many of the SopMsmes Anarchiques which Dumont 
 published for Bentham, and which embody Ben- 
 tham's exposure of errors distinctively French, are 
 derived from the Koman hypothesis in its French 
 transformation, and are unintelligible unless referred 
 to it. On this point too it is a curious exercise to 
 consult the Monitew during the principal eras of 
 the Kevolution. The appeals to the Law and State 
 of Nature become thicker as the times grow darker. 
 There is a single example which very strikingly 
 illustrates the effects of the theory of natural law on 
 modern society, and indicates how very far are 
 those effects from being exhausted. There cannot, I 
 conceive, be any question, that to the assumption 
 of the Law Natural we owe the doctrine of the 
 fundamental equality of human, beings. That " all 
 
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CHAP. IV. EQUALITY OF MEN. 89 
 
 men are equal " is one of a large number of legal 
 provisions wMcli, in progress of time, have become 
 political. The Roman jurisconsults of the Anto- 
 nine era lay down that " omnes homines natur^ 
 sequales sunt," but in their e^'es this is a strictly ju- 
 ridical axiom. They intend to affirm that under 
 the hypothetical Law of Nature, and in so far as 
 positive law approximates to it, the arbitrary dis- 
 tinctions which the Roman Civil Law maintained 
 between classes of persons cease to have a legal ex- 
 istence. The rule was one of considerable impor- 
 tance to the Roman practitioner, who required to 
 be reminded that, wherever Roman jurisprudence 
 was assumed to conform itself exactly to the code 
 of Nature, there was no diiference in the contem- 
 plation of the Roman tribunals between citizen 
 and foreigner, between freeman and slave. Agnate 
 and Cognate. The jurisconsults who thus expressed 
 themselves most certainly never intended to censure 
 the social arrangements under which civil law fell 
 somewhat short of its speculative type ; nor did 
 they apparently believe that the world would ever 
 see human society completely assimilated to the 
 economy of nature. But when the doctrine of hu 
 man equality makes its appearance in a modern 
 dress it has evidently clothed itself with a new 
 shade of meaning. Where the Roman jurisconsult 
 had written " sequales sunt," meaning exactly what 
 he said, the modern civilian wrote " all men are 
 equal " in the sense of " all men ought to be equal.' 
 
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90 HISTORY OF LAW OF NATURE. oiiap. iv 
 
 The peculiar Eoman idea that natural law coexisted 
 with civil law and gradually absorbed it, had evident- 
 ly been lost sight of, or had become unintelligible, 
 and the words which had at most conveyed a theory 
 concerning the origin, composition and develop- 
 ment of human institutions, were beginning to ex- 
 press the sense of a great standing wrong suffered 
 by mankind. As early as the beginning of the 
 fourteenth century, the current language concerning 
 the birth-state of men, though visibly intended to 
 be identical with that of Ulpian and his contempo- 
 raries has assumed an altogether different form and 
 meaning. The preamble to the celebrated ordi- 
 nance of King Louis Hutin, enfranchising the serfs 
 of the royal domains, would have sounded strange- 
 ly to Eoman ears. " Whereas, according to natu- 
 ral law, everybody ought to be born free ; and by 
 some usages and customs which, from long antiqui- 
 ty, have been introduced and kept until now in our 
 realm, and peradventure by reason of the misdeeds 
 of their predecessors, many persons of our common 
 people have fallen into servitude, therefore, We," 
 -&c. This is the enunciation not of a legal rule but 
 of a political dogma ; and from this time the equali- 
 ty of men is spoken of by the French lawyers just 
 as if it were a political truth which happened tc 
 have been preserved among the archives of theii 
 science. Like all other deductions from the hy 
 pothesis of a Law Natural, and like the belief 
 itself in a Law of Nature, it was languidly as 
 
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OHAP. IV. DEOLAEATION 01 INDEPENDENCE. 91 
 
 sented to and suffered to have little influence on 
 opinion and practice until it passed out of the pos- 
 session of the lawyers into that of the literary men 
 of the eighteenth century and of the public which 
 sat at their feet. With them it became the most 
 distinct tenet of their creed, and was even regarded 
 as a summary of all the others. It is probable, 
 however, that the power which it ultimately ac- 
 quired over the events of 1*789 was not entirely 
 owing to its popularity in France, for in the middle 
 of the century it passed over to America. The 
 American lawyers of the time,, and particularly 
 those of Virginia, appear to have possessed a stock 
 of knowledge which differed chiefly from that of 
 their English contemporaries in including much 
 which could only have been derived from the legal 
 literature of continental Europe. A very few 
 glances at the writings of Jefferson will show how 
 strongly his mind was affected by the semi-juridical, 
 semi-popular opinions which were fashionable in 
 France, and we cannot doubt that it was sympathy 
 with the peculiar ideas of the French jurists which 
 led him and the other colonial lawyers who guided 
 the course of events in America to join the specially 
 French assumption that " all men are born equal " 
 with the assumption, more familiar to Englishmen, 
 that all men are born free, in the very first lines of 
 their Declaration of Independence. The passage 
 was one of great importance to the history of the 
 doctrine before us. The American lawyers, in thus 
 
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92 HISTORY OF LAW OF NATURE. chap, iv 
 
 prominently and empliatically affirming tlie funda 
 mental equality of human beings, gave an impuls-a 
 to political movements in their own country, and in 
 a less degree in Great Britain, which is far from 
 having yet spent itself; but beside this they re- 
 turned the dogma they had adopted to its home in 
 France, endowed with vastly greater energy and 
 enjoying much greater claims on general reception 
 and respect. Even the more cautious politicians 
 of the first Constituent Assembly repeated Ulpian's 
 proposition as if it at once commended itself to the 
 instincts and intuitions of mankind ; and of all the 
 " principles of 1789 " it is the one which has been 
 least strenuously assailed, which has most thor- 
 oughly leavened modern opinion, and which prom- 
 ises to modify most deeply the constitution of so- 
 cieties and the politics of states. 
 
 The grandest function of the Law of Nature was 
 discharged in gi'V'ing birth to modern International 
 Law and to the modein Law of War, but this part 
 of its effects must here be dismissed with considera- 
 tion very unequal to its importance. 
 
 Among the postulates which form the founda- 
 tion of International Law, or of so much of it as re- 
 tains the figure which it received from its original 
 architects, there are two or three of preeminent im- 
 portance. The first of all is expressed in the posi- 
 tion that there is a determinable Law of Nature. 
 Grotius and his successors took the assumption 
 directly from the Romans, but they diffcj'ed widely 
 
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CHAP. IT. INTERNATIONAL LAW. 9i 
 
 from the lloman jurisconsults and from each other 
 in their ideas as to the mode of determination. The 
 ambition of almost every Publicist who has flour- 
 ished since the revival of letters has been to provide 
 new and more manageable definitions of Natur 
 and of her law, and it is indisputable that the con- 
 ception in passing through the long series of writers 
 on Public Law has gathered round it a large accre- 
 tion, consisting of fragments of ideas derived from 
 nearly every theory of ethics w^hich has in its turn 
 taken possession of the schools. Yet it is a remark- 
 able proof of the essentially historical character 
 of the conception that, after all the efforts which 
 have been made to evolve the code of nature from 
 the necessary characteristics of the natural state, so 
 much of the result is just what it would have been 
 if men had been satisfied to adopt the dicta of the 
 Roman lawyers without questioning or reviewing 
 them. Setting aside the Conventional or Treaty 
 Law of Nations, it is surprising how large a part 
 of the system is made up of pure Roman law. 
 Wherever there is a doctrine of the jurisconsults 
 affirmed by them to be in harmony with the Jus 
 Gentium, the Publicists have found a reason for 
 borrowing it, however plainly it may bear the 
 marks of a distinctively Roman origin. We may 
 observe too that the derivative theories are afflicted 
 with the weakness of the primary notion. In the 
 majority of the Publicists, the mode of thought is 
 still " mixed." In studying these writers, the great 
 
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94 HISTORY OF LAW OF NATUBE. chap. it. 
 
 difficulty is always to discover whetlier tliej are 
 discussing law or morality — whether the state of 
 international relations they describe is actual or 
 ideal — whether they lay down that which is, or 
 that which, in their opinion, ought to be. 
 
 The assumption that Natural Law is binding on 
 states inter se is the next in rank of those which 
 underlie International Law. A series of assertions 
 or admissions of this principle may be traced up to 
 the very infancy of modern juridical science, and at 
 first sight it seems a direct inference from the teach- 
 ing of the Romans. The civil condition of society 
 being distinguished from the natural by the fact 
 that in the first there is a distinct author of law, 
 while in the last there is none, it appears as if the 
 moment a number of U7vits were acknowledged to 
 obey no common sovereign or political superior 
 they were thrown back on the ulterior behests of 
 the Law Natural. States are such units ; the hy- 
 pothesis of their independence excludes the notion 
 of a common lawgiver, and draws vsdth it, therefore, 
 according to a certain range of ideas, the notion of 
 subjection to the primeval order of nature. The 
 alternative is to consider independent communities 
 as not related to each other by any law, but this 
 condition of lawlessness is exactly the vacuum which 
 the Nature of the jurisconsults abhorred. There is 
 certainly apparent reason for thinking that if the 
 mind of a Roman lawyer rested on any sphere from 
 which civil law was banished, it would instantly fill 
 
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oiiAP. IV. INTKENATIONAL LAW. 95 
 
 the void witli tte ordinances of Nature. It is nevei 
 safe, however, to assume that conclusions, howevei 
 certain and immediate in our own eyes, were ac 
 tually drawn at any period of history. No passage 
 has ever been adduced from the remains of Roman 
 law which, in my judgment, proves the jurisconsults 
 to have believed natural law to have obligatory 
 force between independent commonwealths; and 
 we cannot but see that to citizens of the Roman 
 empire, who regarded their sovereign's dominions 
 as conterminous with civilization, the equal subjec- 
 tion of states to the Law of Nature, if contemplated 
 at all, must have seemed at most an extreme result 
 of curious speculation. The truth appears to be 
 that modern International Liaw, undoubted as is its 
 descent from Roman law, is only connected with it 
 by an irregular filiation. The early modern inter- 
 preters of the jurisprudence of Rome, misconceiving 
 the meaning of Jus Gentium, assumed without hesi 
 tation that the Romans had bequeathed to them a 
 system of rules for the adjustment of international 
 transactions. This " Law of Nations " was at first 
 an authority which had formidable competitors to 
 strive with, and the condition of Europe was long 
 such as to preclude its universal reception. Grad- 
 ually, however, the western world arranged itself 
 in a form more favourable to the theory of the 
 civilians ; circumstances destroyed the credit of 
 rival doctrines ; and at last, at a peculiarly felici- 
 tous conjuncture, Ayala and Grotius were able tu 
 
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86 HISTORY OF LAW OF NATURE. ohap. iv 
 
 olDtaiD for it the entliusiastic assent of Europe, an 
 assent wMcli lias been over and over again renewed 
 in every variety of solemn engagement. The great 
 men to whom its triamph is chiefly owing attempt- 
 ed, it need scarcely be said, to place it on an entire- 
 ly new basis, and it is unquestionable that in the 
 course of this displacement they altered much of its 
 structure, though far less of it than is commonly 
 supposed. Having adopted from the Antonine 
 jurisconsults the position that the Jus Gentium 
 and the Jus Naturae were identical, Grotius, with 
 his immediate predecessors and his immediate suc- 
 cessors, attributed to the Law of Nature an author- 
 ity which would never perhaps have been claimed 
 for it, if " Law of Nations " had not in that age 
 been an ambiguous expression. They laid down 
 unreservedly that Natural Law is the code of states, 
 and thus put in operation a process which has con- 
 tinued almost down to our own day, the process of 
 engrafting on the international system rules which 
 are supposed to have been evolved from the unas- 
 sisted contemplation of the conception of Nature. 
 There is too one consequence of immense practical 
 importance to mankind which, though not unknown 
 during the early modern history of Europe, was 
 never clearly or universally acknowledged till the 
 doctrines of the Grotian school had prevailed. If 
 the society of nations is governed by Natural Law, 
 the atoms which compose it must be absolutely 
 equal. Men under the sceptre of Nature are all 
 
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onAP. IT. INTERNATIONAL LAW. 9? 
 
 equal, and accordingly commonwealtlis are equal if 
 the international state be one of nature. The pro- 
 position that independent communities, however 
 different in size and power, are all equal in the 
 view of the law of nations, has largely contributed 
 to the happiness of mankind, though it is constantly 
 threatened by the political tendencies of each suc- 
 cessive age. It is a doctrine which probably would 
 never have obtained a secui'e footing at all if Inter- 
 national Law had not been entirely derived from 
 the majestic claims of Nature by the Publicists who 
 wrote after the revival of letters. 
 
 On the whole, however, it is astonishing, as 1 
 have observed before, how small a proportion the 
 additions made to International Law since Grotius's 
 day bear to the ingredients which have been simply 
 taken from the most ancient stratum of the Roman 
 Jus Gentium. Acquisition of territory has always 
 been the great spur of national ambition, and the 
 rules which govern this acquisition, together with 
 the rules which moderate the wars in which it too 
 frequently results, are merely transcribed from the 
 part of the Roman law which treats of the modes 
 of acquiring property jure gentium. These modes 
 of acquisition were obtained by the elder juriscon- 
 Bults, as I have attempted to explain, by abstract- 
 ing a common ingredient from the usages observed 
 to prevail among the various tribes surrounding 
 Rome ; and, having been classed on account of their 
 origin in the " law common to all nations," they 
 7 
 
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98 HISTORY OF LAW OF NATURE. cn/p. iv 
 
 were thought by the later lawyers to iit in, on the 
 score of their simplicity, with the more' recent con- 
 ception of a Law Natural. They thus made their 
 way into the modern Law of Nations, and the re- 
 sult is that those parts of the international system 
 ^vhich refer to dominion, its nature, its limitations, 
 the modes of acquiring and securing it, are pure 
 Roman Property Law — so much, that is to say, of 
 the Roman Law of Property as the Antonine juris- 
 consults imagined to exhibit a certain congruity 
 with the natural state. In order that these chap- 
 ters of International Law may be capable of appli* 
 cation, it is necessary that sovereigns should be re- 
 lated to each other like the members of a group of 
 Roman proprietors. This is another of the postu- 
 lates which lie at the threshold of the International 
 Code, and it is also one which could not possibly 
 have been subscribed to during the first centuries 
 of modern European history. It is resolvable int( 
 the double proposition that " sovereignty is terri 
 torial," i. e. that it is always associated with the 
 proprietorship of a limited portion of the earth's 
 surface, and that " sovereigns intei- se are to be 
 deemed not paramount, but absolute owners of the 
 state's territory. 
 
 Many contemporary writers on Internationl Law 
 tacitly assume that the doctrines of their system, 
 founded on principles of equity and common sense, 
 were capable of being readily reasoned out in every 
 stage of modern civilisation. But this assumption, 
 
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CHAP. IT. IISrTEENATIONAL LAW. 99 
 
 while it conceals some real defects of the inter- 
 national theoiy, is altogether untenable so far aa 
 regards a large part of modern history. It is not 
 true that the authority of the Jus Gentium in the 
 concerns of nations was always uncontradicted ; on 
 the contrary, it had to struggle long against the 
 claims of several competing systems. It is again 
 not true that the territorial character of sovereignty 
 was always recognised, for long after the dissolution 
 of the Roman dominion the minds of men were 
 under the empire of ideas irreconcileable with such 
 a conception. An old order of things, and of views 
 founded on it, had to decay — a new Europe, and 
 an apparatus of new notions congenial to it, had to 
 spring up — before two of the chiefest postulates 
 of International Law could be universally con- 
 ceded. 
 
 It is a consideration well worthy to be kept in 
 view, that during a large part of what we usually 
 term modern history no such conception was enter- 
 tained as that of " territorial sovereignty!''' Sove- 
 i-eignty was not associated with dominion over a 
 portion or subdivision of the earth. The world had 
 lain for so many centuries under the shadow of 
 Imperial Rome as to have forgotten that distribu' 
 tion of the vast spaces comprised in the empire 
 which had once parcelled them out into a number 
 of independent commonwealths, claiming immunity 
 from extrinsic interference, and pretending to equal- 
 ity of national rights. After the subsidence of the 
 
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100 EISTOET OF LAW OF NATUEE. chap, iv, 
 
 barbarian irraptions, the notion of sovereigntj' that 
 prevailed seems to have been twofold. On the ona 
 hand it assumed the form of what may be called 
 " ^r«5e-sovereignty." The Franks, the Burgundians, 
 the Vandals, the Lombards, and Visigoths were 
 masters, of course, of the territories which they 
 occupied, and to which some of them had given a 
 geographical appellation ; but they based no claim 
 of right upon the fact of territorial possession, and 
 indeed attached no importance to it whatever. 
 They appear to have retained the traditions which 
 they brought with them from the forest and the 
 steppe, and to have still been in their own view a 
 patriarchal society, a nomad horde, merely encamp- 
 ed for the time upon the soil which afforded them 
 sustenance. Part of Transalpine Gaul, with part of 
 Germany, had now become the country de facto oc- 
 cupied by the Franks — it was France ; but the Mero- 
 vingian line of chieftains, the descendants of Clovis, 
 were not Kings of France, they were Kings of the 
 Franks. Territoi'ial titles were not unknown, but 
 they seem at first to have come into use only as a 
 convenient mode of designating the ruler of & por- 
 tion of the tribe's possessions ; the king of a whole 
 tribe was king of his people, not of his people's 
 lands. The alternative to this peculiar notion of 
 sovereignty appears to have been — and this is the 
 important point — the idea of universal dominion. 
 "When a monarch departed from the special relation 
 of chief to clansmen, and became solicitous, for j^ur- 
 
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cop1^> 
 
 OHAP. IV. TERRITOEIAL SOVEREIGNTY. 
 
 poses of bis own, to invest himself with a nove] ^y 
 form of sovereignty, the precedent which suggested 
 itself for his adoption was the domination of the 
 Emperors of Rome. To parody a common quota- 
 tion, he became " aut Ccesar aut nulkisy Either he 
 pretended to the full prerogative of the Byzantine 
 Emperor, or he had no political status. In our own 
 age, when a new dynasty is desirous of obliterating 
 the prescriptive title of a deposed line of sovereigns, 
 it takes its designation from the people^ instead of 
 the territoi^y. Thus we have Emperors and Kings of 
 the French, and a King of the Belgians. At the pe- 
 riod of which we have been speaking, under similar 
 circumstances, a different alternative presented itself. 
 The chieftain who would no longer call himself 
 King of the tribe must claim to be Emperor of the 
 world. Thus, when the hereditary Mayors of the 
 Palace had ceased to compromise with the mon- 
 archs they had long since virtually dethroned, they 
 soon became unwilling to call themselves merely 
 Kings of the Franks, a title which belonged to the 
 displaced Merovings ; but they could not style 
 themselves Kings of France, for such a designation, 
 though apparently not unknown, was not a title 
 of dignity. Accordingly they came forward as 
 aspirants to universal empire. Their motive has 
 been greatly misapprehended. It has been taken 
 for granted by recent French writers that Charle- 
 magne was far before his age, quite as much in the 
 character of his designs . as in the energy with 
 
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 .^■^ 
 
103 HISTORY OF LAW OF NATURE. chap, r? 
 
 wliich he prosecuted them. "Whether it be true oi 
 not that anybody is at any time -before his age, it 
 is certainly true that Charlemagne, in aiming at an 
 unlimited dominion, was emphatically taking the 
 only course which the characteristic idea of his age 
 permitted him to follow. Of his intellectual emi- 
 nence there cannot be a question, but it is proved 
 by his acts and not by his theory. 
 
 The speculative universality of sovereignty 
 long continued to be associated with the Imperial 
 throne, and indeed was never thoroughly disso- 
 ciated from it so long as the empire of Germany 
 lasted. Territorial sovereignty — the view which 
 connects sovereignty with the possession of a lim- 
 ited portion of the earth's surface — was distinctly 
 an offshoot, though a tardy one, of feudalism. 
 This might have been expected a priori, for it was 
 feudalism which for the first time linked personal 
 duties, and by consequence personal rights, to the 
 ownership of land. Whatever be the proper view 
 of its origin and legal nature, the best mode of 
 vividly picturing to ourselves the feudal organisa- 
 tion is to begin with the basis ; to consider the 
 relation of the tenant to the patch of soil which 
 created and limited his services — and then to 
 mount up, through narrowing circles of super- 
 feudation, till we approximate to the apex of the 
 system. Where that summit exactly was during 
 the later portion of the dark ages it is not easy to 
 decide. Probably, wherever the conception of tribe 
 sovereignty has really decayed, the topmost point 
 
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CHAP. IV. TERRITORIAL SOVEREIGNTY. lOS 
 
 was always assigned to the supposed successor of 
 the Caesars of the West. But before long, when 
 the actual spliere of imperial authority had im- 
 mensely contracted, and when the emperors had 
 concentrated the scanty remains of their power 
 upon G-ermany and North Italy, the highest feudal 
 superiors in all the outlying portions of the former 
 Cai'lovingian empire found themselves practically 
 without a supreme head. Gradually they habit- 
 uated themselves to the new situation, and the fact 
 of immunity put at last out of sight the theory of 
 dependence ; but there are many symptoms that 
 this change was not quite easily accomplished ; 
 and, indeed, to the impression that in the nature 
 of things there must necessarily be a culminating 
 domination somewhere, we may, no doubt, refer 
 the increasing tendency to attribute secular supe- 
 riority to the See of Rome. The completion of the 
 first stage in the revolution of opinion is marked, 
 of course, by the accession of the Capetian dynasty 
 in France. Before that epoch arrived, several of 
 the holders of the great teri'itorial fiefs into which 
 the Carlovingian empire was now split up, had 
 begun to call themselves Kings, instead of Dukes 
 or- Counts ; but the important change occurred 
 when the feudal prince of a limited territory sui'- 
 rounding Paris, usurped from the earlier house 
 their dynastic title. Kings of the French. Ungues 
 Capet and his descendants were kings in quite a 
 new sense, sovereigns standing in the same relation 
 to the soil of Fj'ance as the baron to his estate, the 
 
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104 HISTORY OF LAW OF NATURE. chap, rv 
 
 tenant to his freehold ; and the old tribal appella- 
 tion, though long retained in the official Latin 
 style of the reigning house, passed rapidly, in the 
 vernacular, into Kings of France. The form of 
 the monarchy in France had visible effects in has 
 tening changes which were elsewhere proceeding 
 in the same direction. The kingship of our Anglo 
 Saxon regal houses was midway between the chief- 
 tainship of a tribe and a territorial supremacy ; 
 but the superiority of the Norman monarchs, imi- 
 tated from that of the King of France, was dis- 
 tinctly a territorial sovereignty. Every subsequent 
 dominion which was established or consolidated 
 was formed on the latter model. Spain, Naples, 
 and the principalities founded on the ruins of 
 municipal freedom in Italy, were all under rulers 
 whose sovereignty was ten-itorial. Few things, I 
 may add, are more curious than the gradual lapse 
 of the Venetians from one view to the other. At 
 the commencement of its foreign conquests, the re- 
 public regarded itself as an antitype of the Roman 
 commonwealth, governing a number of subject 
 provinces. Move a century onwards, and you find 
 that it wishes to be looked upon as a corporate 
 sovereign, claiming the rights of a feudal suzerain 
 over its possessions in Italy and the jdEgean. 
 
 During the period through vs'hich the popular 
 ideas on the subject of sovereignty were under- 
 going this remarkable change, the system which 
 stood in the place of what we now call Interna- 
 tional Law was heterogeneous in form and incon- 
 
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CHAP. IV. INTERNATIONAL LAW. 105 
 
 sistent in ■ the principles to which it appealed. 
 Over so much of Europe as was comprised in the 
 Romano-German empire, the connection of the con- 
 federate states was regulated by the complex and 
 as yet incomplete mechanism of the Imperial con 
 stitution; and, surprising as it may seem to us, it 
 was a favorite notion of German lawyers that the 
 relations of commonwealths, whether inside or out- 
 side the empire, ought to be regulated not by the 
 Ju8 Gentium,^ but by the pure Roman jurispru- 
 dence, of which Csesar was still the centre. This 
 doctrine was less confidently repudiated in the 
 outlying countries than we might have supposed 
 antecedently ; but substantially, through the rest 
 of Europe feudal subordinations furnished a sub- 
 stitute for a public law; and when those were 
 undetermined or ambiguous, there lay behind, in 
 theory at least, a supreme regulating force in the 
 authority of the head of the Church. It is certain, 
 however, that both feudal and ecclesiastical influ- 
 ences were rapidly decaying during the fifteenth, 
 and even the fourteenth century ; and if we closely 
 examine the current pretexts of wars, and the 
 avowed motives of alliances, it will be seen that, 
 step by step with the displacement of the old prin- 
 ciples, the views afterwards harmonized and con- 
 solidated by Ayala and Grotius were making con- 
 siderable progress, though it was silent and but 
 slow. "Whether the fusion of all the sources of 
 authority would ultimately have evolved a system 
 of international relations, and whether that system 
 
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106 HISTORY OV LAW OF NATURE. chap, it, 
 
 would have exhibited material difEerences from the 
 fabric of Grotius, is not now possible to decide, for 
 as a matter of fact the Reformation annihilated all 
 its potential elements except one. Beginning in 
 Germany, it divided the princes of the empire b} 
 a gulf too broad to be bridged over by the Imperial 
 supremacy, even if the Imperial superior had stood 
 neirtral. He, however, was forced to take colour 
 with the church against the reformers; the Pope 
 was, as a matter of course, in the same predica- 
 ment ; and thus the two authorities to whom be- 
 longed the office of mediation between combatants 
 became themselves the chiefs of one great fac- 
 tion in the schism of the nations. Feudalism, 
 already enfeebled and discredited as a principle 
 of public relations, furnished no bond whatever 
 which was stable enough to countervail the alli- 
 ances of religion. In a condition, therefore, of 
 public law which was little less than chaotic, those 
 views of a state system to which the Roman juris- 
 consults were supposed to have given their sanction 
 alone remained standing. The shape, the symme- 
 try, and the prominence which they assumed in the 
 hands of Grotius are known to every educated 
 man ; but the great marvel of the Treatise " De 
 Jure Belli et Pacis," was its rapid, complete, and 
 universal success. The horrors of the Thirty Years' 
 War, the boundless terror and pity which the un- 
 bridled license of the soldiery was exciting, must, 
 no doubt, be taken to explain that success in some 
 measure, but they do not. wholly account for it. 
 
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CHAP. IT. GROTIUS. 107 
 
 Very little penetration into the ideas of that age 
 is required to convince one that, if the ground plan 
 of the international edifice which was sketched in 
 the great book of Grotius had not appeared to 
 be theoretically perfect, it would have been dis- 
 carded by jurists and neglected by statesmen and 
 soldiers. 
 
 It is obvious that the sj)eculative perfection of 
 the Grotian system is intimately connected with 
 that conception of territorial sovereignty which we 
 have been discussing. The theory of International 
 Law assumes that commonwealths are, relatively 
 to each other, in a state of nature ; but the compo- 
 nent atoms of a natural society must, by the fun- 
 damental assumption, be insulated and independent 
 of each other. If there be a higher power con- 
 necting them, however slightly and occasionally, 
 by the claim of common supremacy, the very con- 
 ception of a common superior introduces the notion 
 of positive law and excludes the idea of a law 
 natural. It follows, therefore, that if the universal 
 suzerainty of an Imperial head had been admitted 
 even in bare theory, the labours of Grotius would 
 have been idle. Nor is this the only point of 
 junction between modern public law and those 
 views of sovereignty of which I have endeavored 
 to describe the development. I have said that 
 there are entire departments of international juris 
 prudence which consist of the Roman Law of Prop- 
 erty. What then is the inference ? It is, that if 
 there had been no such change as I have described 
 
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108 HISTOEY OF LAW OF NATURE. chap, iv 
 
 in the estimate of sovereignty — if sovereignty had 
 not been associated mth the proprietorship of a 
 limited portion of the earth, had not, in other 
 words, become territorial — three parts of the Gro- 
 tian theory would have been incapable of a.ppli 
 cation. 
 
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CHAPTER V. 
 
 TBIMITIVE SOGIMTT AND ANCIENT LAW. 
 
 TttE necessity of submitting the s.ubject of jurispru- 
 dence to scientific treatment has never been entirely 
 lost sight of in modern times, and the essays which 
 the consciousness of this necessity has produced have 
 pi'oceeded from minds of very various calibre, but 
 there is not much presumption, I think, in asserting 
 that what has hitherto stood in the place of a sci- 
 ence has for the most part been a set of guesses, 
 those very guesses of the Roman lawyers which were 
 examined in the two preceding chapters. A series 
 of explicit statements, recognising and adopting these 
 conjectural theories of a natural state, and of a sys- 
 tem of principles congenial to it, has been continued 
 with but brief interruption from the days of their 
 inventors to our own. They appear in the annota- 
 tions of the Grlossators who founded modern juris- 
 prudence, and in the writings of the scholastic jurists 
 who succeeded them. They are visible ia the dog- 
 mas of the canonists. They are thrust into promi 
 
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no PRIMITIVE SOCIETY AND ANCIENT LAW. chap, t 
 
 nence by those civilians of marvellous erudition, whc 
 flourished at the revival of ancient letters. Grotius 
 and his successors invested them not less with bril- 
 .liancy and plausibility than with practical import- 
 ance. They may be read in the introductory chap- 
 ters of our own Blackstone, who has transcribed 
 them textually from Burlaraaqui, and wherever the 
 manuals published in the present day for the guid- 
 ance of the student or the practitioner begin with 
 any discussion of the first principles of law, it al- 
 ways resolves itself into a restatement of the Roman 
 hypothesis. It is however from the disguises with 
 which these conjectures sometimes clothe them- 
 selves, quite as much as from their native form, 
 that we gain an adequate idea of the subtlety with 
 which they mix themselves in human thought. The 
 Lockeian theory of the origin of Law in a Social 
 Compact scarcely conceals its Roman derivation, 
 and indeed is only the dress by which the ancient 
 views M'ere rendered more attractive to a particular 
 generation of the moderns ; but on the other hand 
 the theory of Hobbes on the same subject was pur- 
 posely devised to repudiate the reality of a law of 
 nature as conceived by the Romans and their disci- 
 l)les. Yet these two theories, which long divided 
 the reflecting politicians of England into hostile 
 camps, resemble each other strictly in their funda 
 mental assumption of a non-historic, unverifiable, 
 condition of the race. Their authors differed as to 
 the characteristics of the prae-social state, and as to 
 
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CHAP. V. MONTESQUIEU. 11] 
 
 the nat-Lii'e of the abnormal action by which men 
 lifted themselves out of it into that social organisa- 
 tion with which alone we are acquainted, but they 
 agreed in thinking that a great chasm separated 
 man in his primitive condition from man in society 
 and this notion we cannot doubt that they borrowed, 
 consciously or unconsciously, from the Romans. If 
 indeed the phenomena of law be regarded in the way 
 in which these theorists regarded them — that is, as 
 one vast complex whole — it is not surprising that 
 the mind should often evade the task it has set to 
 itself by falling back on some ingenious conjecture 
 which (plausibly interpreted) will seem to reconcile 
 everything, or else that it should sometimes abjure 
 in despair the labour of systematization. 
 
 From the theories of jurisprudence which have 
 the same speculative basis as the Roman doctrine 
 two of much celebrity must be excepted. The first 
 of them is that associated with the great name of 
 Montesquieu. Though there are some ambiguous 
 expressions in the early part of the Esprit des Lois, 
 which seem to show its writer's unwillingness to 
 break quite openly with the views hitherto popu- 
 lar, the general drift of the book is certainly to in- 
 dicate a very different conception of its subject from 
 any which had been entertained before. It has often 
 been noticed that, amidst the vast va,riety of exam- 
 ples which, in its immense width of survey, it 
 sweeps together from supposed systems of jurispru- 
 dence, there is an evident anxiety to thnist intc 
 
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112 PjimiTIVE SOCIETY AND ANCIENT LAW. chap, t 
 
 especial prominence tliose manners and institutions 
 whicli astonisL. the civilized reader by their uncouth 
 ness, strangeness, or indecency. The inference con- 
 stantly suggested is, that laws are the creatures of 
 climate, local situation, accident, or imposture — the 
 fruit of any causes except those which appear to 
 operate with tolerable constancy. Montesquieu 
 seems, in fact, to have looked on the nature of man 
 as entirely plastic, as passively reproducing the im- 
 pressions, and submitting implicitly to the impulses, 
 which it receives from without. And here no 
 doubt lies the error which vitiates his system as a 
 system. He greatly underrates the stability of hu- 
 man nature. He pays little or no regard to the 
 inherited qualities of the race, those qualities which 
 each generation receives from its predecessors, and 
 transmits but slightly altered to the generation 
 which follows it. It is quite true, indeed, that no 
 complete account can be given of social phenomena, 
 and consequently of laws, till due allowance has 
 been made for those modifying causes which are no- 
 ticed in the Esprit des Lois ; but their number and 
 their force appear to have been overestimated by 
 Montesquieu. Many of the anomalies which he 
 parades have since been shown to rest on false re- 
 ports or erroneous construction, and of those which 
 remain not a few prove the permanence rather than 
 the variableness of man's nature, since they are 
 relics of older stages of the race which have obsti- 
 nately defied the influences that have elsewhere had 
 
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OHA.P. V. MONTESQUIEU AND BENTHAM. 118 
 
 effect. The truth is that the stable part of our 
 mental, moral, and physical constitution is the 
 largest part of it, and the resistance it opposes to 
 change is such that, though the variations of human 
 society in a portion of the world are plain enough, 
 they are neither so rapid nor so extensive that their 
 amount, character, and general direction cannot be 
 ascertained. Approximation to truth may be all 
 that is attainable with our present knowledge, but 
 there is no reason for thinking that this is so re- 
 mote, or (what is the same thing) that it requires 
 so much future correction, as to be entirely useless 
 and uninstructive. 
 
 The other theory which has been adverted to is, 
 the historical theory of Bentham. This theory 
 which is obscurely (and, it might even be said, 
 timidly) propounded in several parts of Bentham's 
 works is quite distinct from that analysis of the con- 
 ception of law which he commenced in the " Frag- 
 ment on Government," and which was more recently 
 completed by Mr. John Austin. The resolution of 
 a law into a command of a particular nature, im- 
 posed under special conditions, does not affect to 
 do more than protect us against a difficulty — a most 
 formidable one certainly — of language. The whole 
 ^[uestion remains open as to the motives of societies 
 in imposing these commands on themselves, as to 
 '"jhe connexion of these commands with each other. 
 and the nature of their dependence on those which 
 ])receded them, and which they have superseded 
 8 
 
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114 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. v 
 
 Beiitham suggests the answer ttat societies modify 
 and have always modified, their laws according to 
 modifications of their views of general expediency. 
 It is difficult to say that this proposition is false, 
 but it certainly appears to be unfruitful. For that 
 which seems expedient to a society, or rather to the 
 governing part of it, when it alters a rule of law is 
 surely the~ same thing as the object, whatever it 
 may be, which it has in view when it makes the 
 change. Expediency and the greatest good are 
 nothing more than different names for the impulse 
 which prompts the modification ; and when we lay 
 down expediency as the rule of change in law or 
 opinion, all we get by the proposition is the substi- 
 tution of an express term for a term which is neces- 
 sarily implied when we say that a change takes 
 place. 
 
 ■ There is such wide-spread dissatisfaction with 
 existing theories of jurisprudence, and so general a 
 conviction that they do not really solve the ques- 
 tions they pretend to dispose of, as to justify the 
 suspicion that some line of inquiry, necessary to a 
 perfect result, has been incompletely followed or 
 altogether omitted by their authors. • And indeed 
 there is one remarkable omission Avith which all 
 these speculations are chargeable, except perhaps 
 those of Montesquieu. ■ They take no account of 
 what law has actually been at epochs remote from 
 the particular period at which they made theii- ap- 
 pearance. Their originator carefuJy observed the 
 
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oiiAP. T. PROPER MODE OF INQUIRY. 115 
 
 institutions of tlieir own age and civilisation, and 
 tliose of other ages and civilisations with which they 
 had some -degree of intellectual sympathy, but, 
 when they turned their attention to archaic states 
 of society which exhibited much superficial differ- 
 ence from their own, they uniformly ceased to ob- 
 serve and began guessing. . The mistake which 
 they committed is therefore analogous to the error 
 of one who, in investigating the laws of the ma- 
 terial universe, should commence by contemplating 
 the existing physical world as a whole, instead of 
 beginning with the pai'ticles which are its simplest 
 ingredients. One does not certainly see why such 
 a scientific solecism should be more defensible in 
 jurisprudence than in any other region of thought. 
 It would seem antecedently that we ought to com- 
 mence with the simplest social forms in a state as 
 near as possible to their rudimentary condition. In 
 other words, if we followed the course usual in such 
 inquiries, we should penetrate as far up as we could 
 in the history of primitive societies. The phe- 
 nomena which early societies present us with are 
 not easy at first to understand, but the difficulty of 
 grappling with them bears no proportion to th(» 
 perplexities which beset us in considering the baf 
 fling entanglement of modern social organisation., 
 It is a difficulty arising from their strangeness and: 
 uncouthness, not from their number and complex- 
 ity. One does not readily get over the surprise 
 which they occasion when looked at from a modern. 
 
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116 PEIMITIVE SOCIETY AND ANCIENT LAW. chap, t 
 
 point of view ; but wien tliat is surmounted they 
 are few enough and simple enough. But, even if 
 they gave more trouble than they do, no pains 
 would be wasted in ascertaining the germs out of 
 which has assuredly been unfolded every form of 
 moral restraint which controls our actions and 
 shapes our conduct at the present moment. 
 
 The rudiments of the social state, so far as they 
 are known to us at all, are known through testi 
 mony of three sorts — accounts by contemporary 
 observers of civilisation less advanced than their 
 own, the records which particular races have pre- 
 served concerning their primitive history, and an- 
 cient law. The first kind of evidence is the best 
 we could have expected. As societies do not ad- 
 vance concurrently, but at different rates of prog- 
 ress, there have been epochs at Avhich men trained 
 to habits of methodical observation have reallj" been 
 in a position to watch and describe the infancy of 
 mankind. Tacitus made the most of such an op- 
 portunity ; but the Germany, unlike most cele- 
 brated classical books, has not induced others to 
 follow the excellent example set by its author, and 
 the amount of this sort of testimony which we pos- 
 sess is exceedingly small. The lofty contempt 
 which a civilised people entertains for barbarous 
 neighbours has caused a remarkable negligence in 
 observing them, and this carelessness has been ag- 
 gravated at times by fear, by religious prejudice, 
 and even by the use of these very terms — civilisa- 
 
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CHAP. V. THE GERMANY OF TACITUS. 117 
 
 tion and barLarism — wMcli convey to most persona 
 the impression of a difference not merely in degree 
 but in kind. Even the Germany lias been suspect- 
 ed by some critics of sacrificing fidelity to poig- 
 nancy of contrast and picturesqueness of narrative 
 Other histories too, which have been handed down 
 to US among the archives of the people to whose in- 
 fancy they relate, have been thought distorted by 
 the pride of race or by the religious sentiment of a 
 newer age. It is important then to observe that 
 these suspicions, whether groundless or rational, do 
 not attach to a great deal of archaic law. Much of 
 the old law which has descended to us was pre- 
 served merely because it was old. Those who 
 practised and obeyed it did not pretend to under- 
 stand it ; and in some cases they even ridiculed" and 
 despised it. They offered no account of it except 
 that it had come down to them from their ances- 
 tors. If we confine our attention, then, to those 
 fragments of ancient institutions which cannot rea- 
 sonably be supposed to have been tampered with, 
 we are able to gain a clear conception of certain 
 great characteristics of the society to which they 
 originally belonged. Advancing a step further, we 
 can apply our knowledge to systems of law which, 
 like the Code of Menu, are as a whole of suspicious 
 authenticity ; and, using the key we have obtained, 
 we are in a position to discriminate those portions 
 of them which are truly archaic from those which 
 have been affected by the prejudices, interests, or 
 
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118 PRIMITIVE SOCIETY AND AKOIEXT LAW. chap. v. 
 
 ignoi'ance of the compiler. It will at least be ac 
 knowledged that, if the materials for this j^rocess 
 are sufficient, and if the comparisons be accurately 
 executed, the methods followed are as little objec- 
 tionable as those which have led to such sui-prising 
 results in comparative philology. 
 
 The effect of the evidence derived from com- 
 parative jurisprudence is to establish that view of 
 the primeval condition of the human race which is 
 known as the Patriarchal Theory. There is no 
 doubt, of course, that this theory was originally 
 based on the Scriptural history of the Hebrew 
 patriarchs in Lower Asia ; but, as has been ex- 
 plained already, its connexion with Scripture rather 
 militated than otherwise against its reception as a 
 complete theory, since the majority of the inquirers 
 who till recently addressed themselves with most 
 earnestness to the colligation of social johenomena, 
 were either influenced by the strongest prejudice 
 against Hebrew antiquities or by the strongest de- 
 sire to construct their system without the assist- 
 ance of religious records. Even now there is per- 
 haps a disposition to undervalue these accounts, or 
 rather to decline generalising from them, as forming 
 part of the traditions of a Semitic people. It is to 
 be noted, however, that the legal testimony comes 
 nearly exclusively from the institutions of societies 
 belonging to the Indo-European stock, the Eomans, 
 Hindoos, and Sclavonians, supplying the greater 
 part of it ; and indeed the difficulty, at the present 
 
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oiiAP. y. SCRIPTURAL ACCOUNTS. 119 
 
 stage of tlie inquiry, is to know where to stop, to 
 saj of what races of men it is not allowable to lay 
 down that the society in which they are united was 
 originally organised on the patriarchal model. The 
 chief lineaments of such a society, as collected from 
 the early chapters in Genesis, I need not attempt to 
 depict with any minuteness, both because they are 
 familiar to most of us from our earliest childhood, 
 and because, from the interest once attaching to the 
 controversy which takes its name from the debate 
 between Locke and Filmer, they fill a whole chap- 
 ter, though not a very profitable one, in English 
 literature. The points which lie on the surface 
 of the history are these : — -The eldest male parent 
 ■ — the eldest ascendant — ^is absolutely supreme in 
 his household. His dominion extends to life and 
 death, and is as unqualified over his children and 
 their houses as over his slaves ; indeed the relations 
 of sonship and serfdom appear to dififer in little be- 
 yond the higher capacity which the child in blood 
 possesses of becoming one day the head of a family 
 himself The flocks and herds of the children are 
 the flocks and herds of the father, and the posses- 
 sions of the parent, which he holds in a representa- 
 tive lather than in a proprietary- character, are 
 equally divided at his death among his descendants 
 in the first degree, the eldest son sometimes receiv- 
 ing a double share under the name of birthright, 
 but more generally endowed with no hereditary ad- 
 vantage beyond an honorary precedence. A less 
 
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120 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. 
 
 dbvious inference from tlie Scriptural accounts ia 
 that they seem to plant us on the traces of the 
 breach which is first effected in the empire of the 
 parent. The families of Jacob and Esau separate 
 and form two nations ; but the families of Jacob's 
 children hold together and beccJme a people. This 
 looks like the immature germ of a state or common- 
 wealth, and of an order of rights superior to the 
 claims of family relation. 
 
 If I were attempting, for the more special pur- 
 poses of the jurist, to express compendiously the 
 characteristics of the situation in which mankind 
 disclose themselves at the dawn of their history, I 
 should be satisfied to quote a few verses from the 
 Odyssee of Homer : 
 
 roiCTiv d* oijT dyopai jSouXT/^opot ovre ^efitfTTes. 
 Traidav rjd" dXo^oyv ovd* dWrjXaiV oKeyovaiv, 
 
 " They have neither assemblies for consultation nor 
 themistes, but every one exercises jurisdiction over 
 his wives and his children, and they pay no regard 
 to one another." These lines are applied to the 
 Cyclops, and it may not perhaps be an altogether 
 fanciful idea when I suggest that the Cyclops is 
 Homer's type of an alien and less advanced civilisa- 
 tion ; for the almost physical loathing which a 
 primitive community feels for men of widely differ- 
 ent manners from its own usually expresses itself 
 by describing them as monsters, such as giants, oi 
 
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CHAP. V. PRIMITIVE SOCIETY. 121 
 
 even (which is almost ahvays the case in Oriental 
 mythology) as demons. However that may be, the 
 verses condense in themselves the sum of the hints 
 which are given us by legal antiquities. Men are 
 first seen distributed in perfectly insulated groups 
 held together by obedience to the parent. Law ia 
 the parent's word, but it is not, yet in the condition 
 of those tliemistes which were analysed in the first 
 chapter of this work. When we go forward to the 
 state of society in which these early legal concep- 
 tions show themselves as formed, we find that they 
 still partake of the mystery and spontaneity which 
 miTst have seemed to characterise a despotic father's 
 commands, but that at the same time, inasmuch as 
 they proceed from a sovereign, they presuppose a 
 union of family groups in some wider organisation. 
 The next question is, what is the nature of this 
 union and the degree of intimacy which it involves ? 
 It is just here that archaic law renders us one of 
 the greatest of its services and fills up a gap which 
 otherwise could only have been bridged by conjee- 
 tui'e. It is full, in all its provinces, of the clearest 
 indicatioiiS that society in primitive times was not 
 what it is assumed to be at present, a collection of 
 individuals. In fact, and in the view of the men 
 who composed it, it was an aggregation of families 
 The contrast may be most forcibly expressed by 
 saying that the U7iit of an ancient society was the 
 Family, of a modern society the Individual. We 
 Diust be prepared to find in ancient law all the con- 
 
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122 PIUMITIVE SOCIETY AND AKCIENT LAW. chap, t 
 
 secjuenees of this difference. It is so framed as to 
 be adjusted to a system of small independent cor- 
 porations. It is therefore scanty, because it is sup- 
 I)lemented by the despotic commands of the heads 
 of households. It is ceremonious, because the 
 transactions to which it pays regard resemble inter 
 national concerns much more than the quick play 
 of intercourse between individuals. Above all it 
 has a peculiarity of which the fall importance can- 
 not be shown at present. It takes a view of life 
 \vholly unlike any which appears in developed 
 jurisprudence. Corporations never die, and accord- 
 ingly primitive law considers the entities with 
 which it deals, i. e. the patriarchal or family groups, 
 as perpetual and inextinguishable. This view is 
 closely allied to the peculiar aspect under which, in 
 very ancient times, moral attributes present them- 
 selves. The moral elevation and moral debasement 
 of tlie individual appear to be confounded with, or 
 postponed to, the merits and offences of the group 
 to which the individual belongs. If the community 
 sins, its guilt is much more than the sum of the 
 offences committed by its members ; the crime is 
 a corporate act, and extends in its consequences to 
 many more persons than have shared in its actual 
 ])erpetration. If, on the other hand, the individual 
 i> conspicuously guilty, it is his children, his kins- 
 folk, his tribesmen, or his fellow-citizens, who suffer 
 with him, and sometimes for him. It thus happens 
 jhat the ideas of moral responsibility and retribu- 
 
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onAP. V. PRIMITIVE SOCIETY AND ANCIENT LAW. 123 
 
 tion often seem to "be more clearly realised at very 
 ancient than at more advanced periods, for, as the 
 family group is immortal, and its liability to pun- 
 ishment indefinite, the primitive mind is not per- 
 plexed by the questions vs^hich become troublesome 
 as soon as the individual is conceived as altogether 
 separate from the group. One step in the transition 
 from the ancient and simple view of the matter to 
 the theological or metaphysical explanation of later 
 days is marked by the early Greek notion of an in- 
 herited curse. The bequest received by- his pos- 
 terity from the original criminal was not a liability 
 to punishment, but a liability to the commission of 
 fresh offences which drew with them a condign 
 retribution ; and thus the responsibility of the 
 family was reconciled with the newer phase of 
 thought which limited the consequences of crime to 
 the person of the actual delinquent. 
 
 It would be a very simple explanation of the 
 origin of society if we could base a general conclu- 
 sion on the hint furnished us by the Scriptural ex- 
 ample already adverted to, and could suppose that 
 communities began to exist wherever a family held 
 together instead of separating at the death of its 
 patriarchal chieftain. • In most of the Greek states 
 and in Rome there long remained the vestiges of an 
 ascending series of groups out of which the State 
 was at first constituted. The Family, House, and 
 Tribe of the Romans may be taken as the type of 
 them, and they are so described to us that we can 
 
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124 PEIMIT1"VE SOCIETY AND ANCIEKT LAW. chap. 7 
 
 scarcely help conceiving them as a system of concen- 
 tric circles which have gi-adually expanded from the 
 same point. The elementary group is the Family, 
 connected by comnlon subjection to the highest male 
 ascendant. The aggregation of Families forms tha 
 Gens or House. The aggregation of Houses makes 
 the Tribe. The aggregation of Tribes constitutes 
 the Commonwealth. ■ Are we at liberty to follow 
 these indications, and to lay down that the com- 
 monwealth is a collection of persons united by 
 common descent from the progenitor of an original 
 family? Of this we may at least be certain, that all 
 ancient societies regarded themselves as having pro- 
 ceeded from one original stock, and even laboured 
 under an incapacity for comprehending any reason 
 except this for their holding together in political 
 union. • The history of political ideas begins, in fact, 
 with the assumption that kinship in blood is the sole 
 possible ground of community in political functions 
 nor is there any of those subversions of feeling, which 
 we term emphatically revolutions, so startling and 
 •so complete as the. change which is accomplished 
 when some other principle — such as that, for in- 
 stance of local contiguity — establishes itself for the 
 first time as the basis of common political action. 
 It may be affirmed then of early commonwealths 
 that their citizens considered all the groups in which 
 they claimed membership to be founded on common 
 lineage. What was obviously true of the Family 
 was believed to be true, first of the House, next of 
 
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OHAP. V. EARLY POLITICAL IDEAS. 125 
 
 the Tribe, lastly of the State. And yet we find that 
 along with this belief, or, if we may use the word, 
 this theory, each community preserved records or 
 traditions which distinctly showed that the funda- 
 mental assumption was false. Whether we look to 
 the Greek states, or to Rome, or to the Teutonic 
 aristocracies in Ditmarsh which furnished Niebuhr 
 with so many valuable illustrations, or to the Celtic 
 clan associations, or to that strange social organisa- 
 tion of the Sclavonic Eussians and Poles which has 
 only lately attracted notice, everywhere we discover 
 traces of passages in their history when men of alien 
 descent were admitted to, and amalgamated with, 
 the original brotherhood. • Adverting to Rome 
 singly, we perceive that the primary group, the 
 Family, was being constantly adulterated by the 
 practice of adoption, while stories seem to have been 
 always current respecting the exotic extraction of 
 one of the original Ti'ibes and concerning a large 
 addition to the Houses made by one of the early 
 kings. The composition of the state uniformly as- 
 sumed to be natural, was nevertheless known to be 
 in great measure artificial. This conflict between 
 belief or theory and notorious fact is at first sight 
 extremely perplexing ; but what it really illustrates 
 is the eificiency with which Legal Fictions do their 
 work in the infancy of society. The earliest and 
 most extensively employed of legal fictions was that 
 which permitted family relations to be created arti- 
 ficially, and there is none to which I conceive man- 
 
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]26 PEIMITIVE SOCIETY AND ANCIENT LAW. omap. \ 
 
 ■ kind to be more deeply indebted. If it had never 
 existed, I do not see bow any one of the primitive 
 groups, whatever were their nature, could have ab- 
 sorbed another, or on what terms any two of them 
 could have combined, except those of absolute supe- 
 riority on one side and aVjsolute subjection on the 
 other. ■ No doubt, when with our modern ideas we 
 contemplate the union of independent communities, 
 we can suggest a hundred modes of carrying it out, 
 the simplest of all being that the individuals com- 
 prised in the coalescing groups shall vote or act 
 together according to local propinquity ; but the 
 idea that a number of persons should exercise politi- 
 cal rights in common simply because they happened 
 to live within the same topographical limits was ut- 
 terly strange and monstrous to primitive antiquity. 
 The expedient which in those times commanded fa- 
 vour was that the incoming population shoxLld feign 
 themselves to be descended from the same stock as 
 the people on whom they were engrafted ; and it is 
 precisely the good faith of this fiction, and the close- 
 ness with which it seemed to imitate reality, that 
 we cannot now hope to understand. • One circum- 
 stance, however, which it is important to recollect, 
 is that the men who formed the various political 
 groups were certainly in the habit of meeting 
 together periodically, for the purpose of acknowl- 
 edging and consecrating their association by com- 
 mon sacrifices. Strangers amalgamated with the 
 brothel hood were doubtless admitted to these sacri 
 
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CHAP. V. ARISTOCRACIES. 121 
 
 fices ; and when that was once done, we can believo 
 that it seemed equally easy, or not more difficult, to 
 conceive them as sharing in the common lineage. . 
 The conclusion then which is suggested by the evi- 
 dence is, not that all early societies were formed bj 
 descent from the same ancestor, but that all of them 
 which had any permanence and solidity either wei-e 
 so descended or assumed that they were. An in- 
 definite number of causes may have shattered the 
 primitive groups, but wherever their ingredients 
 recombined, it was on the model or principle of an 
 association of kindred. Whatever were the fact, all 
 thought, language, and law adjusted themselves to 
 the assumption. But though all this seems to me to 
 be established with reference to the communities 
 with whose records we are acquainted, the remainder 
 of their -history sustains the position before laid 
 down as to the essentially transient and terminable 
 influence of the most powerful Legal Fictions. At 
 some point of time — probably as soon as they felt 
 themselves strong enough to resist extrinsic pressure 
 — all these states ceased to recruit themselves by 
 factitious extensions of consanguinity. They neces- 
 sarily, therefore, became Aristocracies, in all cases 
 where a fresh population from any cause collected 
 around them which could put in no claim to com- 
 munity of origin. -Their sternness in maintaining 
 the central principle of a system under which po- 
 litical rights were attainable on no terms whatever 
 except connexion in blood, real or artificial, taught 
 
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128 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap ' 
 
 their inferiors another principle, which proved to 
 be endowed with a far higher measure of vitality. 
 This was the principle of local contiguity, now recng- 
 nised everywhere as the condition of community in 
 jjoiitical functions. • A new set of political ideas 
 came at once into existence, which, being those of 
 ourselves, our contemporaries, and in great measure 
 of our ancestors, rather obscure our perception of 
 the older theory which they vanquished and de- 
 throned. 
 
 The Family then is the type of an archaic soci- 
 ety in all the modifications which it was capable of 
 assuming ; but the family here spoken of is not ex- 
 actly the family as undeictood by a modern. In 
 order to reach the ancient conception we must give 
 to our modern ideas an important extension and an 
 important limitation. We must look on the family 
 as constantly enlarged by the absorption of stran- 
 gers within its circle, and we must try to regard the 
 fiction of adoption as so closely simulating the reali- 
 ty of kinship that neither law nor opinion makes the 
 slightest difiference between a real and an adoptive 
 connexion. On the other hand, the persons theo- 
 retically amalgamated into a family by their common 
 descent are practically held together by common obe- 
 dience to their highest living ascendant, the father, 
 grandfather, or great-grandfather. The patriarchal 
 authority of a chieftain is as necessary an ingredient 
 in the notion of the family group as the fact (or as- 
 sumed fact) of its haying sprung fi-om his loins; 
 
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(^iiAP. V. THE ANCIENT FAMILY. 129 
 
 and hence we must understand that if there be any 
 persons who, however truly included in the brother- 
 hood by virtue of their blood-relationship, have 
 nevertheless de facto withdrawn themselves from 
 the empire of its ruler, they are always, in the be- 
 ginnings of law, considered as lost to the family. It 
 is this patriarchal aggregate — the modern family 
 thus cut down on one side and extended on the 
 other — which meets us on the threshold of primitive 
 jurisprudence. . Older probably than the State, the 
 Tribe, and the House, it left traces of itself on pri- 
 vate law long after the House and the Tribe had 
 been forgotten, and long after consanguinity had 
 ceased to be associated with the composition of 
 States. It will be found to have stamped itself on 
 all the great departments of jurisprudence, and may 
 be detected, I think, as the true source of many of 
 their most important and most durable characteris- 
 tics. At the outset, the peculiai-ities of law in its 
 most ancient state lead us irresistibly to the conclu- 
 sion that it took precisely the same view of the 
 family group which is taken of individual men by 
 the systems of rights and duties now prevalent 
 throughout Europe. There are societies open to our 
 observation at this very moment whose laws and 
 usages can scarcely be explained unless they are 
 supposed never to have emerged from this primitive 
 condition ; but in communities more fortunately cir- 
 cumstanced the fabric of jurisprudence fell gradu- 
 ally to pieces, and if we carefully observe the disin- 
 9 
 
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130 PEIMITIVE SOCIETY AND ANCIENT LAAT. chap, y 
 
 tegration wp "shall perceive that it took place prin- 
 cipally in those portions of each system which were 
 most deeply affected by the primitive conception of 
 the family. In one all-important instance, that of 
 the Roman law, the change was effected so slowly 
 that from epoch to epoch we can observe the line and 
 direction which it followed, and can even give some 
 idea of the ultimate result to which it was tending. 
 And, in pursuing this last inquiry, we need not suf- 
 fer oui'selves to be stopped by the imaginary barrier 
 which separates the modern from the ancient world. 
 Por one effect of that mixture of refined Roman law 
 with primitive barbaric usage, which is known to us 
 by the deceptive name of feudalism, was to revive 
 many features of archaic jurisprudence which had 
 died out of the Roman woi-ld, so that the decom- 
 position which had seemed to be over commenced 
 again, and to some extent is still proceeding. 
 
 On a few sj'stems of law the family organisa 
 tion of the earliest society has left a plain and broaa 
 mark in the life-long authority of the Father or 
 other ancestor over the person and property of his 
 descendants, an authority which, we may conve- 
 niently call by its later Roman name of Patria Po- 
 testas. No feature of the rudimentary associations 
 of mankind is deposed to by a greater amount of 
 evidence than this, and yet none seems to have dis- 
 appeared so generally and so rapidly from the 
 usages of advancing communities. Gains, writing 
 under the Antonines, describes the institution as 
 
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CKAP. V. THE PATEIA POTESTAS. 131 
 
 distinctively Roman. It is true, that liad lie glanced 
 across tlie Rhine or the Danube to those tribes •>£ 
 barbarians which were exciting the curiosity of son e 
 among his contemporaries, he would have seen ei 
 amples of patriarchal power in its crudest form 
 and in the far East a branch of the same ethnical 
 stock from which the Romans sprang was repeating 
 their Patria Potestas in some of its most technical 
 incidents. But among the races understood to be 
 comprised within the Roman empire, Gains could 
 find none which exhibited an institution resembling 
 the Roman " Power of the Father," except only the 
 Asiatic Galatse. There are reasons, indeed, as it 
 seems to me, why the direct authority of the ances- 
 tor should, in the greater number of progressive 
 societies, very shortly assume humbler proportions 
 than belonged to it in their earliest state. The im- 
 plicit obedience of rude men to their parent is 
 doubtless a primary fact, which it would be absurd 
 to explain away altogether by attributing to them 
 any calculation of its advantages ; but, at the same 
 time, if it is natural in the sons to obey the father, 
 it is equally natural that they should look to him 
 for superior strength or superior wisdom. Hence, 
 when societies are placed under circumstances which 
 cause an especial value to be attached to bodily and 
 mental vigour, there is an influence at work which 
 tends to confine the Patria Potestas to the cases 
 where its possessor is actually skilful and strong. 
 When we obtain our first glimpse of organised 
 
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132 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. T 
 
 Hellenic society, it seems- as if supereminent wisdom 
 would keep alive the father's power in persons 
 wliose bodily strength had decayed ; but the rela- 
 tions of Ulysses and Laertes in the Odyssey appeal 
 to show that, where extraordinary valour and sa- 
 gacity were united in the son, the father in the de- 
 crepitude of age was deposed from the headship of 
 the family. In the mature Greek jurisprudence, 
 the rule advances a few steps on the practice hint- 
 ed at in the Homeric literature ; and though very 
 many traces of stringent family obligation remain, 
 the dii'ect authority of the parent is limited, as in 
 European codes, to the nonage or minority of the 
 children, or, in other words, to the period during 
 which their mental and physical inferiority may 
 always be presumed. The Roman law, however, 
 with its remarkable tendency to innovate on ancient 
 usage only just so far as the exigency of the com- 
 monwealth may require, preserves both the prime- 
 val institution and the natural limitation to which 
 I conceive it to have been subject. In every rela- 
 tion of life in which the collective community might 
 have occasion to avail itself of his wisdom and 
 strength, for all purposes of counsel or of war, the 
 filius familias, or Son under Power, was as free as 
 his father. It was a maxim of Roman jurispru- 
 ilence that the Patria Potestas did not extend to 
 the Jus Publicum. Father and son voted together 
 in the city, and fought side by side in the field ; 
 indeed, the son, as general, might happen to com 
 
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CHAP. V. THE PATEIA POTESTAS. 133 
 
 mand tlie father, or, as magistrate, decide on his 
 contracts and punish his delinquencies. But in all 
 the relations created by Private Law, the son lived 
 under a domestic despotism which, considering the 
 severity it retained to the last, and the number of 
 centmies through which it endured, constitutes one 
 of the strangest problems in legal history. 
 
 The Patria Potestas of the Romans, which is 
 necessarily our type of the primeval paternal au- 
 thority, is equally difficult to understand as an in- 
 stitution of civilized life, whether we consider its 
 incidence on the person or its effects on property. 
 It is to be regretted that a chasm which exists in 
 its history cannot be more completely filled. So far 
 as regards the person, the parent, when our infor- 
 mation commences, has over his children the jus 
 vitoB necisque, the power of life and death, and a 
 fortiori of uncontrolled corporal chastisement ; he 
 can modify their personal condition at pleasure ; he 
 can give a wife to his son ; he can give his daugh- 
 ter in marriage ; he can divorce his children of 
 either sex ; he can transfer them to another family 
 by adoption ; and he can sell them. Late in the 
 Imperial period we find vestiges of all these powers, 
 but they are reduced within very narrow limits. 
 The unqualified right of domestic chastisement has 
 become a right of bringing domestic offences under 
 the cognisance of the civil magistrate ; the privilege 
 of dictating marriage has declined into a condition- 
 al veto ; the liberty of selling has been virtually 
 
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134 PRIMITIVE SOCIETY AND ANCIEN'T LAW. chap. ■» 
 
 abolished, and adoption itself, destined to lose al 
 most all its ancient importance in the reformed sys- 
 tem of Justinian, can no longer be effected without 
 the assent of the child transferred to the adoptive 
 parentage. In short, we are bought very close to 
 the verge of the ideas which have at length pre- 
 vailed in the modern world. But between these 
 widely distant epochs there is an interval of ob- 
 scurity, and we can only guess at the causes which 
 permitted the Patria Potestas to last as long as it 
 did by rendering it more tolerable than it appears. 
 The active discharge of the most important among 
 the duties which the son owed to the state must 
 have tempered the authority of his parent if they 
 did not annul it. We can readily persuade our 
 selves that the paternal despotism could not be 
 brought into play without great scandal against a 
 man of full age occupying a high civil office. Dur- 
 ing the earlier history, however, such cases of prac- 
 tical emancipation would be rare compared with 
 those which must have been created by the constant 
 wars of the Roman republic. The military tribune 
 and the private soldier who were in the field three 
 quarters of a year during the earlier contests, at a 
 later period the proconsul in charge of a province, 
 and the legionaries who occupied it, cannot have 
 had practical reason to regard themselves as the 
 slaves of a despotic master ; and all these avenues 
 of escape tended constantly to multiply themselves. 
 V^ictories led to conquests, conquests to occupations ; 
 
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onAP. T. THE PATEIi POTESTAS. 135 
 
 the mode of occupation by colonies was exchanged 
 for the system of occupying provinces by standing 
 armies. Each step in advance was a call for the 
 expatriation of more Roman citizens and a fresh 
 draft on the blood of the failing Latin race. We 
 may infer, I think, that a strong sentiment in favour 
 of the relaxation of the Patria Potestas had become 
 fixed by the time that the pacification of the woi-ld 
 commenced on the establishment of the Empire. 
 The first serious blows at the ancient institution are 
 attributed to the earlier Caesars, and some isolated 
 interferences of Trajan and Hadrian seem to have 
 prepared the ground for a series of express enact- 
 ments which, though we cannot always determine 
 their dates, we know to have limited the father's 
 powers on the one hand, and on the other to have 
 multiplied facilities for their voluntary surrender. 
 The older mode of getting rid of the Potestas, by 
 effecting a triple sale of the son's person, is evi- 
 dence, 1 may remark, of a very early feeling against 
 the unnecessary pi'olongation of the powers. The 
 rule which declared that the son should be free 
 after having been three times sold by his father 
 seems to have been originally meant to -entail penal 
 consequences on a practice which revolted even the 
 imperfect morality of the primitive Roman. But 
 even before the publication of the Twelve Tables it 
 had been turned, by the ingenuity of the juriscon 
 suits, into an expedient for destroying the parental 
 
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I3G PRIMITIVE SOOIETi AND ANOIEJS'T LAW. ohap. » 
 
 authority wlierever tlie father desired that it should 
 cease. 
 
 Many of the causes which helped to mitigate the 
 stringency of the father's power over the persons of 
 his children are doubtless among those which do 
 not lie upon the face of history. We cannot tell 
 how far puljlic opinion may have paralysed an au- 
 thority which the law conferred, or how far natural 
 affection may have rendered it endural)le. Bat 
 though the powers over the person maj^ have been 
 latterly nominal, the whole tenour of the extant 
 Eoman jurisprudence suggests that the father's 
 rights over the son's property were always exercised 
 without scruple to the full extent to which they 
 were sanctioned by law. There is nothing to as- 
 tonish us in the latitude of these rights when they 
 first show themselves. The ancient law of Rome 
 forbade the Children under Power to hold property 
 apart from their parent, or (we should rather say) 
 never contemplated the possibility of their claiming 
 a separate ownership. The father was entitled to 
 take the whole of the son's acquisitions, and to en- 
 joy the benefit of his contracts without being en- 
 tangled in any compensating liability. So much as 
 this we should expect from the constitution of the 
 parliest Roman society, for we can hardly form a 
 notion of the primitive fomily group unless we sup- 
 pose that its members brought their earnino-s of all 
 kinds into the common stock while they were un- 
 able to bind it by improvident individual engage 
 
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CHAP. V. THE PATEIA POTESTAS. 137 
 
 ments. The true enigma of the Patria Potestaa 
 does not reside here, but in the slowness with which 
 these proprietary privileges of the parent were cur- 
 tailed, and in the circumstance that, before they 
 were seriously diminished, the whole civilised world 
 was brought within their sphere. No innovation 
 of any kind was attempted till the first years of the 
 Empire, when the acquisitions of soldiers on ser- 
 vice were withdrawn from the operation of the 
 Patria Potestas, doubtless as part of the reward of 
 the armies which had overthrown the free common- 
 wealth. Three centuries afterwards the same im- 
 munity was extended to the earnings of persons who 
 were in the civil employment of the state. Both 
 changes were obviously limited in their application, 
 and they were so contrived in technical form as to 
 interfere as little as possible with the principle of 
 Patria Potestas. A certain qualified and dependent 
 ownership had always been recognised by the Ro- 
 man law in the perquisites and savings which 
 slaves and sons under power were not compelled to 
 include in the hoiisehold accounts, and the special 
 name of this permissive property, Peculium, was ap- 
 plied to the acquisitions newly relieved from Patria 
 Potestas, which were called in the case of soldiers 
 Castrense Peculium, and Quasi-castrense Peculium 
 in the case of civil servants. Other modifications 
 of the parental privileges followed, which showed a 
 less studious outward respect for the ancient prin- 
 ciple. Shortly after the introduction of the Quasi 
 
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138 PRIMITIVE SOCIETY AND ANCIENT LAW. cniP. v 
 
 castrense Peculium, Constantine the Great took 
 away the father's absolute control over property 
 which his children had inherited from their moth- 
 ers, and reduced it to a usufruct, or life-interest. A 
 few more changes of slight importance followed in 
 the Western Empire, but the furthest point reached 
 was in the East, under Justinian, who enacted that 
 unless the acquisitions of the child were derived from 
 the parent's own property, the parent's rights over 
 them should not extend beyond enjoying their 
 produce for the period of his life. Even this, the 
 utmost relaxation of the Roman Patria Potestas, left 
 it far ampler and severer than any analogous insti- 
 tution of the modern world. The earliest modern 
 writers on jurisprudence remark that it was only 
 the fiercer and ruder of the conquerors of the em- 
 pire, and notably the nations of Sclavonic origin, 
 which exhibited a Patria Potestas at all resembling 
 that which was described in the Pandects and the 
 Code. All the Germanic immigrants seem to have 
 recognised a corporate union of the family under 
 the mund, or authority of a patriarchal chief; but 
 his powers are obviously only the relics of a de 
 cayed Patria Potestas, and fell far short of those 
 enjoyed by the Roman father. The Franks are 
 particularly mentioned as not having the Eoman 
 institution, and accordingly the old French lawyers, 
 even when most busily engaged in filling the in- 
 terstices of barbarous custom with rules of Roman 
 law, were obliged to protect themselves against the 
 
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THE PATRIA POTESTAS. 139 
 
 intrusion of the Potestas by the express maxim, 
 Pvys-sance de pere en France nJa lieu. The te- 
 nacity of the Romans in maintaining this relic of 
 their most ancient condition is in itself remarkable, 
 but it is less remarkable than the diffusion of the 
 Potestas over the whole of a civilisation from which 
 it had once disappeared. While the Castrense Pe- 
 eulium constituted as yet the sole exception to the 
 father's power over property, and while his powei 
 over his children's persons was still extensive, the 
 Roman citizenship, and with it the Patria Potestas, 
 were spreading into every corner- of the Empire, 
 Every African or Spaniard, &Y%yj Gaul, Briton, or 
 Jew, who received this honour by gift, purchase, or 
 inheritance, placed himself under the Roman Law 
 of Persons, and, though our authorities intimate 
 that children born before the acquisition of citi- 
 zenship could not be brought under Power against 
 their will, children born after it and all ulterior de- 
 scendants were on the ordinary footing of a Roman 
 fiUus familias. It does not fall within the province 
 of this treatise to examine the mechanism of the 
 later Roman society, but I may be permitted to re- 
 mark that there is little foundation for the opinion 
 which represents the constitution of Antoninus 
 Caracalla conferring Roman citizenship on the 
 whole of his subjects as a measure of small import- 
 ance. However we may interpret it, it must have 
 enormously enlarged the sphere of the Patria Po- 
 testas, and it seems to me that the tightening ot 
 
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140 PRIMITIVE SOCIETY AND ANCIENT LAW, chap, v 
 
 family relations wliicTi it effected is an agency which 
 ought to he kept in view more than it has been, 
 in accounting for the great moral revolution which 
 was transforming the world. 
 
 Before this branch of our subject is dismissed, it 
 should be observed that the Paterfamilias was an- 
 swerable for the delicts (or torts) of his Sons under 
 Power. He was similarly liable for the torts of his 
 slaves ; but in both cases he originally possessed 
 the singular privilege of tendering the delinquent's 
 person in full satisfaction of the damage. The re- 
 sponsibility thus incurred on behalf of sons, coupled 
 with the mutual incapacity of Parent and Child 
 under Power to sue one another, has seemed to 
 some jurists to be best explained by the assiimp- 
 tion of a " unity of person " between the Paterfa- 
 milias and the Filiusfamilias. In the Chapter on 
 Successions I shall attempt to show in what sense, 
 and to what extent, this " unity " can be accepted 
 as a reality. I can only say at present that these 
 responsibilities of the Paterfamilias, and other legal 
 phenomena which will be discussed hereafter, ap- 
 pear to me to point at certain duties of the primi- 
 tive Patriarchal chieftain which balanced his rights. 
 I conceive that, if he disjDosed absolutely of the 
 persons and fortune of his clansmen, this representa- 
 tive ownership was coextensive with a liability to 
 provide for all members of the brotherhood out of 
 the common fund. The difficulty is to throw our- 
 selves out of our habitual associations sufficiently 
 
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ODAP. V. THE PATEIA POTESTAS. 141 
 
 for conceiving the nature of his obligation. It was 
 not a legal duty, for law had not yet penetrated 
 into the precincts of the Family. To call it moral 
 is perhaps to anticipate the ideas belonging to a 
 later stage of mental development ; but the expres- 
 sion " moral obligation " is significant enough for 
 our purpose, if we understand by it a duty semi- 
 consciously followed and enforced rather by instinct 
 and habit than by definite sanctions. 
 
 The Patria Potestas, in its normal shape, has not 
 been, and, as it seems to me, could not have been, a 
 generally durable institution. The proof of its for- 
 mer universality is therefore incomplete so long as we 
 consider it by itself ; but the demonstration may be 
 carried much further by examining other depart- 
 ments of ancient law which depend on it ultimately, 
 but not by a thread of connexion visible in all its 
 parts or to all eyes. Let us turn for example to 
 Kinship, or in other 'words, to the scale on which 
 the proximity of relatives to each other is calculated 
 in archaic jurisprudence. Here again it will be 
 convenient to employ the Roman terms, Agnatic 
 and Cognatic relationship. Cognatic relationship 
 is simply the conception of kinship familiar to 
 modern ideas ; it is the relationship arising through 
 common descent from the same pair of married pei 
 eons, whether the descent be traced through males 
 or females. Agnatic relationship is something very 
 dififerent : it excludes a number of persons whom 
 we in our day should certainly consider of kin to 
 
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142 PEIMITIVE SOCIETY AND ANCIENT LAW. chap, v 
 
 our&elves, and it includes many more whom we 
 should never reckon among our kindred. It is in 
 trutk the connexion existing between tlie members 
 of the Family, conceived as it was in the most an- 
 cient times. The limits of this connexion are fai 
 from conterminous with those of modern relation- 
 ship. 
 
 Cognates then are all those persons who can 
 trace their blood to a single ancestor and ances- 
 tress ; or, if we take the strict technical meaning of 
 the word in Roman law, they are all who trace 
 their blood to the legitimate marriage of a common 
 pair. " Cognation " is therefore a relative term, and 
 the degree of connexion in blood which it indicates 
 depends on the particular marriage which is selected 
 as the commencement of the calculation. If we be- 
 gin with the marriage of father and mother, Cogna- 
 tion will only express the relationship of brothers 
 and sisters ; if we take that of the grandfather and 
 grandmother, then uncles, aunts, and their descend- 
 ants will also be included in the notion of Cogna- 
 tion, and following the same process a larger num- 
 ber of Cognates may be continually obtained by 
 choosing the starting point higher and higher up 
 in the line of ascent. All this is easily understood 
 by a modern ; but who are the Agnates ? In the 
 first place, they are all the Cognates who trace 
 their connexion exclusively through males. A 
 table of Cognates is, of course, formed by taking ' 
 each lineal ancestor in turn and including all his 
 
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OHAP. V. AGNATION AND COGNATION. U3 
 
 descendants of both sexes in the tabular vie-\'(r ; . if 
 then, in tracing the various branches of such a 
 genealogical table or tree, we stop whenever we 
 come to the name of a female and pursue that par- 
 ticular branch or ramification no further, all who 
 remain after the descendants of women have been 
 excluded are Agnates, and their connexion together 
 is Agnatic Relationship. I dwell a little on the 
 process which is practically followed in separating 
 them from the Cognates, because it explains a me- 
 morable legal maxim, " Mulier est finis familise " — 
 a woman is the terminus of the family. A female 
 name closes the branch or twig of the genealogy in 
 which it occurs. None of the descendants of a fe- 
 male are included in the primitive notion of family 
 relationship. 
 
 If the system of archaic law at which we are 
 looking be one which admits Adoption, we must 
 add to the Agnates thus obtained all persons, male 
 or female, who have been brought into the Family 
 by the artificial extension of its boundaries. But 
 the descendants of such persons will only be Ag- 
 nates, if they satisfy the conditions which have just 
 been described. 
 
 What then is the reason of this arbitrary inclu- 
 sion and exclusion ? Why should a conception of 
 Kinship, so elastic as to include strangers brought 
 into the family by adoption, be nevertheless so nar- 
 row as to shut out the descendants of a female 
 member ? To solve these questions, we must recur 
 
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144 PRIMITIVE SOCIETY AND ANCIENT LAW. odap. v 
 
 to . the Patria Potestas. The foundation of Agna^ 
 tion is not the marriage of Father and Mother, but 
 the authority of the Father. All persons are Ag- 
 natically connected together who are under the 
 same Paternal Power, or who have been under it, 
 or who might have been under it if their lineal an- 
 cestor had lived long enough to exercise his empire. 
 In truth, in the primitive view, Relationshij) is ex- 
 actly limited by Patria Potestas. Where the Po- 
 testas begins, Kinship begins ; and therefore adop- 
 tive relatives are among the kindred. Where the 
 Potestas ends. Kinship ends ; so that a son emanci- 
 pated by his father loses all rights of Agnation. 
 And here we have the reason why the descendants 
 of females are outside the limits of archaic kinship. 
 If a woman died unmarried, she could have no le- 
 gitimate descendants. If she married, her children 
 fell under the Patria Potestas, not of her Father, 
 but of her Husband, and thus were lost to her own 
 family. It is obvious that the organisation of primi- 
 tive societies would have been confounded, if men 
 had called themselves relatives of their mother's rel- 
 atives. The inference would have been that a per- 
 son might be subject to two distinct Patri* Potes- 
 fcates; but distinct Patriae Potestates implied dis- 
 tinct jurisdictions, so that anybody amenable to 
 two of them at the same time would have lived 
 under two different dispensations. As long as the 
 Family was an imperium in imperio, a community 
 within the commonwealth, governed by its own in- 
 
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OHAP. V. THE PARENTAL POWERS. 145 
 
 stitutions of wHcli tlie parent was the source, the 
 limitation of relationship to the. Agnates was a nec- 
 essary security against a conflict of laws in the 
 domestic forum. 
 
 The Parental Powers proper are extinguished by 
 the death of the Parent, but Agnation is as it were 
 a mould which retains their imprint after they have 
 ceased to exist. Hence comes the interest of Agna- 
 tion for the inquirer into the history of jurispru- 
 dence. The powers themselves are discernible in 
 comparatively few monuments of ancient law, but 
 Agnatic Relationship, which implies their former 
 existence, is discoverable almost everywhere. There 
 are few indigenous bodies of law belonging to com- 
 munities of the Indo-European stock, which do not 
 exhibit peculiarities in the most ancient part of 
 their structure which are clearly referable to Ag- 
 nation. In Hindoo law, for example, which is satu- 
 rated with the primitive notions of family depend- 
 ency, kinship is entirely Agnatic, and I am in- 
 formed that in Hindoo genealogies the names of 
 women are generally Omitted altogether. The same 
 view of relationship pervades so much of the laws 
 of the races who overran the Roman Empire as ap- 
 peals to have really formed part of their primitive 
 usage, and we may suspect that it would have per- 
 petuated itself even more than it has in modern 
 Eui'opean jurisprudence, if it had not been for the 
 vast influence of the later Roman law on modern 
 thought. The Praetors early laid hold on Cogna 
 10 
 
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146 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, t 
 
 tion as tlie natural forai of kinship, and spared no 
 pains in purifying their system frona the older con- 
 ception. Their ideas have descended to us, but stil] 
 traces of Agnation are to be seen in many of tho 
 modern rules of succession after death. The exclu 
 sion of females and theu- children from govern- 
 mental functions, commonly attributed to the usage 
 of the Salian Franks, has certainly an agnatic origin, 
 beina; descended from the ancient German rule of 
 succession to allodial property. In Agnation too 
 is to be sought the explanation of that extraordi- 
 nary rule of English Law, only recently repealed, 
 which prohibited brothers of the half-blood from 
 succeeding to one another's lands. In the Customs 
 of Normandy, the rule applies to uterins brothers 
 only, that is, to brothers by the same mother 
 but not by the same father ; and, limited in this 
 way, it is a strict deduction from the system of Ag- 
 nation, under which uterine brothers are no rela 
 tions at all to one another. When it was trans 
 planted to England, the English judges, who had no 
 clue to its principle, inteii,:>reted it as a general pro- 
 hibition against the succession of the half-blood, 
 and extended it to consanguineous brothers, that is 
 to sons of the same father by different Avive*. In 
 all the literature which enshrines the pretended 
 philosophy of law, there is nothing more curious 
 than the pages of elaborate sophistry in which 
 Blackstone attempts to explain and justify the ex- 
 clusion of the half-blood. 
 
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OHAP. V. GUABDIANSHIP OF WOMEN. Ul 
 
 It may he shown, I tMnk, tliat the Family, as 
 held together by the Patria Potestas, is the nidus 
 out of which the entire Law of Persons has germi- 
 nated. Of all the chapters of that Law the most 
 important is that which is concerned with the 
 status of Females. It has just been stated that 
 Primitive Jurisprudence, though it does not allow 
 a Woman to communicate any rights of Agnation to 
 her descendants, includes herself nevertheless in the 
 Agnatic bond. Indeed, the relation of a female to 
 the family in which she was born is much stricter, 
 closer, - and more durable than that which unites 
 her male kinsmen. We have several times laid 
 down that early law takes notice of Families only ; 
 this is the same thing as saying that it only takes 
 notice of persons exercising Patria Potestas, and ac- 
 cordingly the only principle on which it enfran- 
 chises a son or grandson at the death of his Parent, 
 is a consideration of the capacity inherent in such 
 son or grandson to become himself the head of a new 
 family and the root of a new set of Parental Powers. 
 But a woman, of course, has no capacity of the 
 kind, and no title accordingly to the liberation 
 which it confers. There is therefore a peculiar con- 
 trivance of archaic jurisprudence for retaining her 
 in the bondage of the Family for life. This is the 
 institution known to the oldest Eoman law as the 
 Perpetual Tutelage of Women, under which a Fe- 
 male, though relieved from her Parent's authority 
 by his decease, continues subject through life to her 
 
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148 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. v, 
 
 nearest male relations, or to lier Father's nominees, 
 as her Guardians. Perjaetual Guardianship is ob- 
 viously neither more nor less than an artificial pro- 
 longation of the Patria Potestas, when for other 
 purposes it has been dissolved. In India, the sys- 
 tem survives in absolute completeness, and its oper- 
 ation is so strict that a Hindoo Mother frequently 
 becomes the ward of her own sons. Even in Eu- 
 rope, the laws of the Scandinavian nations respect- 
 ing women preserved it until quite recently. The 
 invaders of the Western Empire had it universally 
 among their indigenous usages, and indeed their 
 ideas on the subject of Guardianship, in all its 
 forms, were among the most retrogressive of those 
 which they introduced into the Western world. 
 But from the mature Roman jurisprudence it had 
 entirely disappeared. We should know almost 
 nothing about it, if we had only the compilations 
 of Justinian to consult ; but the discovery of the 
 manuscript of Gains discloses it to us at a most in- 
 teresting epoch, just when it had fallen into com- 
 plete discredit and was verging on extinction. The 
 great jurisconsult himself scouts the popular apolo- 
 gy offered for it in the mental inferiority of the 
 female sex, and a considerable part of his volume is 
 taken up with descriptions of the numerous expe- 
 dients, some of them displaying extraordinary in- 
 genuity, which the Roman lawyers had devised for 
 enabling Women to defeat the ancient rules. Led 
 by their theory of Natural Law, the jurisconsults 
 
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nHAP. V. ANCIENT ROMAN MAKEIAGE. 149 
 
 had evidently at tWs time assumed the equality of 
 the sexes as a principle of their code of equity. 
 The restrictions which they attacked were, it is to 
 be observed, restrictions on the disposition of prop- 
 erty, for which the assent of the woman's guardians 
 was still formally required. Control of her per- 
 son was apparently quite obsolete. 
 
 Ancieut law subordinates the woman to her 
 blood-relations, while a prime phenomenon of mod- 
 ern jurisprudence has been her subordination to her 
 husband. The history of the change is remarkable. 
 It begins far back in the annals of Kome. An 
 ciently, there were three modes in which marriage 
 might be contracted according to Roman usage, one 
 involving a religious solemnity, the other two the 
 observance of certain secular formalities. By the 
 religious marriage or Oonfarreation ; by the higher 
 form of civil marriage, which was called Ooemption ; 
 and by the lower form, which was termed Usus, 
 the Husband acquired a number of rights over the 
 person and property of his wife, which were on the 
 whole in excess of such as are conferred on him in 
 any system of modern jurisprudence. But in what 
 capacity did he acquire them ? Not as Husband, but 
 as Father. By the Oonfarreation, Coemption, and 
 Usus, the woman passed in manum viri, that is, 
 m law she became the Daughter of her husband. 
 She was included in his Patria Potestas. She in- 
 curred all the liabilities springing out of it while it 
 subsisted, and sui-viving it when it had expired, 
 
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150 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. v 
 
 All her property became absolutely his, and she 
 was retained in tutelage after his death to the 
 guardian whom he had appointed by will. These 
 three ancient forms of marriage fell, however, grad- 
 ually into disuse, so that, at the most splendid pe- 
 riod of Roman greatness, they had almost entirely 
 given place to a fashion of wedlock — old apparent- 
 ly, but not hitherto considered reputable — which 
 was founded on a modification of the lower form 
 of civil maiTiage. Without explaining the techni- 
 cal mechanism of the institution now generally pop- 
 ular, I may describe it as amounting in law to little 
 more than a temporary deposit of the woman by 
 her family. The rights of the family remained un- 
 impaired, and the lady continued in the tutelage of 
 guardians whom her parents had appointed and 
 whose privileges of control overrode, in many ma- 
 terial respects, the inferior authority of her hus- 
 band. The consequence was that the situation of 
 the Roman female, whether married or unmarried 
 became one of great personal and proprietary inde- 
 pendence, for the tendency of the later law, as I 
 have already hinted, was to reduce the power of 
 the guardian to a nullity, while the form of mar- 
 riage in fashion conferred on the husband no com- 
 pensating superiority. But Christianity tended 
 somewhat from the very first to narrow this re- 
 markable liberty. Led at first by justifiable dis- 
 relish for the loose practice of the decaying heathen 
 world, but afterwards hurried on by a passion of 
 
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DHAP. T CONDITION OF WOMEN 151 
 
 asceticism, the professors of the new faith looked 
 Avith disfavour on a marital tie which was in fact 
 the laxest the Western world has seen. The latest 
 Koman law, so far as it is touched by the Consti- 
 tutions of the Christian Emperors, bears some 
 marks of a reaction against the liberal doctrines of 
 the great Antonine jurisconsults. And the prev- 
 alent state of religious sentiment may explain Avhy 
 it is that modern jurisprudence, forged in the fur- 
 nace of barbarian conquest, and formed by the fu- 
 sion of Roman jurisprudence with patriarchal usage, 
 has absorbed, among its rudiments, much more than 
 usual of those rules concerning the position of 
 women which belong peculiarly to an imperfect 
 civilisation. During the troubled era which begins 
 modern history, and while the laws of the Ger- 
 manic and Sclavonic immigrants remained super- 
 posed like a separate layer above the Roman juris- 
 prudence of their provincial subjects, the women 
 of the dominant races are seen everywhere under 
 various forms of archaic guardianship, and the hus- 
 band who takes a wife from any family except his 
 own pays a money-price to her relations for the 
 tutelage which they surrender to him. When we 
 move onwards, and the code of the middle ages has 
 been formed by the amalgamation of the two sys- 
 tems, the law relating to women carries the stamp 
 af its double origin. The principle of the Roman 
 jurisprudence is so far triumphant that unmarried 
 females are generally (though there are local excep- 
 
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152 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, t 
 
 tioiis to the rule) relieved from the l)oiidage of the 
 family ; but the archaic principle of the barhariana 
 has fixed the j)osition of married women, and the 
 husband has drawn to himself in his marital char- 
 acter the powers which had once belonged to his 
 wife's male kindred, the only difi'erence being that 
 he no longer purchases his privileges. At this 
 point therefore the modem law of Western and 
 Southern Europe begins to be distinguished by one 
 of its chief characteristics, the comparative freedom 
 it allows, to unmarried women and widows, the 
 heavy disabilities it imposes on wives. It was very 
 long before the subordination entailed on the other 
 sex by marriage was sensibly diminished. The 
 principal and most powerful solvent of the revived 
 barbarism of Europe was always the codified juris- 
 prudence of Justinian, wherever it was studied with 
 that j)assionate enthusiasm which it seldom failed to 
 awaken. It covertly but most efiicaciously under- 
 mined the customs which it pretended merely to in- 
 terpret. But the Chapter of law relating to mar- 
 ried women was for the most part read by the light, 
 not of Eoman, but of Canon Law, which in no one 
 particular dejDarts so widely from the spirit of the 
 secular jurisprudence as in the ^^ew it takes of the 
 relations created by marriage. This was in pari 
 inevitable, since no society which preserves any 
 tincture of Christian institution is likely to restore 
 to married women the personal libei-ty conferred on 
 Ihem by the middle Eoman law, but the proprie- 
 
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CHAP. V. CONDITION OF WOMEN. 153 
 
 taiy disabilities of mamed females stand on quite a 
 different basis from their personal incapacities, and 
 it is by the tendency of their doctrines to keep alive 
 and consolidate the former, that the expositors of 
 the Canon Law have deeply injured civilisation 
 There are many vestiges of a struggle between the 
 secular and ecclesiastical principles, but the Canon 
 Law nearly everywhere prevailed. In some of the 
 French provinces, married women, of a rank below 
 nobility, obtained all the powers of dealing with 
 property which Roman jurisprudence had allowed, 
 and this local law has been largely followed by the 
 Code Napoleon ; but the state of the Scottish law 
 shows that scrupulous deference to the doctrines of 
 the Roman jurisconsults did not always extend to 
 mitigating the disabilities of wives. The systems 
 however which are least indulgent to married 
 women are invariably those which have followed 
 the Canon Law exclusively, or those which, from 
 the lateness of their contact with European civilisa- 
 tion, have never had their archaisms weeded out. 
 The Danish and Swedish laws, harsh for many cen- 
 turies to all females, are still much less favourable 
 to wives than the generality of Continental codes. 
 And yet more stringent in the proprietary inca- 
 pacities it imposes is the English Common Law, 
 which borrows far the greatest number of its funda- 
 mental principles from the jurisprudence of the 
 Canonists. Indeed, the part of the Common Law 
 which prescribes the legal situation of married 
 
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164 PRIMITIVE SOCIETY AND ANOIENT LAW. chap, v 
 
 women may serve to give an Englisiman clear nO' 
 tions of the great institution wliicli lias been the 
 priDci])al subject of this chapter. I do not know 
 how the operation and nature of the ancient Patria 
 Potestas can be brought so vividly before the mind 
 as by reflecting on the prerogatives attached to the 
 husband by the pure English Common Law, and by 
 recalling the rigorous consistency with which the 
 view of a complete legal subjection on the part of 
 the wife is carried by it, where it is untouched by 
 equity or statutes, through every department of 
 rights, duties and remedies. The distance between 
 the eldest and latest Koman law on the subject of 
 Children under Power may be considered as equiv- 
 alent to the difference between the Common Law 
 and the jurisprudence of the Court of Chancery in 
 the rules which they respectively apply to wives. 
 
 If we were to lose sight of the true origin of 
 Guardianship in both its forms, and were to employ 
 the common language on these topics, we should 
 find ourselves remarking that, while the Tutelage 
 of Women is an instance in which systems of ar- 
 chaic law push to an extravagant length the fiction 
 of suspended rights, the rules which they lay down 
 fjr the Guardianship of Male Orphans are an ex- 
 ample of a fault in precisely the opposite direction. 
 Such systems terminate the Tutelage of Males at 
 an extraordinary early period. Under the ancient 
 Roman law, which may be taken as their type, the 
 B.)u who was delivered from Patria Potestas by tlie 
 
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oHAp. V. GUARDIANSHIP OF OE'^ HANS. 15fl 
 
 death of his Father or Grandfather remained under 
 guardianship till an epoch which for general pur 
 poses may be described as arriving with his fifteenth 
 year ; but the arrival of that epoch placed him at 
 once in the full enjoyment of personal and proprie- 
 tary independence. The period of minority ap- 
 pears therefore to have been as unreasonably short 
 as the duration of the disabilities of women was 
 preposterously long. But, in point of fact, there 
 was no element either of excess or of shortcoming 
 in the circumstances which gave their original form 
 to the two kinds of guardianship. Neither the one 
 nor the other of them was based on the slightest 
 consideration of public or private convenience. The 
 guardianship of male orphans was no more de- 
 signed originally to shield them till the arrival of 
 years of discretion than the tutelage of women was 
 intended to protect the other sex against its own 
 feebleness. The reason why the death of the father 
 delivered the son fi'om the bondage of the family 
 was the son's capacity for becoming himself the 
 head of a new family and the founder of a new 
 Patria Potestas ; no such capacity was possessed by 
 the woman, and therefore she was never enfranchised. 
 Accordingly the Guardianship of Male Orphans 
 was a contrivance for keeping alive the semblance 
 of subordination to the family of the Parent, up to 
 the time when the child was supposed capable of 
 be(ioming a parent himself. It was a prolongation 
 of the Patria Potestas up to the period of bare 
 
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156 PEIMITIVE SOCIETY AND ANCIENT LAW. chap. v. 
 
 physical manliood. It ended with pulDerty, for the 
 rigour of the theory demanded that it should be so. 
 Inasmuch, however, as it did not profess to con- 
 duct the orphan ward to the age of intellectual 
 maturity or fitness for affairs, it was quite unequal 
 to the purposes of general convenience ; and this 
 the Romans seem to have discovered at a very 
 early stage of their social progress. One of the 
 very oldest monuments of Roman legislation is the 
 Lex Lcetoria or Plcetoria, which placed all free 
 males who were of full years and rights under the 
 temporary control of a new class of guardians, called 
 Curatores, whose sanction was required to validate 
 their acts or contracts. The twenty-sixth year of 
 the young man's age was the limit of this statutory 
 supervision ; and it is exclusively with reference to 
 the age of twenty-five that the terms "majority" 
 and " minority " are employed in Roman law. Pu- 
 jailage or wardship in modern jurisprudence has 
 adjusted itself with tolerable regularity to the sim- 
 ple principle of protection to the immatui'ity of 
 youth both bodily and mental. It has its natural 
 termination with years of discretion. But for pro- 
 tection against physical weakness and for protection 
 against intellectual incapacity, the Romans looked 
 to two different institutions, distinct both in theory 
 and design. The idi^as attendant on both are com- 
 bined in the modern idea of guardianship. 
 
 The Law of Persons contains but one other 
 chapter which can be usefully cited for our present 
 
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DHAP. T. MASTER AND SLAYE. 157 
 
 purpose. The legal rules by which systems of ma 
 ture jurisprudence regulate the connexion of Mast&r 
 and Slawe, present no very distinct traces of the 
 original condition common to ancient societies. But 
 there are reasons for this exception. There seems 
 to be something in the institution of Slavery which 
 has at all times either shocked or perplexed man- 
 kind, however little habituated to reflection, and 
 however slightly advanced in the cultivation of its 
 moral instincts. The compunjption which ancient 
 communities almost unconsciously experienced ap 
 pears to have always resulted in the adoption of 
 some imaginary principle upon which a defence, or 
 at least a rationale, of slavery could be plausibly 
 founded. Very early in their history the Greeks 
 explained the institution as grounded on the intel- 
 lectual inferiority of certain races and their conse- 
 quent natural aptitude for the servile condition. 
 The Romans, in a spirit equally characteristic, de- 
 rived it from a supposed agi'eement between the 
 victor and the vanquished in which the first stipu- 
 lated for the perpetual services of his foe ; and the 
 other gained in consideration the life which he had 
 legitimately forfeited. Such theories were not only 
 unsound but plainly unequal to the case for which 
 they affected to account. Still they exercised pow- 
 erful influence in many ways. They satisfied the 
 conscience of the Master. They perpetuated and 
 probably increased the debasement of the Slave. 
 And they naturally tended to put out of sight the 
 
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158 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. t. 
 
 relation in whicli servitude had. originally stood to 
 the rest of the domestic system. The relation, 
 though not clearly exhibited, is casually indicated 
 in many parts of the primitive law, and more par- 
 ticularly in the typical system — that of ancient 
 Rome. 
 
 Much industry and much learning have been be- 
 stowed in the United States of America on the 
 question whether the Slave was in the early stages 
 of society a recognised member of the Family. 
 There is a sense in which an affirmative answer 
 must certainly be given. It is clear, from the testi- 
 mony both of ancient law and of many primeval 
 histories, that the Slave might under certain con- 
 ditions be made the Heir, or Universal Successor, 
 of the Master, and this significant faculty, as I shall 
 explain in the Chapter on Succession, implies that 
 the government and representation of the Family 
 might, in a particular state of circumstances, de- 
 volve on the bondman. It seems, however, to be 
 assumed in the American arguments on the subject 
 that, if we allow Slavery to have been a primitive 
 Family institution, the acknowledgment is pregnant 
 with an admission of the moral defensibility of 
 Negro-servitude at the present moment. What 
 then is meant by saying that the Slave was origi- 
 nally included in the Family ? Not that his situa- 
 tion may not have been the fruit of the coarsest 
 motives which can actuate man. The simple wish 
 to use the bodily powers of another person as a 
 
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OHAP. T. SLAVERY. 159 
 
 means of ministering to one's own ease or pleasure 
 is doubtless tlie foundation of Slavery, and as old 
 as hum^ nature. When we speak of tlie Slave as 
 anciently included in tlie Family, we intend to a* 
 sert nothiug as to the motives of those who brought 
 him into it or kept him there ; we merely imply 
 that the tie which bound him to his master was re- 
 garded as one of the same general character with 
 that which united every other member of the group 
 to his chieftain. This consequence is, in fact, carried 
 in the general assertion already made that the 
 primitive ideas of mankind were unequal to com- 
 prehending any basis of the connexion inter se of 
 individuals, apart from the relations of family. The 
 Family consisted primarily of those who belonged 
 to it by consanguinity, and next of those who had 
 been engrafted on it by adoption ; but there was 
 still a third class of persons who were only joined 
 to it by common subjection to its head, and these 
 were the Slaves. The born and the adopted sub- 
 jects of the chief were raised above the Slave by 
 the certainty that in the ordinary course of events 
 they would be relieved from bondage and entitled 
 to exercise powers of their own ; but that the in- 
 feriority of the Slave was not such as to place him 
 outside the pale of the Family, or such as to de- 
 grade him to the footing of inanimate property, is 
 clearly proved, I think, by the many traces which 
 remain of his ancient capacity for inheritance in the 
 last resort. It would, of course, be unsafe in the 
 
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160 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. t 
 
 highest degree to hazard conjectures how far the lot 
 of the Slave was mitigated, in the beginnings of so- 
 ciety, by having a definite place reserved to him in 
 the empire of the Father. It is, perhaps, more 
 probable that the son was practically assimilated 
 to the Slave, than that the Slave shared any of the 
 tenderness \vhich in later times was shown to the 
 son. But it may be asserted with some confidence 
 of advanced and matured codes that, wherever 
 servitude is sanctioned, the slave has uniformly 
 greater advantages under systems which preserve 
 some memento of his earlier condition than under 
 those ^vhich have adopted some other theory of his 
 civil degradation. The point of view from which 
 jurisprudence regards the Slave is always of great 
 importance to him. The Koman law was aiTested 
 in its growing tendency to look upon him more and 
 more as an article of property by the theory of the 
 Law of Nature ; and hence it is that, wherever 
 servitude is sanctioned by institutions wMch have 
 been deeply affected by Koman jurisprudence, the 
 servile condition is never intolerably wretcLed 
 There is a great deal of evidence that in those 
 American States which have taken the highly Ro 
 manised code of Louisiana as the basis of their ju 
 risprudence, the lot and prospects of the Negro-pop 
 ulation were better in many material respects, untii 
 the letter of the fundamental law was overlaid by 
 recent statutory enactments passed under the in 
 fluence of panic, than under institutions founde I on 
 
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CHAP. T. ANCIENT LAW. 161 
 
 the English Common Law, which, as recently inter 
 preted, has no true place for the Slave, and can only 
 therefore regard him as a chattel. 
 
 We have now examined all parts of the ancient 
 Law' of Persons which fall within the scope of this 
 tieatise, and the result of the inquiry is, I trust, to 
 give additional definiteness and precision to our 
 view of the infancy of jurisprudence. The Civil 
 laws of States first make their appearance as the 
 Themistes of a patriarchal sovereign, and we can 
 now see that these Themistes are proLabl^'' only 
 a developed form of the irresponsible commands 
 which, in a still earlier condition of the race, the 
 head of each isolated household may have addressed 
 to his wives, his children, and his slaves. But, 
 even after the State has been organised, the laws 
 have still an extremely limited application. Wheth- 
 er they retain their primitive character as Themis- 
 tes, or whether they advance to the condition of 
 Customs or Codified Texts, they are binding not on 
 individuals, but on Families, Ancient jurispru- 
 dence, if a perhaps deceptive comparison may be 
 employed, may be likened to International Law, 
 filling nothing, as it were, except the interstices be- 
 tween the great groups which are the atoms of so 
 ciety. In a community so situated, the legislation 
 of assemblies and the jurisdiction of Courts i-eact 
 only to the heads of families, and to every other in 
 dividual the rule of conduct is the law of his home, 
 
 of which his Parent is the legislator. But the 
 11 
 
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162 PKIMITIVE SOCIETY AND ANCIENT LAW. chap, v 
 
 sptere of civil law, small at first, tends steadily to 
 enlarge itself. The agents of legal change, Fictions, 
 Equity, and Legislation, are brought in turn to 
 bear on the primeval institutions, and at every point 
 of the progress, a greater number of personal rights 
 and a larger amount of property are removed from 
 the- domestic forum to the cognizance of the public 
 tribunals. The ordinances of the government ob- 
 tain gradually the same efficacy in private concerns 
 as in matters of state, and are no longer liable to be 
 overridden by the behests of a de^^pot enthroned by 
 each hearthstone. We have in the annals of So- 
 man law a nearly complete hiftorv of the crumbling 
 away of an archaic system, and c"^ the foi'ination of 
 new institutions fi-om the re-comb ined materials, in- 
 stitutions some of which descend ^.d unimpaired to 
 the modern world, while others, destroyed or cor 
 rupted by contact with barbarisn. in the dark ages, 
 had again to be recovered by mankind. When we 
 leave this jurisprudence at the ep')ch of its final re- 
 construction by Justinian, few tisvces of archaism 
 can be discovered in any part of At except in the 
 single article of the extensive powk2>':5 still reserved 
 to the living Parent. Everywhere *lse principles 
 of convenience, or of symmetry, or of simplification 
 — new principles at any rate — have usurped the 
 authority of the jejune considerations \rt\ich satis, 
 fied the conscience of ancient times. Everywhere 
 a new morality has displaced the canons oi conduct 
 and the reasons of acquiescence which were in u.ni'^c^u 
 
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CHAP. V. DISINTEGRATION OF THE FAMILY. 163 
 
 ^ i 
 with the ancient usages, because in fact they were 
 born of them. 
 
 The movement of the progressive societies hag 
 been uniform in one respect. Through all its course 
 it has been distinguished by the gradual dissolution 
 of family dependency and the growth of individual 
 obligation in its place. The individual is steadily 
 substituted for the Family, as the unit of which civil 
 laws take account. The advance has been accom- 
 plished at varying rates of celerity, and there are 
 societies not absolutely stationary in which the col- 
 lapse of the ancient organisation can only be perceiv- 
 ed by careful study of the phenomena they present. 
 But, whatever its pace, the change has not been 
 subject to I'eaction or recoil, and apparent retarda- 
 tions will be found to have been occasioned through 
 the absorption of archaic ideas and customs from 
 some entirely foreign source. Nor is it difficult to see 
 what is the tie between man and man which replaces 
 by degrees those forms of reciprocity in rights and 
 duties which have their origin in the Family. It is 
 Contract. Starting, as from one terminus of historj-, 
 from a condition of society in which all the relations 
 of Persons are summed up in the relations of Fami- 
 ly, we seem to have steadily moved towards a phase 
 of social order in which all these relations arise from 
 the free agreement of individuals. In Westei-n 
 Europe the progress achieved in this direction has 
 been considerable. Thus the status of the Slave has 
 disappeared — ^it has been superseded by the co.> 
 
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164 PRIMITIVE SOCIETY AND ANCIENT LAW. ohap. t 
 
 tractual relation of tlie servant to his master. The 
 status of the Female under Tutelage, if the tutelage 
 be understood of persons other than her husband, 
 has also ceased to exist ; from her coming of age to 
 her marriage all the relations she may form are re- 
 lations of contract. So too the status of the Son 
 under Power has no true place in the law of mod- 
 ern European societies. If any civil obligation 
 binds together the Parent and the child of full age, 
 it is one to which only contract gives its legal validi- 
 ty. The apparent exceptions are exceptions of that 
 stamp which illustrate the rule. The child before 
 years of discretion, the orphan under guardianship, 
 the adjudged lunatic, have all their capacities and 
 incapacities regulated by the Law of Persons. But 
 why ? The reason is differently expressed in the 
 conventional language of different systems, but in 
 substance it is stated to the same effect by all. 
 The great majoritjr of Jurists are constant to the 
 principle that the classes of persons just mentioned 
 are subject to extrinsic control on the single ground 
 that they do not possess the faculty of forming a 
 judgment on their own interests ; in other words, 
 that they are wanting in the first essential of an en- 
 gagement by Contract. 
 
 The word Status may be usefully employed to 
 construct a formula expressing the law of progress 
 thus indicated, which, whatever be its value, seems 
 to me to be sufficiently ascertained. All the forms 
 of Status taken notice of in the Law of Persons wei'f 
 
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CHAP. V. MOVEMENT FROM STATUS TO CONTRACT. 166 
 
 derived from, and to some extent are still coloured 
 by, the powers and privileges anciently residing in 
 the Family. If then we employ Status, agreeably 
 with the usage of the best writers, to signify these 
 personal conditions only, and avoid applying the 
 term to such conditions as are the immediate or re- 
 mote result of agreement, we may say that the move- 
 ment of the progressive societies has hitherto been a 
 movement /»'om Status to Goni/ract. 
 
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CHAPTER VI. 
 
 THE EARLY BISTOBY OF TESTAMENTARY SU^WEHSIOS. 
 
 If an attempt were made to demonstrate in England 
 the superiority of the historical method of investiga- 
 tion to the modes of inquiry concerning Jurispru- 
 dence which are in fashion among us, no department 
 of Law would better serve as an example than Tes- 
 taments or Wills. Its capabilities it owes to its 
 great length and great continuity. At the beginning 
 of its histoiy we find ourselves in the very infancy 
 of the social state, surrounded by conceptions which 
 it requires some effort of mind to realise in their 
 ancient form ; while here, at the other extremity of 
 its line of progress, we are in the midst of legal no- 
 tions which are nothing more than those same con- 
 ceptions disguised by the phraseology and by the 
 habits of thought which belong to modern times, 
 and exhibiting therefore a difficulty of another kind, 
 the difficulty of believing that ideas which form 
 part of our every-day mental stock can really stand 
 in need of analysis and examination. The growth 
 
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OHAP. VI. TESTAMENTARY LAW. 167 
 
 of the Law of Wills between these extreme points 
 can be traced with remarkable distinctness. It was 
 much less interrupted at the epoch of the birth of 
 feudalism, than the history of most other branches 
 of Law. It is, indeed, true that as regards all prov- 
 inces of jurisprudence, the l)reak caused by the 
 division between ancient and modern history, or in 
 other words by the dissolution of the Roman empire, 
 has been very greatly exaggerated. Indolence hag 
 disinclined many writers to be at the pains of look- 
 ing for threads of connexion entangled and ob- 
 scured by the confusions of six troubled centuries, 
 while other inquirers, not naturally deficient in pa- 
 tience and industry, have been misled by idle pride 
 in the legal system of their country, and by conse- 
 quent unwillingness to confess its obligations to the 
 jurisprudence of Kome. But these unfavourable 
 influences have had comparatively little effect on the 
 province of Testamentary Law. The barbarians 
 were confessedly strangers to any such conception 
 as that of a Will. The best authorities agree that 
 there is no trace of it in those parts of their written 
 codes which comprise the customs practised by them 
 in their original seats and in their subsequent settle- 
 ments on the edge of the Roman Empire. But 
 soon after they became mixed with the population 
 of the Roman provinces they appropriated fi'om the 
 Imperial jurisprudence the conception of a Will, at 
 first in part, and afterwards in all its integrity 
 The influence of the Church had much to do with 
 
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168 INFLUENCE OE THE OHDROH. chap, vi 
 
 this rapid assimilation. The ecclesiastical power 
 had veiy early succeeded to those privileges of cus- 
 tody and I'egistration of Testaments which several 
 of the heathen temples had enjoyed ; and even thua 
 early it was almost exclusively to private hequestg 
 that the religious foundations owed their temporal 
 possessions. Hence it is that the decrees of the 
 earliest Provincial Councils perpetually contain ana- 
 themas against those who deny the sanctity of Wills. 
 Here, in England, Church influence was certainly 
 chief among the causes which by universal acknowl- 
 edgment have prevented that discontinuity in the 
 history of Testamentary Law which is sometimes 
 believed to exist in the history of other provinces 
 of Jurisprudence. The jurisdiction over one class 
 of Wills was delegated to the Ecclesiastical Coui-ts, 
 which applied to them, though not always intelli- 
 gently, the principles of Roman jurisprudence ; and, 
 though neither the Courts of Common Law nor the 
 Court of Chancery owned any positive obligation to 
 follow the Ecclesiastical tribunals, they could not 
 escape the potent influence of a system of settled 
 rules in course of application by their side. The 
 English law of testamentary succession to personal- 
 ty has become a modified form of the dispensation 
 under which the inheritances of Roman citizens 
 were administered. 
 
 It is not difficult to point out the extreme dif- 
 ference of the conclusions forced on us by the histo- 
 rical treatment of the subject, from those to which 
 
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CHAP. VT, ANCIENT WILLS. 169 
 
 ■we are conducted when, without the help of history, 
 we merely strive to analyse onr prima facie impres 
 sions. I suppose there is nobody who, stai'ting from 
 the popular or even the legal conception of a Will, 
 would not imagine that certain qualities are necessa- 
 rily attached to it. He would say, for example, that 
 a Will necessarily takes e&ect at death only, — thatil 
 is secret, not known as a matter of coiii'se to persons 
 taking interests under its provisions, — that it is revo 
 cable, 1. e. always capable of being superseded by a 
 new act of testation. Yet I shall be able to show 
 that there was a time when none of these characteris- 
 tics belonged to a Will. The Testaments from which 
 our Wills are directly descended at first took effect 
 immediately on their execution ; they were not se- 
 cret ; they were not revocable. Few legal agencies 
 are, in fact, the fruit of more comj)lex historiical 
 agencies than that by which a man's written in- 
 tentions control the posthumous disposition of his- 
 goods. Testaments yery slowly and gradually ga- 
 thered around them the qualities I have mentioned ; 
 and they did this from causes and under pressure 
 of events which may be called casual, or which at 
 any rate have no interest foi- us at present, except 
 60 far as they have affected the history of law. 
 
 At a time when legal theories were more abund- 
 ant than at present,- — theories which, it is true, v/ere 
 for the most part gratuitous and premature enough, 
 but which nevertheless rescued jurisprudence from 
 that worse and more ignoble condition, not unknown 
 
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170 NATURAL RIGHT OF TESTATION. chap. rx. 
 
 to (nii'selves, in whicli nothing like a generalisation is 
 aspired to, and law is regarded as a mere empirical 
 pursuit — it was the feshion to explain the i-eady 
 and apparently intuitive pei'ception which we have 
 of certain qualities in a Will, by saying that they 
 were natural to it, or, as the phrase would run in 
 full, attached to it by the Law of Nature. Nobody, 
 I imagine, would affect to maintain such a doctrine, 
 when once it was ascertained that all these charac- 
 teristics had their origin within historical memory ; 
 at the same time, vestiges of , the theory of which 
 the doctrine is an offshoot, linger in forms of express- 
 ion which we all of us use and perhaps scarcely know 
 how to dispense with. I may illustrate this by men- 
 tioning a position common in the legal literature of 
 the seventeenth century. The jurists of that period 
 very commonly assert that the power of Testation 
 itself is of Natural Law, that it is a ricfht conferred 
 by the Law of Nature. Their teaching, though all 
 persons may not at once see tlje connexion, is in sub- 
 stance followed by those who affirm that the right 
 of dictating or controlling the posthumous disposal 
 of property is a necessary or natural consequence 
 of the proprietary rights themselves. And every 
 student of technical jurisprudence must have come 
 across the same view, clothed in the language of a 
 rather different school, which, in its rationale of this 
 department of law, treats succession ex testamento?& 
 the mode of devolution which the property of de- 
 ceased persons ought primarily to follow, and then 
 
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OHAP. VI. NATURAL RIGHT OF TESTATION. 171 
 
 proceeds to account for succession ah intestato as the 
 incidental provision of tbe lawgiver for the dis- 
 charge of a function which was only left unperform- 
 ed through the neglect or misfortune of the deceased 
 proprietor. These opinions are only expanded forms 
 of the more compendious doctrine that Testamen- 
 tary disposition is an institution of the Law of Na- 
 ture. It is certainly never quite safe to pronounce 
 dogmatically as to the range of association embraced 
 by modern minds, when they reflect on Nature and 
 her Law ; but I believe that most persons, who af- 
 firm that the Testamentary Power is of Natural 
 Law, may be taken to imply either that, as a matter 
 of fact, it is universal, or that nations are prompted 
 to sanction it by an original instinct and impulse. 
 With respect to the first of these positions, I think 
 that, when explicitly set forth, it can never be se- 
 riously contended for in an age which has seen the 
 severe restraints imposed on the Testamentary Pow- 
 er by the Oode Napoleon, and has witnessed the 
 steady multiplication of systems for which the 
 French codes have served as a model. To the se- 
 cond assertion we must object that it is contrary to 
 the best-ascertained facts in the early history of law, 
 and I venture to affirm generally that, in all indi-"" 
 genous societies, a condition of jurisprudence in 
 which Testamentary privileges are not allowed, or 
 rather not contemplated, has preceded that later 
 stage of legal development in which the mere will 
 of the proprietor is permitted under more or less of 
 
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172 NATURE OF A WILL. chap vi. 
 
 restriction to override the claims of his kindred in 
 blood. 
 
 The conception of a Will or Testament cannot be 
 considered by itself. It is a member, and not the 
 first, of a series of conceptions. In itself a Will is 
 simply the instrument by which the intention of the 
 testator is declared. It must be clear, I think, that 
 before such an instrument takes its turn for discus- 
 sion, thei'e are several preliminary points to be ex- 
 amined — as for example, what is it, what sort of 
 right or interest, which passes from a dead man on 
 his decease ? to whom and in what form does it pass ? 
 and how came it that the dead were allowed to con- 
 trol the posthumous disposition of their property ? 
 Thrown into technical language, the dependence of 
 the various conceptions which contribute to the m/- 
 tion of a Will is thus expressed. A Will or Testa- 
 ment is an instrument by which the devolution of 
 an inheritance is prescribed. Inheritance is a forn 
 of universal succession. A universal succession is a 
 succession to a universitas j%i,ris^ or university of 
 rights and duties. Inverting this order we have 
 therefore to inquire what is a universitas juris; 
 what is a universal succession ; what is the form of 
 universal succession which is called an inheritance ? 
 And there are also two further questions, indepen- 
 dent to some extent of the points I have mooted, 
 but demanding solution before the subject of Wills 
 can be exhausted. These are, how came an inheri- 
 tance to^ be controlled in any case by the testator's 
 
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OHAP. Ti. UNIVEESITAS JURIS. 173 
 
 volition, and what is the nature of the instrument 
 by which it came to be controlled ? 
 
 The first question relates to the universitas juris y 
 that is, a university (or bundle) of rights and duties. 
 A universitas juris is a collection of rights and du 
 ties united by the single circumstance of their having 
 belonged at one time to some one person. It is, as it 
 were, the legal clothing of some given individual. It 
 is not formed by grouping together any rights and 
 any duties. It can only be constituted by taking all 
 the rights and all the duties of a particular person. 
 The tie which connects a number of rights of pro- 
 perty, rights of way, rights to legacies, duties of 
 specific performance, debts, obligations to compensate 
 wrongs — which so connects all these legal privileges 
 and duties together as to constitute them a universi- 
 tas juris, is the fact of their having attached to 
 some individual capable of exercising them. With- 
 out this fact there is no university of rights and 
 duties. The expression universitas jti/ris is not clas- 
 sical, but for the notion jurisprudence is exclusively 
 indebted to Roman law ; nor is it at all difficult to 
 seize. We must endeavour to collect under one con- 
 ception the whole set of legal relations in which 
 each one of us stands to the rest of the world. 
 These, whatever be their character and composition, 
 make up together a universitas juris ; and there is 
 but little danger of mistake in forming the notion, 
 if we are only careful to remember that duties enter 
 into it quite as much as rights. Our duties may 
 
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174 UNIVEESAL SUCCESSION. ohap. vi 
 
 overbalance our rights. A man may owe moretlian 
 he is worth, and therefore if a money value is set 
 on his collective legal relations he may be what ia, 
 called insolvent. But for all that, the entire group _ 
 of rights and duties which centres in him is not the 
 less a "juris universitas." 
 
 AVe come next to a " universal succession." A 
 universal succession is a succession to a universitas 
 juris. It occurs when one man is invested with the 
 legal clothing of another, becoming at the same mo- 
 ment subject to all his liabilities and entitled to all 
 his rights. In order that the universal succession 
 may be true and perfect, the devolution must take 
 place uno ictu, as the jurists phrase it. It is of 
 course possible to conceive one man acquiring the 
 whole of the rights and duties of another at differ- 
 ent periods, as for example by successive purchases ; 
 or he might acquire them in different capacities, part 
 as heir, part as purchaser, part as legatee. But 
 though the group of rights and duties thus made up 
 should in fact amount to the whole legal personality 
 of a particular individual, the acquisition would not 
 be a universal succession. In order that there may 
 be a true universal succession, the transmission must 
 be such as to pass the whole aggregate of rights and 
 duties at the same moment and in virtue of the same 
 legal capacity in the recipient. The notion of a 
 universal succession, like that of a juris universitas, 
 is permanent in jurisprudence, though in the English 
 legal system it is obscured by the great variety of 
 
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CHAP. VI. THE UNIVERSAL SUOCESSOE. 175 
 
 capacities in which rights are acquired, aad, above 
 all, by the distinction between the two great prov- 
 inces of English property, "realty" and "personal- 
 ty." The succession of an assignee in bankruptcy 
 to the entire property of the bankrupt is, however, 
 a universal succession, though as the assignee only 
 pays debts to the extent of the assets this is only a 
 modified form of the primary notion. Were it com- 
 mon among us for persons to take assignments of 
 all a man's property on condition of paying all his 
 debts, such transfers would exactly resemble the uni- 
 versal successions known to the oldest Roman Law. 
 When a Roman citizen adrogated a son, i. e. took a 
 man, not already under Patria Potestas, as his adop- 
 tive child, he succeeded universally to the adoptive 
 child's estate, i. e. he took all the property and be- 
 came liable for all the obligations. Several other 
 forms of universal succession appear in the primitive 
 Roman Law, but infinitely the most important and 
 the most durable of all was that one with which we 
 are more immediately concerned, Hsereditas or In- 
 heritance. Inheritance was a universal succession 
 occurring at a death. The universal successor was 
 Ha^res or Heir. He stepped at once into all the 
 rights and all the duties of the dead man. He was 
 instantly clothed with his entire legal person, and I 
 need scarcely add that the special character of the 
 Hseres remained the same, whether he was named 
 by a Will or whether he took on an Intestacy. The 
 term Hseres is no. more emphatically used of the 
 
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176 THE HEIR. ohap. n 
 
 Intestate tLan of the Testamentary Heir, for the 
 manner in which a man became Haeres had nothing 
 to do with the legal character he sustained. The 
 dead man's universal successor, however he became 
 so, whether by "Will or by Intestacy, was his Heir. 
 But the heir was not necessarily a single person. 
 A group of persons, considered in law as a sin- 
 gle unit, might succeed as co-Tieirs to the Inheri- 
 tance. 
 
 Let me now quote the usual Roman definition 
 of an Inheritance. The reader will be in a position 
 to appreciate the full force of the separate terms. 
 Hcereditas est successio in vniversum jus quod de- 
 functus Tiabuit ( " an inheritance is a succession to 
 the entire legal position of a deceased man "). The 
 notion was that though the physical person of the 
 deceased had perished, his legal personality survived 
 and descended unimpaired on his Heir or Co-heirs, 
 in whom his identity (so far as the law was con 
 cerned) was continued. Our own law, in constitut- 
 ing the Executor or Administrator the representa- 
 tive of the deceased to the extent of his personal 
 assets, may serve as an illustration of the theory 
 from which it emanated ; but, although it illustrates, 
 it does not explain it. The view of even the later 
 Koraan Law required a closeness of correspondence 
 between the position of the deceased and of his 
 Heir which is no feature of an English representa- 
 tion ; and in the primitive jurisprudence everything 
 turned on the continuity of succession. Unless 
 
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CHAP. VI. PEIMITIVE SOCIETY. .77 
 
 provision was made in the will for tLe instant devo- 
 lution of the testator's rights and duties on the 
 Heir or Co-heirs, the testament lost all its effect. 
 
 In modern Testamentary jurisprudence, as in the 
 later Roman law, the object of first importance ia 
 the execution of the testator's intentions. In the 
 ancient law of Rome the subject of corresponding 
 carefulness was the bestowal of the Universal Suc- 
 cession. One of these rules seems to our eyes a 
 principle dictated by common sense, while the other 
 looks very much like an idle crotchet. Yet that 
 without the second of them the first would never 
 have come into being is as certain as any proposi- 
 tion of the kind can be. 
 
 In order to solve this apparent paradox, and to 
 bring into greater clearness the train of ideas which 
 I have been endeavouring to indicate, I must bor- 
 row the results of the inquiry which was attempted 
 in the earlier portion of the preceding chapter. 
 We saw one peculiarity invariably distinguishing 
 the infancy of society. Men are regarded and 
 treated, not as individuals, but always as members 
 of a particular group. Everybody is first a citizen, 
 and then, as a citizen, he is a member of his order 
 — of an aristocracy or a democracy, of an order of 
 patricians or plebeians ; or in those societies which 
 an unhappy fate has afflicted with a special perver- 
 sion in their course of development, of a caste. 
 Next, he is a member of a gens, house, or clan ; and 
 lastly, he is a member of his family. This last was 
 12 
 
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178 THE PRIMITIVE FAMILY. chap, ti 
 
 the narrowest and most personal relation in which 
 he stood ; nor, paradoxical as it may seem, was he 
 ever regarded as himself, as a distinct individual. 
 His individuality was swallowed up in his family. 
 I repeat the definition of a primitive society given 
 before. It has for its units, not individuals, but 
 groups of men united by the reality or the fiction of 
 blood-relationship. 
 
 It is in the peculiarities of an undeveloped 
 society that we seize the first trace of a universal 
 succession. Contrasted with the organisation of a 
 modern state, the commonwealths of primitive times 
 may be fairly described as consisting of a number 
 of little despotic governments, each perfectly dis- 
 tinct from the rest, each absolutely controlled by 
 the prerogative of a single monarch. But though 
 the Patriarch, for we must not yet call him the 
 Pater-familias, had rights thus extensive, it is im- 
 possible to doubt that he lay under an equal ampli 
 tude of obligations. If he governed the family, i 
 was for its behoof If he was lord of its posses- 
 sions, he held them as trustee for his children and 
 kindred. He had no privilege or position distinct 
 from that conferred on him by his relation to the 
 petty commonwealth w^hich he governed. The 
 Family, in fact, was a Corporation ; and he was its 
 representative or, we might almost say, its Public 
 officer. He enjoyed rights and stood under duties, 
 but the rights and duties were, in the contempla- 
 tion of his fellow-citizens and in the eye of the law, 
 
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CHAP. VI. THE FAMILY A CORPORATION". 179 
 
 quite as mucli those of tlie collective body as his 
 own. Let us consider for a moment, the effect 
 which would be produced by the death of snch u 
 representative. In the eye of the law, in the view 
 of the civil magistrate, the demise of the domestic 
 authority would be a perfectly immaterial event. 
 The person representing the collective body of the 
 family and piimarily responsible to municipal juris- 
 diction would bear a different name ; and that 
 would be all. The rights and obligations which 
 attached to the deceased head of the house would 
 attach, witliout breach of continuity, to his succes- 
 sor ; for, in point of fact, they would be the rights 
 and obligations of the family, and the family had 
 the distinctive characteristic of a corpoi'ation — that 
 it never died. Creditors would have the same 
 remedies against the new chieftain as against the 
 old, for the liability being that of the still existing 
 family would be absolutely unchanged. All rights 
 available to the family would be as available after 
 the demise of the headship as before it — except that 
 the Corporation would be obliged — if indeed lan- 
 guage so precise and technical can be properly used 
 of these early times — ^would be obliged to sue under 
 a slightly modified name. 
 
 The history of jurisprudence must be followed 
 in its whole course, if we are to understand how 
 gradually and tardily society dissolved itself into 
 the component atoms of which it is now constituted 
 — ^by what insensible gradations the relation of man 
 
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180 FAMILIES AND INDIVIDUALS. ohap. vl 
 
 to man substituted itself for the I'elation of the in 
 dividual to Ms family and of families to eacli other 
 The point now to be attended to is that even when 
 the revolution had apparently quite accomplished 
 tself, even when the magistrate had in great meas- 
 ure assumed the place of the Pater-familias, and the 
 civil tribunal substituted itself for the domestic 
 forum, nevertheless the whole scheme of rights and 
 duties administered by the judicial authorities re- 
 mained shaped by the influence of the obsolete 
 privileges and coloured in every part by their reflec- 
 tion. There seems little question that the devolu- 
 tion of the Universitas Juris, so strenuously in- 
 sisted upon by the Roman Law as the first condi- 
 tion of a testamentary or intestate succession, was a 
 feature of the older form of society which men's 
 minds had been unable to dissociate from the new, 
 though with that newer phase it had no true or 
 proper connection. It seems, in truth, that the pro- 
 longation of a man's legal existence in his heir, or 
 in a group of co-heirs, is neither more nor less than 
 a characteristic of the family transferred by a fiction 
 to tlie individual. Succession in corporations is 
 necessarily universal, and the family was a corpora- 
 tion. Corporations never die. The decease of in- 
 dividual members makes no difi^erence to the collec- 
 tive existence of the aggregate body, and does not 
 in any way affect its legal incidents, its faculties or 
 liabilities. Now in the idea of a Roman universal 
 Euccession all these qualities of a corporation seem 
 
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cuAP. VI. CORPORATIONS SOLE. 181 
 
 to have been transferred to tlie individual citizen 
 His physical death is allowed to exercise no effect 
 on the legal position which he filled, apparently on 
 the principle that that position is to be adjusted as 
 closely as possible to the analogies of a family, 
 which in its corporate character was not of course 
 liable to physical extinction. 
 
 I observe that not a few continental jurists have 
 much difficulty in comprehending the nature of the 
 connection between the conceptions blended in a 
 universal succession, and there is perhaps no topic 
 in the philosophy of jurisprudence on which their 
 speculations, as a general rule, possess so little 
 value. But the student of English law ought to be 
 in no danger of stumbling at the analysis of the 
 idea which we are examining. Much light is cast 
 upon it by a fiction in our own system with which 
 all lawyers are familiar. English lawyers classify 
 corporations as Corporations aggregate and Corpora- 
 tions- sole. A Corporation aggregate is a true cor- 
 poration, but a Corporation sole is an individual, 
 being a member of a series of individuals, who is 
 invested by a fiction with the qualities of a Cor- 
 poration. I need hardly cite the King or the Par- 
 son of a Parish as instances of Corporations sole. 
 The capacity or office is here considered apart from 
 .the particular person who from time to time may 
 occupy it, and, this capacity being perpetual, the 
 series of individuals who fill it are clothed witli 
 the leading attribute of Corporations — Perpetuity 
 
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182 OOEPOEATIONS SOLE. chap, vi 
 
 Now in the o]der theory of Roman Laiv the indi 
 vidua! bore to the family precisely the same relation 
 which in the rationale of English jurisprudence a 
 Corporation sole bears to a Corporation aggregate. 
 The derivation and association of ideas are exactly 
 the same. In fact, if we say to ourselves that for 
 purposes of Roman Testamentary Jurisprudence 
 each individual citizen was a Corporation sole, we 
 shall not only realize the full conception of an in- 
 heritance, but have constantly at command the clue 
 to the assumption in which it originated. It is an 
 axiom with us that the King never dies, being 
 a Corporation sole. His capacities are instantly 
 filled by his successor, and the continuity of domin- 
 ion is not deemed to have been interrupted. With 
 the Romans it seemed an equally simple and natural 
 process, to eliminate the fact of death from the devo- 
 lution of rights and obligations. The testator lived 
 on in his heir or in the group of his co-heirs. He 
 was in la^v the same person with them, and if any 
 one in his testamentary dispositions had even con- 
 structively violated the principle which united his 
 actual and his posthumous existence, the law re- 
 jected the defective instrument, and gave the in- 
 heritance to the kindred in blood, whose capacity to 
 fulfil the conditions of heirship was conferred on 
 them by the law itself, and not by any document 
 which by possibility might be erroneously framed. 
 "When a Roman citizen died intestate or leaving 
 no valid Will, his descendants or kindred became 
 
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flHAP. VI. INTESTATE SUCCESSION. 183 
 
 his heirs according to a scale which will be present- 
 ly described. The person or class of persons who 
 suc(!eeded did not simply represent the deceased, 
 but, in conformity with the theory just delineated, 
 they contiiiued his civil life, his legal existence. 
 The same results followed when the order of suc- 
 cession was determined by a Will, but the theory 
 of the identity between the dead man and his heirs 
 was certainly much older than any form of Testa- 
 ment or phase of Testamentary jurisprudence. This 
 indeed is the proper moment for suggesting a doubt 
 which will press on us with greater force the further 
 we plumb the depths of this subject — whether wills 
 would ever have come into being at all if it had not 
 been for these remarkable ideas connected with uni- 
 versal succession. Testamentary law is the applica- 
 tion of a principle which may be explained on a va- 
 riety of philosophical hypotheses as plausible as 
 they are gratuitous ; it is interwoven with every 
 part of modern society, and it is defensible on the 
 broadest grounds of general expediency. But the 
 warning can never be too often repeated, that the 
 grand source of mistake in questions of jurispru- 
 dence is the impression that those reasons which 
 actuate us at the present moment, in the main 
 tenance of an existing institution, have necessarily 
 anything in common with the sentiment in which 
 the institution originated. It is certain that, in the 
 old Roman Law of Inheritance, the notion of a will 
 or testament is inextricably mixed up, I might 
 
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184 SUCCESSION TO THE FAMILY. chap, vi, 
 
 almost say confounded, with the theory of a man's 
 posthumous existence in the person of his hein 
 
 The conception of a universal succession, firmly 
 as it has taken root in jurisprudence, has not oc 
 curred spontaneously to the framers of every bod} 
 of lavi^s. Wherever it is now found, it may be 
 shown to have descended from Roman law; and 
 with it have come down a host of legal rules on the 
 subject of Testaments and Testamentary gifts, which 
 modern practitioners apply without discerning their 
 relation to the parent theory. But, in the j)ure 
 'Roman jurisprudence, the principle that a man lives 
 on in his Heir — ^the elimination, if we may so speak, 
 of the fact of death — is too obviously for mistake 
 the centre round which the whole Law of Testa- 
 mentary and Intestate succession is circling. The 
 unflinching sternness of the Roman law in enforcing 
 compliance with the governing theory would in it- 
 self suggest that the theory grew out of something 
 in the primitive constitution of Roman society ; but 
 we may push the proof a good way beyond the 
 presumption. It happens that several technical ex- 
 pressions, dating from the earliest institutions of 
 Wills at Rome, have been accidentally preserved 
 to us. We have in Gains the formula of investiture 
 by which the universal successor was created. AVe 
 have the ancient name by which the jDerson after- 
 wards called Heir was at first designated. We 
 have further the text of the celebrated clause in 
 the Twelve Tables by which the Testamentary 
 
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CHAP. VI. ORIGINAL OBJECT OF WILLS. 18S 
 
 pOAvev Avas expressly recognised, and the clauses 
 regulating Intestate Succession have also been pre- 
 served. All these archaic phrases have one salient 
 peculiarity. They indicate that what passed from 
 the Testator to the Heir was the Family^ that is, 
 the aggregate of rights and duties contained in the 
 Patria Potestas and growing out of it. The ma- 
 terial property is in three instances not mentioned 
 at all; in two others, it is visibly named as an 
 adjunct or appendage of the Family. The original 
 Will or Testament was therefore an instrument, or 
 (for it was probably not at first in writing) a pro- 
 ceeding by which the devolution of the Family was 
 regulated. It was a mode of declaring who was to 
 have the chieftainship, in succession to the Testator. 
 "When Wills are understood to have this for their 
 original object, we see at once how it is that they 
 came to be connected with one of the most curious 
 relics of ancient religion and law, the sacra, or 
 Family Rites. These sacra were the Eoman form 
 of an institution which shows itself wherever society 
 has not wholly shaken itself free from its primitive 
 clothing. They are the sacrifices and ceremonies 
 by which the brotherhood of the family is commem- 
 orated, the pledge and the witness of its perpetuity. 
 Whatever be their nature, — whether it be true oi 
 not that in all cases they are the worship of some 
 mythical ancestor, — they are everj-where employed 
 to attest the sacred n ess of the family relation ; and 
 therefore they acquire prominent significance and 
 
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 X 
 
186 THE HINDOO SACRA. OHAr. vi 
 
 importance, whenever the continuous existence of 
 the Family is endangered by a change in the persor 
 of its chief. Accordingly, we hear most about them 
 in connection with demises of domestic sovereignty. 
 Among the Hindoos, the right to inherit a dead 
 man's property is exactly co-extensive with the duty 
 of performing his obsequies. If the rites are not 
 properly performed or not performed by the proper 
 person, no relation is considered as established be- 
 tween the deceased and anybody surviving him ; 
 the Law of Succession does not apply, and nobody 
 can inherit the projaerty. Every great event in the 
 life of a Hindoo seems to be regarded as leading up 
 to and bearing upon these solemnities. If he mar- 
 ries, it is to have children who may celebrate them 
 after his death ; if he has no children, he lies under 
 the strongest obligation to adopt them from another 
 family, " with a view," writes the Hindoo doctor, 
 " to the funeral cake, the water, and the solemn 
 sacrifice." The sphere preserved to the Eoman 
 sacra in the time of Cicero, was not less in extent. 
 It embraced Inheritances and Adoptions. No 
 Adoj)tion was allowed to take place without due 
 provision for the sacra of the family from which the 
 adoptive son was transferred, and no Testament Avas 
 allowed to distribute an Inheritance without a strict 
 apportionment of the expenses of these ceremonies 
 among the different co-heirs. The differences be- 
 tween the Roman law at this epoch, when we obtain 
 our last glimpse of the sacra, and the existing Hin 
 
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anAP. VI. EOMAN AND HINDOO SACRA. 187 
 
 doo system, are most instructive. Among the Hin- 
 doos, the religious element in law Has acquired a 
 complete predominance. Family sacrifices have be- 
 come the keystone of all the Law of Persons and 
 much of the Law of Things. They^ have even re- 
 ceived a monstrous extension, for it is a plausible 
 opinion that the self-immolation of the widow at 
 hei' husband's funeral, a practice continued to his- 
 torical times by the Hindoos, and commemorated in 
 the traditions of several Indo-European races, was 
 an addition grafted on the primitive sacra under the 
 influence of the impression, which always accom- 
 panies the idea of sacrifice, that human blood is the 
 most precious of all oblations. With the Romans, 
 on the contrary, the legal obligation and the re- 
 ligious duty have ceased to be blended. The neces- 
 sity of solemnising the saxira forms no part of the 
 theory of civil law, but they are under the separate 
 jurisdiction of the College of Pontiffs, The letters 
 of Cicero to Atticus, which are full of allusions 
 to them, leave no doubt that they constituted an in- 
 tolerable burden on Inheritances ; but the point of 
 development at which law breaks away from reli- 
 gion has been passed, and we are prepared for their 
 entire disappearance from the later jurisprudence. 
 
 In Hindoo law there is no such thing as a trup 
 Will. The place filled by Wills is occupied by 
 Adoptions. We can now see the relation of the 
 Testamentary Power to the Faculty of Adoption, 
 and the reason why the exercise of either of them 
 
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1S8 WILLS AND ADOPTIONS. chap, vi 
 
 could call up a peculiai' solicitude for the perfonn 
 ance of the sacra. Both a Will and an Adoption 
 threaten a distortion of the ordinary course of Fam 
 ily descent, but they are obviously contrivances foi 
 preventing the descent being wholly interrupted 
 vi^hen there is no succession of kindred to carry it 
 on. Of the two expedients Adoption, the factitious 
 creation of blood-relationship, is the only one which 
 has suggested itself to the greater part of archaic 
 societies. The Hindoos have indeed advanced one 
 point on what was doubtless the antique practice, 
 by allowing the widow to adopt when the father 
 has neglected to do so, and there are in the local 
 customs of Bengal some faint traces of the Testa- 
 mentary powers. But to the Romans belongs pre- 
 eminently the credit of inventing the Will, the in- 
 stitution which, next to the Contract, has exercised 
 the greatest influence in transforming human so- 
 ciety. We must be careful not to attribute to it in 
 its earliest shape the functions which have attended 
 it in more recent times. It was at first not a mode 
 of distributing a dead man's goods, but one among 
 several ways of transferring the representation of 
 the household to a new chief The goods descen 1 
 no doubt to the Heir, but that is only because the 
 government of the family carries with it in its devo- 
 lution the power of disposing of the common stock. 
 We are very far as yet from that stage in the his- 
 tory of Wills, in which they become powerful instru- 
 ments in modifying society through the stimulus 
 
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CHAP. VL KOMAF IDEAS OF SUCCESSION. 189 
 
 they give to the circulation of property aud the 
 plasticity they produce in proprietary rights. No 
 such consequences as these appear in fact to have 
 been associated with the Testamentary power even 
 by the latest Roman lawyers. It will be found 
 that Wills were never looked upon in the Roman 
 community as a contrivance for parting Property 
 and the Family, or for creating a variety of miscel- 
 laneous interests, but rather as a means of making a 
 better provision for the members of a household 
 than could be secured through the rules of Intestate 
 succession. "We may suspect indeed that the asso- 
 ciations of a Roman with the practice of will-mak- 
 ing were extremely different from those familiar to 
 us nowadays. The habit of regarding Adoption 
 and Testation as modes of continuing the Family 
 cannot but have had something to do with the 
 singular laxity of Roman notions as to the inherit- 
 ance of sovereignty. It is impossible not to see 
 that the succession of the early Roman Emperors to 
 each other was considered reasonably regular, and 
 that, in spite of all that had occurred, no absurdity 
 attached to the pretension of such Princes as Theo- 
 dosius or Justinian to style themselves Caesar and 
 Augustus. 
 
 When the phenomena of primitive societies 
 emerge into light, it seems impossible to dispute a 
 proposition which, the jurists of the seventeenth 
 3entury considered doubtful, that Intestate Inheri- 
 tance is a more ancient institution than Testamen 
 
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190 EAEITY OF TESTAMENTARY POWER, chap. ti. 
 
 tary Succession. As soon as tMs is settled, a ques- 
 tion of mucli interest suggests itself, how and under 
 what conditions were the directions of- a will first 
 allowed to regulate the devolution of authority 
 over the household, and consequently the posthu- 
 mous distribution of property. The difiiculty of 
 deciding the point arises from the rarity of Testa 
 mentary power in archaic communities. It is doubt- 
 ful whether a true power of testation Avas known 
 to any original society except the Koman. Rudi- 
 mentary forms of it occur here and there, but most 
 of them are not exempt from the suspicion of a 
 Roman origin. The Athenian Will was, no doubt, 
 indigenous, but then, as will appear presently, it 
 was only an inchoate Testament. As to the Wills 
 which are sanctioned by the bodies of law which 
 have descended to us as the codes of the barbarian 
 conquerors of imperial Rome, they are almost cer- 
 tainly Roman. The most penetrating German crit- 
 icism has recently been directed to these leges Bar- 
 hm-orum, the great object of investigation being to 
 detach those portions of each system which formed 
 the customs of the tribe in its original home from the 
 adventitious ingredients which were borrowed fi'om 
 the laws of the Romans. In the course of this pro- 
 cess, one result has invariably disclosed itself, that 
 the ancient nucleus of the code contains no trace 
 of a Will. Whatever testamentary law exists, has 
 been taken from Roman jurisprudence. Similarly^ 
 the rudimentary Testament which (as I am inforin 
 
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CHAP. VI. PRIMITIVE OPERATION OF WILLS. 191 
 
 ed) the Rabbinical Jewish law provides for, ha a 
 been attributed to contact with the Romans. The 
 only form of testament, not belonging to a Roman 
 or Hellenic society, which can reasonably be sup- 
 posed indigenous, is that recognised by the usagea 
 of the province of Bengal ; and the testament of 
 Bengal is only a rudimentary Will. 
 
 The evidence, however, such as it is, seems to 
 point to the conclusion that Testaments are at first 
 only allowed to take effect on failure of the persons 
 entitled to have the inheritance by right of blood 
 genuine or fictitious. Thus, when- Athenian citi- 
 zens were empowered for the first time by the 
 Laws of Solon to execute Testaments, they were 
 forbidden to disinherit their direct male descen- 
 dants. So, too, the Will of Bengal is only per- 
 mitted to govern the succession so far as it is con- 
 sistent vdth certain overriding claims of the family. 
 Again, the original institutions of the Jews having 
 provided nowhere for the privileges of Testator- 
 ship, the later Rabbinical jurisprudence, which pre- 
 tends to suply the casus omissi of the Mosaic law, 
 allows the power of Testation to attach when all 
 the kindred entitled under the Mosaic system to 
 succeed have failed or are undiscoverable. The 
 limitations by which the ancient German codes 
 hedge in the testamentary jurisprudence which has 
 been incorporated with them are also significant,, 
 and point in the same direction. It is the peculiar-- 
 ty of most of these German laws, in the only shape 
 
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192 OLD GERMANIC WILLS. chap, it 
 
 in whicli wo know tBem, tiat, besides the allod oi 
 domain of each houseliold, they recognise several 
 subordinate kinds or orders of property, each of 
 which probably represents a separate transfusion 
 of Roman principles into the primitive body of 
 Teutonic nsage. The primitive German or allodial 
 property is strictly reserved to the kindred. Not 
 only is it incapable of being disposed of by testa- 
 ment, but it is scarcely capable of being alienated 
 by conveyance intei' vivos. The ancient German 
 law, like the Hindoo jurisprudence, makes the male 
 children co-proprietors Avith their father, and the 
 endowment of the family cannot be parted with ex- 
 cept by the consent of all its members. But the 
 other sorts of property, of more modern origin and 
 lower dignity than the allodial possessions, are 
 much more easily alienated than they, and follow 
 much more lenient rules of devolution. Women 
 and the descendants of women succeed to them, ob- 
 viously on the principle that they lie outside the 
 sacred precinct of the Agnatic brotherhood. Now. 
 it is on these last desa-iptions of property, and on 
 these only, that the Testaments borrowed from 
 Rome were at first allowed to operate. 
 
 These few indications may serve to lend addi- 
 tional plausibility to that which in itself appears to 
 be the most i)robable explanation of an ascertained 
 fact in the early history of Eoman wills. We have 
 it stat(;d on abundant authority that Testaments, 
 during the primitive period of the Eoman State, 
 
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CHAP. VI. THE OOMITIA OALATA. 198 
 
 were executed in tLe Comitia Calata, that is, in the 
 Comitia Curiata, or Parliament of the Patrician 
 Burghers of Pome, when assembled for Private 
 Business. This mode of execution has been the 
 source of the assertion, handed down by one gen- 
 eration of civilians to another, that every Will at 
 one era of Roman history was a solemn legislative 
 enactment. But there is no necessity whatever for 
 resorting to an explanation which has the defect of 
 attributing far too much precision to the proceed- 
 ings of the ancient assembly. The proper key to 
 the story concerning the execution of Wills in the 
 Comitia Calata must no doubt be sought in the 
 oldest Roman Law of intestate succession. The 
 canons of primitive Roman jurisprudence regulating 
 the inheritance of relations from each other were, so 
 long as they remained unmodified by the Edictal 
 Law of the Prsetor, to the following effect : — First, 
 the sui or direct descendants who had never been 
 emancipated succeeded. On the failure of the sui^ 
 the Nearest Agnate came into their place, that is, 
 the nearest person or class of the kindred who was 
 or might have been under the same Patria Potestas 
 with the deceased. The third and last degree came 
 next, in which the inheritance devolved on the gen- 
 tiles^ that is, on the collective members of the dead 
 man's gens or. House. The House, I have explained 
 already, was a fictitious extension of the family, 
 consisting of all Roman Patrician citizens who bore 
 the same name, and who on the ground of bearing 
 13 
 
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194 JURISDIOTIOK OF THE COMITIA. chap. vi. 
 
 the same name, were supposed to be descended 
 from a common ancestor. Now the Patrician As- 
 sembly called the Comitia Curiata was a Legisla- 
 ture in which Gentes or Houses were exclusively 
 represented. It was a repi'esentative assembly of 
 the Roman people, constituted on the assumption 
 that the constituent unit of the state was the Gens. 
 This being so, the inference seems inevitable, that 
 the cognisance of Wills by the Comitia was con- 
 nected with the rights of the Gentiles, and was in- 
 tended to secure them in their privilege of ultimate 
 inheritance. The whole apparent anomaly is re- 
 moved, if we suppose that a Testament could only 
 be made when the testator had no gentiles discov- 
 erable, or when they waived their claims, and that 
 every Testament was submitted to the Genei^al As- 
 sembly of the Roman Gentes, in order that those 
 aggrieved by its dispositions might put their veto 
 upon it if they pleased, or by allowing it to pas 
 might be presumed to have renounced their rever- 
 sion. It is possible that on the eve of the publica- 
 tion of the Twelve Tables this vetoing power may 
 have been greatly curtailed or only occasionally and 
 capriciously exercised. It is much easier, however, 
 to indicate the meaning and origin of the jurisdic- 
 tion confided to the Comitia Calata, than to trace 
 its gradual development or progressive decay. 
 
 The Testament to which the pedigree of all 
 modern Wills may be traced is not, however, the 
 Testament executed ia the Calata Comitia, but 
 
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OHAP.vi. PLEBEIAN WILLS. 195 
 
 aiiotlier Testament designed to compete with it and 
 destined to supersede it. The historical importance 
 of this early Eoman Will, and the light it casts on 
 miich of ancient thought, will excuse me for de- 
 scribing it at some length. 
 
 When the Testamentary power first discloses 
 itself to us in legal history, there are signs that, like 
 almost all the great Roman institutions, it was the 
 subject of contention between the Patricians and 
 the Plebeians. The effect of the political maxim, 
 Plehs Gentem non habet, " a Plebeian cannot be a 
 member of a house," was entirely to exclude the 
 Plebeians from the Comitia Curiata. Some critics 
 have accordingly supposed that a Plebeian could 
 not have his Will read or recited to the Patrician 
 Assembly, and was thus deprived of Testamentary 
 privileges altogether. Others have been satisfied 
 to point out the hardships of having to submit a 
 proposed Will to the unfriendly jurisdiction of an 
 assembly in which the Testator was not represented. 
 Whatever be the true view, a form of Testament 
 came into use, which has all the characteristics of a 
 contrivance intended to evade some distasteful ob- 
 ligation. The Will in question was a conveyance 
 inter vivos, a complete and irrevocable alienation 
 of the Testator's family and substance to the person 
 whom he meant to be his heir. The strict rules of 
 Roman law must always have permitted such an 
 alienation, but when the transaction was intended 
 to have a posthumous effect, there may have been 
 
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196 THE PLEBEIAN WILL. chap. vi. 
 
 disputes whether it was valid for Testamentary 
 purposes without the formal assent of the Patrician 
 Parliament. If a difference of opinion existed on 
 the point between the two classes of the Roman 
 population, it was extinguished, with many other 
 sources of heartburning, by the great Decemviral 
 compromise. The text of the Twelve Tables is still 
 extant which saj^s, '■'' Pater fatnilias uti de jpeciinid 
 tutelave rei sum hgassit, ita jus esto "■ — a law which 
 can hardly have had any other object than the le- 
 galisation of the Plebeian Will. 
 
 It is well known to scholars that, centuries after 
 the Patrician Assembly had ceased to be the legis- 
 lature of the Roman State, it still continued to hold 
 formal sittings for the convenience of private busi- 
 ness. Consequently, at a period long subsequent 
 to the publication of the Decemviral Law, there is 
 reason to believe that the Comitia Calata still as- 
 sembled for the validation of Testaments. Its prob- 
 able functions may be best indicated by saying that 
 it was a Court of Registration, with the under- 
 standing, however, that the Wills exhibited were 
 not enrolled, but simply recited to the members, 
 who were supposed to take note of their tenor and 
 to commit them to memory. It is very likely that 
 this form of Testament was never reduced to wri- 
 ting at all, but at all events if the Will had been 
 originally -written, the office of the Comitia was cer- 
 tainly confined to hearing it read aloud, the docu- 
 ment being retained afterwards in the custody of the 
 
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uHAP. VI. THE ANCIENT PLEBEIAN VILL. 197 
 
 Testator, or deposited under the safeguard of some 
 religious corporation. This publicity may have 
 been one of the incidents of the Testament executed 
 in the Comitia Calata which brought it into popu 
 lar disfavour. In the early years of the Empire the 
 Comitia still held its meetings, but they seem to- 
 have lapsed into the merest form, and few Wills, or 
 none, were probably presented at the periodical 
 sitting. 
 
 It is the ancient Plebeian Will — the alternative 
 of the Testament just described — which in its re- 
 mote effects has deeply modified the civilisation of 
 the modern world. It acquired at Home all the 
 popularity which the Testament submitted to the 
 Calata Comitia appears to have lost. The key to 
 all its characteristics lies in its descent from the 
 mancipium^ or ancient Koman conveyance, a pro- 
 ceeding to which we may unhesitatingly assign the 
 parentage of two great institutions without which 
 modern society can scarcely be supposed capable of 
 holding together, the Contract and the Will. The 
 mancipium, or, as the word would exhibit itself in 
 later Latinity, the Mancipation, carries us back by 
 its incidents to the infancy of civil society. As it 
 sprang from times long anterior, if not to the inven 
 tion, at all events to the popularisation, of the art 
 of writing, gestures, symbolical acts, and solemn 
 phrases take the place of documentary forms, and 
 a lengthy and intiicate ceremonial is intended to 
 call the attention of the parties to the importance 
 
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198 THE MANOIPATIOK chap. ti 
 
 of the transaction, and to impress it on the memory 
 of the witnesses. The imperfection, too, of oral, ag 
 compared with written, testimony necessitates the 
 multiplication of the witnesses and assistants be- 
 yond what in later times would be reasonable or 
 intelligible limits. 
 
 The Eoman Mancipation required the presence 
 first of all the parties, the vendor and vendee, 
 or we should perhaps rather say, if we are to use 
 modern legal language, the grantor and grantee. 
 There were also no less than Jwe witnesses ; and 
 an anomalous personage, the Libripens, who brought 
 with him a pair of scales to weigh the uncoined 
 copper money of ancient Eome. The Testament 
 we are considering— the Testament _per ws et libram^ 
 " with the copper and the scales," as it long coutin 
 ued to be technically called — was an ordinary Man 
 cipation with no change in the form and hardly 
 any in words. The Testator was the grantor ; the 
 five witnesses and the libripens were present ; and 
 the place of grantee was taken by a person known 
 technically as the familice emptor, the Purchaser 
 of the Family. The ordinary ceremony of a Manci- 
 pation was then proceeded Avith. Certain formal 
 gestures were made and sentences pronounced. 
 The Emptor familice simulated the payment of a 
 price by striking the scales with a piece of money, 
 and finally the Testator ratified what had been done 
 in a set form of words called the " Nuncnpatio " or 
 publication of the transaction, a phrase which, I 
 
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OHAP. Ti. MANCIPATOET WJLLS. 199 
 
 need scarcely remind the lawyer, has had a long 
 history in Testamentary jurisprudence. It is neces- 
 sary to attend particularly to the character of the 
 person called familice emptor. There is no doubt 
 that at first he was the Heir himself. The Testator 
 conveyed to him outright his whole " familia," that 
 is, all the rights he enjoyed over and through the 
 family ; his property, his slaves, and all his an- 
 cestral privileges, together, on the other hand, with 
 all his duties and obligations. 
 
 With these data before us, we are able to note 
 several remarkable points in which the Mancipatory 
 Testament, as it may be called, differed in its primi- 
 tive form from a modern will. As it amounted to 
 a conveyance out-and-out of the Testator's estate, it 
 was not revocable. There could be no new exercise 
 of a power which had been exhausted. 
 
 Again, it was not secret. The Familise Emptor, • 
 being himself the Heir, knew exactly what his 
 rights were, and was aware that he was irreversibly 
 entitled to the inheritance ; a knowledge which the 
 violences inseparable from the best-ordered ancient 
 society rendered extremely dangerous. But per- 
 haps the most surprising consequence of this rela- 
 tion of Testaments to Conveyances was the imme- 
 diate vesting of the inheritance in the Heir. This 
 has seemed so incredible to not a few civilians, that 
 they have spoken of the Testator's estate as vesting 
 conditionally on the Testator's death, or as granted 
 to him from a time uncertain, i. e. the death of the 
 
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200 ANCIENT WILLS NOT "WRITTEN. ohap. ti 
 
 grantor. But down to tlie latest period of Roman 
 jurisprudence there were a certain class of transaC' 
 tions which never admitted of being directly modi- 
 fied by a condition, or of being limited to or from a 
 point of time. In technical language they did not 
 admit conditio or dies. Mancipation was one of 
 them, and therefore, strange as it may seem, we are 
 forced to conclude that the primitive Eoman Will 
 took effect at once, even -though the Testator sur- 
 vived his act of Testation. It is indeed likely that 
 Roman citizens originally made their Wills only in 
 the article of death, and that a provision for the 
 continuance of the Family effected by a man in the 
 fiower of life would take the form rather of an 
 Adoption than of a Will. Still we must believe 
 that, if the Testator did recover, he could only con- 
 tinue to govern his household by the sufferance of 
 his Heir. 
 
 Two or three remarks should be made before I 
 explain how these inconveniences were remedied, 
 and how Testaments came to be invested with the 
 characteristics now universally associated with them. 
 The Testament was not necessarily written : at 
 first, it seems to have been invariably oral, and even 
 m later times, the instrument declaratory of the be- 
 quests was only incidentally connected with the Will 
 and formed no essential part of it. It bore in fi^ict 
 exactly the same relation to the Testament, which 
 tbe deed leading the uses bore to the Fines and Re- 
 covtiries of old English law, or which the chartec of 
 
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flHAp. VI, THE PURCHASER OF THE FAMILY. 201 
 
 feoffment bore to the feoffment itself. Previously, 
 indeed, to the Twelve Tables, no wi-iting -would 
 have been of the slightest use, for the Testator had 
 no power of giving legacies, and the only persons 
 who could be advantaged by a will were the Heir 
 or Co-Heirs. But the extreme generality of the 
 clause in the Twelve Tables soon produced the doc-f 
 trine that the Heir must take the inheritance bur- 
 dened by any directions which the Testator might 
 give him, or in other words, take it subject to lega- 
 cies. Written testamentary instruments assumed 
 thereupon a new value, as a security against the 
 fraudulent refusal of the heir to satisfy the legatees; 
 but to the last it was at the Testator's pleasure to 
 rely exclusively on the testimony of the witnesses, 
 and to declare by word of mouth the legacies which 
 the familice emptor was commissioned to pay. 
 
 The terms of the expression Emptor famUm de- 
 mand notice. " Emptor " indicates that the Will 
 was literally a sale, and the word " familise, " when 
 compared with the phraseology in the Testamentary 
 clause in the Twelve Tables, leads us to some instruc- 
 tive conclusions. " Familia, " in classical Latinity, 
 means always a man's slaves. Here, however, and 
 generally in the language of ancient Koman law, it 
 includes all persons under his Potestas, and the Tes- 
 tator's material property or substance is understood 
 to pass as an adjunct or appendage of his household. 
 Turning to the law of the Twelve Tables, it will be 
 seen that it speaks of tutela rei sum "the guardian 
 
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202 THE PE^TOEIAN "WILL. chap. ti. 
 
 ship of his substance," a foi'm of expression which 
 is the exact reverse of the phrase just examined 
 There does not therefore appear to be any mode ol 
 escaping from the conclusion, that even at an era- so 
 comparatively recent as that of the Decemviral com- 
 promise, terms denoting " household " and " proper- 
 ty " were blended in the current phraseology. If a 
 man's household had been spoken of as his property 
 we might have explained the expression as pointing 
 to the extent of the Patria Potestas, but, as the intei-- 
 change is reciprocal, we must allow that the form of 
 speech carries us back to that primeval pei-iod in 
 which property is owned by the family, and the fam- 
 ily is governed by the citizen, so that the members 
 of the community do not own their property and 
 their family, but rather own their property tlirough 
 their family. 
 
 At an epoch not easy to settle with precision, the 
 Roman Praetors fell into the habit of acting upon 
 Testaments solemnized in closer conformity with the 
 spirit than the letter of the law. Casual dispensa- 
 tions became insensibly the established practice till 
 at length a wholly new form of Will was matured 
 and regularly engrafted on the Edictal Jurispru- 
 dence. The new or Proetorimi Testament derived 
 the whole of its impregnability from the Jus Hono- 
 rarium or Equity of Rome. The Praetor of some 
 particular year must have inserted a clause in his , 
 Inaugural Proclamation declaratory of his intention 
 to sustain all Testaments which should have been 
 
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OHAP. VI. THE PR^TOKIAN WILL. 203 
 
 executed with sucli and such solemnities ; and, the 
 reform having been found advantageous, the article 
 relating to it must have been again introduced by 
 the Praetor's successor, and repeated by the next in 
 office, till at length it formed a recognised portion 
 of that body of jurisprudence which from these suc- 
 cessive incorporations was styled the Perpetual or 
 Continuous Edict. On examining the conditions of 
 a valid Praetorian Will they will be plainly seen to 
 have been determined by the requirements of the 
 Mancipatory Testament, the innovating Praetor hav- 
 ing obviously prescribed to himself the retention of 
 the old formalities just so far as they were warrants 
 of genuineness or securities against fraud. At the 
 execution of the Mancipatory Testament seven per- 
 sons had been present besides the Testator. Seven 
 witnesses were accordingly essential to the Praetorian 
 Will : two of them corresponding to the libripens 
 SLndfamilicB emiptor^ who were now stripped of their 
 symbolical character, and were merely present for 
 the purpose of supplying their testimony. No em- 
 blematic ceremony was gone through ; the Will was 
 merely recited ; but then it is probable (though 
 not absolutely certain) that a written instrument was 
 necessary to perpetuate the evidence of the Testa- 
 tor's dispositions. At all events, whenever a writ- 
 ing was read or exhibited as a person's last Will, we 
 know certainly that the Praetorian Court would not 
 sustain it by special intervention, unless each of 
 the seven witnesses had severally affixed his seal to 
 
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204 THE BONOPvUM P0SSES8I0. ohap. ti. 
 
 the outside. This is the first appearance of seal- 
 ing in the history of jurisprudence, considered as a 
 mode of authentication. The use of seals, however, 
 as mere fastenings, is doubtless of much higher an- 
 tiquity ; and it appears to have been known to the 
 Hebrews. We may observe, that the seals of Roman 
 Wills, and other documents of importance, did not 
 only serve as the index of the presence or assent of 
 the signatary, but were also literally fastenings which 
 had to be broken before the writing could be in- 
 spected. 
 
 The Edictal Law would therefore enforce the 
 dispositions of a Testator, when, instead of being 
 symbolised through the forms of mancipation, they 
 were simply evidenced by the seals of seven wit- 
 nesses. But it may be laid down as a general 
 proposition, that the principal qualities of Roman 
 property were incommunicable except through pro- 
 cesses which were supposed to be coeval with th 
 origin of the Civil Law. The Praetor therefore 
 could not confer an Inheritance on anybody. He 
 could not place the Heir or Co-heirs in that very re- 
 lation in which the Testator had himself stood to his 
 own rights and obligations. All he could do was 
 to confer on the person designated as Heir the prac- 
 tical enjoyment of the property bequeathed, and to 
 give the force of legal acquittances to his payments 
 of the Testator's debts. When he exerted his 
 powers to these ends, the Praetor was technically 
 said to communicate the Bonorum Possessio. The 
 
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CHAP. VI. IMPIiOVEMENTS IN THE OLD WILL. 205 
 
 Heir specially inducted under these circumstances, 
 or Bonorum Possessor, had every proprietary priv' 
 ilege of the Heir by the Civil Law. He took the 
 profits and he could alienate, but then, for all his 
 remedies for redress against wrong, he must go, as 
 we should phrase it, not to the Common Law, but 
 to the Equity side of the Praetorian Court, No 
 great chance of error would be incurred by describ- 
 ing him as having an equitcMe estate in the inher- 
 itance ; but then, to secure ourselves against being 
 deluded by the analogy, we must always recollect 
 that in one year the Bonorum Possessio was ope- 
 rated upon by a principle of Eoraan Law known as 
 Usucapion, and the Possessor became Quiritarian 
 owner of all the property comprised in the inher- 
 itance. 
 
 We know too little of the older law of Civil 
 Process to be able to strike the balance of advan- 
 tage and disadvantage between the diflPerent classes 
 of remedies supplied by the Praetorian Tribunal. It 
 is certain, however, that, in spite of its many defects, 
 the Mancipatory Testament by which the universi- 
 tas juris devolved at once and unimpaired was never 
 entirely superseded by the new Will ; and at a pe- 
 riod less bigoted to antiquarian forms, and perhaps 
 not quite alive to their significance, all the ingenuity 
 of the Jurisconsults seems to have been expended 
 on the improvement of the more venerable instru- 
 ment. At the era of Gaius, which is that of the 
 Antonine Caesars, the great blemishes of the Manci' 
 
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206 IMPROVEMENTS IN THE OLD WILL. chap, vi 
 
 patory Will had been removed. Originally, as we 
 have seen, the essential character of the formalities 
 had required that the Heir himself should be the 
 Purchaser of the Family, and the consequence was 
 that he not only instantly acquired a vested interest 
 in the Testator's Property, but was formally made 
 aware of his rights. But the age of Gaius permit- 
 ted some unconcerned person to officiate as Purcha- 
 ser of the Family. The Heir, therefore, was not 
 necessarily informed of the succession to which he 
 was destined ; and Wills thenceforward acquired the 
 property of secrecy. The substitution of a stranger 
 for the actual Heir in the functions of "FamilisB 
 Emptor " had other ulterior consequences. As soon 
 as it was legalised, a Roman Testament came to con- 
 sist of two parts or stages, — a Conveyance, which 
 was a pure form, and a Nuncupatio, or Publication. 
 In this latter passage of the proceeding, the Testa- 
 tor either orally declared to the assistants the wishes 
 which were to be executed after his death, or pro- 
 duced a written document in which his wishes were 
 embodied. It was not probably till attention had 
 been quite drawn off from the imaginary Convey- 
 ance, and concentrated on the Nuncupation as the 
 essential part of the transaction, that Wills were 
 allowed to become revocable. 
 
 I have thus cari-ied the pedigree of Wills some 
 way down in legal history. The root of it is the 
 old Testament " with the copper and the scales," 
 founded on a Mancipation or Conveyance. This 
 
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CHAP. VI. THE ROMAN WILL. 307 
 
 ancient Will has, however, manifold defects, which 
 are remedied, though only indirectly, by the Prseto 
 rian law. Meantime the ingenuity of the Jurisconsults 
 effects, in the Common-Law Will or Mancipatory 
 Testament, the very improvements which the Pi'setor 
 may have concurrently carried out in Equity, These 
 last ameliorations depend, however,. on more legal 
 dexterity, and we see accordingly that the Testa- 
 mentary Law of the day of Gaius or Ulpian is only 
 transitional. What changes next ensued we know 
 not ; but at length just before the reconstruction ol 
 the jurisprudence by Justinian, we find the subjects 
 of the Eastern Roman Empire employing a form cf 
 Will of which the pedigree is traceable to the Prse- 
 toriar. Testament on one side, and to the Testament 
 " with the copper and the scales," on the other. 
 Like the Testament of the Pi-setor, it required no 
 Mancipation, and was invalid unless sealed by seven 
 witnesses. Like the Mancipatory Will, it passed 
 the Inheritance and not merely a Somrrum Posses- 
 810. Several, however, of its most important fea- 
 tures were annexed by positive enactments, and it is 
 out of regard to this threefold derivation from the 
 Praetorian Edict, from the Civil Law, and from the 
 Imperial Constitutions, that Justinian speaks of the 
 Law of Wills in his own days as Jus Tripertitum,. 
 The New Testament thus described is the one gen- 
 erally known as the Roman Will. But it was the 
 Will of the Eastern Empire only ; and the researches 
 
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208 THE EOMAN WILL. ohap. vi 
 
 of Savigny have sliown that in Western Europe the 
 old Mancipatory Testament, with all its apparatus 
 of conveyance, copper, and scales, continued to be 
 the form in use far down in the Middle Ages 
 
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CHAPTER VII. 
 
 ANCIENT ANL MODERN IDEAS BESPBOTING WILIS AND 
 SUCCESSIONS. 
 
 Although there is mncli in the modera European 
 Law of Wills which is intimately connected with the 
 oldest rules of Testamentary disposition practised 
 among men, there are nevertheless some important 
 differences between ancient and modern ideas on 
 the subject of Will^ and Successions. Some of the 
 points of difference I shall endeavor to illustrate in 
 this chapter. 
 
 At a period, removed several centuries from the 
 era of the Twelve Tables, we find a variety of rules 
 engrafted on the Roman Civil Law with the view of 
 limiting the disinherison of children ; we have the 
 jurisdiction of the Praetor very actively exerted in 
 the same interest ; and we are also presented with 
 a new remedy, very anomalous in character and of 
 uncertain origin, called the Querela Inofficiosi Tes- 
 tamenti, " the Plaint of an Unduteous Will," directed 
 to the reinstatement of the issue in inheritances from 
 14 
 
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210 DISINHERISON OF CHILDREN. ohap. va 
 
 which they had been unjustifiably excluded by a 
 father's Testament. Comparing this condition of 
 the law with the text of the Twelve Tables which 
 concedes in terms the utmost liberty of Testation, 
 several writei's have been tempted to interweave a 
 good deal of dramatic incident into their history of 
 the Law Testamentary. They tell us of the bound- 
 less license of disinherison in which the heads of 
 families instantly began to indulge, of the scandal 
 and injury to public morals which the new practices 
 engendered, and of the applause of all good men 
 which hailed the courage of the Praetor in arresting 
 the progress of paternal depravity. This story, 
 which is not without some foundation for the prin- 
 cipal fact it relates, is often so told as to disclose 
 very serious misconceptions of the principles of legal 
 history. The Law of the Twelve Tables is to be 
 explained by the character of the age in which it 
 was enacted. It does not license a tendency which 
 a later era thought itself bound to counteract, but 
 it proceeds on the assumption that no such tendency 
 exists, or, perhaps we should say, in ignorance of 
 the possibility of its existence. There is no likeli- 
 hood that Roman citizens began immediately to 
 avail themselves freely of the power to disinherit. 
 It is against all reason and sound appreciation of 
 history to suppose that the yoke of family bondage, 
 still patiently submitted to, as we know, where its 
 pressure galled most cruelly, would be cast off in the 
 very particular in which its incidence in our own 
 
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CHAP. vn. DISINHERISON OF CHILDREN. 211 
 
 day is not otherwise than welcome. The Law of 
 the Twelve Tables permitted the execution of Testa 
 ments in the only case in which it was thought pos- 
 sible that they could be executed, viz. : on failure of 
 children and proximate kindred. It did not forbid 
 the disinherison of direct descendants, inasmuch as 
 it did not legislate against a contingency which no 
 Roman lawgiver of that era could have contempla- 
 ted. No doubt, as the offices of family affection 
 progressively lost the aspect of primary personal 
 duties, the disinherison of children was occasionally 
 attempted. But the interference of the Praetor, so 
 far from being called for by the universality of the 
 abuse, was doubtless first prompted by the fact that 
 such instances of unnatural caprice were few and 
 exceptional, and at conflict with the current mo- 
 rality. 
 
 The indications furnished by this part of Roman 
 Testamentary Law are of a very different kind. It 
 is remarkable that a Will never seems to have been 
 regarded by the Romans as a meaus of disinheriting 
 a Family, or of effecting the unequal distribution of 
 a patrimony. The rules of law preventing its being 
 turned to such a purpose, increase in number and 
 stringency as the jurisprudence unfolds itself; and 
 these rules correspond doubtless with the abiding 
 sentiment of Roman society, as distinguished from 
 occasional variations of feeling in individuals. It 
 would rather seem as if the Testamentary Power 
 were chiefly valued for the assistance it gave ir 
 
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212 FEELING RESPECTING INTESTACY. chap. vii. 
 
 mahing provision for a Family, and in dividing the 
 inheritance more evenly and fairly than the Law of 
 Intestate Succession would have divided it. If this 
 be the true reading of the general sentiment on th^ 
 point, it explains to some extent the singular horro^ 
 of Intestacy which always characterised the Roman. 
 No evil seems to have been considered a heavier 
 visitation than the forfeiture of Testamentary pri- 
 vileges ; no curse appears to have been bitterer than 
 that which imprecated on an enemy that he might 
 die without a Will. The feeling has no counterpart, 
 or none that is easily recognisable, in the forms of 
 opinion which exist at the present day. All men at 
 all times will doubtless prefer chalking out the desti- 
 nation of their substance to having that office per- 
 formed for them by the law ; but the Roman passion 
 for Testacy is distinguished from the mere desire to 
 indulge caprice by its intensity ; and it has, of couTse, 
 nothing whatever in common with that pride of 
 family, exclusively the creation of feudalism, which 
 accumulates one description of property in the hands 
 of a single representative. It is probable, a priori, 
 that it was something in the rules of Intestate Suc- 
 cession which caused this vehement preference for 
 the distribution of property under a Testament over 
 its distribution by law. The difficulty, however, is, 
 that on glancing at the Roman law of Intestate 
 Succession, in the form which it wore for many 
 centuries before Justinian shaped it into that scheme 
 of inheritance which has been almost universally 
 
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CHAP. TIL EOMAN INTESTATE SUOCESSIOK 213 
 
 adopted by modern lawgivers, it by no means strikes 
 one as remarkably unreasonable or inequitable. On 
 the contrary, the distribution it prescribes is so fair 
 and rational, and differs so little from that with 
 which modern society has been generally contented, 
 that no reason suggests itself why it should havr 
 been regarded with extraordinary distaste, especiallj 
 under a jurisprudence which pared down to a nar- 
 row compass the testamentary privileges of persons 
 who had children to provide for. We should rather 
 have expected that, as in France at this moment, 
 the heads of families wt)uld generally save themselves 
 the trouble of executing a Will, and allow the Law 
 to do as it pleased with their assets. I think, how- 
 ever, if we look a little closely at the pre-Justinian- 
 ean scale of Intestate Succession, we shall discover 
 the key to the mystery. The texture of the law 
 consists of two distinct parts. One department of 
 rules comes from the Jus Civile, the Common Law 
 of Kome ; the other from the Edict of the Praetor. 
 The Civil Law, as I have already stated for another 
 purpose, calls to the inheritance only three orders 
 of successors in their turn ; the unemancipated chil- 
 dren, the nearest class of Agnatic kindred, and the 
 Gentiles. Between these three orders, the Pi-setor 
 interpolates various classes of relatives, of whom 
 the Civil Law took no notice whatever. Ultimately, 
 the combination of the Edict and of the Civil Law 
 forms a table of succession not materially different 
 
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214 ANCIENT INTESTATE SUOOESSION. chap. vn. 
 
 from ttat wMcli has descended to the generality of 
 modern codes. 
 
 The point for recollection is, that there must 
 anciently have been a time at which the rules of the 
 Civil Law determined the scheme of Intestate Suc- 
 cession exclusively, and at which the arrangements 
 of the Edict were non-existent, or not consistently 
 caiTied out. We cannot doubt that, in its infancy, 
 the Praetorian jurisprudence had to contend with 
 formidable obstructions, and it is more than proba- 
 ble that, long after popular sentiment and legal 
 opinion had acquiesced in it, the modifications which 
 it periodically introduced wei-e governed by no cer- 
 tain principles, and fluctuated with the varying bias 
 of successive magistrates. The rules of Intestate 
 Succession, which the Romans must at this period 
 have practised, account, I think — and more than ac- 
 count — for that vehement distaste for an Intestacy 
 to which Eoman society during so many ages re- 
 mained constant. The order of succession was this : 
 on the death of a citizen, having no will or no valid 
 will, his Unemancipated children became his Heirs. 
 His emancipated sons had no share in the inheritance. 
 If he left no direct descendants living at his death, 
 the nearest grade of the Agnatic kindred succeeded, 
 but no part of the inheritance was given to any 
 relative united (however closely) with the dead man 
 through female descents. All the other branches 
 of the family were excluded, and the inheritance 
 escheated to the Gentiles^ or entire body of Roman 
 
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OHAP.vn. ANCIENT INTESTATE SUCCESSION. 215 
 
 citizens bearing the same name with the deceased 
 So that on failing to execute an operative Testament, 
 a Roman of the era under examination left hia 
 emancipated children absolutely without provision, 
 while, on the assumption that he died childless, there 
 was imminent risk that his possessions would escape 
 from the family altogether, and devolve on a num- 
 ber of persons with whom he was merely connected 
 by the sacerdotal fiction that assumed all members 
 of the same gens to be descended from a common 
 ancestor. The prospect of such an issue is in itself 
 a nearly suiScient explanation of the popular senti- 
 ment ; but, in point of fact, we shall only half un- 
 derstand it, if we forget that the state of things I 
 have been describing is likely to have existed at the 
 very moment when Roman society was in the first 
 stage of its transition from its primitive organisation 
 in detached families. The empire of the father had 
 indeed received one of the earliest blows directed at 
 it through the recognition of Emancipation as a le- 
 gitimate usage, but the law, still considering the 
 Patria Potestas to be the root of family connection, 
 persevered in looking on the emancipated children 
 as strangers to the rights of Kinship and aliens from 
 the blood. We cannot, however, for a moment sup- 
 pose that the limitations of the family imposed by 
 legal pedantry had their counterpart in the natural 
 affection of parents. Family attachments must still 
 have retained that nearly inconceivable sanctity and 
 intensity which belonged to them under the Patri- 
 
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216 FEELING- RESPECTING INTESTACY. chap. vn. 
 
 archal system ; and so little are they likely to have 
 been extinguished by the act of emancipation, that 
 the probabilities are altogether the other way. It 
 may be unhesitatingly taken for granted that enfran 
 chisement from the father's power was a demonstra 
 tion, rather than a severance, of affection — a mark 
 of grace and favour accorded to the best-beloved 
 and most esteemed of the children. If sons thus 
 honoured above the rest were absolutely deprived 
 of their heritage by an Intestacy, the reluctance to 
 incur it requires no farther explanation. We might 
 have assumed d priori that the passion for Testacy, 
 was generated by some moral injustice entailed by 
 the rules of Intestate succession ; and here Tve find 
 them at variance with the very instinct by which 
 early society was cemented together. It is possible 
 to put all that has been urged in a very succinct form. 
 Every dominant sentiment of the primitive Romans 
 was entwined with the relations of the family. But 
 what was the Family ? The Law defined it one way 
 — natural affection another. In the conflict between 
 the two, the feeling we would analyse grew up, 
 taking the form of an enthusiasm for the institution 
 by which the dictates of affection were permitted to 
 determine the fortunes of its objects. 
 
 I regard, therefore, the Roman horror of Intes- 
 tacy as a monument of a very early conflict between 
 ancient law and slowly changing ancient sentiment 
 on the subject of the Family. Some passages in the 
 Roman Statute-Law, and one statute in particular 
 
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CHAP. VII. MODERN WILLS. 217 
 
 which limited the capacity for inheritance possessed 
 by women, mast have contributed to keep alive the 
 feeling ; and it is the general belief that the system 
 of creating Fidei-Commissa, or bequests in trust, was 
 devised to evade the disabilities imposed by those 
 statutes. But the feeling itself, in its remarkable 
 intensity, seems to point back to some deeper an- 
 tagonism between law and opinion ; nor is it at all 
 wonderful that the improvements of jurisprudence 
 by the Praetor should not have extinguished it. 
 Everybody conversant with 'the philosophy of opin- 
 ion is aware that a sentiment by no means dies out, 
 of necessity, with the passing away of the circum- 
 stances which produced it. It may long survive 
 them ; nay, it may afterwards attain to a pitch and 
 climax of intensity which it never attained during 
 their actual continuance. 
 
 The view of a Will which regards it as confer- 
 ring the power of diverting property from the Fam- 
 ily, or of distributing it in such uneven proportions 
 as the fancy or good sense of the Testator may dic- 
 tate, is not older than that later portion of the Mid- 
 dle Ages in which Feudalism had completely con- 
 solidated itself When modern jurisprudence first 
 ghows itself in the rough. Wills are rarely allowed 
 to dispose with absolute freedom of a dead man's 
 assets. Wherever at this period the descent of 
 property was regulated by Will — and over the 
 greater part of Europe moveable or personal pro- 
 perty was the subject of Testamentary disposition 
 
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218 WIDOWS SHARE OF MOVEABLES. ohap. vn. 
 
 — tlie exercise of the Testamentary power was sel- 
 dom allowed to interfere with the right of the widow 
 to a definite share, and of the children to certain 
 fixed proportions, of the devolving inheritance. 
 The shares of the children, as their amount shows, 
 were determined by the authority of Koman law. 
 The provision for the widow was attributable to the 
 exertions of the Church, which never relaxed its 
 solicitude for the interest of wives surviving their 
 husbands — winning, perhaps one of the most ardu- 
 ous of its triumphs when, after exatting for two or 
 three centuries an express promise from the hus- 
 band at mari'iage to endow his wife, it at length suc- 
 ceeded in engrafting the principle of Dower on the 
 Customary Law of all Western Europe. Curiously 
 enough, the dower of lands proved a more stable 
 institution than the analogous and more ancient re- 
 servation of certain shares of the personal property 
 to the widow and children. A few local customs in 
 France maintained the right down to the Revolu- 
 tion, and there are traces of similar usages in Eng- 
 land ; but on the whole the doctrine prevailed that 
 DiGveables might be freely disposed of by Will, 
 and, even when the claims of the widow continued 
 to be respected, the privileges of the children wer( 
 obliterated from jurisprudence. We need not hesi 
 tate to attribute the change to the influence of Pri 
 raogeniture. As the Feudal law of land practicallj 
 disinherited all the children in favour of one, thf 
 equal distribution even of those sorts of property 
 
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CHAP VII. FRENCH LAW OF WILLS. 219 
 
 which might have been equally divided ceased to 
 be viewed as a duty. Testaments were the princi- 
 pal instruments employed in producing inequality, 
 and in this condition of things originated the shade 
 of difference which shows itself between the ancient 
 and modern conception of a Will. But, though the 
 liberty of bequest, enjoyed through Testaments, was 
 thus an accidental fruit of Feudalism, there is no 
 broader distinction than that which exists between 
 a system of free Testamentary disposition and a sys- 
 tem, like that of the Feudal land-law, under which 
 property descends compulsorily in prescribed lines 
 of devolution. This truth appears to have been lost 
 sight of by the authors of the French Codes. In 
 the social fabric which they determined to destroy, 
 they saw Primogeniture resting chiefly on Family 
 settlements, but they also perceived that Testaments 
 were frequently employed to give the eldest son 
 precisely the same preference which was reserved to 
 him under the strictest of entails. In order, there- 
 fore, to make sure of their work, they not only ren- 
 dered it impossible to prefer the eldest son to the 
 rest in marriage-arrangements, but they almost ex- 
 pelled Testamentary succession from the law, lest it 
 should be used to defeat their fundamental principle 
 of an equal distribution of property among children 
 at the parent's death. The result is that they have 
 established a system of small perpetual entails, which 
 is infinitely nearer akin to the system of feudal 
 Europe than would be a pei-fect liberty of bequest, 
 
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S20 PEIMOGENITUBE. chap. Tn 
 
 The land-law of England, '.' the Herculaneum of 
 Feudalism," is certainly much more closely allied to 
 the land-law of the Middle Ages than that of any 
 Continental country, and Wills with us are frequently 
 used to aid or imitate that preference of the eldest 
 son and his line which is a nearly universal feature 
 in marriage settlements of real property. But nev- 
 ertheless feeling and opinion in this country have 
 been profoundly affected by the practice of free 
 Testamentary disposition ; and it appears to me that 
 the state of sentiment in a great part of French so- 
 ciety, on the subject of the conservation of proper- 
 ty in families, is much liker that which prevailed 
 through Europe two or three centuries ago than are 
 the current opinions of Englishmen. 
 
 The mention of Primogeniture introduces one of 
 the most difficult problems of historical jurispru- 
 dence. Though I have not paused to explain my 
 expressions, it may have been noticed that I have 
 frequently spoken of a number of " co-heirs " as 
 placed by the Roman Law of Succession on the 
 same footing with a single Heir. In point of fact, 
 we know of no period of Roman jurisprudence at 
 which the place of the Heir, or Universal Successor, 
 might not have been taken by a group of co-heirs. 
 This group succeeded as a single unit, and the assets 
 were afterwards divided among them in a separate 
 legal proceeding. When the Succession was ah in- 
 testato^ and the group consisted of the children of 
 the deceased, they each took an equal share of the 
 
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onAP. Tii. PRIMOGEKITUEE. 221 
 
 property ; nor, though males had at one time some 
 advantages over females, is there the faintest trace 
 of Primogeniture. The mode of distribution is the 
 same throughout archaic j urisprildence. It certainly 
 seems that, when civil society begins and families 
 cease to hold together through a series of genera- 
 tions, the idea which spontaneously suggests itself is 
 to divide the domain equally among the members 
 of each successive generation, and to reserve no pri- 
 vilege to the eldest son or stock. Some peculiarly 
 significant hints as to the close relation of this phe- 
 nomenon to primitive thought are furnished by 
 systems yet more archaic than the Roman. Among 
 the Hindoos, the instant a son is born, he acquires 
 a vested right in his father's property, which cannot 
 be sold without recognition of his joint-ownership. 
 On the son's attaining full age, he can sometimes 
 compel a partition of the estate even against the 
 consent of the pafeiifc ; and should the parent ac- 
 quiesce, one son can always have a partition even 
 against the will of the others. On such partition 
 taking place, the father has no advantage over his 
 children, except that he has two of the shares instead 
 of one. The ancient law of the German ttibes was 
 exceedingly similar. The aUod or domain of the 
 family was the joint-property of the father and his 
 sons. It does not, however, appear to have been 
 habitually divided even at the death of the parent, 
 and in the same way the possessions of a Hindoo, 
 however divisible theoretically, are so rarely dis- 
 
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222 PKIMOGENITUEE. chap, th ' 
 
 tributed in fact, that many generations constantly 
 succeed each other without a partition taking place, 
 and thus the Family in India has a perpetual ten- 
 dency to expand into the Village Community, under 
 conditions which I shall hereafter attempt to eluci- 
 date. All this points very clearly to the absolutely 
 equal division of assets among the male . children at 
 death as the practice most usual with society at the 
 period when family-dependency is in the first stages 
 of disintegration. Here then emerges the historical 
 difficulty of Primogeniture. The more clearly we 
 perceive that, when the Feudal institutions were in 
 process of formation, there was no source in the 
 world whence they could derive their elements but 
 the Roman law of the provincials on the one hand 
 and the archaic customs of the barbarians on the 
 other, the more are we perplexed at first sight by 
 our knowledge that neither Roman nor barbarian 
 was accustomed to give any preference to the eldest 
 son or his line in the succession to property. 
 
 Primogeniture did not belong to the Customs 
 which the barbarians pi-actised on their first estab- 
 lishment within the Roman Empire. It is known to 
 have had its origin in the henefices or beneficiary 
 gifts of the invading chieftains. These benefices, 
 which were occasionally conferred by the earlier im 
 migrant kings, but were distributed on a great sc^le 
 by Charlemagne, were grants of Roman provincial 
 land to be holden by the beneficiary on condition 
 of military service. The allodial proprietors do not 
 
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CHAP. vn. BENEFICES AND FIEFS. 323 
 
 seem to have followed their sovereign on distant or 
 difficult enterpi-ises, and all the grander expeditions 
 of the Fi'ankish chiefs and of Charlemagne were ac- 
 complished with forces composed of soldiers either 
 personally dependent on the royal house or com 
 pelled to serve it by the tenure of their land. The 
 benefices, however, were not at first in any sense 
 hereditary. They were held at the pleasure of the 
 grantor, or at most for the life of the grantee ; but 
 still, from the very outset, no effort seems to have 
 been spared by the beneficiaries to enlarge their 
 tenure, and to continue their lands in their family af- 
 ter death. Through the feebleness of Charlemagne's 
 successors these attempts were universally success- 
 ful, and the Benefice gradually transformed itself 
 into the hereditary Fief But, though the fiefs were 
 hereditary, they did not necessarily defend to the 
 eldest son. The rules of succession which they fol- 
 lowed were entirely determined by the terms agreed 
 upon between the grantor and the beneficiary, or 
 imposed by one of them on the weakness of the 
 other. The original tenures were therefore exti-eme- 
 ly various ; not indeed so capriciously various as is 
 sometimes asserted, for all which have hitherto been 
 described present some cpmbination of the modes of 
 succession familiar to Romans and to bai-barians, but 
 still exceedingly miscellaneous. In some of them, 
 !/he eldest son and his stock undoubtedly succeeded 
 to the fief before the others, but such successions, 
 so far from being universal, do not even appear to 
 
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224 ALLODS AND FIEFS. chap, til 
 
 have been general. Precisely the same phenomena 
 recur during that more recent transmutation of Eu- 
 ropean society which entirely substituted the feudal 
 form of property for the domainia] (or Roman) and 
 the allodial (or German.) The allods were wholly 
 absorbed by the fiefs. The greater allodial proprie- 
 tors transformed themselves into feudal lords by 
 conditional alienations of portions of their land to 
 dependants ; the smaller sought an escape from the 
 oppressions of that terrible time by surrendering 
 their property to some powerful chieftain, and re- 
 ceiving it back at his hands on condition of service in 
 his wars. Meantime, that vast mass of the popula- 
 tion of Western Europe whose condition was servile 
 or semi-servile — the Koman and German personal 
 slaves, the Roman coloni and the German lidi — -were 
 concurrently absorbed by the feudal organisation, a 
 few of them assuming a menial relation to the lords, 
 but the greater part receiving land on terms which in 
 those centuries were considered degrading. The ten- 
 ures created during this era of universal infeudation 
 were as various as the conditions which the tenants 
 made with their new chiefs or were forced to accept 
 from them. As in the case of benefices, the succes- 
 sion to some, but by no means to all, of the estates 
 followed the rule of Primogeniture. No sooner, 
 however, has the feudal system prevailed through- 
 out the West, than it becomes evident that Primoge- 
 niture has some great advantage over every other 
 mode of succession. It spread over Europe with re- 
 
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OHAP. Til. DIFFUSION OF PRIMOGENITTJEE. 225 
 
 markable rapidity, the principal instrument of dif- 
 fusion being Family Settlements, the Pactes de Fam 
 ille of France and Haus-Gesetze of Germany, which 
 universally stipulated that lands held by knightly 
 service should descend to the eldest son. Ultimately 
 the law resigned itself to follow inveterate practice, 
 and we find that in all the bodies of Customary Law, 
 which were gradually built up, the eldest son and 
 stock are preferred in the succession to estates of 
 which the tenure is free and military. As to lands 
 held by servile tenures (and originally all tenures 
 were servile which bound the tenant to pay money- 
 or bestow manual labor), the system of succession 
 prescribed by custom differed greatly in different 
 countries and different provinces. The more gen- 
 eral rule was that such lands were divided equally 
 at death among all the children, but still in some 
 instances the eldest son was preferred, in some the 
 youngest. But Primogeniture usually governed the 
 inheritance of that class of estates, in some respects 
 the most important of all, which were held by ten- 
 ures that, like the English Socage, were of later ori- 
 gin than the rest, and were neither altogether free 
 nor altogether servile. 
 
 The diffusion of Primogeniture is usually account- 
 ed for by assigning what are called Feudal rea- 
 sons for it. It is asserted that the feudal superior 
 had a better security for the military service he re- 
 quired when the fief descended to a single person, 
 instead of being distributed among a number on the 
 15 
 
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226 DIFFUSION OF PRIMOGENITURE. chap, tu 
 
 decease of tte last holder. Without denying that 
 this consideration may partially explain the favour 
 gradually acquire! by Primogeniture, I must point 
 out that Primogeniture became a custom of Europe 
 much more through its popularity with the tenants 
 than through any advantage it conferred on the 
 lords. For its origin, moreover, the reason given 
 does not account at all. Nothing in law springs en- 
 tirely from a sense of convenience. There are always 
 certain ideas existing antecedently on which the 
 sense of convenience woi-ks, and of which it can do 
 no more than form some new combination ; and to 
 find these ideas in the present case is exactly the 
 problem. 
 
 A valuable hint is furnished to us from a quarter 
 fruitful of such indications. Although in India the 
 possessions of a parent are divisible at his death, and 
 may be divisible during his life, among all his male 
 children in equal shares, and though this principle 
 of the equal distribution oi property extends to every 
 part of the Hindoo institutions, yet wlnevevev public 
 office or political power devolves at the decease of 
 the last Incumbent, the succession is nearly univer- 
 sally according to the rules of Primogeniture. Sov- 
 ereignties descend therefore to the eldest son, and 
 where the affairs of the Village Community, the 
 corporate unit of Hindoo society, are confided to a 
 single manager, it is generally the eldest son who 
 takes up the administration at his pai-ent's death. 
 All offices, indeed, in India, tend to become heredi- 
 
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OHAP. vn. SUCCESSION TO POLITICAL POWER. 227 
 
 tary. and, when their nature permits it, to vest in 
 the eldest member of the oldest stock. Comparing 
 these Indian successions with some of the ruder social 
 organisations which have survived in Europe almost 
 to our own day, the conclusion suggests itself that, 
 when Patriarchal power is not only domestic but 
 politwal^ it is not distributed among all the issue at 
 the parent's death, but is the birthright of the eldest 
 son. The chieftainship of a Highland clan, for ex- 
 ample, followed the order of Primogeniture. There 
 seems, in truth, to be a form of family-dependency 
 still more archaic than any of those which we know 
 from the primitive records of organised civil societies. 
 The Agnatic Union of the kindred in ancient Roman 
 law, and. a multitude of similar indications, point to 
 a period at which all the ramifying branches of the 
 family tree held together in one organic whole ; and 
 it is no presumptuous conjecture, that, when the 
 corporation thus formed by the kindred was in itself 
 an independent society, it was governed by the eldest 
 male of the oldest line. It is true that we have no 
 actual knowledge of any such society. Even in the 
 most elementary communities, family-organisations, 
 as we know them, are at most imperia in imperio. 
 But the position of some of them, of the Celtic clans 
 in particular, was sufficiently near independence 
 within historical times to force on us the conviction 
 that they were once separate imperia^ and that Pri- 
 mogeniture regulated the succession to the chieftain- 
 ship. It is, however, necessary to be on our guard 
 
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228 ANCIENT FOKMS OF PRIMOGENITUKE. chap, vn 
 
 against modern associations with the term of law. 
 We are speaking of a family-connection still closer 
 and more stringent than any with which we are 
 made acquainted by Hindoo society or ancient Ro- 
 man law. If the Roman Paterfamilias was visibly 
 steward of the family possessions, if the Hindoo 
 father is only joint-sharer with his sons, still more 
 emphatically must the true patriarchal chieftain be 
 merely the administratoT of a common fund. 
 
 The examples of succession by Primogeniture 
 which were found among the Benefices may, there- 
 fore, have been imitated from a system of family- 
 government known to the invading races, though 
 not in general use. Some rude tribes may have still 
 l^ractised it, or, what is still more probable, society 
 may have been so slightly removed from its more 
 archaic condition that the minds of some men spon- 
 taneously recurred to it, when they were called upon 
 to settle the rules of inheritance for a new form of 
 property. But there is still the question, Why did 
 Primogeniture gradually supersede every other prin- 
 ciple of succession ? The answer, I think, is, that 
 European society decidedly retrograded during the 
 dissolution of the Carlovingian empire. It sank a 
 point or two back even from the miserably low de- 
 gree which it had marked during the early barbmau 
 monarchies. The great characteristic of the period 
 was the feebleness, or rather the abeyance, of kingly 
 and therefore of civil authority ; and hence it seema 
 as if, civil society no longer cohering, men uni^'ir- 
 
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CHAP. TH. FALL OF OAELOVINGIAN EMPIRE. 22S 
 
 Bally- flung themselves back on a social organisation 
 older than the beginnings of civil communities. The 
 lord with his vassals, during the ninth and tenth 
 centuries, may be considered as a patriarchal house- 
 hold, recruited, not as in the primitive times by 
 Adoption, but by Infeudation ; and to such a con- 
 federacy, "succession by Primogeniture was a source 
 of strength and durability. So long as the land was 
 kept together on which the entire organisation 
 rested, it was powerful for defence and attack ; to 
 divide the land was to divide the little society, and 
 voluntarily to iilvite aggression in an era of univer- 
 sal violence. We may be perfectly certain that into 
 this preference for Primogeniture there entered no 
 idea of disinheriting the bulk of the children in 
 favour of one. Everybody would have suffered by 
 the division of the fief. Everybody was a gainer 
 by its consolidation. The Family grew stronger by 
 the concentration of power in the same hands ; nor 
 is it likely that the lord who was invested with the 
 inheritance had any advantage over his brethren and 
 kinsfolk in occupations, interests, or indulgences. It 
 would be a singular anachronism to estimate the 
 privileges succeeded to by the heir of a fief, by the 
 situation in which the eldest son is placed under an 
 English strict settlement. 
 
 I have said that I regard the early feudal con- 
 federacies as descended from an archaic form of the 
 Family, and as wearing a strong resemblance to it 
 But then in the ancient world, and in the societies 
 
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230 EARLIER AND LATER PRIMOGENITURE, chap, vn 
 
 which have not passed through the crucible of feu- 
 dalism, the Primogeniture which seems to have pre- 
 vailed never transformed itself into the Primogeni- 
 ture of the later feudal Europe. When the group 
 of kinsmen ceased to be governed through a serie? 
 of generations by a hereditary chief, the domain 
 which had been managed for all appears to have 
 been equally divided among all., Why did this nol 
 occur in the feudal world ? If during the confusion? 
 of the first feudal period the eldest son held the 
 land for the behoof of the whole family, why was it 
 that when feudal Europe had consolidated itself, and 
 regular communities were again established, the 
 whole family did not resume that capacity for equal 
 inheritance which had belonged to Roman and Ger- 
 man alike ? The key which unlocks this difficulty 
 has rarely been seized by the writers who occupy 
 themselves in tracing the genealogy of Feudalism. 
 They perceive the materials of the feudal institu- 
 tions, but they miss the cement. The ideas and 
 social forms which contributed to the formation of 
 the system were unquestionably barbarian and ar 
 chaic, but, as soon as Courts and lawyers were called 
 in to interpret and define it, the principles of inter- 
 pretation which they applied to it were those of the 
 latest Roman jurisprudence, and were therefore ex- 
 cessively refined and matured. In a patriarchally 
 governed society, the eldest son may succeed to the 
 government of the Agnatic group, and to the abso- 
 lute disposal of its property. But he is not thero 
 
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OHAP. vn. MODEEN VIEW OP CHIEFTAINS IIIP. m^ 
 
 fore a true proprietor. He has correlative duties 
 not involved in the conception of proprietorship, 
 hut quite undefined and quite incapable of definition. 
 The later Roman jurisprudence, however, like our 
 own law, looked upon uncontrolled power over 
 property as equivalent to ownership, and did not, 
 and, in fact, could not, take notice of liabilities of 
 such a kind, that the very conception of them be- 
 longed to a period anterior to regular law. The 
 contact of the refined and the barbarous notion had 
 inevitably for its effect the conversion of the eldest 
 son into legal proprietor of the inheritance.- The 
 clerical and secular lawyers so defined his position 
 from the first ; but it was only by insensible degrees 
 that the younger brother, from pai'ticipating on 
 equal terms in all the dangers and enjoj-raents of 
 his kinsman, sank into the priest, the soldier of for- 
 tune, or the hanger-on of the mansion. The legal 
 revolution was identical with that which occurred 
 on a smaller scale, and in quite recent times, through 
 the greater part of the Highlands of Scotland. 
 When called in to determine the legal powers of the 
 chieftain over the domains which gave sustenance 
 to the clan, Scottish jurisprudence had long since 
 passed the point at which it could take notice of the 
 vague limitations on completeness of dominion im. 
 posed by the claims of the clansmen, and it was 
 inevitable therefore, that it should convert the pat- 
 rimony of many into the estate of one. 
 
 For the sake of simplicity, I have called the 
 
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aa2 FOEMS OF PRIMOGENITURE. chap. vii. 
 
 mode of succession Primogeniture whenever a single 
 son or descendant succeeds to the authority over a 
 household or society. It is remarkable, however 
 that in the few very ancient examples which remain 
 to us of this sort of succession, it is not always the 
 eldest son, in the sense familiar to us, who takes up 
 the representation. The form of Primogeniture 
 which has spread over Western Europe has also been 
 perpetuated among the Hindoos, and there is every 
 reason to believe that it is the normal form. Under 
 it, not only the eldest son, but the eldest line is 
 always preferred. If the eldest son fails, his eldest 
 son has precedence not only over brothers but over 
 uncles ; and, if he too fails, the same rule is followed 
 in the next generation. But when the succession is 
 not merely to civil but to political power, a diffi- 
 culty may present itself which will appear of 
 greater magnitude according as the cohesion of so- 
 ciety is less perfect. The chieftain who last exer- 
 cised authority may have outlived his eldest son, 
 and the grandson who is primarily entitled to suc- 
 ceed may be too young and immature to undertake 
 the actual guidance of the community, and the ad- 
 ministration of its affairs. In such an event, the 
 expedient which suggests itself to the more settled 
 societies is to place the infant heir under guardian- 
 ship till he reaches the age of fitness for government. 
 The guardianship is generally that of the male 
 Agnates ; but it is remarkable that the contingency 
 supposed is one of the rare cases in which ancient 
 
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gHAP. vn. CELTIC PEIMOGENITUEE. 233 
 
 societies have consented to the exercise of power by 
 women, doubtless out of respect to the overshadow- 
 ing claims of the mother. In India, the widow of 
 a Hindoo sovereign governs in the name of her in- 
 fant son, and we cannot but remember that the cus- 
 tom regulating succession to the throne of France 
 — which, whatever be its origin, is doubtless of the 
 highest antiquity — preferred the queen-mother to 
 all other claimants for the Regency, at the same 
 time that it rigorously excluded all females from the 
 throne. There is, however, anoth9r mode of obvia 
 ting the inconvenience attending the devolution of 
 sovereignty on an infant heir, and it is one which 
 would doubtless occur spontaneously to rudely or- 
 ganised communities. This is to set aside the infant 
 heir altogether, and confer •the chieftainship on the 
 eldest surviving male of the first generation. The 
 Celtic clan- associations, among the many phenomena 
 which they have preserved of an age in which civil 
 and political society were not yet even rudimentarily 
 separated, have brought down this rule of succession 
 to historical times. With them, it seems to have 
 existed in the form of a positive canon, that, failing 
 the eldest son, his next brother succeeds in priority 
 to all grandsons, whatever be their age at the moment 
 when the sovereignty devolves. Some writers have 
 explained the principle by assuming that the Celtic 
 customs took the last chieftain as a sort of root or 
 stock, and then gave the succession to the descen- 
 dant who should be least remote from him ; the uncle 
 
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234 CELTIC PEIMOGENITURE. chap, vn 
 
 thus being preferred to the grandson as being nearer 
 to the common root. No objection can be taken to 
 this statement if it be merely intended as a descrip- 
 tion of the system of succession ; but it would be a 
 serious error to conceive the men who first adopted 
 the rule as applying a course of reasoning which 
 evidently dates from the time when feudal schemes 
 of succession began to be debated among lawyers. 
 The true origin of the preference of the uncle to the 
 grandson is doubtless a simple calculation on the part 
 of rude men in a rude society that it is better to be 
 governed by a grown chieftain than by a child, and 
 that the younger son is more likely to have come to 
 maturity than any of the eldest son's descendants. 
 At the same time, we have some evidence that the 
 form of Primogeniture with which we are best ac- 
 L^uainted is the primary form, in the tradition that 
 the assent of the clan was asked when an infant heir 
 was passed over in favour of his uncle. There is a 
 tolerably well authenticated instance of this cere- 
 mony in the annals of the Sc()ttish Macdonalds; 
 and Irish Celtic antiquities, as interpreted by recent 
 inquirers, are said to disclose many traces of similar 
 practices. The substitution, by means of election, 
 of a " worthier " Agnatic relative for an elder is not 
 unknown, too, in the system of the Indian Village 
 Communities. 
 
 Under Mahometan law, which has probably pre- 
 served an ancient Arabian custom, inheritances of 
 property are divided equally among sons, the daugh 
 
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OHAP. vn. MAHOMETAN KULE. 235 
 
 ters taking a lialf share ; but if any of the children 
 die before the division of the inheritance, leaving 
 issue beTiind, these grandchildren are entirely ex- 
 cluded by their uncles and aunts. Consistently with 
 this principle, the succession, when political authority 
 devolves, is according to the form of Primogeniture 
 which appears to have obtained among the Celtic 
 societies. In the two great Mahometan families of 
 the West, the rule is believed to be, that the uncle 
 succeeds to the throne in preference to the nephew, 
 though the latter be the son of an elder brother ; 
 but though this rule has been followed quite recently 
 both in Egypt and in Turkey, I am informed that 
 there has always been some doubt as to its govern- 
 ing the devolution of the Turkish sovereignty. The 
 policy of the Sultans has in fact generally prevented 
 cases for its application from occurring, and it is pos- 
 sible that their wholesale massacres of their younger 
 brothers may have been perpetrated quite as much 
 in the interest of their children as for the sake of 
 making away with dangerous competitors for the 
 throne. It is evident, however, that in polygamous 
 societies the form of Primogeniture will always tend 
 to vary. Many considerations may constitute a 
 claim on the succession, the rank of the mother, for 
 example, or her degree in the affections of the father. 
 Accordingly, some of the Indian Mahometan sov- 
 ereigns, without pretending to any distinct testa- 
 mentary power, claim the right of nominating the 
 
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236 JEWISH METHOD OF NOMINATIOiS'. ohap. vii 
 
 son who is to succeed. The JJlessing mentioned in 
 the Scriptural history of Isaac and his sons has some 
 times been spoken of as a will, but it seems rather 
 to have been a mode of naming an eldest son. 
 
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CHAPTEE Vm. 
 
 TBI EABLY mSTOBT OF PBOPEBTT. 
 
 The Roman Institutional Treatises, after giving theii 
 definition of the various forms and modifications of. 
 ownership, proceed to discuss the Natural Modes of 
 Acquiring Property. Those who are unfamiliar with 
 the history of jurisprudence are not likely to look 
 upon these " natural modes " of acquisition as pos- 
 sessing, at first sight, either much speculative or 
 much practical interest. The wild animal which is 
 snared or killed by the hunter, the soil which is 
 added to our field by the imperceptible deposits of 
 a river, the tree which strikes its roots into oui 
 ground, are each said by the Roman lawyers to be ac- 
 quired by us natwally. The older jurisconsults had 
 doubtless observed that such acquisitions were uni- 
 versally sanctioned by the usages of the little socles 
 iies around them, and thus the lawyers of a later 
 age, finding them classed in the ancient Jus Gentium, 
 and perceiving them to be of the simplest descrip- 
 tion, allotted them a place among the ordinance? o-* 
 
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238 OCOUPANOT. cnip. vm. 
 
 Nature, The dignity with which they wei'e Invested 
 has gone on increasing in modern times till it is quite 
 out of proportion to their original importance. 
 Theory has made them its favourite food, and has 
 enabled them to exercise the most serious influence 
 on practice. 
 
 It will be necessary for us to attend to one only 
 among these " natural modes of acquisition, " Occu- 
 patio or Occupancy. Occupancy is the advisedly 
 taking possession of that which at the moment is the 
 property of no man, with the view (adds the tech- 
 nical definition) of acquiring property in it for your- 
 self. The objects which the Roman lawyers called 
 res nullius — things which have not or have never 
 had an owner — can only be ascertained by enumer- 
 ating them. Among things which never Tiad an 
 owner are wild animals, fishes, wild fowl, jewels 
 disinterred for the first time, and land newly dis- 
 covered or never before cultivated. Among things 
 which have not an owner are moveables which have 
 been abandoned, lands which have been deserted, 
 and (an anomalous but most formidable item) the 
 property of an enemy. In all these objects the full 
 rights of dominion were acquired by the Occupant, 
 who first took possession of them with the intention 
 '■of keeping them as his own — an intention which, in 
 certain cases, had to be manifested by specific acts 
 It is not difficult, I think, to understand the univer- 
 sality which caused the practice of Occupancy to be 
 placed by one generation of Roman lawyers in the 
 
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OHAP. Tin. LAW or OAPTCEE IN WAR. -239 
 
 Law common to all Nations, and the simjalicity which 
 occasioned its being attributed by another to the 
 Law of Nature. But for its fortunes in modern le- 
 gal history we are less prepared by a priori consid- 
 erations. The Roman principle of Occupancy, and 
 the rules into which the jurisconsults expanded it, 
 are the source of all modern International Law on 
 the subject of Capture in War and of the acquisition 
 of sovereign rights in newly discovered countries. 
 They have also supplied a theory of the Origin of 
 Property, which is at once the popular theory, and 
 the theory which, in one form or another, is acqui- 
 esced in by the great majority of speculative jurists. 
 I have said that the Roman principle of Occu- 
 pancy has determined the tenor of that chapter of 
 International Law which is concerned with Capture 
 in War. The Law of Warlike Capture derives its 
 rules from the assumption that communities are re- 
 mitted to. a state of nature by the outbreak of hos- 
 tilities, and that, in the artificial natural condition 
 thus produced, the institution of private property 
 falls into abeyance so far as concerns the belligerents. 
 Aa the later writers on the Law of Nature have al- 
 ways been anxious to maintain that private proper- 
 ty was in some sense sanctioned by the system 
 which they were expounding, the hypothesis that an 
 enemy's property is res nuUiu-s has seemed to them 
 perverse and shocking, and they wei-e careful to 
 stigmatise it as a mere fiction of jurisprudence. But, 
 as soon as the Law of Nature is traced to its source 
 
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2iO ANCIENT LAW OF CAPTURE. chap. Tm, 
 
 in the Jus Gentium, we see at once how the goods 
 of an enemy came to be looked upon as nobody's 
 property, and therefore as capable of being acquired 
 by the first occupant. The idea would occur spon- 
 taneously to persons practising the ancient forms of 
 Warfare, when victory dissolved the organisation of 
 the conquering army and dismissed the soldiers to 
 indiscriminate plunder. It is probable, however, that 
 originally it was only moveable property which was 
 thus permitted to be acquired by the Captor. We 
 know on independent authority that a very different 
 rule prevailed in ancient Italy as to the acquisition 
 of ownership in the soil of a conquered country, and 
 we may therefore suspect that the application of the 
 principle of occupancy to land (always a matter of 
 difficulty) dates from the period when the Jus Gen- 
 tium was becoming the Code of Nature, and that it 
 is the result of a generalisation effected by the juris- 
 consults of the golden age. Their dogmas on the 
 point are preserved in the Pandects of Justinian, and 
 amount to an unqualified assertion that enemy's prop- 
 erty of every sort is res nullius to the other bellig- 
 erent, and that Occupancy, by which the Captor 
 makes it his own, is an institution of Natural Law 
 The rules which International jurisprudence derives 
 from these positions have sometimes been stigma- 
 tised as needlessly indulgent to the ferocity and cu- 
 pidity of combatants, but the charge has been made, 
 I think, by persons who are unacquainted with the 
 history of wars, and who are consequently ignoi'ant 
 
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OHAP. vm. OCCUPANCY AND WAELIKE CAPTURE. 241 
 
 how great an exploit it is to command obedience foi 
 a rule of any kind. The Roman principle of Occu 
 pancy, when it was admitted into the modern law of 
 Capture in War, drew with it a number of subordi 
 nate canons, limiting and giving precision to its ope^ 
 ration, and if the contests which have been waged 
 since the treatise of Grotius became an authority, 
 are compared with those of an earlier date, it will 
 be seen that, as soon as the Roman maxims were re- 
 ceivedj Warfare instantly assumed a more tolerable 
 complexion. If the Roman law of Occupancy is to 
 be taxed with having had pernicious influence on 
 any part of the modern Law of Nations, there is an- 
 other chapter in it which may be said, with some rea- 
 son, to have been injuriously affected. In applying 
 to the discovery of new countries the same princi- 
 ples which the Romans had applied to the finding 
 of a jewel, the Publicists forced into their service 
 a doctrine altogether unequal to the task expected 
 from it. Elevated into extreme importance by the 
 discoveries of the great navigators of the 15th and 
 16th centuries, it raised more disputes than it solved. 
 The greatest uncertainty was very shortly found tb 
 exist on the very two points on which certainty was 
 most required, the extent of the territory which was 
 acquired for his sovereign by the discoverer, and the 
 nature of the acts which were necessary to complete 
 the apprehmsio or assumption of sovereign posses 
 sion. Moreover, the principle itself, conferring as it 
 did such enormous advantages as the consequence of 
 16 
 
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242 EULE OF DISCOVERT. chap, tih, 
 
 a piece of good luck, was instinctively mutinied 
 against by some of the most adventurous nations in 
 Europe, the Dutch, the English, and the Portuguese, 
 Our own countrymen, without expressly denying the 
 rule of International Law, never did, in practice, ad 
 mit the claim of the Spaniai-ds to engross the whole 
 of America south of the Gulf of Mexico, or that of 
 the King of France to monopolise the valleys of the 
 Ohio and the Mississippi. From the accession of 
 Elizabeth to the accession of Charles the Second, it 
 cannot be said that there was at any time thorough 
 peace in the American waters, and the encroach- 
 ments of the New England Colonists on the territo- 
 ry of the French King continued for almost a cen- 
 tury longer. Bentham was so struck with the con- 
 fusion attending the application of the legal princi- 
 ple, that he went out of his way to eulogise the 
 famous Bull of Pope Alexander the Sixth, dividing 
 the undiscovered countries of the world between the 
 Spaniards and the Portuguese by a line drawn one 
 hundred leagues West of the Azores ; and, grotesque 
 as his praises may appear at first sight, it may be 
 doubted whether the 'arrangement of Pope Alexan- 
 der is absurder in principle than the rule of Public 
 law, which gave half a continent to the monarch 
 whose servants had fulfilled the conditions required 
 by Roman jurisprudence for the acquisition of prop- 
 erty in a valuable object which could be covered by 
 the hand. 
 
 To all who pursue the inquiries which are the 
 
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OHAP. vm. ORIGIN OF PROPERTY. 248 
 
 subject of thi? volume, Occupancy i& pre-emineiitly 
 interesting on the score of the service it has beer 
 made to perform for speculative jurisprudence, in 
 furnishing a supposed explanation of the origin of 
 private property. It was once universally believed 
 that the proceeding implied in Occupancy was iden- 
 tical with the process by which the earth and its 
 fruits, which were at first in common, became the 
 allowed property of individuals. The course of 
 thought which led to this assumption is not difficult 
 to understand, if we seize the shade of dijBference 
 which separates the ancient from the modern con- 
 ception of Natural Law. The Roman lawyers had 
 laid down that Occupancy was one of the Natural 
 modes of acquiring property, and they undoubtedly 
 believed that, were mankind living under the institu- 
 tions of Nature, Occupancy would be one of their 
 practices. How far they persuaded themselves that 
 such a condition of the race had ever existed, is a 
 point, as I have already stated, which their language 
 leaves in much uncertainty ; but they certainly do 
 seem to have made the conjecture, which has at all 
 times possessed much plausibility, that the institution 
 of property was not so old as the existence of man- 
 kind. Modern jurisprudence, accepting all their dog- 
 mas without reservation, went far beyond them in 
 the eager curiosity with which it dwelt on the sup- 
 posed state of Nature. Since then it had received the 
 position that the earth and its fruits were once res 
 nulUtts, and since its peculiar view of Nature led it 
 
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244 OEIGIN OF PEOPEETT. oaip. vni. 
 
 to assume without hesitation that the human race 
 had actually practised the Occupaocy of res nulliua 
 long before the organisation of civil societies, the 
 inference immediately suggested itself that Occu- 
 ])ancy was the process by which the " no man's 
 goods " of the primitive world became the private 
 property of individuals in the world of history. It 
 would be wearisome to enumerate the jurists who 
 have subscribed to this theory in one shape or an- 
 other, and it is the less necessary to attempt it be- 
 cause Blackstone, who is always a faithful index of 
 the average opinions of his day, has summed them 
 up in his 2d book and 1st chapter. 
 
 " The earth," he writes, " and all things therein 
 were the general property of mankind from the 
 immediate gift of the Creator. Not that the com- 
 munion of goods seems ever to have been applicable, 
 even in the earliest ages, to aught but the substance 
 of the thing ; nor could be extended to the use of 
 it. For, by the law of nature and reason, he who 
 first began to use it acquired therein a kind of 
 transient property that lasted so long as he was using 
 it, and no longer ; or to speak with greater precision, 
 the right of possession continued for the same time 
 only that the act of possession lasted. Thus the 
 ground was in common, and no part was the perma- 
 nent property of any man in particular ; yet who- 
 ever was in the occupation of any determined spot 
 of it, for rest, for shade, or the like, acquired for the 
 time a sort of ownership, from which it would have 
 
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oHiP. Tm. BLAOKSTONE'S THEORY. 245 
 
 been unjust aud contrary to the law of nature to 
 have driven him by force, but the instant that he 
 quitted the use of occupation of it, another might 
 seize it without injustice." He then proceeds to 
 argue that " when mankind increased in number, it 
 became necessary to entertain conceptions of more 
 permanent dominion, and to appropriate to indi- 
 viduals not the' immediate use only, but the very 
 substance of the thing to be used." 
 
 Some ambiguities of expression in this passage 
 lead to the suspicion that Blackstone did not quite 
 understand the meaning of the proposition vs^hich 
 he found in his authorities, that property in the 
 earth's surface was first acquired, under the law of 
 Nature, by the occupant / but the limitation which 
 designedly or through misapprehension he has im- 
 posed on the theory brings it into a form which it 
 has not infrequently assumed. Many writers more 
 famous than Blackstone for precision of language 
 have laid down that, in the beginning of things, 
 Occupancy first gave a right against the world to an 
 exclusive but temporary enjoyment, and that after- 
 wards this right, while it remained exclusive, became 
 .perpetual. Their object in so stating their theory 
 was to reconcile the doctrine that in the state of 
 Nature res nvlUus became property through Occu- 
 pancy, with the inference which they drew from the 
 Scriptural history that the Patriarchs did not at first 
 permanently appropriate the soil which had been 
 grazed over by their flocks and herds. 
 
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246 BLACKSTONE'S THEORY. chap, tiu, 
 
 The only ci'iticism which could be directly ap- 
 plied to the theory of Blackstone would consist in 
 inquiring whether the circumstances which make up 
 his picture of a primitive society are more or less 
 probable than other incidents which could be ima- 
 gined with equal readiness. Pursuing this method 
 of examination, we might fairly ask whether the 
 man who had occupied (Blackstone evidently uses 
 this word with its ordinary English meaning) a par- 
 ticular spot of ground for rest or shade would be 
 permitted to retain it without disturbance. The 
 chances surely are that his right to possession would 
 be exactly coextensive with his power to keep it, 
 and that he would be constantly liable to disturbance 
 by the first comer who coveted the spot and thought 
 himself strong enough to drive away the possessor. 
 But the truth is that all such cavil at these positions 
 is perfectly idle from the very baselessness of the 
 positions themselves. What mankind did in the 
 primitive state may not be a hopeless subject of in- 
 quiry, but of their motives for doing it it is impos- 
 sible to know anything. These sketches of the 
 plight of human beings in the first ages of the world 
 are effected by first supposing mankind to be di- 
 vested of a great part of the circumstances by which 
 they are now surrounded, and by then assuming 
 that, in the condition thus imagined, they would pre- 
 serve the same sentiments and prejudices by which 
 they are now actuated, — although, in fact, these 
 flentiments may have been created and engendered 
 
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SHAP. vm. APHORISM OF SAVIGNT. 247 
 
 by those very circumstances of which, by the hy 
 pothesis, they are to be stripped. 
 
 There is an aphorism of Savigny which has been 
 sometimes thought to countenance a view of the 
 origin of property somewhat similar to the theories 
 epitomised by Blackstone. The great German jurisi 
 has laid down that all Property is founded on Ad- 
 verse Possession ripened by Prescription. It is only 
 with respect to Roman law that Savigny makes this 
 statement, and before it can be fully appreciated 
 much labour must be expended in explaining and 
 defining the expressions employed. His meaning 
 will, however, be indicated with sufficient accuracy 
 if we consider him to assert that, how far soever we 
 carry our inquiry into the ideas of property received 
 among the Romans, however closely we approach in 
 tracing them to "the infancy of law, we can get no 
 fai'ther than a conception of ownership involving the 
 three elements in the canon — Possession, Adverse- 
 ness of Possession, that is, a holding not permissive 
 or subordinate, but exclusive against the world, and 
 Prescription, or a period of time during which the 
 Adverse Possession has uninterruptedly continued. 
 It is exceedingly probable that this maxim might be 
 enunciated with more generality than was allowed 
 to it by its author, and that no sound or safe con- 
 clusion can be looked for from investigations into 
 any system of laws which are pushed farther back 
 than the point at which these combined ideas con« 
 stitute the notion of pi-oprietary right. Meantime, 
 
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H8 TETJE ORIGIN OF OCOUPANOT chap, tiil 
 
 SO far from bearing out the popular theory of the 
 origin of property, Savigny's canon is particularly 
 valuable as directing our attention to its weakest 
 point. In the view of Blackstone and those whom 
 he follows, it was the mode of assuming the exclusive 
 enjoyment which mysteriously affected the minds of 
 the fathers of our race. But the mystery does not 
 reside here. It is not wonderful that property began 
 in adverse possession. It is not surprising that the 
 first proprietor should have been the strong man 
 armed who kept his goods in peace. But why it 
 was that lapse of time created a sentiment of respect 
 for his possession — which is the exact source of the 
 universal reverence of mankind for that which has 
 for a long period de facto existed — are questions 
 really deserving the profoundest examination, but 
 lying far beyond the boundary of our present in- 
 quiries. 
 
 Before pointing out the quarter in which we may 
 hope to glean some information, scanty and uncer- 
 tain at best, concerning the early history of proprie- 
 tary right, I venture to state my opinion that the 
 popular impression in i-eference to the part played 
 by Occupancy in the first stages of civilisation di- 
 rectly reverses the truth. Occupancy is the advised 
 assumption of physical possession; and the notion 
 that an act of this description confers a title to " res 
 nullius," so far from being characteristic of very 
 early societies, is in all probability the growth of 
 a refined jurisprudence and of a settled condition of 
 
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CHAP. VIII. OBJEOTIOKS TO POPULAR THEORY. 248 
 
 the laws. It is only when the rights of property 
 have gained a sanction from long practical inviola 
 bility, and when the vast majority of the objects of 
 enjoyment have been subjected to private ownership, 
 thait mere possession is allowed to invest the first 
 possessor with dominion over commodities in which 
 no prior proprietorship has been asserted. The sen- 
 timent in which this doctrine originated is absolutely 
 irreconcilable with that infrequency and uncertainty 
 of p]"oprietary rights which distinguish the begin- 
 nings of civilisation. Its true basis seems to be, not 
 an instinctive bias towards the institution of Prop- 
 erty, but a presumption, arising out of the long con- 
 tinuance of that institution, that everything ought 
 to have an owner. When possession is taken of a 
 "res nullius," that is, of an object which is not, or 
 has never been, reduced to dominion, the possessor 
 is permitted to become proprietor from a feeling 
 that all valuable things are naturally the subjects of 
 an exclusive enjoyment, and that in the given case 
 there is no one to invest with the right of property 
 except the Occupant. The Occupant, in short, be- 
 comes the owner, because all things are presumed to 
 be somebody's property and because no one can be 
 pointed out as having a better right than he to the 
 proprietorship of this particular thing. 
 
 Even were there no other objection to the de- 
 scriptions of mankind in their natural state which 
 we have been discussing, there is one particular in 
 which they are fatally at variance with the authentic 
 
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250 OBJECTIONS TO POPULAE THEORY, ohai". Tin, 
 
 evidence possessed by us. It v/ill be observed, that 
 tlie acts and motives which these theories suppose 
 are the acts and motives of Individuals. It is each 
 Individual who for himself subscribes the Social 
 Compact. It is some shifting sandbank in which 
 the grains are Individual men, that according to the 
 theory of Hobbes is hardened into the social rock 
 by the wholesome discipline of foix-e. It is an Indi- 
 vidual who, in the picture drawn by Blackstone, "is 
 in the occupation of a determined spot of ground 
 for rest, for shade, or the like." The vice is one 
 which necessarily afilicts all the theories descended 
 fi'om the Natural Law of the Komans, which differed 
 principally from their Civil Law in the account 
 which it took of Individuals, and which has ren- 
 dered precisely its greatest service to civilisation in 
 enfranchising the individual from the authority of 
 archaic society. But Ancient Law, it nmst again be 
 repeated, knows next to nothing of Individuals. It 
 is concerned not with Individuals, but with Families, 
 not with single human beings, but groups. Even 
 when the law of the State has succeeded in permea- 
 ting the small circles of kindred into which it had 
 originally no means of penetrating, the view it takes 
 of Individuals is curiously different from that taken 
 by jurisprudence in its maturest stage. The life of 
 each citizen is not regarded as limited by birth and 
 death ; it is but a continuation of the existence of 
 his forefathers, and it will be prolonged in the ex 
 istence of his descendants. 
 
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ouAP. Tin. INFLUENCE OF EOMAN CLASSIFICATION. 251 
 
 The Roman distinction between the Law of Per 
 sons and the Law of Things, which though extremely 
 convenient is entirely artificial, has evidently done 
 much to divert inquiry on the subject before us from 
 the true direction. The lessons learned in discussing 
 the Jus Personarum have been forgotten where the 
 Jus Rerum is reached, and Property, Contract, and 
 Delict, have been considered as if no hints concern- 
 ing their original nature were to be gained from the 
 facts ascertained respecting the original condition 
 of Persons. The futility of this method would be 
 manifest if a system of pure archaic law could be 
 brought before us, and if the experiment could be 
 tried of applying to it the Roman classifications. 
 It would soon be seen that the separation of the 
 Law of Persons from that of Things has no meaning 
 in the infancy of law, that the rules belonging to the 
 two departments are inextricably mingled together, 
 and that the distinctions of the later jurists are ap- 
 propriate only to the later jurisprudence. From 
 what has been said in the earlier portions of this 
 treatise, it will be gathered that there is a strong a 
 priori improbability of our obtaining any clue to 
 the early history of property, if we confine our no- 
 tice to the proprietaiy rights of individuals. It is 
 more than likely that joint-ownership, and not sepa- 
 rate ownership, is the really archaic institution, and 
 that the forms of property which will afford us in- 
 struction will be those which are associated with 
 the rights of families and of groups of kindred. 
 
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252 INDIAN VILLAGE COMMUNITIES. chap, ym 
 
 The Roman jurisprudence will not here assist in 
 enlightening us, for it is exactly the Roman jurispru 
 dence which, transformed by the theory of Natural 
 Law, has bequeathed to the moderns the impression 
 that individual ownership is the normal state of 
 proprietary right, and that ownership in common by 
 groups of men is only the exception to a general 
 rule. There is, however, one community which will 
 always be carefully examined by the inquirer who 
 is in quest of any lost institution of primeval society. 
 How far soever any such institution may have under- 
 gone change among the branch of the Indo-European 
 family which has been settled for ages in India, it 
 will seldom be found to have entirely cast aside the 
 shell in which it was originally reared. It happens 
 that, among the Hindoos, we do find a form of 
 ownership which ought at once to rivet our atteu' 
 tion from its exactly fitting in with the ideas which 
 our studies in the Law of Persons would lead us to 
 entertain respecting the original condition of prop 
 erty. The Village Community of India is at once 
 an organised patriarchal society and an assemblage 
 of co-proprietors. The personal relations to each 
 other of the men who compose it are indistinguish- 
 ably confounded with their proprietary rights, and 
 to the attempts of English functionaries to separate 
 the two may be assigned some of the most formi- 
 dable miscarriages of Anglo-Indian administration. 
 The Village Community is known to be of immense 
 antiquity. In whatever direction research has been 
 
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CHAP. vm. CO-OWNERSHIP. 253 
 
 pushed into Indian history, general or local, it has 
 always found the Community in existence at the 
 farthest point* of its progress. A great number of 
 intelligent and observant writers, most of whom had 
 no theory of any soi't to support concerning its na 
 ture and origin, agree in considering it the least 
 destructible institution of a society which never 
 willingly surrenders any one of its usages to innova- 
 tion. Conquests and revolutions seem to have swept 
 over it without disturbing or displacing it, and the 
 most beneficent systems of government in India have 
 always been those which have recognised it as the 
 basis of administration. 
 
 The mature Roman law, and modern jurispru- 
 dence following in its wake, look upon co-ownership 
 as an exceptional and momentary condition of the 
 rights of property. This view is clearly indicated 
 in the maxim which obtains universally in Western 
 Europe, Nemo in communione potest invitus detineri 
 (" No one can be kept in co-proprietorship against 
 his will "). But in India this order of ideas is re- 
 versed, and it may be said that separate proprietor- 
 ship is always on its way to become proprietorship 
 in common. The process has been adverted to al- 
 ready. As soon as a son is born, he acquires a vested 
 interest in his father's substance, and on attaining 
 years of discretion he is even, in certain contingen- 
 cies, permitted by the letter of the law to call for a 
 partition of the family estate. As a fact, however, 
 a division rarely takes place even at the d(iath of 
 
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254 VILLAGE COMMUNITIES. chap. Tin 
 
 the father, and the pi-operty constantly remains un- 
 divided for several generations, though every mem« 
 ber of every generation has a legal right to an 
 undivided share in it. The domain thus held in 
 common is sometimes administered by an elected 
 manager, but more generally, and in some provinces 
 always, it is managed by the eldest agnate, by the 
 eldest representative of the eldest line of the stock. 
 Such an assemblage of joint proprietors, a body of 
 kindred holding a domain in common, is the simplest 
 form of an Indian Village Community, but the 
 Community is more than a brotherhood of relatives 
 and more than an association of partners. It is an 
 organised society, and besides providing for the 
 management of the common fund, it seldom fails to 
 provide, by a complete staff of functionaries, for in- 
 ternal government, for police, for the administration 
 of justice, and for the apportionment of taxes and 
 public duties. 
 
 The process which I have described as that under 
 which a Village Community is formed, may be re- 
 garded as typical. Yet it is not to be supposed that 
 every Village Community in India drew together 
 in so simple a manner. Although, in the North of 
 India, the archives, as I am informed, almost inva- 
 riably show that the Community was founded by a 
 single assemblage of blood-relations, they also supply 
 information that men of alien extraction have al 
 ways, from time to time, been engrafted on it, and 
 a mere purchaser of a share may generally, undei 
 
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CHAP. Tin. VILLAGE 00MMi;:NITrE8. 255 
 
 certain conditions, be admitted to the brotherhood. 
 In the South of the Peninsula there are often Com- 
 munities which appear to have sprung not from one 
 but from two or more families ; and there are some 
 whose composition is known to be entirely artificial 
 indeed, the occasional aggregation of men of differ- 
 ent castes in the same society is fatal to the hypothe- 
 sis of a common descent. Yet in all these brother- 
 hoods either the tradition is preserved, or the 
 assumption made, of an original common parentage. 
 Mountstuart Elphinstone, who writes more particu- 
 larly of the Southern Village Communities, observes 
 of them (^History of India^ i. 126) : "The popular 
 notion is that the Village landholders are all de- 
 scended from one or more individuals who settled 
 the Village ; and that the only exceptions are 
 formed by persons who have derived their rights 
 by purchase or otherwise from members of the 
 original stock. The supposition ie confirmed by the 
 fact that, to this day, there are only single families 
 of landholders in small villages and not many in 
 large ones; but each has branched out into so many 
 members that it is not uncommon for the whole 
 agricultural labour to be done by the landholders, 
 ■'/ithout the aid either of tenants or of labourers. 
 The rights of the landholders are theirs collectively, 
 and, though they almost always have a more or less 
 perfect partition of them, they never have an entire 
 separation. A landholder, for instance, can sell or 
 mortgage his rights ; but he must first have the con 
 
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266 VILLAGE COMMUNITIES. ohap. vm 
 
 sent of the Village, and the purchaser steps exactly 
 into his place and takes up all his obligations. If a 
 family becomes extinct, its share returns to the 
 common stock." 
 
 Some considerations which have been offered in 
 the fifth chapter of this volume will assist the reader, 
 I trust, in appreciating the significance of Elphin- 
 stone's language. No institution of the primitive 
 world is likely to have been preserved to our day, 
 unless it has acquired an elasticity foreign to its 
 original nature through some vivifying legal fiction. 
 The Village Community then is not necessarily an 
 assemblage of blood-relations, but it is eitlier such an 
 assemblage or a body of co-proprietors formed on 
 the model of an association of kinsmen. The type 
 with which it should be compared is evidently not 
 the Roman Family, but the Roman Gens or House. 
 The Gens was also a group on the model of the 
 family ; it was the family extended by a variety of 
 fictions of which the exact nature was lost in an- 
 tiquity. In historical times, its leading characteris- 
 tics were the very two which Elphinstone remarks 
 in the Village Community. There was always the 
 assumption of a common origin, an assumption some 
 times notoriously at variance with fact ; and, to re 
 peat the historian's words, "if a family became 
 extinct, its share returned to the common stock." In 
 old Roman law, unclaimed inheritances escheated to 
 the Gentiles. It is further suspected by all who 
 haA'-e examined their history that the Communities, 
 
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CHIP. vin. TYPE OF THE COMMUNITY. 267 
 
 like the Gentes, have been very generalh adultera 
 ted by the admission of strangers, but the exact mode 
 of absorption cannot no w be ascertain ed . At present, 
 they are recruited, as Elphinstone tells us, by the 
 admission of purchasers, with the consent of the 
 brotherhood. The acquisition of the adopted mem 
 bor is, however, of the nature of a universal succes- 
 sion; together with the share he has bought, he 
 succeeds to the liabilities which the vendor had 
 incurred towards the aggregate group. He is an 
 Emptoi- Familise, and inherits the legal clothing of 
 the person whose place he begins to fill. The con- 
 sent of the whole brotherhood required for his ad- 
 mission may remind us of the consent which the 
 Comitia Curiata, the Parliament of that larger broth- 
 erhood of self-styled kinsmen, the ancient Eoman 
 commonwealth, so strenuously insisted on as essential 
 to the legalisation of an Adoption or the confirmation 
 of a Will. 
 
 The tokens of an extreme antiquity are discov- 
 erable in almost every single feature of the Indian 
 Village Communities. We have so many independ- 
 ent reasons for suspecting that the infancy of law 
 is distinguished by the prevalence of co-ownership, 
 by the intermixture of personal with proprietary 
 rights, and by the confusion of public with private 
 duties, that we should be justified in deducing many 
 important conclusions from our observation of these 
 proprietary brotherhoods, even if no similarly com 
 pounded societies could be detected in any othej 
 17 
 
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258 EUSSIAN VILLAGES. chap, viit 
 
 part of the world. It happens, however, that much 
 earnest curiosity has been very recently attracted to 
 a similar set of phenomena in those parts of Europe 
 which have been most slightly affected by the feudal 
 transformation of property, and which in many im 
 portant particulars have as close an affinity with the 
 Eastern as with the Western world. The researches 
 of M. de Haxthausen, M. Tengoborski, and others, 
 have shown us that the Russian villages are not for- 
 tuitous assemblages of men, nor are they unions 
 founded on contract ; thej'' are naturally organised 
 communities like those of India. It is true that these 
 villages are always in theory the patrimony of some 
 noble proprietor, and the peasants have within his- 
 torical times been converted into the predial, and to 
 a great extent into the personal, serfs of the seignior. 
 But the pressure of this superior ownership has 
 never crushed the ancient organisation of the village, 
 and it is probable that the enactment of the Czar of 
 Russia, who is supposed to have introduced serfdom, 
 was really intended to prevent the peasants from 
 abandoning that co-operation without which the old 
 Bocial order could not long be maintained. In the 
 assumption of an agnatic connection between the 
 villagers, in the blending of personal rights with 
 privileges of ownership, and in a variety of sponta- 
 neous provisions for internal administration, the 
 Russian village appears to be a neai-ly exact repeti- 
 tion of the Indian Community ; but there is one 
 important difference which we note with the greatest 
 
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OHAP. vui. RUSSIAN AND CROATIAN VILLAGES. 259 
 
 interest. The co-o-wrners of aa Indian village, though 
 their property is blended, have their rights distinct, 
 and this separation of rights is complete and con- 
 tinues indefinitely. The severance of rights is also 
 theoretically complete in a Russian village, but there 
 it is only temporary. ' After the expiration of a 
 given, but not in all cases of the same, period, sepa- 
 rate ownerships are extinguished, the land of the 
 village is thrown into a mass, and then it is re-dis- 
 tributed among the families composing the commu- 
 nity, according to their number. This repartition 
 having been effected, the rights of families and of 
 individuals are again allowed to branch out into 
 various lines, which they continue to follow till 
 another period of division comes round. An even 
 more curious variation from this type of ownership 
 occurs in some of those countries which long formed 
 a debateable land between the Turkish Empire and 
 the possessions of the House of Austria. In Servia, 
 in Croatia, and the Austrian Sclavonia, the villages 
 are also brotherhoods of persons who are at once co- 
 owners and kinsmen ; but there the internal arrange- 
 ments of the community differ from those adverted 
 to in the last two examples. The substance of the 
 common property is in this case neither divided in 
 practice nor considered in theory as divisible, but the 
 entire land is cultivated by the combined labour of 
 all the villagers, and thepi'oduce is annually distrib- 
 uted among the households, sometimes according to 
 their supposed wants, sometimes according to rule? 
 
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260 VARIETIES OF THE COMMUNITY. chap, via 
 
 which give to particular persons a fixed share of the 
 usufruct. All these practices are traced by the 
 jurists of the East of Europe to a principle which ia 
 asserted to be found in the earliest Sclavonian laws, 
 the principle that the property of families cannot be 
 divided for a perpetuity. 
 
 The great interest of these phenomena in an in- 
 quiry like the present arises from the light they 
 throw on the development of distinct proprietary 
 rights inside the groups by which property seems to 
 have been originally held. We have the strongest 
 I'eason for thinking that property once belonged not 
 to individuals nor even to isolated families, but to 
 larger societies composed on the patriarchal model ; 
 but the mode of transition from ancient to modern 
 ownerships, obscure at best, would have been infi- 
 nitely obscurer if several distinguishable forms of 
 Village Communities had not been discovered and 
 examined. It is worth while to attend to the varie- 
 ties of internal arrangement within the patriarchal 
 groups which are, or were till recently, observable 
 among races of Indo-European blood. The chiefs of 
 the ruder Highland clans used, it is said, to dole out 
 food to the heads of the households under their ju- 
 risdiction at the very shortest intervals, and some- 
 times day by day. A periodical distribution is also 
 made to the Sclavonian villagers of the Austrian and 
 Turkish provinces by the elders of their body, but 
 then it is a distribution once for all of the total pro- 
 duce of the year. In the Russian villages, however, 
 
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OHAP. vni. VARIETIES OF THE COMMimiTY. 261 
 
 the substance of the property ceases to be looted 
 upon as indivisible, and separate proprietary claims 
 are allowed freely to grow up, but then the progress 
 of separation is peremptorily arrested after it has 
 continued a certain time. In India, not only is there 
 no indivisibility of the common fund, but separate 
 j)roprietorship in parts of it may be indefinitely pro- 
 longed and may branch out into any number of 
 derivative ownerships, the de facto partition of the 
 stock being, however, checked by inveterate usage, 
 and by the rule against the admission of strangers 
 without the consent of the brotherhood. It is not 
 of course intended to insist that these different forms 
 of the Village Community represent distinct stages 
 in a process of transmutation which has been every- 
 where accomplished in the same manner. But, 
 though the evidence does not warrant our going so 
 far as this, it renders less presumptuous the conjec- 
 ture that private property, in the shape in which we 
 know it, was chiefly formed by the gradual disen- 
 tanglement of the separate rights of individuals from 
 the blended rights of a community. Our studies in 
 the Law of Persons seemed to show us the Family 
 expanding into the Agnatic group of kinsmen, then 
 the Agnatic group dissolving into separate house- 
 holds; lastly, the household supplanted by the indi- 
 vidual ; and it is now suggested that each step in the 
 change corresponds to an analogous alteration in the 
 nature of Ownership. If there be any truth in the 
 suggestion, it is to be observed that it materially 
 
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262 PEOBLEM AS TO ORIGIN OF PROPERTY, chap. vir.. 
 
 affects the problem which theorists on the origin of 
 Property have generally proposed to themselves. 
 The question — perhaps an insoluble one — which 
 they have mostly agitated is, what were the motives 
 which first induced men to .respect each other's pos- 
 sessions ? It may still be put, without much hope 
 of finding an answer to it, in the form of an inquiry 
 into the reasons which led one composite group to 
 keep aloof from the domain of another. But, if it 
 be true that far the most important passage in the 
 history of Private Property is its gradual separation 
 from the co-ownership of kinsmen, then the great 
 point of inquiry is identical with that which lies on 
 the threshold of all historical law — what were the 
 motives which originally prompted men to hold to- 
 gether in the family union ? To such a question, 
 Jurisj)rudence, unassisted by other sciences, is not 
 competent to give a reply. The fact can only be 
 noted. 
 
 The undivided state of property in ancient socie- 
 ties is consistent with a peculiar sharpness of divis- 
 ion, which shows itself as soon as any single share 
 is completely separated from the patrimony of the 
 group. This phenomenon springs, doubtless, from the 
 circumstance that the property is supposed to become 
 the domain of a new group, so that any dealing with 
 it, in its divided state, is a transaction between two 
 liighly complex bodies. I have ali-eady compared 
 Ancient Law to Modern International Law, in re- 
 spect of the size of the corporate associations, whose 
 
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OHAP. VIII. j\NOIENT DIFFICULTIES OF ALIENATION". 263 
 
 rights and duties it settles. As the contracts and 
 conveyances known to ancient law are contracts and 
 conveyances to which not single individuals, but or- 
 ganised companies of men, ai-e parties, they are in 
 the highest degree ceremonious ; they require a va- 
 riety of symbolical acts and words intended to im- 
 press the business on the memory of all who take 
 part in it ; and they demand the presence of an inor- 
 dinate number of witnesses. From these peculiari- 
 ties, and others allied to them, springs the univer- 
 sally unmalleable character of the ancient forms of 
 property. Sometimes the patrimony of the family 
 is absolutely inalienable, as was the case with the 
 Scla,vonians, and still oftener, though alienations may 
 not be entirely illegitimate, they are virtually im- 
 practicable, as among most of the Germanic tribes, 
 from the necessity of having the consent of a large 
 number of persons to the transfer. Where these im- 
 pediments do not exist, or can be surmounted, the act 
 of conveyance itself is generally burdened with a per- 
 fect load of ceremony, in which not one iota can be 
 safely neglected. Ancient law uniformly refuses to 
 'dispense with a single gesture, however grotesque ; 
 with a single syllable, however its meaning may have 
 been forgotten ; with a single witness, however super- 
 fluous may be his testimony. The entire solemni- 
 ties must be scrupulously completed by persons le- 
 gally entitled to take part in it, or else the convey- 
 ance is null, and the seller is re-estal-Jished in the 
 
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264 ANCIENT DIFFICULTIES OF ALIENATION, oiiap. 7in 
 
 rights of whicli he had vainly attempted to direst 
 himself. 
 
 These various obstacles to the free circulation of 
 the objects of use and enjoyment, begin of course to 
 make themselves felt as soon as society has acquired 
 even a slight degree of activity, and the expedients 
 by which advancing communities endeavour to over- 
 come them form the staple of the history of Property. 
 Of such expedients there is one which takes prece- 
 dence of the rest from its antiquity and universality. 
 The idea seems to have spontaneously suggested it- 
 self to a great number of early societies, to classify 
 property into kinds. One kind or sort of property 
 is placed on a lower footing of dignity than the 
 others, but at the same time is relieved from the 
 fetters which antiquity has imposed on them. Sub- 
 sequently, the superior convenience of the rules gov- 
 erning the transfer and descent of the lower order 
 of property becomes generally recognised, and by a 
 gradual course of innovation the plasticity of the less 
 dignified class of valuable objects is communicated to 
 the classes which stand conventionally higher. The 
 history of Roman Property Law is the history of 
 the assimilation of Res Mancipi to Res Nee Mancipi. 
 The history of Property on the European Continent 
 is the history of the subversion of the feudalised 
 law of land by the Romanised law of moveables ; 
 und though the history of ownership in England is 
 not nearly completed, it is visibly the law of per 
 
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CHAP. Tin. KINDS OF PROPERTY. ^5 
 
 soiialty which threatens to absorb and annihilate 
 the law of realty. 
 
 The only natwxil classification of the objects of 
 enjoyment, the only classification which corresponds 
 with an essential diff'erence in the subject mattei', ia 
 that which divides them into Moveables and Immove- 
 ables. Familiar as is this classification to jurispru 
 dence, it was very slowly developed by Roman law, 
 from which we inherit it, and was onl)^ finally adopt- 
 ed by it in its latest stage. The classifications of 
 Ancient Law have sometimes a superficial resem- 
 blance to this. They occasionally divide property 
 into categories, and place immoveables in one of 
 them ; but then it is found that they either class 
 along with immoveables a number of objects which 
 have no sort of relation with them, or else divorce 
 them from various rights to which they have a close 
 afldnity. Thus, the Ees Mancipi of Roman Law in- 
 cluded not only land but slaves, horses, and oxen. 
 Scottish law ranks with land a certain class of secu- 
 rities, and Hindoo law associates it with slaves. Eng- 
 lish law, on the other hand, parts leases of land for 
 years from other interests in the soil, and joins them 
 to personalty under the name of chattels real. More- 
 over, the classifications of Ancient Law are classifi- 
 cations implying superiority and inferioiity ; while 
 the distinction between moveables and immoveables, 
 so long at least as it was confined to Roman juris- 
 prudence, carried with it no suggestion whatever of 
 a difference, in dignity. The Res Mancipi, however, 
 
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266 ANCIENT KINDS OF PEOPERTT. ohai-. vtn, 
 
 did certainly at fii'st enjoy a precedence over the Res 
 Nee Mancipi, as did heritable property in Scotland, 
 and realty in England, over the personalty to which 
 they were opposed. The lawyers of all systems have 
 spared no pains in striving to refer these classifica- 
 tions to some intelligible principle ; but the reasons 
 of the severance must ever be vainly sought for in 
 the philosophy of law ; they belong not to its philos- 
 ophy, but to its history. The explanation which ap- 
 pears to cover the greatest number of instances 'is 
 that the objects of enjoyment honoured above the 
 rest were forms of property known first and earliest 
 to each particulai- community, and dignified there- 
 fore emphatically with the designation of Property. 
 On the other hand, the articles not enumerated 
 among the favoured objects seem to have been placed 
 on a lower standing, because the knowledge of their 
 value was posterior to the epoch at which the cata- 
 logue of superior property was settled. They were 
 at first unknown, rare, limited in their uses, or else 
 j-egarded as mere appendages to the privileo^ed ob- 
 jects. Thus, though the Roman Res Mancipi includ- 
 ed a number of moveable articles of great value, 
 still the most costly jewels were never allowed to 
 take rank as Res Mancipi, because they were un- 
 known to the early Romans. In the same waj- chat- 
 tels real in England are said to have been degraded 
 to the footing of personalty, from the infrequency 
 and valuelessness of such estates under the feudal- 
 land-law. But the grand point of interest is, the con 
 
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CHAP. VIII. DEGRADATION OF INTERIOR PROPERTY. 267 
 
 tinued degradation of these commodities when their 
 importance had increased and their number had 
 multiplied. Why were they not successively includ- 
 ed among the favoured objects of enjoyment? One 
 reason is found in the stubbornness with which An- 
 cient Law adheres to its classifications. It is a chai-- 
 acteristic both of uneducated minds and of early so- 
 cieties, that they are little able to conceive a gen- 
 eral rule apart from the particular applications of it 
 with which they are practically familiar. They can- 
 not dissociate a general term or maxim from the spe- 
 cial examples which meet them in daily experience ; 
 and in this way the designation covering the best- 
 known forms of property is denied to articles which 
 exactly resemble them in being objects of enjoyment 
 and subjects of right. But to these influences, which 
 exert peculiar force in a subject-matter so stable as 
 that of law, are afterwards added others more con- 
 sistent with progress in enlightenment and in the 
 conceptions of general expediency. Courts and law- 
 yers become at last alive to the inconvenience of the' 
 embarrassing formalities required for the transfer, re- 
 covery, or devolution of the favoured commodities, 
 and grow unwilling to fetter the newer descriptions 
 of property with the technical trammels which 
 characterised the infancy of law Hence arises a dis- 
 position to keep these last on a lower grade in the 
 arrangements of Jurisprudence, and to permit their 
 transfer by simpler processes than those which, in 
 archai,' conveyances, serve as stumbling-blocks to 
 
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268 ANCIENT TITLES IMPERFECT. omp. vin 
 
 good faitli and stepping-stones to fraud. We are 
 perhaps in some danger of underrating the inconve- 
 niences of the ancient modes of transfer. Our instru- 
 ments of conveyance are written, so that their lan- 
 guage, well pondered by the professional drafts 
 man, is rarely defective in accuracy. But an ancient 
 conveyance was not written, but acted. Gestures and 
 words took the place of .written technical phraseo-* 
 logy, and any formula mispronounced, or symbolical 
 act omitted, would have vitiated the proceeding as fa 
 tally as a material mistake in stating the uses or set 
 ting out the remainders would, two hundred years 
 ago, have vitiated an English deed. Indeed, the mis- 
 chiefs of the archaic ceremonial are even thus only 
 half stated. So long as elaborate conveyances, writ- 
 ten or acted, are required foi: the alienation of land 
 alone, the chances of mistake are not considerable in 
 the transfer of a description of property which is 
 seldom got rid of with much precipitation. But the 
 higher class of property in the ancient world com- 
 prised not only land but several of the commonest 
 and several of the most valuable moveables. When 
 once the wheels of society had begun to move quick- 
 ly, there must have been immense inconvenience in 
 demanding a highly intricate form of transfer for a 
 horse or an ox, or for the most costly chattel of the 
 old world — the Slave. Such commodities must have 
 been constantly and even ordinarily conveyed with 
 incomplete forms, and held, therefore, under imper 
 feet titles. 
 
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CHAP. vui. DEFINITION OF RES MANOIPI. SSS 
 
 The Res Mancipi of old Roman law wei^j, land, 
 — in historical times, land on Italian soil, — slaves 
 and beasts of burden, such as horses and oxen. It 
 is impossible to doubt that the objects which mak* 
 up the class are the instruments of agricultural la- 
 bour, the commodities of first consequence to a 
 primitive people. Such commodities were at first, 
 i imagine, called emphatically Things or Property, 
 and the mode of conveyance by which they were 
 transferred was called a Mancipium or Mancipation ; 
 but it was not probably till much later that they re- 
 ceived the distinctive appellation of Res Mancipi, 
 " Things which require a Mancipation." By their 
 side there may have existed or grown up a class of 
 objects, for which it was not worth while to insist 
 upon the full ceremony of Mancipation. It would 
 be enough if, in transferring these last from owner 
 to owner, a part only of the ordinary formalities 
 were proceeded with, namely, that actual deliverj^ 
 physical transfer, or tradition, which is the most ob- 
 vious index of a change of proprietorship. Such 
 comnjodities were the Res Nee Mancipi of the an- 
 cient jurisprudence, " things which did not require 
 a Mancipation," little prized probably at first, and 
 not often passed from one group of proprietors to 
 another. While, however, the list of the Res Man- 
 cipi was irrevocably closed, that of the Res Nee 
 Mancipi admitted of indefinite expansion ; and hence 
 every fresh conquest of man over material nature 
 iidded an item to the Res Nee Mancipi, or effected 
 
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270 KES NEC MANOIPI. chap, viri 
 
 an improvement in those already recognised. In 
 sensibly, therefore, they mounted to an equality 
 with the Ees Mancipi, and the impression of an 
 intrinsic inferioritj^ being thus dissipated, men began 
 to observe the manifold advantages of the simple 
 formalit}^ which accompanied their transfer over the 
 more intricate and more venerable ceremonial. Two 
 of the agents of legal amelioration, Fictions and' 
 Equity, were assiduously employed by the Roman 
 lawyers to give the practical effects of a Mancipa- 
 tion to a Tradition ; and, though Roman legislators 
 long shrank from enacting that the right of property 
 in a Res Mancipi should be immediately transferred 
 by bare delivery of the article, yet even this step 
 was at last ventured upon by Justinian, in whose 
 jurisprudence the difference between Res Mancipi 
 and Res Nee Mancipi disappears, and Tradition or 
 Delivery becomes the one great conveyance known 
 to the law. The marked preference which the Ro- 
 man lawyers very early gave to Tradition caused 
 them to assign it a place in their theory which has 
 helped to blind their modern disciples to its true 
 history. It was classed among the " natural " modes 
 of acquisition, both because it was generally prac- 
 tised among the Italian tribes, and because it was a 
 process which attained its object by the simplest 
 mechanism. If the expressions of the jurisconsults 
 be pressed, they undoubtedly imply that Tradition, 
 which belongs to the Law Natural, is more ancient 
 than Mancipation, which is an institution of Civil 
 
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CB4P. vm. TRADITION. 271 
 
 Society ; and this, I need not say, is the exact reverse 
 of the truth. 
 
 The distinction between Res Mancipi and Res 
 Nee Mancipi is the type of a class of distinctions to 
 which civilisation is much indebted, distinctions 
 which run through the whole mass of commodities, 
 placing a few of them in a class by themselves, and 
 I'elegating the others to a lower category. The in- 
 ferior kinds of property are first, from disdain and 
 disregard, released from the perplexed ceremonies 
 in which primitive law delights, and then afterwards, 
 in another state of intellectual progress, the simple 
 methods of transfer and recovery which have been 
 allowed to come into use serve as a model which 
 condemns by its convenience and simplicity the 
 cumbrous solemnities inherited from ancient days. 
 But, in some societies, the trammels in which Prop- 
 erty is tied up are much too complicated and strin- 
 gent to be relaxed in so easy a manner. Whenever 
 male children have been born to a Hindoo, the law 
 of India, as I have stated, gives them all an interest 
 in his property, arfd makes their consent a necessary 
 condition of its alienation. In the same spirit, the 
 general usage of the old Germanic peoples — it is 
 remarkable that the Anglo-Saxon customs seem to 
 liave been an exception — forbade alienations without 
 the consent of the male children ; and the primitive 
 law of the Sclavonians even prohibited them alto- 
 gether. It is evident that such impediments as these 
 cannot be overcome by a distinction between kinds 
 
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272 OTHER ANCIENT CLASSIEIOATIONS. oeap. vin 
 
 of pi'operty, inasraucli as the difficulty extends t<] 
 commodities of all sorts ; and accordingly, Ancient 
 Law, when once launched on a course of imjDrove- 
 ment, encounters them with a distinction of another 
 character, a distinction classifying property, not ac- 
 cording to its nature but according to its origin. In 
 India, where there are traces of both systems of 
 classification, the one which we are considering is 
 exemplified in the difference which Hindoo law 
 establishes between Inheritances and Acquisitions. 
 The inherited pi-operty of the father is shared by 
 the children as soon as they are born ; but according 
 to the custom of most provinces, the acquisitions 
 made by him during his lifetime are wholly his own, 
 and can be transferred by him at pleasure. A simi- 
 lar distinction was not unknown to Roman law, in 
 which the earliest innovation on the Parental Powers 
 took the form of a permission given to the son to 
 keep for himself whatever he might have acquired 
 in military service. But the most extensive use 
 ever made of this mode of classification appears to 
 have been among the Germans. I have repeatedly 
 stated that the allod^ though not inalienable, was 
 commonly transferable with the greatest difiiculty ; 
 and moreover, it descended exclusively to the agnatic 
 kindred. Hence an extraordinary variety of dis- 
 tinctions came to be recognised, all intended to di- 
 minish the inconveniences inseparable from allodial 
 property. The weJirgeld, for example, or composi- 
 tion for the homicide of a relative, which occupies 
 
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CHAP. ym. INHERITANCES AND ACQUISITIONS. 273 
 
 SO large a space in German jurisprudence, formed no 
 part of the family domain, and descended according 
 to rules of succession altogether different. Simi- 
 larly, the reipus^ or fine leviable on the re-marriage 
 of a widow, did not enter into the allod of the pei^ 
 sou to whom it was paid, and followed a line of 
 devolution in which the privileges of the agnates 
 were neglected. The law, too, as among the Hin- 
 doos, distinguished the Acquisitions of the chief of 
 the household from his Inherited property, and per- 
 mitted him to deal with them under much more 
 liberal conditions. Classifications of the other sort 
 were also admitted, and the familiar distinction 
 drawn between land and moveables ; but moveable 
 property was divided into several subordinate cate- 
 gories, to each of which different rules applied. This 
 exuberance of classification, which may strike us as 
 strange in so rude a people as the German conquer- 
 ors of the Empire, is doubtless to be explained by 
 the presence in their systems of a considerable ele- 
 ment of Roman law, absorbed by them during their 
 long sojourn on the confines of the Roman dominion. 
 It is not difiicult to trace a great number of the rules 
 governing the transfer and devolution of the com- 
 modities which lay outside the allod^ to their source 
 in Roman jurisprudence, from which they were prob- 
 ably borrowed at vyidely distant epochs, and in frag- 
 mentary importations. How far the obstacles to 
 the free circulation of property were surmounted by 
 such contrivances, we have not the means even of 
 18 
 
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274 LAKD AND GOODS. ohap. tth 
 
 conjecturing, for the distinctions adverted to have 
 no modern history. As I before explained, the allo- 
 dial foi'in of pi'opei'ty was entirely lost in the feudal, 
 and when the consolidation of feudalism was once 
 completed, there was practically but one distinction 
 left standing of all those which had been known to 
 the western world — the distinction between land 
 and goods, immoveables and moveables. Externally 
 this distinction was the same with that which Roman 
 law had finally accepted, but the law of the middle 
 ages differed from that of Rome in distinctly con- 
 sidering immoveable property to be more dignified 
 than, moveable. Yet this one sample is enough to 
 show the importance of the class of expedients to 
 which it belongs. In all the countries governed by 
 systems based on the French codes, that is, through 
 much the greatest part of the Continent of Europe, 
 the law of moveables, which was always Roman law, 
 has superseded and annulled the feudal law of land 
 England is the only country of importance in which 
 this transmutation, though it has gone some way, is 
 not nearly accomplished. Our own, too, it may be 
 added, is the only considerable European country in 
 which the separation of moveables from immovea- 
 bles has been somewhat disturbed by the same in 
 (luences which caused the ancient classifications to 
 depart from the only one which is countenanced by 
 nature. In the main, the English distinction has 
 been between land and goods ; but a certain class of 
 goods have gone as heir-looms with the land, and a 
 
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CHAP. vm. PEESCRIPTION. 278 
 
 certain description of interests in land have from 
 historical causes been ranked with personalty. This 
 is not the only instance in which English jurispru 
 dence, standing apart from the main current of legal 
 modification, has reproduced phenomena of archaic 
 law. 
 
 I proceed to notice one or two more contrivances 
 by which the ancient trammels of proprietary right 
 were more or less successfully relaxed, premising 
 that the scheme of this treatise only permits me to 
 mention those which are of "great antiquity. On 
 one of them in particular it is necessary to dwell for 
 a moment or two, because persons unacquainted with 
 the early history of law will not be easily persuaded 
 that a principle, of which modern jurisprudence has 
 very slowly and with the greatest difficulty obtained, 
 the recognition, was really familiar to the very in- 
 fancy of legal science. There is no principle in all 
 law which the moderns, in spite of its beneficial 
 character, have been so loath to adopt and to carry 
 to its legitimate consequences as that which was 
 known to the Romans as Usucapion, and which has 
 descended to modern jurisprudence under the name 
 of Pi-escription. It was a positive rule of the oldest 
 Roman law, a rule older than the Twelve Tables, 
 that commodities which had been uninterruptedly 
 possessed for a certain period became the property 
 of the possessor. The period of possession was ex- 
 ceedingly short — one or two years, according to the 
 nature of the commodities — ^and in historical timea 
 
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276 INFLUENCE OF CAN0:N LAW. ohap, vm. 
 
 Usucapion was only allowed to operate when posses- 
 sion had commenced in a particular way ; but I 
 think it likely that at a less advanced epoch posses- 
 sion was converted into ownership under conditions 
 even less severe than we read of in our authorities. 
 £^s I have said before, I am far from asserting that 
 ths respect of men for de facto possession is a phe- 
 nomenon which jurisprudence can account for by 
 itself, but it is very necessary to remark that primi- 
 tive societies, in adopting the principle of Usuca- 
 pion, were not beset wdth any of the speculative 
 doubts and hesitations which have impeded its re- 
 ception among the moderns. Prescriptions were 
 viewed by the modern lawyers, first with repug- 
 nance, afterwards with reluctant approval. In sev- 
 eral countries, including our own, legislation long 
 declined to advance beyond the rude device of 
 barring all actions based on a wrong which had 
 been suffered earlier than a fixed point of time in 
 the past, generally the first year of some preceding 
 reign; nor was it till the middle ages had finally 
 closed, and James the First had ascended the throne 
 of England, that we obtained a true statute of limi- 
 tation of a very imperfect kind. This tardiness in 
 copying one of the most famous chapters of Eoman 
 law, which was no doubt constantly read by the 
 majority of European lawyers, the modern world 
 owes to the influence of the Canon Law. The 
 ecclesiastical customs out of which the Canon Law 
 grew, concerned as they were with sacred or quasi- 
 
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onAP. Tni. INFLUENCE OF CANON LAW. 277 
 
 sacred interests, very naturally regarded the privi- 
 leges which they conferred as incapable of being 
 lost through disuse however prolonged ; and in ac- 
 cordance with this view, the spiritual jurisprudence, 
 when afterwards consolidated, was distinguished by 
 a marked leaning against Prescriptions. It was the 
 fate of the Canon Law, when held up by the clerical 
 lawyers as a pattern to secular legislation, to have a 
 peculiar influence on first principles. It gave to the 
 bodies of custom which were formed throughout 
 Europe far fewer express rules than did the Roman 
 law, but then it seems to have communicated a bias 
 to professional opinion on a surprising number of 
 fundamental points, and the tendencies thus pro- 
 duced progressively gained strength as each system 
 was developed. One of the dispositions it produced 
 was a disrelish for Prescriptions ; but I do not know 
 that this prejudice would have operated as power- 
 fully as it has done, if it had not fallen in with the 
 doctrine of the scholastic jurists of the realist sect, 
 who taught that, whatever turn actual legislation 
 might take, a right^ how long soever neglected, was 
 in point of fact indestructible. The remains of this 
 state of feeling still exist. Wherever the philoso- 
 phy of law is earnestly discussed, questions respect- 
 mg the speculative basis of Prescription are always 
 hotly disputed ; and it is still a point of the greatest 
 interest in France and Germany, whether a person 
 who has been out of possession for a series of years 
 is deprived of his ownership as a penalty for his 
 
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278 KOMAN USUCAPION". ' chap, tih 
 
 neglect, or loses it through the summary interposi 
 tion of the law in its desire to have a firds litium. 
 But no such scruj)les troubled the mind of early 
 Roman society. Their ancient usages directly took 
 away the ownership of everybody who had been 
 out of possession, under certain circumstances, during 
 one or two years. What was tlie exact tenor of the 
 rule of Usucapion in its earliest shape, it is not easy 
 to say ; but, taken with the limitations which we 
 find attending it in the books, it was a most useful 
 security against the mischiefs of a too cumbrous 
 system of conveyance. In order to have the benefit 
 of Usucapion, it was necessary that the adverse pos- 
 session should have begun in good faith, that is, 
 with belief on the part of the possessor that he was 
 lawfully acquiring the property, and it was further 
 requii-ed that the commodity should have been 
 transferred to him by some mode of alienation 
 which, however unequal to conferring a complete 
 title in the particular case, was at least recognised 
 by the law. In the case therefore of a Mancipation, 
 however slovenly the performance might have been, 
 yet if it had been carried so far a-s to involve a Tra- 
 dition or Delivery, the vice of the title would be 
 cured by Usucapion in two yeai's at most. I know 
 nothing in the practice of the Romans which testifies 
 so strongly to their legal genius as the use which 
 they made of the Usucapion. The difficulties which 
 beset them were nearly the same with those which 
 embarrassed and still embarrass the lawyers of 
 
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OHAP. Tm. COLLUSIVE KEOO^'ERIES. 279 
 
 England. Owing to the complexity of their system, 
 which as yet they had neither the courage nor the 
 power to reconstruct, actual right was constantly 
 getting divorced from technical right, the equitable 
 ownership from the legal. But Usucapion, as manip- 
 ulated by the jurisconsults, supplied a self-acting 
 machinery, by which the defects of titles to property 
 were always in course of being cured, and by which 
 the ownerships that were temporarily separated were 
 again rapidly cemented together with the briefest 
 possible delay. Usucapion did not lose its advanta- 
 ges till the reforms of Justinian. But as soon as 
 law and equity had been completely fused, and when 
 Mancipation ceased to be the Roman conveyance, 
 there was no further necessity for the ancient con- 
 trivance, and Usucapion, with its periods of time 
 considerably lengthened, became the Prescription 
 which has at length been adopted by nearly all 
 systems of modern law. 
 
 I pass by with brief mention another expedient 
 having the same object with the last, which, though 
 it did not immediately make its appearance in Eng- 
 lish legal history, was of immemorial antiquity in 
 Roman law; such indeed is its apparent age that 
 some German civilians, not sufficiently aware of the 
 light thrown on the subject by the analogies of 
 English law, have thought it even- older than the 
 Mancipation. I speak of the Cessio in Jure, a col- 
 lusive recovery, in a Court of Law, of property 
 Bought to be conveyed. The plaintiff claimed the 
 
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280 COLLUSIVE KEOOVERIES. ohap. vm 
 
 subject of tRis proceeding with the ordinary forma 
 of a litigation ; tlie defendant made default ; and 
 the commodity was of course adjudged to the plain- 
 tiff. I need scarcely remind the English lawyer thai 
 this expedient suggested itself to our forefathers, 
 and produced those famous Fines and Kecoveries 
 which did so much to undo the harshest ti-ammels 
 of the feudal land-law. The Roman and English 
 contrivances have very much in common, and illus- 
 trate each other most instructively, but there is this 
 difference between them, that the object of tht 
 English lawyers was to remove complications already 
 introduced into the title, while the Roman juriscon- 
 sults sought to prevent them by substituting a mode 
 of transfer necessarily unimpeachable for one which 
 too often miscarried. The device is in fact one 
 which suggests itself as soon as Courts of Law are 
 in steady operation, but are nevertheless still under 
 the empire of primitive notions. In an advanced 
 state of legal opinion, tribunals regard collusive 
 litigation as an abuse of their procedure ; but there 
 has ' always been a time when, if their forms were 
 scrupulously complied with, they never dreamed of 
 looking further. 
 
 The influence of Courts of Law and of their 
 procedure upon property has been most extensive, 
 but the subject is too large for the dimensions of 
 this treatise, and would cai-ry us further down the 
 course of legal history than is consistent with its 
 scheme. It is desirable, however, to mention, that 
 
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ORAP, VIII. PKOPEETY AND POSSESSION. 281 
 
 to this influence we must attribute the importance 
 of the distinction between Property and Possession 
 — not, indeed, the distinction itself, which (in the 
 language of an eminent English civilian) is the same 
 thing as the distinction between the legal right to 
 act upon a thing and the physical power to do so — 
 but the extraordinary importance which the distinc- 
 tion has obtained in the philosophy of the law. Few 
 educated persons are so little versed in legal litera- 
 ture as not to have heard that the language of the 
 Roman jurisconsults on the subject of Possession 
 long occasioned the greatest possible perplexity, and 
 that the genius of Savigny is supposed to have 
 chiefly proved itself by the solution which he dis- 
 covered for the enigma. Possession, in fact, when 
 employed by the Roman lawyers, appears to have 
 contracted a shade of meaning not easily accounted 
 for. The word, as appears from its etymology, must 
 have originally denoted physical contact or ph3'sical 
 contact resumeable at pleasui-e ; but as actually used, 
 without any qualifying epithet, it signifies not simply 
 physical detention, but physical detention coupled 
 vith the intention to hold the thing detained as 
 one's own. Savigny, following Niebuhr, perceived 
 that for this anomaly there could only be a histori- 
 cal origin. He pointed out that the Patrician 
 burghers of Rome, who had become tenants of the 
 greatest part of the public domain at nominal rents, 
 were, in the view of the old Roman law, mere pos- 
 sessors, but then they were possessors intending to. 
 
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282 PROPERTY AND POSSESSION. oitip. via. 
 
 kee]) their land against all comers. They, in truth, 
 put forward a claim almost identical with that which 
 has recently been advanced in England by the les- 
 sees of Church lands. Admitting that in theory 
 they were the tenants-at-will of the state, they con- 
 tended that time and undisturbed enjoyment had 
 ripened their holding into a species of ownership, 
 and that it would be unjijst to eject them for the 
 purpose of redistributing the domain. The asso- 
 ciation of this claim with the Patrician tenancies, 
 permanently influenced the sense of "possession." 
 Meanwhile the only legal remedies of which the 
 tenants could avail themselves, if ejected or threat- 
 ened with disturbance, were the Possessory Inter- 
 dicts, summary processes of Roman law which were 
 either expressly devised by the Praetor for their 
 protection, or else, according to another theory, had 
 in older times been employed for the provisional 
 maintenance of possessions pending the settlement 
 of questions of legal i-ight. It came, therefore, to 
 be understood that everybody who possessed prop- 
 erty as Ids own had the power of demanding the 
 Interdicts, and, by a system of highly artificial 
 pleading, the Interdictal process was moulded into 
 a shape fitted for the trial of conflicting claims to a 
 disputed possession. Then commenced a movement 
 which, as Mi'. John Austin pointed out, exactly re- 
 produced itself in English law. Proprietors, domini, 
 began to prefer the simpler forms or speedier course 
 of the Interdict to the lagging and intricate formal- 
 
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CHAP. vm. LAW AND EQUITY. 283 
 
 ities of the Real Action, and for the purpose of 
 availing themselves of the possessory remedy fell 
 back upon the possession which was supposed to be 
 involved in their proprietorship. The liberty con 
 ceded to persons who were not true Possessors, but 
 Owners, to vindicate their rights by possessory 
 remedies, though it may have been at first a boon, 
 had ultimately the effect of seriously deteriorating 
 both English and Roman jurisprudence. The Ro- 
 man law owes to it those subtleties on the subject 
 of Possession which have done so much to discredit 
 it, while English law, after the actions which it ap- 
 propriated to the recovery of real property had 
 fallen into the most hopeless confusion, got rid at 
 last of the whole tangled mass by a heroic remedy. 
 No one can doubt that the virtual abolition of the 
 English real actions which took place nearly thirty 
 years since was a public benefit, but still persons 
 sensitive to the harmonies of jurisprudence will 
 lament that, instead of cleansing, improving, and 
 simplifying the true proprietary actions, we sacri- 
 ficed them all to the possessory action of ejectment, 
 thus basing our whole system of land recovery upon 
 a legal fiction. 
 
 Legal tribunals have also powerfully assisted to 
 shape and modify conceptions of proprietary right 
 by means of the distinction between Law and 
 Equity, which always makes its first appearance as 
 a distinction between jurisdictions. Equitable prop* 
 erty in England is simply property held under the 
 
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284 EQUITABLE PEOPEETY. chap, vm 
 
 jurisdiction of the Court of Chancery. At Kome 
 the Prastor's Edict introduced its novel principles in 
 the guise of a promise that under certain circum 
 stances a particular action or a particular plea would 
 be granted ; and, accordingly, the property in lonis, 
 or Equitable Property, of Koman law was property 
 exclusively protected by i-emedies which had their 
 source in the Edict. The mechanism by which equi- 
 table rights were saved from being overridden by 
 the claims of the legal owner was somewhat diflFerent 
 in the two systems. With us their independence is 
 secured by the Injunction of the Court of Chancery. 
 Since however Law and Equity, while not as yet 
 consolidated, were administered under the Roman 
 system by the same Court, nothing like the Injunc- 
 tion was required, and the Magistrate took the sim- 
 pler course of refusing to grant to the Civil Law 
 Owner those actions and pleas by which alone he 
 could obtain the property that belonged in equity 
 to another. But the practical operation of both 
 systems was nearly the same. Both, by means of a 
 distinction in procedure, were able to preserve new 
 forms of property in a sort of provisional existence, 
 until the time should come when they were recog- 
 nised by the whole law. In this way, the Eoman 
 Praetor gave an immediate right of property to the 
 person who • had acquired a Res Mancipi by mere 
 delivery, without waiting for the ripening of Usuca- 
 pion. Similarly he in time recognised an ownership 
 in the Mortgagee, who had at first been a mere 
 
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0H.4P. VIII. FEDJJAL VIEW OF OWNERSHIP. 288 
 
 "bailee" or depositary, and in- the Emphyteuta, or 
 tenant of land which was subject to a fixed per 
 petual rent. Following a parallel line of progress, 
 the English Court of Chancery created a special 
 proprietorship for the Mortgagor, for the Cestui 
 que Trust, for the Married Woman who had the 
 advantage of a particular kind of settlement, and 
 for the Purchaser who had not yet acquired a com- 
 plete legal owner>;hip. All these are examples in 
 which forms of proprietary right, distinctly new, 
 were recognised and preserved. But indirectly 
 Property has been affected in a thousand ways by 
 equity, both in England and at Rome. Into what- 
 ever corner of jurisprudence its authors pushed the 
 powerful instrument in their command, they were 
 sure to meet, and touch, and more or less materially 
 modify the law of property. "When in the preceding 
 pages I have spoken of certain ancient legal distinc- 
 tions and expedients as having powerfully affected 
 the history of ownership, I must be understood to 
 mean that the greatest part of their influence has 
 arisen from the hints and suggestions of improve- 
 ment infused by them into the mental atmosphere 
 which was breathed by the fabricators of equitable 
 systems. 
 
 But to describe tbe influence of Equity on Own- 
 ership would be to write its history down to our 
 own days. I have alluded to it principally because 
 several esteemed contemporary writers have thought 
 tliat in the Roman severance of Equitable from Le- 
 
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286 ROMAN AND BARBARIAN. LAW. chap, va- 
 
 gal property we have the clue to that difference in 
 the conception of Ownership, which apparently dis- 
 tinguishes the law of the middle ages from the law 
 of the Roman Empire. The leading characteristic 
 of the feudal conception is its recognition of a double 
 proprietorship, the superior ownership of the lord 
 of the fief coexisting with the inferior property or 
 estate of the tenant. Now, this duplication of pro- 
 prietary right looks, it is urged, extremely like a 
 generalised form of the Roman distribution of rights 
 over property into Quiritarian or legal, and (to use 
 a word of late origin) Borvitarian or equitable. 
 Gains himself observes upon the splitting of domin- 
 ion into two parts as a singularity of Roman law, 
 and expressly contrasts it with the entire or allodial 
 ownership to which other nations were accustomed. 
 Justinian, it is true, reconsolidated dominion into 
 one, but then it was the partially reformed system 
 of the Western Empire, and not Justinian's jurispru- 
 dence, with which the barbarians were in contact 
 during so many centuries. While they remained 
 poised on the edge of the Empire, it may well be 
 that they learned this distinction, which afterwards 
 bore remarkable fruit. In favour of this theory, it 
 must at all events be admitted that the element of 
 Roman law in the various bodies of barbarian cus- 
 tom has been very imperfectly examined. The erro- 
 neous or insufiicient theories which have served to 
 explain Feudalism resemble each other in their ten- 
 dency to "draw off attention from this particular in 
 
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OHAP. Tin. ROMAN AND BARBARIAN LAW. 287 
 
 gredient in its texture. The older investigators, 
 who have been mostly followed in this country, 
 attached au exclusive importance to the circum 
 stances of the turbulent period during which the 
 Feudal system grew to maturity ; and in later times 
 a new source of eri'or has been added to those already 
 existing, in that pride of nationality which has led 
 German writers to exaggerate the completeness. of 
 the social fabric which their forefathers had built up 
 before their appearance in the Roman world. One 
 or two English inquirers who looked in the rigjit 
 quarter for the foundations of the feudal system, 
 failed nevertheless to conduct their investigations to 
 any satisfactory result, either from seai-ching too ex- 
 clusively for analogies in the compilations of Justi- 
 nian, or from confining their attention to the com- 
 pendia of Konian law which are found appended to 
 some of the extant barbarian codes. But, if Roman 
 jurisprudence had any influence on the barbarous 
 societies, it had probably produced the greatest part 
 of its effects before the legislation of Justinian, and 
 before the preparation of these compendia. It was 
 not the reformed and purified jurisprudence of Jus- 
 tinian, but the undigested system which prevailed in 
 tie Western Empire, and which the Eastern Corpus 
 Jwris never succeeded in displacing, that I conceive 
 to have clothed with flesh and muscle the scanty 
 skeleton of barbarous usage. The change must be 
 supposed to have taken place before the Germanic 
 tribes had distinctly appropriated, as conquerors. 
 
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283 ROMAN AND BAEBARIAN LAW. chap. ^n. 
 
 any portion of the Roman dominions, and therefore 
 long before Germanic monarchs had ordered brevia 
 ries of Roman law to be drawn up for the use of 
 their Roman su])jects. The necessity for some such 
 hypothesis will be felt by everybody who can appre- 
 ciate the difference between archaic and developed 
 law. Rude as are the Leges Barlarormn which re- 
 main to us, they are not rude enough to satisfy the 
 theory of their purely barbarous origin ; nor have 
 we any reason for believing that we have received, 
 ill written records, more than a fraction of the fixed 
 rules which were practised among themselves by the 
 members of the conquering tribes. If we can once 
 persuade ourselves that a considerable element of 
 debased Roman law already existed in the barbarian 
 systems, we shall have done something to remove, a 
 grave difficulty. The German law of the conquerors 
 and the Roman law of their subjects would not have 
 combined if they had not possessed more affinity for 
 each other than refined jurisprudence has usually for 
 the customs of savages. It is extremely likely that 
 the codes of the barbarians, archaic as they seem, 
 are only a compound of true primitive usage -with 
 halfunderstood Roman rules, and that it was the 
 foreign ingredient which enabled them to coalesce 
 with a Roman jurisprudence that had already rece- 
 ded somewhat from the comparative finish which it 
 had acquired under the Western Emperors. 
 
 But, though all this must be allowed, there are 
 several considerations which render it unlikely that 
 
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CHAP. vin. THE EMPHYTEUSIS. 289 
 
 the feudal form of ownership was directly suggested 
 by the Eomau duplication of domainial rights. The 
 distinction between legal and equitable property 
 strikes one as a subtlety little likely to be appreciated 
 by barbarians ; and, moreover, it can scarcely be un- 
 derstood unless Courts of Law ai'e contemplated in 
 regular operation. But the strongest reason against 
 this theory is the existence in Roman law of a form 
 of property — a creation of Equity, it is true — which 
 supj^lies a much simpler explanation of the transi- 
 tion from one set of ideas to the other. This is the 
 Emphyteusis, upon which the Fief of the middle 
 ages has often been fathered, though without much 
 knowledge of the exact share which it had in bring- 
 ing feudal ownership into the world. The truth is 
 that the Emphyteusis, not probably as yet known 
 by its Greek designation, marks one stage in a cur- 
 rent of ideas which led ultimately to feudalism. The 
 first mention in Roman history of estates larger than 
 could be farmed by a Paterfamilias, with his house- 
 hold of sons and slaves, occurs when we come to the 
 holdings of the Roman patricians. These great pro- 
 prietors appeal- to have had no idea of any system 
 of farming by free tenants. Their latifundia seem 
 to have been universally cultivated by slave-gangs, 
 nnder bailiffs who were themselves slaves or freed 
 men ; and the only organisation attempted appears 
 to have consisted in dividing the inferior slaves into 
 small bodies, and making them the pec^dnmi of the 
 better and trustiei- sort, who thus acquired a kind 
 19 
 
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290 SYSTEMS OF TENANCY. ohap. vm 
 
 of interost in the efficiency of their labour. This 
 system was, however, especially disadvantageous to 
 one class of estated proprietors, the Municipalities. 
 Functionaries in Italy were changed with the ra- 
 pidity which often surprises us in the administration 
 of Eome herself; so that the superintendence of a 
 large landed domain by an Italian corporation must 
 have been excessively imperfect. Accordingly, we 
 are told that with the municipalities began the prac- 
 tice of letting out agri vectigules, that is, of leasing 
 land for a perpetuity to a free tenant, at a fixed 
 rent, and under certain conditions. The plan was 
 afterwards extensively imitated by individual pro- 
 prietors, and the tenant, whose relation to the owner 
 had originally been determined by his contract, was 
 subsequently recognised by the Praetoi' as having 
 himself a qualified proprietorship, which in time be- 
 came known as an Emphyteusis. From this point 
 the history of tenure parts into two branches. In 
 the coui'se of that long period during which our 
 records of the Roman Empire are most incomplete, 
 the slave-gangs of the great Roman families became 
 transformed into the colonic whose origin and situa 
 tion constitute one of the obscurest questions in al] 
 history. We maj^ suspect that they were formed 
 partly by the elevation of the slaves, and partly by 
 the degradation of the free farmers ; and that they 
 prove the richer classes of the Roman Empire to 
 have become aware of the increased value which 
 landed property obtains when the cultivator has an 
 
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oHAp. vur. THE COLONI. 291 
 
 Interest iu the produce of the land. We know that 
 their servitude was predial ; that it wanted many 
 of the characteristics of absolute slavery, and that 
 they acquitted their service to the landlord in ren- 
 dering to him a fixed portion of the annual crop. 
 We know further that they survived all the muta- 
 tions of society in the ancient and modern worlds. 
 Though included in the lower courses of the feudal 
 structure, they continued in many countries to ren- 
 der to tlie landlord precisely the same dues which 
 they had paid to the Roman dominu-s, and from a 
 particular class among them, the coloni medietarii. 
 who reserved half the produce for the owner, are 
 descended the metayer tenantry, who still conduct 
 the cultivation of the soil in almost all the South of 
 Europe. On the other hand, the Emphyteusis, if 
 we may so interpret the allusions to it in the Corpus 
 tTv/ris^ became a favorite and beneficial modification 
 of property; and it maybe conjectured that wher- 
 ever free farmers existed, it was this tenure which 
 regulated their interest in the land. The Prsetor, 
 as has been said, treated the Emphyteuta as a true 
 proprietor. When ejected, he was allowed to rein- 
 state himself by a Real Action, the distinctive badge 
 of proprietary right, and he was protected from dis- 
 turbance by the author of his lease so long as the 
 canon, or quit-rent, was punctually paid. But at 
 the same time it must not be supposed that the 
 ownership of the author of the lease was either ex- 
 tinct or dormant. It was kept alive by a power of 
 
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292 ORIGIN OF TENUEE. chap, vm 
 
 re-entiy on non-payment of the rent, a right of pre- 
 emption in case of sale, and a certain control over 
 the mode of cultivation. We have, therefore, in the 
 Emphyteusis a striking example of the double own- 
 ership which characterised feudal property, and one, 
 moreover, which is much simpler and much more 
 easily imitated than the juxtaposition of legal and 
 equitable rights. The history of the Roman tenure 
 does not end, however, at this point. We have 
 clear evidence that between the great fortresses 
 which, disposed along the line of the Rhine and 
 Danube, long secured the frontier of the Empire 
 against its barbarian neighbours, there extended a 
 succession of strips of land, the agri limitrophi^ 
 which were occupied by veteran soldiers of the Ro- 
 man army on the terms of an Emphyteusis. There 
 was a double ownership. The Roman State was 
 landlord of the soil, but the soldiers cultivated it 
 without disturbance so long as they held themselves 
 ready to be called out for militarj? service whenever 
 the state of the border should require it. In fact, a 
 sort of garrison-duty, under a system closely re- 
 sembling that of the military colonies on the Austro- 
 Turkish border, had taken the place of the quit-rent 
 which was the service of the ordinary Emphyteuta. 
 It seems impossible to doubt that tbis was the pre- 
 cedent copied by the barbarian monarchs who 
 founded feudalism. It had been within their view 
 tor some hundred years, and many of the veterans 
 who guarded the border were, it is to be remem- 
 
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onAP mi. FEUDAL SERVIOEB. 293 
 
 bered, themselves of barbarian extraction, who 
 probably spoke the Germanic tongues. Not on]j 
 does the proximity of so easily followed a model ex- 
 plain whence the Frankish and Lombard Sovereigns 
 got the idea of securingthe military service of their 
 followers by granting away portions of their public 
 domain ; but it perhaps explains the tendency which 
 immediately showed itself in the Benefices to become 
 hereditary, for an Emphyteusis, though capable of 
 being moulded to the terms of the original contract, 
 nevertheless descended as a general rule to the 
 heirs of the grantee. It is true that the holder of 
 a benefice, and more recently the lord of one of 
 those fiefs into which the benefices were transformed, 
 appears to have owed certain services which were 
 not likely to have been rendered by the military 
 colonist, and were certainly not rendered by the 
 Emphyteuta. The duty of respect and gratitude to 
 the feudal superior, the obligation to assist in en- 
 dowing his daughter and equipping his son, the lia- 
 bility to his guardianship in minority, and many 
 other similar incidents of tenure, must have been 
 literally borrowed from the relations of Patron and 
 Freed man under Roman law, that is, of quondam- 
 master and quondam-slave. But then it is known 
 that the earliest beneficiaries were the personal com 
 panions of the sovereign, and it is indisputable that 
 this position, brilliant as it seems, was at first at- 
 tended by some shade of servile debasement. The 
 
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294 FEUDAL SEBVIOES. chap. vm. 
 
 person who ministered to the Sovereign in Lis Court 
 had given up something of that absolute personal 
 freedom vp-hich was the proudest privilege of the 
 allodial proprietor. 
 
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CHAPTER IX. 
 
 THE EARLY MISTOBY OF CONTRACT. 
 
 There are few genei*al propositions concerning the 
 age to whicla we belong which seem at first sight 
 likely to be received with readier concurrence than 
 the assertion that the society of our day is mainly 
 distinguished froru that of preceding generations by 
 the largeness of the sphere which is occupied in it 
 by Contract. Some of the phenomena on which 
 this proposition rests are among those most fre- 
 quently singled out for notice, for comment, and for 
 eulogy. Not many of us are so unobservant as not 
 to perceive that in innumerable cases where old law 
 fixed a man's social position irreversibly at his birth, 
 modern law allows him to create it for himself by 
 convention ; and indeed several of the few excep- 
 tions which remain to this rule are constantly de- 
 nounced with passionate indignation. The point, 
 for instance, which is really debated in the vigorous 
 controversy still carried on upon the subject of negro 
 servitude, is whether the status of the slave does not 
 
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296 OON'TEAOT AND POLITICAL ECONOMY, chap. ix. 
 
 belong to by-gone institutions, and whether the only 
 relation between employer and labourer wliich com 
 mends itself to modern morality be not a relation de- 
 termined exclusively by contract. The recognition 
 of this difference between past ages and the present 
 enters into the verv essence of the most famous con- 
 temporary speculations. It is certain that the science 
 of Political Economy, the only department of moral 
 inquiry which has made any considerable progress in 
 our day, would fail to correspond with the facts of 
 life if it were not ti-ue that Imperative Law had 
 abandoned the largest part of the field which it once 
 occupied, and had left men to settle rules of conduct 
 for themselves with a liberty never allowed to them 
 till recently. The bias indeed of most persons trained 
 in political economy is to consider the general truth 
 on which their science reposes as entitled to become 
 universal, and, when they apply it as an art, their ef- 
 forts are ordinarily directed to enlai-ging the province 
 of Contract and to curtailing that of Imperative Law, 
 except so far as law is necessary to enforce the per- 
 formance of Conti'acts. The impulse given by think- 
 ers who are under the influence of these ideas is be- 
 ginning to be very sti-ongly felt in the Western 
 world. Legislation has nearly confessed its inability 
 to keep pace with the activity of man in discovery, 
 in invention, and in the manipulation of accumulated 
 wealth ; and the law even of the least advanced 
 communities tends more and more to become a mere 
 Burfece-stratum, having under it an ever-changing a* 
 
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rmAi>. IX. CURRENT OPINIONS AS TO CONTRACT. 29T 
 
 semhlage of contractual rules witli which it rarefy in- 
 terferes except to compel compliance with a few fun- 
 damental principles, or unless it be called in to pun- 
 ish the violation of good faith. 
 
 Social inquiries, so far as they depend on the con- 
 sidei'ation of legal phenomena, are in so backward a 
 condition that we need not be surprised at not find- 
 ing these truths recognised in the commonplaces 
 which pass current concerning the progress of so- 
 ciety. These commonplaces answer much more to 
 our prejudices than to our convictions. The strong 
 disinclination of most men to regard morality as ad- 
 vancing seems to be especially powerful when the 
 virtues on which Contract depends are in question, 
 and many of us have an almost instinctive reluctance 
 to admitting that good faith and ti-ust in our fellows 
 are more widely diffused than of old, or that there 
 is anything in contemporary manners which parallels 
 the loyalty of the antique world. From time to 
 time, these prepossessions are greatly strengthened 
 1:)y the spectacle of frauds, unheard of before the pe- 
 riod at which they were observed, and astonishing 
 from their complication as w^ell shocking from crimi- 
 nality. But the very character of these frauds shows 
 clearly that, before they became possible, the moral 
 obligations of which they are the breach must have 
 been more than proportionately developed. It is the 
 eonfldence reposed and deserved by the many which 
 affords facilities for the bad faith of the few, so that 
 if colossal examples of dishonesty occur,, there is no 
 
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298 THEFT AND BREACH OF TRUST. chap, ix 
 
 surer conclusion than that sc^-upulous honesty is dis- 
 played in the average of the transactions which, in 
 the particular case, have supplied the delinquent 
 with his opportunity. If we insist on reading the 
 history of morality as reflected in jurisprudence, hy 
 turning our eyes not on the law of Contract but on 
 the law of Crime, we must be careful that we read 
 it aright. The only form of dishonesty treated of in 
 the most ancient Roman law is Theft. At the mo- 
 ment at which I write, the newest chapter in the Eng- 
 lish criminal law is one which attempts to prescribe 
 punishment for the frauds of Trustees. The proper 
 inference from this contrast is not that the primitive 
 Romans practised a higher morality than ourselves. 
 We should rather say that, in the interval between 
 their day and ours, morality had advanced from a 
 very rude to a highly refined conception — from view- 
 ing the rights of property as exclusively sacred, to 
 looking upon the rights growing out of the mere 
 unilateral reposal of confidence as entitled to the 
 protection of the penal law. 
 
 The definite theories of jurists are scarcely nearer 
 the truth in this point than the opinions of the mul- 
 titude. To begin with the views of the Roman law- 
 yers, we find them inconsistent with the true history 
 of moral and legal progress. One class of contracts, 
 in which the plighted faith of the contracting par- 
 ties was the only material ingredient, they specifically 
 denominated Contracts juri'? gentium^ and though 
 these contracts were undoubtedly the latest born 
 
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CHAP. IX. THEORIES OF CONTEACT. 299 
 
 into the Roman system, the expression employed 
 implies, if a definite meaning be extracted from 
 it, that they were more ancient than certain other 
 forms of engagement treated of in Roman law, in 
 which the neglect of a mere technical formality waa 
 as fatal to the obligation as misunderstanding or 
 deceit. But then the antiquity to which they were 
 referred was vague, shadowy, and only capable of 
 being understood through the Present ; nor was it 
 until the language of the Roman lawyers became the 
 language of an age which had lost the key to their 
 mode of thought that a " Contract of the Law of Na- 
 tions'' came to be distinctly looked upon as a Contract 
 known to man in a state of Nature. Rousseau adopted 
 both the judicial and the popular error. In. the Dis- 
 sertation on the effects of Art and Science upon 
 Morals, the first of his works which attracted atten- 
 tion and the one in which he states most unreserved- 
 ly the opinions which made him the founder of a sect, 
 the veracity and good faith attributed to the ancient 
 Persians are repeatedly pointed out as ti'aits of primi- 
 tive innocence which have been gradually obliterat- 
 ed by civilisation ; and at a later period he found a 
 basis for all his speculations in the doctrine of an 
 original Social Contract. The Social Contract or 
 Compact is the most systematic form which has ever 
 been assumed by the error we are discussing. It is 
 a theory which, though nursed into importance by 
 political passions, derived all its sap from the specu- 
 lations of lawyers. True it certainly is that the fa- 
 
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300 THEOEIES OF CONTRACT. ohap. a 
 
 moua Englishmen, for whom it had fii-st had attrao 
 tion, valued it chiefly for its political serviceableness, 
 but, as I shall presently attempt to explain, they 
 would never have arrived at it, if politicians had not 
 long conducted their controversies in legal phraseo- 
 logy. Nor were the English authors of the theory 
 blind to that speculative amplitude which recom- 
 mended it so strongly to the Frenchmen who in- 
 herited it from them. Their writings show they 
 perceived that it could be made to account for all 
 social, quite as well as for all political phenomena. 
 They had observed the fact, already striking in their 
 day, that of the positive rules obeyed by men, the 
 greater part were created by Contract, the lesser by 
 imperative Law. But they were ignorant or care- 
 less of the historical relation of these two consti- 
 tuents of jurisprudence. It was for the purpose, 
 therefore, of gratifying their speculative tastes by 
 attributing all jurisprudence to a uniform source, as 
 much as with the view of eluding the doctrines which 
 claimed a divine parentage for Imperative Law, that 
 they devised the theory that all Law had its origin 
 in Contract. In another stage of thought, they would 
 have been satisfied to leave their theoiy in the con- 
 dition of an ingenious hypothesis or a convenient 
 verbal formula. But that age was under the domin- 
 ion of legal superstitions. The State of Nature had 
 been talked about till it had ceased to be regarded as 
 paradoxical, and hence it seemed easy to give a fal- 
 lacious reality and definiteness to the contractual ori- 
 
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CHAP. IX. ANALYSIS OF SOCIAL PHENOMENA. 301 
 
 gia of Law by insisting on the Social Compact as a 
 historical fact. 
 
 Our own generation has got rid of these erroneoua 
 juridical theories, partly by outgrowing the intellec- 
 tual state to which they belong, , and partly by al 
 most ceasing to theorise on such subjects altogether. 
 The favorite occupation of active minds at the pre- 
 sent moment, and the one which answers to the 
 speculations of our forefathers on the origin of the 
 social state, is the analysis of society as it exists and 
 moves before our eyes ; but, through omitting to call 
 in the assistance of history, this analysis too often de- 
 generates into an idle exercise of curiosity, and is es- 
 pecially apt to incapacitate the inquirer for compre- 
 hending states of society which differ considerably 
 from that to which he is accustomed. The mistake 
 of judging the men of other periods by the morality 
 of our own day has its parallel in the mistake of sup- 
 posing that every wheel or bolt in the modern social 
 machine had its counterpart in more rudimentary so- 
 cieties. Such impressions ramify very widely, and 
 masque themselves very stibtly, in historical works 
 written in the modern fashion ; but I find the trace 
 of their presence in the domain of jurisprudence in 
 the praise which is frequently bestowed on the little 
 apologue of Montesquieu concerning the Troglodytes, 
 inserted in the LetPres Persanes. The Troglodytes 
 were a people who systematically violated their Con- 
 tracts, and so perished utterly. If the story bears 
 the moral which its author intended, and is employ- 
 
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802 MONTESQUIEU'S APOLOGUE. chap, ix 
 
 ed to expose an anti-social heresy by whicli this cen- 
 tury and the last have been threatened, it is most un- 
 exceptionable ; but if the inference be obtained from 
 it that society could not possibly hold together with- 
 out attaching a sacredness to promises and agree- 
 ments which should be on something like a par with 
 the respect that is paid to them by a mature civili- 
 sation, it involves an error so grave as to be fatal to 
 all sound understanding of legal history. The fact is 
 that the Troglodytes have flourished and founded 
 powerful states with very small attention to the ob- 
 ligations of Contract. The point which before all 
 others has to be apprehended in the constitution of 
 primitive societies is that the individual creates for 
 himself few or no rights, and few or no duties. The 
 rules which he obeys are derived first from the sta- 
 tion into which he is born, and next from the im- 
 perative commands addressed to him by the chief of 
 the household of which he forms a part. Such a sys- 
 tem leaves the very smallest room for Contract. The 
 ' members of the same family (for so we may interpret 
 the evidence) are wholly incapable of contracting 
 with each other, and the family is entitled to disre- 
 gard the engagements by which any one of its sub- 
 ordinate members has attempted to bind it. Family, 
 it is true, may contract with family, and chieftain with 
 chieftain, but the transaction is one of the same na- 
 ture, and encumbered by as many formalities, as the 
 alienation of property, and the disregard of one iota 
 of the performance is fatal to the obligation. The 
 
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CHAP. IX. EARLY NOTIONS OF CONTRACTS. 203 
 
 positive duty resulting from one man's reliance on 
 the word of another is among the slowest conquests 
 of advancing civilisation. 
 
 Neither Ancient Law nor any other source of 
 evidence discloses to us socidty entirely destitute of 
 the conception of Contract. But the conception, 
 when it first shows itself, is obviously rudimentary. 
 No trustworthy primitive recoi-d can he read with- 
 out perceiving, that the habit of mind which induces 
 us to make good a promise is as yet imperfectly de- 
 veloped, and that acts of flagrant perfidy are often 
 mentioned without blame and sometimes described 
 with approbation. In the Homeric literature, for 
 instance, the deceitful cunning of Ulysses appears 
 as a virtue of the same rank with the prudence of 
 Nestoi-, the constancy of Hector, and the gallantr}- 
 of Achilles. Ancient law is still more suggestive 
 of the distance which separates tjie crude form of 
 Contract from its maturity. At first, nothing is 
 seen like the interposition of law to compel the per- 
 formance of a promise. That which the law arms 
 with its sanctions is not a promise, but a promise 
 accompanied with a solemn ceremonial. Not only 
 are the formalities of equal importance with the 
 J romise itself, but thej'' are, if anything, of greater 
 .importance ; for that delicate analysis which mature 
 jurisprudence applies to the conditions of mind under 
 which a particular verbal assent is given appears, in 
 ancient law, to be transferred to the words and ges- 
 tui'es of the accompanying performance. No pledge 
 
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304 ANCIENT OONTRAOTS. (hap. ix 
 
 is enforced if a single form be omitted or misplaced, 
 but, on the other hand, if the forms can be shown 
 to have been accui'ately proceeded with, it is of lio 
 avail to plead that the promise was made under 
 duress or deception. 'The transmutation of this 
 ancient view into the familiar notion of a Conti-act 
 is plainly seen in the history of jurisprudence. First 
 one or two steps in the ceremonial are dispensed 
 with ; then the others are simplified . or permitted 
 to be neglected on certain conditions ; lastly, a few 
 specific contracts are separated from the rest and 
 allowed to be entered into without foi'm, theselected 
 contracts being those on which the activity and 
 energy of social intercourse depend. Slowly, but 
 most distinctly, the mental engagement isolates 
 itself amid the technicalities, and gradually becomes 
 the sole ingredient on which the interest of the 
 jurisconsult is concentrated. Such a mental engage- 
 ment, signified through external acts, the Romans 
 called a Pact or Convention ; and when the Conven- 
 tion has once been conceived as the nucleus of a 
 Contract, it soon becomes the tendency of advancing 
 jurisprudence to break away the external shell of 
 form and ceremony. Foi'ms are thenceforward only 
 retained so far as they are guarantees of authenticity, 
 and securities for caution and deliberation. The 
 idea of a Contract is fully developed, or, to employ 
 the Roman phrase. Contracts are absorbed in Pacts. 
 The history of this course of change ini Roman 
 law is exceedingly instructive. At the earliest dawn 
 
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OHAP. IX. EARLY ROMAN CONTRACTS. 805 
 
 of the jurisprudence, the term in use for a Contract 
 was one which is very familiar to the students of 
 historical Latinitj^. It was nexvm, and the parties 
 to the contract were said to be nexi, expressions 
 which must be carefully attended to on account of 
 the singular durableness of the metaphor on which 
 they are founded. The notion that persons under 
 a contractual engagement are connected together by 
 a strong bond or chain, continued till the last to 
 influence the Roman jurisprudence of Contract ; and 
 flowing thence it has mixed itself with modern ideas. 
 What then was involved in this nexum or bond ? 
 A definition which has descended to us from one of 
 the Latin antiquarians describes nexum as omne quod 
 geritur per obs et libram, "every transaction with 
 the copper and the balance," and these words have 
 occasioned a good deal of perplexity. The copper 
 and the balance are the well-known accompaniments 
 of the Mancipation, the ancient solemnity described 
 in a former chapter, by which the right of owner- 
 ship in the highest form of Roman Property was 
 transferred from one person to another. Mancipa- 
 tion was a conveyance, and hence has arisen the 
 difficulty, for the definition thus cited appears to 
 confound Contracts and Conveyances, which in the 
 philosophy of jurisprudence are not simply kept 
 apart, but are actually opposed to each other. The 
 jus in re, right in rem, right " availing against all 
 !;he world," or 'Proprietary Right, is sharply distin« 
 guished by the analyst of mature jurisprudence from 
 20 
 
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806 SPECIALISING PROCESS m ANCIENT LAW. cHAr. ix. 
 
 the jus ad rmi^ riglit in personam^ right "availing 
 against a single individual or group,'' or Obligation. 
 Now Conveyances transfer Proprietary Eights, Con- 
 tracts create Obligations — how then can the two be 
 included under the same name or same general con- 
 ception ? This, like many similar embarrassments, 
 has been occasioned by the error of ascribing to the 
 mental condition of an unformed society a fticulty 
 which pre-eminently belongs to an advanced stage 
 of intellectual development, the faculty of distin- 
 guishing in speculation ideas which are blended in 
 practice. We have indications not to be mistaken 
 of a state of social affairs in which Conveyances and 
 Contracts were practically confounded ; nor did the 
 discrepance of the conceptions become perceptible 
 till men had begun to adopt a distinct practice in 
 contracting and conveying. 
 
 It may here be observed that we know enough 
 of ancient Koman law to give some idea of the mode 
 of transformation followed by legal conceptions and 
 by legal phraseology in the infancy of Jurispru- 
 dence. The change which they undergo appears 
 to be a change from general to special; or, as we 
 might otherwise express it, the ancient conceptions 
 and the ancient terms are subjected to a process of 
 gradual specialisation. An ancient legal conception 
 corresponds not to one but to several modern con- 
 ceptions. An ancient technical expression serves to 
 Indicate a variety of things which in modern law 
 have separate names allotted to them. If, however, 
 
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CHAP. IX. SPECIALISING PROCESS IN ANCIENT LAW. 307 
 
 we take up the history of Jurisprudence at the next 
 stage, we find that the subordinate conceptions have 
 gradually disengaged themselves, and that the old 
 general names are giving way to special appellations. 
 The old general conception is not obliterated, but it 
 has ceased to cover more than one or a few of the 
 notions which it first included. So too the old 
 technical name remains, but it discharges only one 
 of the functions which it once performed. We may 
 exemplify this phenomenon in various ways. Patri- 
 archal Power of all sorts appears, for instance, to 
 have been once conceived as identical in character, 
 and it was doubtless distinguished by one name. 
 The Power exercised by the ancestor was the same 
 whether it was exercised over the family or the ma- 
 terial property — over flocks, herds, slaves, children, 
 oi- wife. We cannot be absolutely certain of its old 
 Roman name, but there is very stj-ong reason for 
 believing, from the number of expressions indicating 
 shades of the notion of power into which the word 
 manus entei-s, that the ancient general term was 
 manus. But, Avhen Roman law has advanced a little, 
 both the name and the idea have become specialised. 
 Power is discriminated, both in word and in concep- 
 tion, according to the object over which it is exerted. 
 Exercised over material commodities or slaves, it 
 has become dominium — over children it is Pote-stm 
 ■ — over free persons whose services have been made 
 away to another by their own ancestor, it is man- 
 cipium — over a wife, it is still manus. The old 
 
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308 THE KEXUM. onAr. ix. 
 
 word, it will be perceived, has not altogether fallen 
 into desuetude, but is confined to one very special 
 exercise of the authority it had formerly denoted. 
 This example will enable us to comprehend the 
 nature of the historical alliance between Contracts 
 and Conveyances. There seems to have been one 
 solemn ceremonial at first for all solemn transactions, 
 and its name at Rome appears to have been nexum. 
 Precisely the same forms which were in use when 
 a conveyance of property was effected seem to have 
 been employed in the making of a contract. -But 
 we have not very far to move onwards before we 
 come to a period at which the notion of a Contract 
 has disengaged itself from the notion of a Convey- 
 ance. A double change has thus taken place. The 
 transaction " with the copper and the balance," when 
 intended to have for its office the transfer of prop- 
 erty, is known by the new and special name of 
 Manci23ation. The ancient Nexum still designates 
 the same ceremony, but only when it is employed 
 for the special purpose of solemnising a contract. 
 
 When two or three legal conceptions are spoken 
 of as anciently blended in one, it is not intended to 
 imply that some one of the included notions may 
 not be older than the others, or, when those others 
 have been formed, may not greatly predominate over 
 and take precedence over them. The reason why 
 one legal conception continues so long to cover sev 
 eral conceptions, and one technical phrase to do 
 instead of sevei-al, is doubtless that practical changes 
 
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CHAP. IX. CHANGES IN THE NEXUM. 309 
 
 are accomplished in the law of primitive societiea 
 long before men see occasion to notice or name 
 them. Though I have said that Patriarchal Power 
 was not at first distinguished according to the ob- 
 jects over which it was exercised, I feel sure that 
 Power over Children was the root of the old con- 
 ception of Power; and I cannot doubt that the 
 earliest use of the Nexum, and the one primarily 
 regarded by those who resorted to it, was to give 
 proper solemnity to the alienation of property. It 
 is likely that a very slight perversion of the Nexum 
 from its original functions first gave rise to its em- 
 ployment in Contracts, and that the very slightnesa 
 of the change long prevented its being appreciated 
 or noticed. The old name remained because men 
 had not become conscious that they wanted a new 
 one ; the old notion, clung to the mind because no- 
 body had seen reason to be at the pains of examin- 
 ing it. We have had the process clearly exemplified 
 in the history of Testaments. A Will was at first 
 a simple conveyance of Property. It was only the 
 enormous practical difference that gradually showed 
 itself between this particular conveyance and all 
 others which caused it to be regarded separately, 
 and even as it was, centuries elapsed before the 
 ameliorators of law cleared away the useless encum- 
 brance of the nominal mancipation, and consented 
 to care for nothing in the Will but the expressed 
 intentions of the Testator. It is unfortunate that 
 we cannot track the early history of Contracts with 
 
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810 CHANGES IN" THE NEXUM. iotap. ix 
 
 the same absolute confidence as the early history of 
 Wills, but we are not quite without hints that cop 
 tracts first showed themselves through the nexv,m 
 being put to a new use and afterwards obtained 
 recognition as distinct transactions through the im 
 portant practical consequences of the experiment. 
 There is some, but not very violent, conjecture in 
 the following delineation of the process. Let us 
 conceive a sale for ready money as the normal type 
 of the Nexura. The seller brought the property of 
 which he intended to dispose — a slave, for example 
 — the purchaser attended with the rough ingots of 
 copper which served for money — and an indispensa- 
 ble assistant, the lihripens^ presented himself with a 
 pair of scales. The slave with certain fixed formal- 
 ities was handed over to the vendee — the copper 
 was weighed by the libripens and passed to the ven- 
 dor. So long as the business lasted it was a nexum^ 
 and the parties were nexi ; but the moment it was 
 completed, the nexum ended, and the vendor and 
 purchaser ceased to bear the name derived from 
 their momentary relation. But now, let us move a 
 step onward in commercial history. Suppose the 
 slave transferred, but the money not paid. In thM 
 case \h{i: nexum is finished, so far as the seller is con- 
 cerned, ana when he has once handed over his prop- 
 erty, he is no longer nexus ; but, in regard to the 
 purchaser, the nexum continues. The transaction, 
 as to his part of it, is incomplete, and he is still con- 
 sidered to be nexus. It follows, therefore, that the 
 
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OHAP. IX. CONVETAN"OES AND OONTIIACTS. 811 
 
 same term described the conveyance by wliich the 
 right of property was transmitted, and the persona] 
 obligation of the debtor for the unpaid purchase- 
 money. We may still go forward, and picture to 
 ourselves a proceeding wholly formal, in which 
 nothing \^ handed over and wo^/wn^ paid ; we are 
 brought at once to a transaction indicative of much 
 higher commercial activity, an executory Contract of 
 Sale. 
 
 If it be true that, both in the popular and in the 
 professional view, a Contract was long regarded as 
 an incomplete Conveyance.^ the truth has importance 
 for many reasons. The speculations of the last cen- 
 tury concerning mankind in a state of nature, are 
 not unfairly summed up in the doctrine that "in the 
 primitive society property was nothing, and obliga- 
 tion everything;" and it will now be seen that, if 
 the proposition were reversed, it would be nearer 
 the reality. On the other hand, considered histori- 
 cally, the primitive association of Conveyances and 
 Contracts explains something which often strikes 
 the scholar and jurist as singularly, enigmatical, I 
 mean the extraordinary and uniform severity of very 
 ancient systems of law to debtors., and the extrava- 
 gant powers which they lodge with creditors. When 
 once we understand that the nexum was. artificially 
 prolonged to give time to the debtor, we can bettei 
 comprehend his position in the eye of the public 
 and of the law His indebtedness was doubtless 
 regarded as an anomaly, and suspense of payment 
 
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812 CONVEYANCES ANP CONTRACTS. chat, ix 
 
 in general as an artifice and a distortion of strict 
 rule. The per.-on who had duly consummated his 
 part in the transaction must, on the contrary, have 
 stood in peculiar favour; and nothing would seem 
 more natural than to ai'm him with stringent facili- 
 ties for enforcing the completion of a proceeding 
 which, of strict right, ought never to have been ex- 
 tended or deferred. 
 
 Nexum, therefore, which, originally signified a 
 Conveyance of property, came insensibly to denote 
 a Contract also, and ultimately so constant became 
 the association between this word and the notion of 
 a Contract, that a special term, Mancipium or Man- 
 cipatio, had to' be used for the purpose of designating 
 the true nexum or transaction in which the property 
 was really transferred. Contracts are therefore now 
 severed from Conveyances, and the first stage in their 
 history is accomplished, but still they are far enough 
 from that epoch of their development when the 
 promise of the contractor has a higher sacredness 
 than the formalities with which it is coupled. In 
 attempting to indicate the character of- the changes 
 passed through in this interval, it is necessary to tres- 
 pass a little on a subject which lies properly beyond 
 the range of these pages, the analysis of Agreement 
 effected by the Roman jurisconsults. Of this analy- 
 sis, the most beautiful monument of their sagacity, 
 I need not say more than that it is based on the 
 theoretical separation of the Obligation from the 
 Convention or Pact. Bentham and Mr. Austin have 
 
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OHAP. IX. KOMAN ANALYSIS OF AGREEMENT. 313 
 
 laid down that the " two main essentials of a con 
 tract ai'e these : iirst, a signification by the promis- 
 ing party of his intention to do the acts or to observe 
 the forbearances which he promises to do or to ob 
 serve. Secondly, a signification by the promisee thai 
 he expects the promising part}' will fulfil the prof 
 ferred promise." This is virtually identical with 
 the doctrine of the Roman lawyers, but then, in 
 their view, the result of these "significations" wag 
 not a Contract, but a Convention or Pact. A Pact 
 was the utmost product of the engagements of indi- 
 viduals agreeing among themselves, and it distinctly 
 fell short of a Contract. Whether it ultimately be- 
 came a Contract depended on the question whether 
 the law annexed an Obligation to it. A Contract 
 was a Pact (or Convention) ^?tt<? an Obligation. So 
 long as the Pact remained unclothed with the Obli- 
 gation, it was called nude or naked. 
 
 What was an Obligation ? It is defined by the 
 Roman lawyers as "Juris vinculum, quo necessitate 
 adsti-ingimur alicujus solvendse rei." This definition 
 connects the Obligation with the ISTexum through 
 the common metaphor on which they are founded, 
 and shows us with much clearness the pedigree of a 
 peculiar conception. The obligation is the " bond " 
 or " chain," with which the law joins together per- 
 sons or groups of persons, in consequence of certain 
 voluntary acts. The acts which have the effect of 
 attracting an Obligation are chiefly those classed 
 under the heads of Contract and Delict, of Agree- 
 
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83 4 OBLIGATIOK cni p . ls. 
 
 ment and Wrong ; hut a variety of other acts have 
 a similar consequence which are not capable of be- 
 ing comprised in an exact classification. It is to be 
 remarked, however, that the Pact does not draw to 
 itself the Obligation in consequence of any moral 
 necessity ; it is the law which annexes it in the pleni- 
 tude of its power, a point the more necessary to be 
 noted, because a different doctrine has sometimes 
 been propounded by modern interpreters of the 
 Civil Law who had moral or metaphysical theories 
 of their own to support. The image of a vinculum 
 juris colours and pervades every part of the Roman 
 law of Contract and Delict. The law bound the 
 parties together, and the chain could only be un- 
 done by the process called solutio^ an expression still 
 figurative, to which our word " payment " is only 
 occasionally and incidentally equivalent. The con- 
 sistency with which the figurative image was allowed 
 to present itself, explains an otherwise puzzling pe- 
 culiarity of Roman legal phraseology, the fact that 
 " Obligation " signifies rights as well as duties, the 
 right, for example, to have a debt paid as well as 
 the duty of paying it. The Romans kept, in fact, 
 the entire picture of the " legal chain " before their 
 eyes, and regarded one end of it no more and no 
 less than the other. 
 
 In the developed Roman law, the Convention, as 
 soon as it was completed, was, in almost all cases, at 
 once crowned with the Obligation, and so became a 
 Contract ; and this was the result to which contract- 
 
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OHAP. IX. OONVENTION AND CONTRACT. 315 
 
 law was surely tending. But for the purpose of this 
 inquiry, we must attend particularly to the inter 
 mediate stage — that in which something more than 
 a perfect agreement was required to attract the 01> 
 ligation. This epoch is synchronous with the period 
 at which the famous Roman classification of Con- 
 tracts into four sorts — the Verbal, the Literal, the 
 Real, and the Consensual — had come into use, and 
 during which these four orders of Contract consti- 
 tuted the only descriptions of engagement which the 
 law would enforce. The meaning of the fourfold dis- 
 ti'ibution is readily understood as soon as we appre- 
 hend the theory which severed the Obligation from 
 the Convention. Each class of contracts was in fact 
 named from certain formalities which were required 
 over and above the mere agreement of the contract- 
 ing parties. In the Verbal Contract, as soon as the 
 Convention was effected, a form of words had to be 
 gone through before the vinculum juris was attached 
 to it. In>the Literal Contract, an entry in a ledger or 
 table-book had the effect of clothing the Convention 
 with the Obligation, and the same result followed, 
 in the case of the Real Contract, from the delivery 
 of the Res or Thing which was the subject of the 
 preliminary engagement. The Contracting parties 
 came, in short, to an understanding in each case ; 
 but, if they went no further, they were not obliged 
 to one another, and could not compel performance 
 or ask redress for a breach of faith. But let them 
 comply with certain prescribed formalities, and the 
 
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816 EOMAN CONTRACTS. chap, ix 
 
 Coutract was immediately complete, taking its name 
 from the particular form whicli it had suited them 
 to adopt. The exceptions to this practice will be 
 noticed presently. 
 
 I have enumerated the four Contracts in theii 
 historical order, which order, however, the Roman 
 Institutional writers did not invariably follow. There 
 can be no doubt that the Verbal Contract was the 
 most ancient of the four, and that it is the eldest 
 known d.escendant of the primitive ISTexum. Several 
 species of Verbal Coutract were anciently in use, but 
 the most impoi'tant of all, and the only one treated 
 of by our authorities, was effected by means of a 
 stipulation^ that is, a Question and Answer ; a ques- 
 tion addressed by the person who exacted the promise, 
 and an answer given by the pei'son who made it. 
 This question and answer constituted the additional 
 ingredient which, as I have just explained, was de- 
 manded by the primitive notion over and above the 
 mere agreement of the persons interested. They 
 formed the agency by which the Obligation was an- 
 nexed. The old Nexum has now bequeathed to 
 maturer jurisprudence first of all the conception 
 of a chain uniting the contracting parties, and this 
 has become the Obligation. It has further trans- 
 mitted the notion of a ceremonial accompanying and 
 consecrating the engagement, and this ceremonial 
 has been transmuted into the Stipulation. The con- 
 version of the solemn conveyance, which was the 
 prominent feature of the original Nexum, into a 
 
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OHAP. IX. THE VERBAL OONTEAOT. 317 
 
 mere question and answer, would be more of a mys- 
 tery than it is if we had not the analogous history 
 of Roman Testaments to enlighten us. Looking at 
 that history, we can understand how the formal con- 
 veyance was first separated from the part of the 
 proceeding which had immediate reference to the 
 business in hand, and how afterwards it was omit- 
 ted altogether. As then the question and answer of 
 the Stipulation were unquestionably the Nexum in 
 a simplified shape', we are prepared to find that they 
 long partook of the nature of a technical term. It 
 would be a mistake to consider them exclusively re- 
 commending themselves to the older Eoman lawyers 
 through their usefulness in furnishing persons med- 
 itating an agreement with an opportunity for consid- 
 eration and reflection. It is not to be disputed that 
 they had a value of this kind, which was gradu- 
 ally recognised ; but there is proof that their function 
 in respect to Contracts was at first formal and cere- 
 monial in the statement of authorities, that not every 
 question and answer was of old sufficient to consti 
 tute a Stipulation, but only a question and answer 
 couched in technical phraseology specially appro- 
 priated to the particular occasion. 
 
 But although it is essential for the proper appre- 
 ciation of the history of contract-law that the Stipu- 
 lation should be understood to have been looked 
 upon as a solemn form before it was recognised as a 
 useful security, it would be wrong on the other hand 
 to shut our eyes to its real usefulness. The Verbal 
 
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818 CONVENIENCE OE VERBAL CONTEACT. chap, is 
 
 Contract, though it had lost much of its ancient im 
 portance, survived to the latest period of Roman 
 jurisprudence ; and we may take it for granted that 
 no institution of Eoman law had so extended a lon- 
 gevity unless it served some practical advantage. 
 I observe in an English writer some expressions of 
 surprise that the Romans even of the earliest times 
 were content with so meagre a protection against 
 haste and irreflection. But on examining the Stipu- 
 lation closely, and remembering that we have to do 
 with a state of society in which written evidence 
 was not easily procurable, I think we must admit 
 that this Question and Answer, had it been expressly 
 devised to answer the purpose which it served, would 
 have been justly designated a highly ingenious ex- 
 pedient. It was the promisee who, in the character 
 of stipulator, put all the terms of the contract into 
 the form of a question, and the answer was given by 
 the promisor. " Do you promise that you will de- 
 liver me such and such a slave, at such and such a 
 place, on such and such a day ? " "I do promise." 
 Now, if we reflect for a moment, we shall see that 
 this obligation to put the promise interrogatively 
 inverts the natural position of the parties, and, by 
 effectually breaking the tenor of the conversation, 
 prevents the attention from gliding over a dangerous 
 pledge. With us, a verbal promise is, generally 
 speaking, to be gathered exclusively from the words 
 of the promisor. In old Eoman law, another step 
 was absolutely required; it was necessary for the 
 
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oiiAp. IX. CONVENIENCE OF VEEBAL CONTRACT. 319 
 
 promis(ie, after the agreement had been made, to 
 sum up all its terms in a solemn interrogation ; and 
 it was of this interrogation, of course, and of the 
 assent to it, that proof had to be given at the trial 
 — not of the promise, which was not in itself bind 
 ing. How great a difference this seemingly insig- 
 nificant peculiarity may make in the phraseology of 
 contract-law is speedily realised by the beginner in 
 Koman jurisprudence, one of whose first stumbling- 
 blocks is almost universally created by it. When 
 we in English have occasion, in mentioning a con- 
 tract, to connect it for convenience' sake with one 
 of the parties, — for example, if we wished to speak 
 generally of a contractor, — it is always the proraisw 
 at whom our words are pointing. But the general 
 language of Roman law takes a different turn ; it 
 always regards the contract, if we may so speak, 
 from the point of view of the promisee; in speaking 
 of a party to a contract, it is always the Stipulator, 
 the person who asks the question, who is primarily 
 alluded to. But the serviceableness of the stipula- 
 tion is most vividly illustrated by referring to the 
 actual examples in the pages of the Latin comic" 
 dramatists. If the entire scenes are read down in 
 which these passages occur (ex. gra. Plautus, Pseu- 
 dohts^ Act I. sc. 1 ; Act IV. sc. 6 ; Trinwmmus, Act 
 V. sc. 2), it will be perceived how effectually the at- 
 tention of the person meditating the promise must 
 liave been arrested by the question, and how ample 
 
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820 THE LITERAL OONTEAOT. chap ix 
 
 was the opportunity for withdrawal from an im- 
 provident undertaking. 
 
 In the Literal or Written Contract, the formal 
 act by which an Obligation was superinduced on 
 the Convention, was an entry of the sum due, where 
 it could be specifically ascertained, on the debit side 
 of a ledger. The explanation of this contract turns 
 on a point of Koman domestic manners, the syste- 
 matic character and exceeding regularity of book- 
 keeping in ancient times. There are several minor 
 difficulties of old Koman law, as, for example, the 
 nature of the Slave's Peculium, which are only 
 cleared up when we recollect that a Roman house- 
 hold consisted of a ■ number of persons strictly ac- 
 countable to its head, and that every single item of 
 domestic receipt and expenditure, after being entered 
 in waste books, was transferred at stated periods to 
 a general household ledger. There are some obscu- 
 rities, however, in the descriptions we have received 
 of the Literal Contract, the fact being that the habit 
 of keeping books ceased to be universal in later 
 times, and the expression " Literal Contract," came 
 to signify a form of engagement entirely dififerent 
 from that originally understood. We are not, there- 
 foi-e, in a position to say, with respect to the primi- 
 tive Literal Contract, whether the obligation was 
 created by a simple entry on the part of the creditor, 
 or whether the consent of the debtor or a correspond- 
 ent entry in his own books was necessary to give it 
 legal effect. The essential point is however estal> 
 
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ons.p. IX. THE EEAL OONTEAOT. 321 
 
 lished, tliat, in tlie case of this Contract, all formal 
 ities were dispensed with on a condition being com 
 plied with. This is another step downwards in thfl 
 history of contract-law. 
 
 The Contract which stands next in historical 
 succession, the Real Contract, shows a great advance 
 in ethical conceptions. Whenever any agreement 
 had for its object the delivery of a specific thing — 
 and this is the case with the large majority of simple 
 engagements — the Obligation was drawn down as 
 soon as the delivery had actually taken place. Such 
 a result must have involved a serious innovation on 
 the oldest ideas of Contract; for doubtless, in the 
 primitive times, when a contracting party had neg- 
 lected to clothe his agreement in a stipulation, noth- 
 ing done in pursuance of the agreement would be 
 recognised by the law. A person who had paid 
 over money on loan would be unable to sue for its 
 repayment unless he had formally stipulated for it. 
 But, in the Real Contract, performance on one side 
 is allowed to impose a legal duty on the other — • 
 evidently on ethical grounds. For the first time 
 then moral considerations appear as an ingredient 
 in Contract-law, and the Real Contract differs from 
 its two predecessors in being founded on these, rather 
 than on respect for technical forms or on deference 
 to Roman domestic habits. 
 
 We now reach the fourth class, or Consensual 
 Contracts, the most interesting and important of all. 
 Four specified Contracts were distinguished by this 
 21 
 
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822 THE CONSENSUAL CONTRACTS. chap, ix 
 
 name : Mandatum, i. e. Commission or Agency ; So- 
 cietas or Partnership ; Emtio Venditio or Sale ; and 
 Locatio Conductio or Letting and Hiring. A few 
 pages back, after stating that a Contract consisted 
 of a Pact or Convention to which an Obligation had 
 been superadded, I spoke of certain acts or formali- 
 ties by which the law permitted the Obligation to 
 be attracted to the Pact. I used this language on 
 account of the advantage of a general expression, 
 but it is not sti-ictly correct unless it be undei'stood 
 to include the negative as well as the positive. For, 
 in truth, the peculiarity of these Consensual Con- 
 tracts is that 110 formalities are I'equired to create 
 them out of the Pact. Much that is indefensible, 
 and much more that is obscure, has been written 
 about the Consensual Contracts, and it has even been 
 asserted that in them the consent of the Parties is 
 more emphatically given than in any other species 
 of agreement. But the term Consensual merely in 
 dicates that the Obligation is here annexed at once 
 to the Consensus. The Consensus, or mutual assent 
 of the parties, is the final and crowning ingredient 
 in the Convention, and it is the special characteristic 
 of agreements falling under one of the four heads 
 of Sale, Partnership, Agency, and Hiring, that, as 
 soon as the assent of the parties has supplied this 
 ingredient, there is at once a Contract. The Con 
 seusus draws with it the Obligation, performing, in 
 transactions of the sort specified, the exact functions 
 which are discharged, in the other contracts, by the 
 
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oH^p. K. THE CONSENSU^i CONTEAOTS. 323 
 
 lies or Thing, by the Verha stipulationis, nad by 
 the lAtercB or written entry in a ledger. Consensual 
 is therefore a term which does not involve the slight- 
 est anomaly, but is exactly analogous to Real, Verbal, 
 and Literal. 
 
 In the intercourse of life the commonest and 
 most important of all the contracts are unquestiona- 
 bly the four styled Consensual. The larger part of 
 the collective existence of every community is con- 
 sumed in transactions of buying and selling, of let- 
 ting and hiring, of alliances between men for pur- 
 poses of business, of delegation of business from one 
 man to another; and this is no doubt the considera- 
 tion which led the Romans, as it has led most socie- 
 ties, to relieve these transactions from technical 
 incumbrance, to abstain as much as possible from 
 clogging the most efficient springs of social move- 
 ment. Such motives were not of course confined to 
 Rome, and the commerce of the Romans with their 
 neighbours must have given them abundant oppor- 
 tunities for observing that the contracts before us 
 tended everywhere to become Consensual^ obliga- 
 toi-y on the mere signification of mutual assent. 
 Hence, following their usual practice, they distin- 
 guished these contracts as contracts Juris Gentium. 
 Yet I do not think that they were so named at a 
 very early period. The first notions of a Jus Gen- 
 tium may have been deposited in the minds of the 
 Roman lawyers long before the appointment of a 
 Pi'setor Peregrinus, but it would only be through 
 
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824 THE CONSENSUAL CONTEAOTS. ohap. a 
 
 extensive and regular trad 3 that they would bo 
 familiarised with the contractual system of othei 
 Italian communities, and such a trade would scarcely 
 attain considerable proportions before Italy had 
 been thoroughly j)acified, and the supremacy of 
 Eome conclusively assured. Although, however, 
 there is strong probability that the Consensual Con- 
 tracts were the latest-born into the Roman system, 
 and though it is likely that the qualification. Juris 
 Gentium^ stamps the recency of their origin, yet 
 this very expression, which attributes them to the 
 " Law of ISTations," has in modern times produced 
 the notion of their extreme antiquity. For, when 
 the " Law of Nations " had been converted into the 
 "Law of Nature," it seemed to be implied that the 
 Consensual Contracts were the type of the agree- 
 ments most congenial to the natural state ; and hence 
 arose the singular belief that the younger the civili- 
 sation, the simpler must be its forms of contract. 
 
 The Consensual Contracts, it will be observed, 
 were extremely limited in number. But it cannot 
 be doubted that they constituted the stage in the 
 history of Contract-law from which all modern con- 
 ceptions of contract took their start. The motion 
 of the will which constitutes agreement was now 
 completely insulated, and became the subject of sep- 
 arate contemplation ; forms were entirely elimina- 
 ted from the notion of contract, and external acts 
 were only regarded as symbols of the internal act 
 of volition. The Consensual Contracts had, more- 
 
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OHAP. IX.' NATURAL AND CIVIL OBLIGATIONS. 32fi 
 
 over, been classed in the Jus Gentium, and it wag 
 long before this classification drew with it the infer- 
 ence that they were the species of agreement which 
 represented the engagements approved of by Nature 
 and included in her code. This point once reached, 
 we are prepared for several celebrated doctrines and 
 distinctions of the Roman lawyers. One of them ia 
 the distinction between Natural and Civil Obliga- 
 tions. When a person of full intellectual maturity 
 had deliberately bound himself by an engagement, 
 he was said to be under a natural obligation, even 
 though he had omitted some necessary formality, and 
 even though through some technical impediment he 
 was devoid of the formal capacity for making a valid 
 contract. The law (and this is what the distinc- 
 tion implies) would not enforce the obligation, but 
 it did not absolutely refuse to recognise it ; and nat- 
 ural obligations differed in many I'espects from obli- 
 gations which were merely null and void, more par- 
 ticularly in the circumstance that they could be 
 civilly confirmed, if the capacity for contract were 
 subsequently acquired. Another very peculiar doc- 
 trinp of the jurisconsults could not have had its ori- 
 gin earlier than the period at which the Convention- 
 was severed from the technical ingredients of Con- 
 tract. They taught that though nothing but a Con- 
 tract could be the foundation of an action, a mere 
 Pact or Conv^ention could be the basis of 21, plea. It 
 followed from this, that though nobody could sue 
 np(in an agreement which he had not taken the pre- 
 
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326 CHANGES IN OONTRAOT-LAW. chap, es 
 
 caution to mature into a Contract by complying with 
 the proper forms, nevertheless a claim arising out of a 
 valid contract could be rebutted by proving a coun- 
 ter-agreement which had never'got beyond the state 
 of a simple convention. An action for the recovery 
 of a debt could be met by showing a mere informal 
 agreement to waive or postpone the payment. 
 
 The doctrine just stated indicates the hesitation 
 of the Praetors in making their advances towards the 
 greatest of their innovations. Their theory of Nat- 
 ural law must have led them to look with especial 
 favour on the Consensual Contracts and on those 
 Pacts or Conventions of whicb the Consensual Con- 
 tracts were only particular instances ; but they did 
 not afc once venture on extending to all Conventions 
 the liberty of the Consensual Contracts. They took 
 advantage of that special superintendence over pro- 
 cedure which had been confided to them since the 
 first beginnings of Roman law, and, while they still 
 declined to permit a suit to be launched whicb was 
 not based on a formal contract, they gave full play to 
 their new theory of agreement in directing the ulte- 
 rior stages of the proceeding. But when they had 
 proceeded thus far, it was inevitable that they should 
 proceed farther. The revolution of the ancient law 
 of Contract was consummated when the Praetor of 
 some one year announced in his Edict that he would 
 grant equitable actions upon Pacts which had never 
 been matured at all into Contracts, provided only 
 that the Pacts in question had been founded on a 
 
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OH^p. IX. PROGRESS OF OONTRAOT-LAW. 327 
 
 considei-ation (causa). Pacts of this sort are always 
 enforced under the advanced Roman jurisprudence. 
 The principle is merely the principle of the Consen 
 sual Contract carried to its proper consequence; 
 and, in fact, if the technical language of the Romana 
 had been as plastic as their legal theories, these 
 Pacts enforced by the Praetor would have been 
 styled new Contracts, new Consensual Contracts. 
 Legal phraseology is. however, the part of the law 
 which is the last to alter, and the Pacts equitably 
 enforced continued to be designated simply Praeto- 
 rian Pacts. It will be remarked that unless there 
 were consideration for the Pact, it would continue 
 nude so far as the new jurisprudence was concerned ; 
 in order to give it effect, it would be necessary to 
 convert it by a stipulation into a Verbal Contract. 
 
 The extreme importance of this history of Con- 
 tract, as a safeguard against almost innumerable 
 delusions, must be ray justification for discussing it 
 at so considerable a length. It gives a complete 
 account of the march of ideas from one great land- 
 mark of jurisprudence to another. We begin with 
 the Nexum, in which a Contract and a Conveyance- 
 are blended, and in which the formalities which ac- 
 company the agreement are even more important 
 than the agreement itself. From the Nexum we 
 pass to the. Stipulation, which is a simplified, form of 
 the older ceremonial. The Literal Contract comes 
 next and here all formalities are waived, if proof 
 of the agreement can be supplied from the rigid 
 
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328 PROGRESS OF OONTRAOT-LAW. chap. ix. 
 
 observances of a Komati household. Ir. the Real 
 .Contract a moral duty is for the first time recognised, 
 and persons who have joined or acquiesced in the 
 partial performance of an engagement are forl)idden 
 to repudiate it on account of defects in form. Lastly, 
 the Consensual Contracts emerge, in which the men- 
 tal attitude of the contractors is solely regarded, 
 and external circumstances have no title to notice 
 except as evidence of the inward undertaking. It is 
 of course uncertain how far this progress of Roman 
 ideas from a gross to a refined conception exemplifies 
 the necessary progress of human thought on the sub- 
 ject of Contract. The Contract-law of all other 
 ancient societies but the Roman is either too scanty 
 to furnish information, or else is entirely lost ; and 
 modern jurisprudence is so thoroughly leavened with 
 the Roman notions that it furnishes us with no con 
 trasts or parallels from which instruction can be 
 gleaned. From the absence, however, of everything 
 violent, marvellous, or unintelligible in the changes 
 I have described, it may be reasonably believed that 
 the history of Ancient Roman Contracts is, up to a 
 certain point, typical of the history of this class of 
 legal conceptions in other ancient societies. But it 
 is only up to a certain point that the progress of 
 Roman law can be taken to represent the progress 
 of other systems of jurisprudence. The theory of 
 Natural law is exclusively Roman. The notion of 
 the vincidumjuris^ so far as my knowledge extends, 
 is exclusively Roman. The many peculiaritii^s of 
 
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CHAP. IX. INFLUENCE OF ROMAN CONTRAOT-LAW. 829 
 
 the raatiire Ronianlaw of Contract and Delict whicl 
 are tracea1)le to these two ideas, whether singly or 
 in combination, are therefore among the exclusive 
 products of one particular society. These later legal 
 cfMiceptions ai-e important, not because they typify 
 the necessai'y results of advancing thought under all 
 coniitions, }»ut because they have exercised perfectly 
 enormous influence on the intellectual diathesis of 
 the niodei'n world, 
 
 I know nothing more wonderful than the variety 
 of sciences to which Roman law, Roman Contract" 
 law more particularly, has contributed modes of 
 thought, courses of reasoning, and a technical lan- 
 guage. Of the subjects which have whetted the 
 intellectual appetite of the moderns, there is scarcely 
 one, except Phj^sics, which has not been filtered 
 through Roman jurisprudence. The science of pure 
 Metaphysics had, indeed, rather a Greek than a 
 Roman parentage, but Politics, Moral Philosophy, 
 and even Theology, found in Roman law not only a 
 vehicle of expression, but a nidus in which some of 
 their profoundest inquiries were nourished into ma- 
 turity. For the purpose of accounting for this phe- 
 nomenon, it is not absolutely necessary to discuss the 
 mysterious relation between words and ideas, or to 
 explain how it is that the human mind has never 
 grappled with any subject of thought, unless it has 
 been provided beforehand with a proper store of 
 language and with an apparatus of appropriate 
 logical methods. It is enough to remark, that, 
 
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530 STATE OF THOUGHT IN THE EMPIRE, chap. a. 
 
 when the philosophical interests of the Eastern and 
 Western worlds were separated, the founders of 
 Western thought belonged to a society which spoke 
 Latin and reflected in Latin. But in the Western 
 provinces the only language which retained sufficient 
 precision for philosophical purposes was the lan- 
 guage of Koman law, which by a singular fortune 
 had preserved nearly all the purity of the Augustan 
 age, while vernacular Latin was degenerating into 
 a dialect of portentous barbarism. And if Roman 
 jurisprudence supplied the only means of exactness 
 in speech, still more emphatically did it furnish 
 the onl}^ means of exactness, subtlety, or depth in 
 thought. For at least three centuries, philosophy 
 and science were without a home in the West ; and 
 though metaphysics and metaphysical theology were 
 engrossing the mental energies of multitudes of 
 Roman subjects, the phraseology employed in these 
 ardent inquiries w^as exclusively Greek, and their 
 theatre was the Eastern half of the Empire. Some- 
 times, indeed, the conclusions of the Eastern dispu- 
 tants became so important that every man's assent 
 to them, or dissent from them, had to be recorded, 
 and then the West was introduced to the results of 
 Eastern controversy, which it generally acquiesced 
 in without interest and without resistance. Mean- 
 while, one department of inquiry, difficult enough 
 for the most laborious, deep enough for the most 
 subtle, delicate enough for the most refined, had 
 never lost its attractions for the educated classes of 
 
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OHAP. jz. EASTERN AND WESTERN IDEAS. 331 
 
 tbe "Western provinces. To the cultivated citizen of 
 Africa, of Spain, of Gaul, and of Northern Italy, 
 it was jurisprudence, and jurisprudence only, which 
 stood in the place of poetry and history, of philoso 
 phy and science. So far then from there being any 
 thing mysterious in the palpably legal complexion 
 of the earliest efforts of Western thought, it would 
 rather be astonishing if it had assumed any other 
 hue. I can only express my surprise at the scanti- 
 ness of the attention which has been given to the 
 difference between Western ideas and Eastern, be- 
 tween Western theology and Eastern, caused by the 
 presence of a new ingredient. It is precisely be- 
 cause the influence of jurisprudence begins to be 
 powerful that the foundation of Constantinople and 
 the subsequent separation of the Western empire 
 from the Eastern, are epochs in philosophical history. 
 But continental thinkers are doubtless less capable 
 of appreciating the importance of this crisis by the 
 very intimacy with which notions derived from Ro- 
 man law are mingled up with their every-day ideas. 
 Englishmen, on the other hand, are blind to it 
 through the monstrous ignorance to which they con- 
 demn themselves of the most plentiful source of the 
 stream of modern knowledge, of the one intellectual 
 result of the Roman civilisation. At the same time, 
 an Englishman, who will be at the pains to familiar- 
 ise himself with the classical Roman law, is perhaps, 
 from the very slightness of the interest which his 
 countrymen have hitherto taken in the subject, a 
 
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832 QUASI-CONTRACT. chap, jx 
 
 better judge than a Frenchman or German of the 
 value of the assertions I have ventured to make 
 Anybody who knows what Roman jurisprudeace is 
 as actually practised by the Romans, and who will 
 observe in what characteristics the earliest Western 
 theology and philosophy differ from the phases of 
 thought which preceded them, may be safely left to 
 pronounce what was the new element which had be- 
 gun to pervade and govern speculation. 
 
 The part of Roman law which has had most ex- 
 tensive influence on foreign subjects of inquiry has 
 been the law of Obligation, or, what comes nearly 
 to the same thing, of Contract and Delict. The 
 Romans themselves were not unaware of the offices 
 which the copious and malleable terminology belong- 
 ing to this part of their system might be made to 
 discharge, and this is proved by their employment 
 of the peculiar adjunct quasi in such expressions as 
 Quasi-Contract and Quasi-Delict. " Quasi," so used, 
 is exclusively a term of classification. - It has been 
 usual with English critics to identify the quasi-con- 
 tracts with implied contracts, but this is an error, for 
 implied contracts ai-e true contracts, which quasi- 
 contracts are not. In implied contracts, acts and 
 circumstances are the symbols of the same ingre- 
 dients which are symbolised, in express contracts, 
 by words ; and whether a man employs one set of 
 symbols or the other must be a matter of indiffer- 
 ence so far as concerns the theory of agreement. 
 But a Quasi-Contract is not a contract at all. - The 
 
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OHAP. IX. QUASI-CONTRACT. 333 
 
 commonest sample of the class is the relation sub- 
 sisting between two persons, one of whom has paid 
 money to the other through mistake. ■ The law, 
 consulting the interests of morality, imposes an ob- 
 ligation on the receiver to refund, but the very na- 
 ture of the transaction indicates that it is not a 
 contract, inasmuch as the Convention, the most 
 essential ingredient of Contract, is wanting. • This 
 word '' quasi," prefixed to a term of Koman law, im- 
 plies that the conception to which it serves as an 
 index is connected wii?h the conception with which 
 the comparison is instituted by a strong superficial 
 analogy or resemblance. It does not denote that 
 the two conceptions are the same, or that they be- 
 long to the same genus. On the contrary, it nega- 
 tives the notion of an identity between them ; but 
 it points out that they are sufficiently similar for one 
 to be classed as the sequel to the other, and that the 
 phraseology taken from one department of law may 
 be transferred to the other, and employed without 
 violent straining in the statement of rules which 
 would otherwise be imperfectly expressed. 
 
 It has been shrewdly remarked, that the confu- 
 sion between Implied Contracts, which are true 
 contracts, and Quasi-Contracts, which are not con- 
 tracts at all, has much in common with the famous 
 error which attributed political rights and duties to 
 an Original Compact between the governed and the 
 governor. Long before this theory had clothed 
 itself in definite shape, the phraseology of Roman 
 
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334 THE SOCIAL COMPACT. chap. li 
 
 contract-law had been largely drawn upon to describe 
 that reciprocity of rights and duties which men had 
 always conceived as existing between sovereigns 
 and subjects. While the world was full of maxims 
 setting forth with the utmost positiveness the claims 
 of kings to implicit obedience — maxims which pre- 
 tended to have had their origin in the New Testa- 
 ment, but which were really derived from indelible 
 recollections of the Caesarian despotism — the con- 
 sciousness of correlative rights possessed by the 
 governed would have been entirely without the 
 means of expression if the Roman law of Obliga- 
 tion had not supplied a language capable of shadow- 
 ing forth an idea which was as yet imperfectly 
 developed. The antagonism between the privileges 
 of kings and their duties to their subjects was never, 
 I believe, lost sight of since "Western history began, 
 but it had interest for few except speculative writers 
 so long as feudalism continued in vigour, for feudal- 
 ism effectually controlled by express customs the 
 exorbitant theoretical pretensions of most European 
 sovereigns. It is notorious, however, that as soon 
 as the decay of the Feudal System had thrown the 
 mediseval constitutions out of working order, and 
 when the Reformation had discredited the authority 
 of the Pope, the doctrine of the divine right of 
 Kings rose immediately into an importance which 
 had never before attended it. The vogue which it 
 obtained entailed still more constant resort to the 
 phraseology of Roman law, and a controversy which 
 
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onAP. IX. POLITICS AND ROMAN LAW. 333 
 
 had originally worn a theological aspect assumed 
 more and more the air of a legal disputation. A 
 phenomenon then appeared which has repeatedly 
 shown itself in the history of opinion. Just when 
 the argument for monarchical authority rounded 
 itself into the definite doctrine of Filmer, the phrase- 
 ology, borrowed from the Law of Contract, which 
 had been used in defence of the rights of subjects, 
 crystallised into the theory of an actual original 
 compact between king and people, a theory which, 
 first in. English and afterwards, and more particu- 
 larly, in French hands, expanded into a comprehen- 
 sive explanation, of all the phenomena of society and 
 law. But the only real connection between political 
 and legal science had consisted in the last giving to 
 the first the benefit of its peculiarly plastic termi- 
 nology. The Roman jurisprudence of Contract had 
 performed for the relation of sovereign and subject 
 precisely the same service which, in a humbler 
 sphere, it rendered to the relation of persons bound 
 together by an obligation of " quasi-contract." It 
 had furnished a body of words and phrases which 
 approximated with sufficient accuracy to the ideas 
 which then were from time to time forming on the 
 subject of political obligation. The doctrine of an 
 Original Compact can never be put higher than it is 
 placed by Dr. Whewell, when he suggests that, 
 though unsound, "• it may be a convenient form for 
 the expression of moral truths." 
 
 The extensive employment of legal language on 
 
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S36 ETHICS AND ROMAN LAW. chap, li 
 
 political subjects ])reviously to the invention of tlie 
 Original Compact, and the powerful influence which 
 that assumption has exercised subsequently, amply 
 account for the plentifulness in political science of 
 words and conceptions, which were the exclusive 
 creation of Koman jurisprudence. Of their plenti- 
 fulness in Moral Philosophy a rather different expla- 
 nation must be given, inasmuch as ethical writings 
 have laid Roman law under contribution much more 
 directly than political specukuions, and their authors 
 have been much more conscious of the extent of 
 their obligation. In speaking of moral philosophy 
 as extraordinarily indebted to Roman jurisprudence, 
 I must be understood to intend moral philosophy 
 as understood previously to the break in its history 
 effected by Kant, that is, as the science of the rules 
 governing human conduct, of their proper interpre- 
 tation and of the limitations to which they are sub- 
 ject. Since the rise of the Critical Philosophy, moral 
 science has almost wholly lost its older meaning, 
 and, except where it is preserved nnder a debased 
 form in the casuistry still cultivated by Roman 
 Catholic theologians, it seems to be regarded neai'ly 
 universally as a branch of ontological inquiry. I do 
 not know that there is a single contemporary Eng- 
 lish writer, with the exception of Dr. Whewell, who 
 understands moral philosophy as it was undei-stood 
 before it was absorbed by metaphysics and before 
 the groundwoi'k of its rules came to be a more im- 
 .liortant consideration than the rules themselves. So 
 
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CHAP. IX. ETHICS AND EOMAN LAW. 337 
 
 long, however, as ethical science had to do with the 
 practical regimen of conduct, it ^vas more or lesa 
 saturated with Eoraan law. Like all the great sub- 
 jects of modern thought, it was originally incorpora- 
 ted with theology. The science of Moral Theology, 
 as it was at first called, and as it is still designated 
 by the Roman Catholic divines, was undoubtedly 
 constructed, to the full knowledge of its authors, by 
 taking principles of conduct from the system of the 
 Church, and by using the language and methods of 
 jurisprudence for their expression and expansion. 
 While this process went on, it was inevitable that 
 jurisprudence, though merely intended to be the 
 vehicle of thought, should communicate its colour to 
 the thought itself. The tinire received through con- 
 tact with legal conceptions is perfectly perceptible 
 in the earliest ethical literature of the modern woi-ld, 
 and it is evident, I think, that the Law of Contract, 
 based as it is on the complete reciprocity and indis- 
 soluble connection of rights and duties, has acted as 
 a wholesome corrective to the predispositions of 
 writers who, if left to themselves, might have ex- 
 clusively viewed a moral obligation as the public 
 duty of a citizen in the Civitas Dei. But the amount 
 of Roman Law in moral theology becomes sensibly 
 Braaller at the time of its cultivation by the great 
 Spanish moralists. Moral theology, developed by 
 the juridical method of doctor commenting on doctor,' 
 prodded itself with a ];)hraseology of its own, and 
 Aristotelian peculiarities of reasoning and expres 
 22 
 
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338 MORAL PHILOSOPHY. chap, ix 
 
 sion, imbibed doubtless in great par't from the Dis- 
 putations on Morals in the academical schools, take 
 the place of that special turn of thought and speech 
 which can never be mistaken by any person convej-- 
 sant with the Roman law. If the credit of the 
 Spanish school of moral theologians had continued, 
 the juridical ingredient in ethical science would have 
 been insignificant, but the use made of their conclu- 
 sions by the next generation of Roman Catholic 
 writers on these subjects almost entirely destroyed 
 their influence. Moral Theology, degraded into 
 Casuistry, lost all interest for the leaders of Euro- 
 pean speculation ; and the new science of Moral 
 Philosophy, which was entirely in the hands of the 
 Protestants, swerved greatly aside from the path 
 which the moral theologians had followed. The 
 effect was vastly to increase the influence of Roman 
 law on ethical inquiry. 
 
 "Shortly* after the Reformation, we find two 
 great schools of thought dividing this class of sub- 
 jects between them. The most influential of the 
 two was at first the sect or school known to us as the 
 Casuists, all of them in spiritual communion with 
 the Roman Catholic Church, and nearly all of them 
 affiliated to one or other of her religious orders. On 
 the other side were a body of wiiters connected with 
 each other by a common intellectual descent from 
 the great author of the treatise' Be Jure Belli el 
 
 *The passage quoted is transcribed, with sligl)t alterations, from 
 a paper contributed by tlie autliorto the Cambridge Essays for 1856, 
 
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CHAP. IX. GROTIUS AND HIS SCHOOL. 339 
 
 Pacis^ Hugo Gi'otius. Almost all of the latter were 
 adherents of the Reformation; and though it cannot 
 be said that they were formally and avowedly at 
 conflict with the Casuists, the origin aud object of 
 their system were nevertheless essentially different 
 from those of Casuistry. It is necessary to call at- 
 tention to this difference, because it involves the 
 question of the influence of Roman law on that de- 
 partment of thought with which both systems are 
 concerned. The book qf Grotius, though it touches 
 questions of pure Ethics in every page, and though 
 it is the parent immediate or remote of innume- 
 rable volumes of formal morality, is not, as is well 
 known, a professed treatise on Moral Philosophy ; it 
 is an attempt to determine the Law of Nature, or 
 Natural Law. Now, without entering upon the 
 question, w^hether the conception of a Law Natural 
 be not exclusively a creation of the Roman juriscon- 
 sults, we may lay down that, even on the admission 
 of Grotius himself, the dicta of the Roman jurispru- 
 dence as to what parts of known positive law musi 
 be taken to be parts of the Law of Nature, are, if 
 not infallible, to be received at all events with the 
 profouudest respect. Hence the system of Grotiua 
 is implicated with Roman law at its very foundation, 
 and this connection rendered inevitable — what the 
 legal training of the writer would perhaps have en- 
 tailed without it — the free employment in every 
 paragraph of technical phraseology, and of modes 
 of reasoning, defining, and illustrating, which must 
 
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840 CASUISTRY. oiiap. ix 
 
 sometimes conceal the sense, and almost always the 
 force and cogency, of the argument from the reader 
 who is unfamiliar with the sources whence they have 
 been derived. On the other hand, Casuistry bor- 
 rows little from Roman law, and the views of mo- 
 rality contended for have nothing whatever in com- 
 mon with the undertaking of Grotius. All that 
 philosophy of right and wrong which has become 
 famous, or infamous, under the name of Casuistry, 
 had its origin in the distinction between Mortal and 
 V^enial sin. A natural anxiety to escape the awful 
 consequences of determining a particular act to be 
 mortally sinful, and a desire, equally intelligible, to 
 assist the Roman Catholic Church in its conflict with 
 Protestantism by disburthening it of an inconvenient 
 theory, were the motives which impelled the authors 
 of the Casuistical philosophy to the invention of an 
 elaborate system of criteria, intended to remove 
 immoral actions, in as many cases as possible, out of 
 the category of mortal offences, and to stamp them 
 as venial sins. The fate of this experiment is matter 
 of ordinary history. We know that the distinc- 
 tions of Casuistry, by enabling the priesthood to 
 adjust spiritual conti'ol to all the varieties of human 
 character, did really confer on it an influence with 
 princes, statesmen, and generals, unheard of in the 
 ages before the Reformation, and did really con- 
 tribute largely to that great reaction which checked 
 and uari'owed the first successes of Protestantism. 
 But beginning in the attempt, not to establish, but 
 
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oiiAr. IX. CASUISTRY. 841 
 
 to evade — not to discover a principle, but to escape 
 a postulate — not to settle the nature of right and 
 wrong, but to determine what was not wi'oug of a 
 particular nature, — Casuistry went on with its dex- 
 terous refinements till it ended in so attenuating the 
 moral features of actions, and so belying the moral 
 instincts of our being, that at length the conscience 
 of mankind rose suddenly in revolt against it, and 
 consigned to one common ruin the system and its 
 doctors. The blow, long pending, was finally struck 
 in the Provincial Letters of Pascal, and since the 
 ajDpearance of those memorable Papers, no moralist 
 of the smallest influence or ci-edit has ever avowedly 
 conducted his speculations in the footsteps of the 
 Casuists. The whole field of ethical science was 
 thus left at the exclusive command of the writei'S 
 who followed Grotius ; and it still exhibits in an ex- 
 traordinary degree the traces of that entanglement 
 with Roman law which is sometimes imputed as a 
 faub, and sometimes the highest of its recommenda- 
 tions, to the G-rotian theory. Many inquirers since 
 Grotius's day have njodified his principles, and many, 
 of course, since the rise of the critical philosophy, 
 have quite deserted them ; but even those who have 
 depai'ted most widely from his fundamental assump- 
 tions Lave inherited much of his method of state- 
 ment, of his train of thought, and of his mode of 
 illustration ; and these have little meaning and no 
 point to the person ignorant of Eoman jurispru- 
 dence." 
 
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842 METAPHYSIOS AKD ROMAN LAW. chap, ix 
 
 I tave already said that, with the exception ot 
 the physical sciences, there is no walk of knowledge 
 which has been so slightly affected by Roman law 
 as Metaphysics. The reason is that discussion on 
 metaphysical subjects has always been conducted in 
 Greek, first in pure Greek, and afterwards in a dia- 
 lect of Latin expressly constructed to give expression 
 to Greek conceptions. The modern languages have 
 only been fitted to metaphysical inquiries by adopt- 
 ing this Latin dialect, or by imitating the process 
 which was originally followed in its formation. The 
 source of the phi-aseology which has been always 
 employed for metaphysical discussion in modern 
 times was the Latin translations of Aristotle, in 
 which, whether derived or not from Arabic versions, 
 the plan of the translator was not to seek for analo- 
 gous expressions in any part of Latin literature, but 
 to construct anew from Latin roots a set of phrases 
 equal to the expression of Greek philosophical ideas. 
 Over such a process the terminology of Roman law 
 can have exercised little influence ; at most, a few 
 Latin law terms in a transmuted shape have made 
 their way into metaphysical language. At the same 
 time it is worthy of remark that whenever the prob- 
 lems of metaphysics are those which have been most 
 strongly agitated in Western Europe, the thought, 
 if 'not the language, betrays a legal parentage. Few 
 things in the history of speculation are more im- 
 pressive than the fact that no Greek-speaking people 
 has ever felt itself seriously perplexed by the great 
 
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OHAP. IX. THEOLOGY AND ROMAN LAW. 343 
 
 question of Free-will and Necessity. I do not pre- 
 tend to offer any summary explanation of this, but 
 it does not seem an irrelevant suggestion that neither 
 the Greeks, nor any society speaking and thinking 
 in their language, ever showed the smallest capacity 
 for producing a philosophy of law. Legal science 
 is a Roman creation, and the problem of Free-will 
 arises when we contemplate a metaphysical concep- 
 tion under a legal aspect. How came it to be a 
 question whether invariable sequence was identical 
 with necessary connection ? I can only say that the 
 tendency of Roman law, which became stronger as 
 it advanced, was to look upon legal consequences as 
 united to legal causes by an inexorable necessity, a 
 tendency most markedly exemplified in the defini- 
 tion of Obligation which I have repeatedl}^ cited, 
 " Juris vinculum quo necessitate adstringimur alicu- 
 jus sol vendee rei." 
 
 But the problem of Free-will was theological be- 
 fore it became philosophical, and, if its terms have 
 been affected by jurisprudence, it will be because 
 Jurisprudence has made itself felt in Theology. The 
 gi-eat point of inquiry which is here suggested has 
 never been satisfactorily elucidated. What has to be 
 determined, is whether jurisprudence has ever served 
 as the medium through which theological principles 
 have been viewed ; whether, by supplying a peculiar 
 language, a peculiar mode of reasoning and a pecu- 
 liar solution of many of the problems of life, it has 
 ever opened new channels in which theological spec- 
 
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844 GREEK AND LATIN CHUECIiES. on4i>. ix 
 
 ulation could flow out and expand itself, For the 
 purpose of giving an answer it is necessaiy to recol- 
 lect what is already agreed upon by the best wi-iters? 
 as to the intellectual food which theology first assi- 
 milated. It is conceded on all sides that the eai-liest 
 language of the Christian Church was Greek, and 
 that the problems to which it first addressed itself 
 were those for which Greek philosophy in its later 
 forms had prepared the way. Greek metaphysical 
 literature contained the sole stock of words and 
 ideas out of which the human mind could provide 
 itself with the means of engaging in the profound 
 controversies as to the Divine Persons, the Divine 
 Substance, and the Divine Natures. The Latin Ian 
 guage and the meagre Latin philosophy were quite 
 unequal to the undertaking, and accordingly the 
 Western or Latin speaking provinces of the Empire 
 adopted the conclusions of the East without disput- 
 ing or reviewing them. " Latin Christianitj', " says 
 Dean Milman, " accepted the creed which its narrow 
 and barren vocabulary could hardly express in ade- 
 quate terms. Yet, throughout, the adhesion of Rome 
 and the West was a passive acquiescence in the do"'- 
 matic system which had been wrought out by the 
 profounder theology of the Eastern divines, rather 
 than a vigorous and original examination on her part 
 of those mysteries. The Latin Church was the scholar 
 as well as the loyal pai'tizan of Athanasius." But 
 when the separation of East and West became wider, 
 and the Latin-speaking Western Empire began to 
 
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"HAP. IX. PROBLEMS OF WESTERK CHURCH. 34n 
 
 live with an intellectoal life of its own, its ilePei'ence 
 to the Eist was all at once exchano'ed for the airita- 
 tion of a niimber of questions entirely foreign tc 
 Eastern speculation. " While Greek theology ( Mil 
 man, Latin Christianity^ Preface, 5 ) went on defi 
 iiing with still more exquisite subtlety the Godhead 
 and the nature of Christ " — " while the interniinalde 
 conti'oversy still lengthened out and cast forth sect 
 after sect from the enfeebled communLty " — the 
 Western Church threw itself with passionate ardour 
 into a new order of disputes, the same which from 
 those days to this have never lost their interest for 
 any family of mankind at any time included in the 
 Latin communion. The nature of Sin and its transmis- 
 sion by inhei'itance — the debt owed by man and ita 
 vicarious satisfaction — the necessity and sufficiency 
 of the Atonement — above all the apparent antago- 
 nism between Free-will and the Divine Providence — 
 these were points which the West began to debate 
 as ardently as ever the East had discussed the arti- 
 cles of its more special creed. Why is it then that 
 on the two sides of the line which divides the Greek- 
 speaking from the Latin-speaking provinces there lie 
 two classes of theological problems so strikingly dif 
 ferent from one another? The historians of the 
 Church have come close upon the solution when they 
 remark that the new problems wei'e more " practi- 
 cal," less absolutely speculative, than those which 
 had torn Eastern Chi'istianity asunder, but none of 
 them, so far as I am aware, has quite reached it. I 
 
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34(1 EOMAN LAW IN THE WEST. chap, ix 
 
 afliiin without hesitation that the difference between 
 the! two theological systems is accounted for by the 
 fact that, in passing from the East to the West, theo- 
 logical peculation had passed from a climate of Greek 
 ra('ta[)hysics to a climate of Koman law. For some 
 centuries before these controversies rose into over- 
 whelming importance, all the intellectual activity of 
 the Western Romans had been expended on juris- 
 prudence exclusively. They had been occupied in 
 applying a peculiar set of princij^les to all combina- 
 tions in which the circumstances of life are capable 
 of being arranged. No foreign pursuit or taste call- 
 ed off their attention from this engrossing occupa- 
 tion, and for carrying it on they possessed a vocabu- 
 lary as accurate as it was copious, a strict method of 
 reasoning, a stock of general propositions on conduct 
 more or less verified by experience, and a rigid moral 
 philosophy. It was impossible that they should not 
 select from tbe questions indicated by the Christian 
 recoi'ds those which had some affinity with the or- 
 der of speculations to which they were accustomed, 
 and that their manner of dealing with them should 
 borrow something from their forensic habits. x\l- 
 most everybody who has knowledge enough of Ro- 
 man law to appreciate the Roman penal system, the 
 Roman theory of the obliijations established bv Con- 
 tract or Delict, the Roman view of Debts and of the 
 modes of incurring, extinguishing, and transmitting 
 them, the Roman notion of the continuance of indi- 
 vidual existencee by Universal Succession, may be 
 
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CHAP. IX. THEOLOGY AND ROMAN LAW. 347 
 
 trusted to say whence arose the frame of mind to 
 which the problems of Western theology proved sr, 
 congenial, whence came the phraseology in which 
 these problems were stated, and whence the descrip- 
 tion of reasoning employed in their solution. It 
 mijst only be recollected that the Roman law which 
 had worked itself into Western thought was neither 
 the archaic system of the ancient city, nor the prun- 
 ed and curtailed jurisprudence of the Byzantine Em- 
 perors ; still less, of course, was it the mass of I'ules, 
 nearlj' buried in a parasitical overgrowth of modern 
 speculative doctrine, which passes by the name of 
 Modern Civil Law. I only speak of that philosophy 
 of jurisprudence, wrought out by the great juridical 
 thinkers of the Antonine age, which may still be 
 partially reproduced from the Pandects of Justinian, 
 a system to which few faults can be attributed ex- 
 cept perhaps that it aimed at a higher degree of ele- 
 gance, certainty, and precision than human affairs 
 will permit to the limits within which human laws 
 seek to confine them. 
 
 It is a singular result of that ignorance of Roman 
 law which Englishmen readily confess, and of which 
 they are sometimes not ashamed to boast, that many 
 English writers of note and credit have been led by 
 it to put forward the most untenable of paradoxes 
 concerning the condition of human intellect during 
 the Roman empire. It has been constantly asserted, 
 as unhesitatingly as if there were no temerity in ad 
 . vancing the proposition, that fi-om the close of the 
 
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848 GREEK AND LATIN-SPEAKING PROVINCES, chaf. is. 
 
 Augustan era to the general awakening of int("rest 
 on the points of the Christian faith, the mental ener- 
 gies of the civilised world were smitten with a para- 
 lysis. Now there are two subjects of thought — thi 
 only two perhaps with the exception of physicn . 
 science — which are able to give employment to al 
 the powers and capacities which the mind possesses 
 One of them is Metaphysical inquiry, which knows 
 no limits so Ions' as the mind is satisfied to work on 
 itself; the other is Law, which is as extensive as the 
 concerns of mankind. It happens that, during the 
 very period indicated, the Greek-speaking provinces 
 were devoted to one, the Latin-speaking provinces 
 to the other, of these studies. I say nothing of the 
 fruits of speculation in Alexandria and the East, but 
 I confidently affirm that Rome and the West had an 
 occupation in hand fully capable of compensating 
 them for the absence of every other mental exercise, 
 and I add that the results achieved, so far as w 
 know them, were not unworthy of the continuous 
 and exclusive labor bestowed on producing them. 
 Nobody except a professional lawyer is perhaps in 
 a position completely to understand how much of 
 the intellectual strength of individuals Law is capable 
 of absorbing, but a layman has no difficulty in com- 
 prehending why it was that an unusual share of the 
 collective intellect of Eome was engrossed by juris- 
 prudence. " The proficiency* of a given commuai- 
 
 * Cambridge Essays, 1856. 
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OHAi. IX. CAUSES OF IMPROVEMENT IN ROMAN I AW. 349 
 
 ty in jurisprudence depends in the long run on the 
 same conditions as its progress in any other line of 
 inquiry ; and the chief of these are the proportion 
 of the national intellect devoted to it, and the length 
 of time during which it is so devoted. Now, a com- 
 bination of all the causes, direct and indirect, which 
 contribute to the advancing and perfecting of a 
 science continued to operate on the jurisprudence of 
 Rome through the entire space between the Twelve 
 Tables and the severance of the two Empires, — and 
 that not irregularly or at intervals, but in steadily 
 increasing force and constantly augmenting number. 
 We should reflect that the earliest intellectual exer- 
 cise to which a young nation devotes itself is the 
 study of its laws. As soon as the mind makes its first 
 conscious efforts towards generalisation, the concerns 
 of every-day life are the first to press for inclusion 
 within general rules and comprehensive formulas. 
 The popularity of the pursuit on which all the ener- 
 gies of the young commonwealth are bent is at the 
 outset unbounded ; but it ceases in time. The mo- 
 nopoly of mind by law is broken down. The crowd 
 at the morning audience of the great Roman juriscon- 
 sult lessens. The students are counted by hundreds 
 instead of thousands in the English Inns of Court. 
 Art, Literature, Science, and Politics, claim their 
 share of the national intellect ; and the practice of 
 jurisprudence is confined within the circle of a profes- 
 sion, never indeed limited or insignificant, but at- 
 tracted as much by the rewards as by the intrinsic 
 
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350 CAUSES OF IMPROVEMENT IN EOMAN LAW. ohap. its. 
 
 recoramendatious of their science. This succession 
 of changes exhibited itself evenmore strikingly in 
 Rome than in England. To the close of the Republic 
 the law was the sole field for all ability except the 
 special talent of a capacity for generalship. But a 
 new- stage of intellectual progress began with the Au- 
 gustan age, as it did with our own Elizabethan era. 
 We all know what were its achievements in poetry 
 and prose ; but there are some indications, it should 
 be remarked, that, besides its efilorescence in orna- 
 mental literature, it was on the eve of throwing out 
 new aptitudes for conquest in physical science. Here, 
 however, is the point at which the history of mindin 
 the Roman States ceases to be parallel to the routes 
 which mental progress has since then pursued. The 
 brief span of Roman literature, strictly so called, was 
 suddenly closed under a variety of influences, which 
 though they may partially be traced, it would be im 
 proper in this place to analyse. Ancient intellect 
 was forcibly thrust back into its old courses, and law 
 again became no less exclusively the proper sphere 
 for talent than it had been in the days when the Ro 
 mans despised philosophy and poetry as the toys of a 
 childish race. Of what nature were the external in- 
 ducements which, during the Imperial period, tended 
 to draw a man of inherent capacity to the pursuits of 
 the jurisconsult may best be understood by consider- 
 ing the option which was practically before him in 
 the choice of a profession. He might become & 
 teach,er of rhetoric, a commander of frontier-posts, or 
 
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CHAP. IX. ROMAJT LAW IN THE EAST. 351 
 
 a professional writer of panegyrics. The only oilier 
 walk of active life which was open to him was the 
 practice of the law. Through that lay the approach 
 to wealth, to fame, to office, to the council-chamber of 
 the monarch — it may be to the very throne itself. 
 
 The premium on the study of jurisprudence was 
 so enormous that there were schools of law in every 
 part of the Empire, even in the very domain of 
 Metaphysics. But, though the transfer of the seat 
 of empire to Bj'^zantium gave a perceptible impetus 
 to its cultivation in the East, jurisprudence never 
 dethroned the pursuits which there competed with 
 it. Its language was Latin, an exotic dialect in the 
 Efistern half of the Empire. It is only of the West 
 that we can lay down that law was not only the 
 mental food of the ambitious and aspiring, but the 
 sole aliment of all intellectual activity. Greek phi- 
 losophy had never been more than a transient fash- 
 ionable taste with the educated class of Rome itself, 
 and when the new Eastern capital had been created, 
 and the Empire subsequently divided into two, the 
 divorce of the Western provinces from Greek spec- 
 ulation, and their exclusive devotion to jurispru- 
 dence, became more decided than ever. As soon 
 then as they ceased to sit at the feet of the Greeks 
 and began to ponder out a theology of their own, 
 the theology proved to be permeated with forensic 
 ideas and couched in a forensic phraseology. It is 
 certain that this substratum of law in Westei-n the- 
 ology lies exceedingly deep^ A new set of Greek 
 
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362 ROMAN LAW IN WESTERN THEOLOGY. criAi'. ix 
 
 theories, the Aristotelian philosophy, made theii 
 way afterwards iuto the West, and almost entii'ely 
 buried its indigenous doctrines. But when at the 
 Reformation it partially shook itself fi'ee from tlieir 
 influence, it instantly supplied their place with Law. 
 It is difficult to say whether the religious system of 
 Calvin or the religious system of the Arminiaus has 
 the more markedly legal character. 
 
 The vast influence of this specific jurisprudence 
 of Contract produced by the Romans upon the cor- 
 responding department of modern Law belongs 
 rather to the history of mature jurisprudence than 
 to a treatise like the present. It did not make itself 
 felt till the school of Boloo^na founded the lesfal 
 science of modern Europe. But the fact that the 
 Romans, before their Empire fell, had so fully de- 
 veloped the conception of Contract becomes of im- 
 portance at a much earlier period than this. Feu- 
 dalism, I have repeatedly asserted, was a compound 
 of archaic barbarian usag^e with Roman law; no 
 other explanation of it is tenable, or even intelligi- 
 ble. The earliest social forms of the feudal pei-iod 
 differ in little from the ordinary associations in which 
 the men of primitive civilisations are everywhere 
 seen united. A Fief was an organically complete 
 brotherhood of associates whose proprietary and 
 personal rights were inextiicably blended together. 
 It had much in common with an Indian Yillatrc Com- 
 munity and much in common with a Highland clan. 
 But still it presents some phenomena which we nevei 
 
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onAP. IX. OONTRAOT-LAW AND FEUDALISM. 3oS 
 
 find in the associations whicli are spontaneously 
 formed by beginners in civilisation. True archaic 
 communities are held together not by express rules, 
 but by sentiment, or, we should perhaps say, by 
 instinct ; and new comers into the brotherhood are 
 brouglit within the range of this instinct by falsely 
 pretending to share in the blood-relationship from 
 which it naturally springs. But the earliest feudal 
 communities were neither bound together by mere 
 sentiment nor recruited by a fiction. The tie which 
 united them was .Contract, and they obtained new 
 associates by contracting with them. The relation 
 of the lord to the vassals had originally been settled 
 by express engagement, and a pei'son wishing to 
 engraft himself on the brotherhood by Gommendation 
 or infeudation came to a distinct understanding as 
 to the conditions on which he was to be admitted. 
 It is therefore the sphere occupied in them by Con- 
 tract which principally distinguishes the feudal in- 
 stitutions from the unadulterated usages of primitive 
 races. The lord had many of the characteristics of 
 a patriarchal chieftain, but Kis prerogative was lim- 
 ited by a variety of settled customs traceable to the 
 express conditions which had been agreed upon 
 when the infeudation took place. Hence flow the 
 chief diflferences which forbid us to class the feudal 
 societies with true archaic communities. They 
 were much more durable and much more various ; 
 more durable, because express rules are less de- 
 structible than instinctive habits, and more various, 
 23 
 
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854 CONTRACT-LAW AND FEUDALISM. chap, ix 
 
 because the contracts on which they were founded 
 were adjusted to the minutest circumstances and 
 wishes of the persons who surrendered oi' granted 
 away their lands. This last consideration may serve 
 to indicate how greatly the vulgar opinions cui'reuL 
 among us as to the origin of modern society stand in 
 need of revision. It is often said that the irrea^ular 
 and various contour of modern civilisation is due to 
 the exuberant and erratic genius of the Germanic 
 races, and it is often contrasted with the dull 
 routine of the Eoman Empire. The truth is that 
 the Empire bequeathed to modern society the legal 
 conception to which all this irregularity is attribu- 
 table ; if the customs and institutions of barbarians 
 have one characteristic more striking than anotJ^f^r 
 it is their extreme uniformity. ■ 
 
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CHAPTER X. 
 
 TEE EARLY EISTOBY OF DELICT AND GRIME. 
 
 The Teutonic Codes, including those of our Anglo 
 Saxon ancestors, are the only bodies of archaic secu- 
 lar law which have come down to us in such a state 
 that we can form an exact notion of their original 
 dimensions. Although the extant fragments of 
 Roman and Hellenic codes suffice to prove to us 
 their general character, there does not remain en,ough 
 of them for us to be quite sure of their precise mag- 
 nitude or of the proportion of their parts to each 
 other. But still on the whole all the known collec- 
 tions of ancient law are characterised by a feature 
 which broadly distinguishes them from systems of 
 mature jurisprudence. The proportion of criminal 
 to civil law is exceedingly different. In the German 
 codes, the civil part of the law has trifling dimen- 
 sions as compared with the criminal. The traditions 
 which speak of the sanguinary penalties inflicted by 
 the code of Draco seem to indicate that it had the 
 same characteristic. In the Twelve Tables alotie, 
 
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856 PENAL LAW IN ANCIENT CODES. chap, x 
 
 produced by a society of greater legal genius and at 
 first of gentler manners, the civil law has something 
 like its modern precedence ; but the relative amount 
 of space given to the modes of redressing wrong, 
 though not enormous, appears to have been large. 
 It may be laid down, I think, that the more ai-chaio 
 the code, the fuller and the minuter is its penal legis- 
 lation. The phenomenon has often been observed 
 and has been explained, no doubt to a. great extent 
 correctly, by the violence habitual to the communi- 
 ties which for the first time reduced their laws to 
 writing. The legislator, it is said, proportioned the 
 divisions of his work to the frequency of a certain 
 class of incidents in bai'barian life. I imagine, how- 
 ever, that this account is not quite complete. It 
 should be recollected that the compai-ative barren- 
 ness of civil law in archaic collections is consistent 
 with those other characteristics of ancient jurispru- 
 dence which have been discussed in this treatise. 
 Nine-tenths of the civil part of the law practised by 
 civilised societies are made up of the Law of Persons, 
 of the Law of Property and of Inheritance, and oi 
 the Law of Contract. But it is plain that all these 
 provinces of jurisprudence must shrink within nar- 
 rower boundaries, the nearer we make our approaches 
 to the infancy of social brotherhood. The Law of 
 Persons, which is nothing else than the Law of 
 Status, will be resti'icted to the seamiest limits as 
 long as all forms of status ai-e mei-ged in common 
 subjection to Paternal Power, as long as the Wife 
 
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OHAP. X. CRIMES AND "WEONGS. 867 
 
 has no rights against her Husband, the Son none 
 against his Father, and the infant Ward none agaiusi 
 the Agnates who are his Guardians. Similarly, the 
 I'ules relating to Pi'opei-ty and Succession can never 
 be plentiful, so long as land and goods devolve within 
 the family, and, if distributed at all, are distributed 
 inside its circle. But the gi'eatest gap in ancient 
 civil law will always be caused by the absence of 
 Contract, which some archaic codes do not mention 
 at all, while others significantly attest the immatu- 
 rity of the moral notions on which Contract depends 
 by supplying its place with an elaborate jurispru- 
 dence of Oaths. There are no cori-esponding reasons 
 for the poverty of penal law, and accordingly, even 
 if it be hazardous to pronounce that the childhood 
 of nations is always a period of ungoverned violence, 
 we shall still be able to understand why the modern 
 relation of criminal law to civil should be inverted 
 in ancient codes. 
 
 I have spoken of primitive jurisprudence as 
 giving to criminal law a priority unknown in a later 
 age. The expression has been used for convenience, 
 but in fact the inspection of ancient codes shows that 
 the law which they exhibit in unusual quantities 
 is not true criminal law. All civilised systems agree 
 in drawing a distinction between offences against the 
 State or Community and offences against the Indi- 
 vidual, and the two classes of injuries, thus kept 
 apart, I may hei'e, without pretending that the terms 
 have always been employed consistently in jurisprr 
 
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858 CRIMES AND TVRONGS. chap, x 
 
 dence, call Grimes and Wrongs, crimina and delicta. 
 Now the penal Law of ancient communities is not 
 the law of Crimes ; it is the law of Wi-ongs, or, to 
 use the English technical word, of Toits. The per 
 son injured proceeds against the wrong-doer by an 
 ordinary civil action, and recovers compensation in 
 the shape of money-damages if he succeeds. If the 
 Commentaries of Gains be opened at the place where 
 the writer treats of the penal jurisprudence founded 
 on the Twelve Tables, it will be seen that at the 
 head of the civil wrongs recognised by tbe Roman 
 law stood Furtum or Theft. Offences which we are 
 accustomed to regard exclusively as crimes are ex- 
 clusively treated as torts., and not theft only, but 
 assault and violent robbery, are associated by the 
 jurisconsult with trespass, libel and sla:nder. All 
 alike gave rise to an Obligation or vinculum juris, 
 and were all requited by a payment of money. This 
 peculiarity, however, is most strongly brought out 
 in the consolidated Laws of the Germanic tribes. 
 Without an exception they describe an immense 
 system of money compensations for homicide, and 
 with few exceptions, as large a scheme of compensa- 
 tion for minor injuries. " Under Anglo-Sa.xon law," 
 writes Mr. Kemble {Anglo-Saxons^ i. 177), "a sum 
 was placed on the life of every free man, according 
 to his rank, and a corresponding sum on every wound 
 that could be inflicted on his person, for nearly every 
 injury that could be done to his civil rights, honour 
 or peace ; the sum being aggravated according to 
 
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«Hi]>. X. OEIMES AND SIXS. S59 
 
 adventitious circumstances." These compositions 
 are evidently regarded as a valuable source of in- 
 come ; highly complex rules regulate the title to 
 them and the responsibility for them ; and, as I have 
 already had occasion to state, they often follow a 
 very peculiar line of devolution, if they have not 
 been acquitted at the decease of the person to whom 
 they belong. If therefore the criterion of a delict, 
 wroncj^ or torth^ that the person who suffers it, and 
 not the State, is conceived to be wronged, it may be 
 asserted that in the infancy of jurisprudence the 
 citizen depends for protection against violence or 
 fraud not on the Law of Crime but on the Law of 
 Tort. 
 
 Torts then are copiously enlarged upon in primi- 
 tive jurisprudence. It must be added that Sins are 
 kpown to it also. Of the Teutonic codes it is almost 
 unnecessary to make this assertion, because those 
 codes, in the form in which we have received them, 
 were compiled or recast by Christian legislators. 
 But it is also true that the non-Christian bodies of ar- 
 chaic law entail penal consequences on certain classes 
 of acts and on certain classes of omissions, as be- 
 ing violations of divine jurisprudence and commands. 
 The law administered at Athens by the Senate of 
 Areopagus was probably a special religious code, and 
 at Home, apparently from a very early period, the 
 Pontifical jurisprudence punished adultery, sacrilege, 
 and perhaps murder. There were therefore in the 
 Athenian and in the Roman States laws punishing 
 
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860 CONCEPTION OF CRIME. oh\p. x. 
 
 si7is. There were also laws punishing to;'^.y. The con- 
 ception of offence against God produced the fiivst class 
 of ordinances ; the conception of offence against one's 
 neighbour produced the second ; but the idea of of- 
 fence against the State or aggregate community did 
 not at first produce a ti'ue criminal jurisprudence. 
 
 Yet it is not to be supposed that a conception 
 so simple and elementally as that of wrong done to 
 the State was wanting in any primitive society. It 
 seems rather that the very distinctness with ^vhich 
 this conception is realised is the true cause which at 
 first prevents the growth of a criminal law. At all 
 events, when the Roman community conceived itself 
 to be injured, the analogy of a personal wrong re- 
 ceived was carried out to its consequences with abso- 
 lute literalness, and the State avenged itself by a 
 single act on the individual wrong-doer. The result 
 was that, in the infancy of the commonwealth, every 
 offence vitally touching its security or its interests 
 was punished by a separate enactment of the legisla- 
 ture. And this is the earliest conception of a crimen 
 or Crime— an act involving such high issues that the 
 State, instead of leaving its cognisance to the civil 
 tribunal or the religious court, directed a special 
 law or privilegium against the perpetrator. Every 
 Indictment therefore took the form of a l)ill of pains 
 and penalties, and the trial of a criminal was a 
 proceeding wholly extraordinary, wholly irregular, 
 wholly independent of settled rules and fixed con- 
 ditions. Consequently, both for the reason that the 
 
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OHAP. X. ANOIEJTT CONCEPTION OF CRIME. 361 
 
 tribunal dispensing justice was the sovereign State 
 itself, and also for the reason that no classification of 
 the acts prescribed or foi-V)idden was possible, there 
 was not at this epoch any Law of crimes, any 
 criminal jurisprudence. The procedure was identi- 
 cal with the foi'ms of passing an ordinary statute ; it 
 was set in motion by the same persons and conduct 
 ed with precisely the same solemnities. And it is to 
 be observed that, when a regular criminal law with 
 an apparatus of Courts and officers for its administra- 
 . tion had afterwards come into being, the old pro- 
 cedure, as might be supposed from its conformity 
 with theory, still in strictness remained practicable ; 
 and, much as resort to such an expedient was dis- 
 credited, the people of Eome always retained the 
 power of punishing by a special law offences against 
 its majesty. The classical scholar does not I'equire 
 to be reminded that in exactly the same manner the 
 Athenian Bill of Pains and Penalties, or tiaayytXia, 
 survived the establishment of regular tribunals. It 
 is known too that when the freemen of the Teutonic 
 races assembled for legislation, they also claimed au- 
 thority to punish offences of peculiar blackness or 
 j)erpetrat^d by criminals of exalted station. Of this 
 nature was the criminal jurisdiction of the Anglo- 
 Saxon Witenagemot. 
 
 It may be thought that the difference which I 
 have asserted to exist between the ancient and mod- 
 ern view of penal law has only a vei-bal existence. 
 The community, it may be said, besides interposing 
 
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362 AiNCiENT PROOEDUEE. chap, x 
 
 to punish crimes legislatively, has from the earliest 
 times interfered by its tribunals to compel the wrong- 
 doer to compound fur his wrong, and if it does this, 
 it Tiiiist always have supposed that in some way it 
 was injured through his offence. But, however rig- 
 orous this inference may seem to us uow a-days, it is 
 very doijbtful whether it was actually drawn by the 
 men of primitive antiquity. How little the notion of 
 injury to the community had to do with the earliest 
 interferences of the State through its tribunals^ is 
 shown by the curious circumstance that in the origi- 
 nal administration of justice, the proceedings were 
 a close imitation of the series of acts which were 
 likely to be gone through in private life by persons 
 who were disputing, but who afterwards suffered 
 their quarrel to be appeased. The .magistrate care- 
 fully simulated the demeanour of a private arbitrator 
 casually called in. 
 
 In order to show that this statement is not a 
 mere fanciful conceit, I will produce the evidence on 
 which it rests. Very far the most ancient judicial 
 proceeding known to us is the Legis Actio Sacra- 
 menti of the Romans, out of which all the later Ro- 
 man law of Actions may be proved to have grown. 
 Gains carefully desci'ibes its ceremonial. Unmeaning 
 and grotesque as it appears at first sight, a little at 
 tention enables us to decipher and interpret it. 
 
 The subject of litigation is supposed to be in 
 Court. If it is moveable, it is actually there. If it 
 be immoveable, a fragment oi' sample of it is brought 
 
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0H4.P. X. THE ROMAN LEGIS ACTIO. '368 
 
 in its place ; land, for instance, is represented by a 
 clod, a house by a single brick. In the example 
 selected by Gains, the suit is for a slave. The pro- 
 ceeding begins by the plaintiff's advancing with a 
 rod, which as Gains expressly tells, symbolised a 
 spear. He lays hold of the slave and asserts a right 
 to him with the words, '■'■ Huncego hominemex Jv/re 
 Quiritium meum esse dico secimdum suam causam 
 sicut died ; " and then saying, " JEcee tihi Vindictam 
 imposid, " he touches him with the spear. The defen- 
 dant goes through the same series of acts and 
 gestures. On this the Praetor intervenes, and bids 
 the litigants relax their hold, " Mittite anibo homi- 
 716711. " They obey, and the plaintiff demands from 
 the defendant the reason of his interference, " Pos- 
 tulo anhe dicas'qud ex causA vindicameris^^ a ques- 
 tion which is replied to by a fresh assertion of right, 
 " Jus peregi sicut vindictam i/mposui. " On this, the 
 first claimant offers to stake a sum of money, called 
 a Sacramentum, on the justice of his own case, 
 " Quando tu injuria provocasti., D mris Sacramento 
 teprovoco, " and the defendant, in the phrase, " Sim- 
 iliter ego fe," accepts the wager. The subsequent 
 proceedings were no longer of a formal kind, but it is 
 to be observed that the Praetor took security for the 
 Sacramentum, which always went into the coffers of 
 the State. 
 
 Such was the necessary preface of every ancient 
 Koman suit. It; is impossible, I think, to refuse as- 
 sent to the suggestion of those who see in it a dra 
 
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864 ANCIENT SUIT IN HOMEB. chai, x 
 
 matizatiou of the origin of Justice. Two armed men 
 are wrangling about some disputed property. The 
 Praetor, vir pietate gravis^ happens to be going by 
 and interposes to stop the contest. The disputants 
 state their case to him, and agree that he shall ai'bi 
 trate between them, it being arranged that the loser, 
 besides resigning the subject of the quarrel, shall pay 
 a sum of money to the umpire as a remuneration 
 for his trouble and loss of time. This interpretation 
 would be less plausible than it is, were it not that, 
 by a surprising coincidence, the ceremony described 
 by Grains as the imperative course of proceeding in a 
 Legis Actio is substantially the same with one of 
 the two subjects which the God Hephaestus is de- 
 scribed by Homer as moulding into the First Com- 
 partment of the Shield of Achilles. In the Homeric 
 trial-scene, the dispute, as if expressly intended to 
 bring out the characteristics of primitive society, is 
 not about property but about the composition for a 
 homicide. One person asserts that he has paid it, 
 the other that he has never received it. The point 
 of detail, however, which stamps the picture as the 
 counterpart of the archaic Roman practice is the re- 
 ward designed for the judges. Two talents of gold 
 lie in the middle, to be given to him w^ho shall ex- 
 plain the grounds of the decision most to the satis- 
 faction of the audience. The magnitude of this sum 
 as compared with the trifling amount of the Sacra- 
 mentum seems to me indicative of the diflferer.ce be- 
 tween fluctuating usage ard usage consolidated into 
 
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^'riA X. ANCIENT VIEW OF PEOCEDURE. 865 
 
 law. The scene introduced by the poet as a striking 
 and characteristic, but still only occasional, feature 
 of city-life in the heroic age has stiffened, at the 
 opening of the history of civil process, into the reg 
 ular, ordinary formalities of a lawsuit. It is natura 
 therefore that in the Legis Actio the remuneration 
 of the Judge should be reduced to a reasonable sum, 
 and that, instead of being adjudged to one of a num- 
 ber of arbitrators by popular acclamation, it should 
 be paid as a matter of course to the State which the 
 Praetor represents. But that the incidents described 
 so vividly by Homer, and by Gaius with even more 
 than the usual crudity of technical language, have 
 substantially the same meaning, I cannot doubt ; and, 
 in confirmation of this view it may be added that 
 many observers of the earliest judicial usages of mod- 
 ern Europe have remarked that the fines inflicted by 
 Courts on offenders were originally sacra/menta. The 
 State did not take from the defendant a composition 
 for any wrong supposed to be done to itself, but 
 claimed a share iu the compensation awarded to the 
 plaintiff simply as the fair price of its time and 
 trouble. Mr. Kemble expressly assigns this charac- 
 ter to the Anglo-Saxon hannum ov fredum. 
 
 Ancient law furnishes other proofs that the ear- 
 liest administrators of justice simulated the probable 
 acts of persons engaged in a private quarrel. In 
 settling the damages to be awarded, they took ag 
 their guide the measure ot vengeance likely to be 
 exacted by an aggrieved person under the circuo"- 
 
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866 OLD ROMAN" LAW OF THEFT. chap. 3 
 
 stances of the case. This is the true explanation of 
 the very different penalties imposed by ancient law 
 on offenders caught in the act or soon after it and on 
 offenders detected after considerable delay. Some 
 strange exemplifications of this peculiarity are sup- 
 plied by the old Roman law of Theft. The Laws 
 of the Twelve Tables seem to have divided Thefts 
 mto Manifest and Non-Manifest, and to have allotted 
 extraordinarily different penalties to the offence ac- 
 cording as it fell under one head or the other. The 
 Manifest Thief was he who was caught within the 
 house in which he had been pilfering, or who was 
 taken while making off to a place of safety with the 
 stolen goods ; the Twelve Tables condemned him to 
 be put to death if he were already a slave, and, if 
 he was a freeman, they made him the bondsman of 
 the owner of the property. The Non-Manifest 
 Thief was he who was detected under any other cir- 
 cumstances than those described ; and the old code 
 simply directed that an offender of this sort should 
 refund double the value of what he had stolen. lu 
 Gaius's day the excessive severity of the Twelve Ta- 
 bles to the Manifest Thief had naturally been much 
 mitigated, but the law still maintained the old princi- 
 ple by mulcting him in fourfold the value of the stolen 
 goods, while the Non-Manifest Thief still continued 
 to pay merely the double. The ancient lawgiver 
 doubtless considered that the injured proprietor, if 
 left to himself, would inflict a very different punish- 
 ment when his blood was hot from that with virhicb 
 
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CHAP. X. ANCIENT MEASURE OF PUNISIUIENT. 361 
 
 be would he satisfied when the Thief was detected 
 after a considerable interval ; and to this calculation 
 the legal scale of penalties was adjusted. The prin- 
 ciple is precisely the same as that followed in the 
 Anglo-Saxon and other Germanic codes, when they 
 suffer a thief chased down and caught with the 
 booty to be hanged or decapitated on the spot, 
 while thf^y exact the full penalties of homicide from 
 an^ body who kills him after the pursuit has been 
 intermitted. These archaic distinctions bring home 
 to ns very forcibly the distance of a refined from a 
 rude jurisprudence. The modern administrator of 
 justice has confessedly one of his hardest tasks before 
 him when he undertakes to discriminate between 
 the degrees of criminality which belong to offences 
 falling within the same technical description. It is 
 always easj^ to say that a man is guilty of man- 
 slaughter, larceny, or bigamy, but it is often most 
 difficult to pronounce what extent of moral guilt he 
 has incurred, and consequently what measure of 
 punishment he has deserved. There is hardly anj 
 perplexity in casuistry, or in the analysis of motiv^ 
 which we may not be called upon to confront, it 
 we attempt to settle such a point with precision ; 
 and accordingly the law of our day shows an in- 
 CI easing tendency to abstain as much as possible 
 from laying down positive rules on the subject. lu 
 France the jury is left to decide whether the offence 
 which it finds committed has been attended by ex- 
 tenuating circumstances ; in England, a nearly uu- 
 
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S68 TRUK CRIMINAL JURISPRUDENCE. chap, a 
 
 bounded latitude in the selection of punishments is 
 now allowed to the judge; while all States have in 
 reser^'e an ultimate remedy for-the miscarriages of 
 law in the Prerogative of Pardon, universally lodged 
 with the Chief Magistrate. It is curious to observe 
 how little the men of primitive times were troubled 
 with these scruples, how completely they were per- 
 suaded that the impulses of the injured person were 
 the proper measure of the vengeance he was entitled 
 to exact, and how literally they imitated the prob- 
 able rise and fall of his passions in fixing their scale 
 of punishment. I wish it could be said that their 
 method of legislation is quite extinct. There are, 
 however, several modern systems of law which, in 
 cases of graver wrong, admit the fact of the w^'ong- 
 doer having been taken in the act to be pleaded in 
 justification of inordinate punishment inflicted on 
 him by the sufferer — an indulgence which, though 
 superficially regarded it may seem intelligible, is 
 based, as it seems to me, on a very low morality. 
 
 Nothing, I have said, can be simpler than the 
 considerations which ultimately led ancient societies 
 to the formation of a true criminal jurisprudence. 
 The State conceived itself to be wronged, and the 
 Popular Assembly struck straight at the offender 
 with the same movement which accompanied its 
 legislative action. It is further true of the ancient 
 world — though not precisely of the modern, as I 
 ■shall have occasion tc point out — that the earliest 
 criminal tribunals were merelv subdndsions, or com- 
 
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oiiAP. X. CRIMINAL JDRISDIOTION OF LEGISLATCTRE. 309 
 
 mittees, of the legislature. This, at all events, is 
 the conclusion pointed at by the legal history of 
 the two great states of antiquity, with tolerable 
 clearness in one case, and with absolute distinctness 
 in the other. The priniitive penal law of Athens 
 'intrusted the castigation of offences partly to th*,' 
 A.rchons, who seem to have punished them as torts^ 
 and partly to the Senate of Areopagus, which pun- 
 ished them as sins. Both jurisdictions were sub- 
 stantially transferred in the end to the Heligea, the 
 High Court of Popular Justice, and the functions of 
 the Archons and the Areopagus became either 
 merely ministerial or quite insignificant. But " He- 
 lisea" is only an old word for Assembly ; theHelisea 
 of classical times was simply the Popular Assembly 
 convened for judicial purposes, and the famous 
 Dikasteries of Athens were only its subdivisions of 
 panels. The corresponding changes which occurred 
 at Rome are still more easily interpreted, because 
 the Romans confined their experiments to the penal 
 law, and did not, like the Athenians, construct pop- 
 ular courts with .i civil as well as a criminal juris- 
 di/'tion. The history of Roman criminal jurispru- 
 dence begins with the Old Judicia Populi, at which 
 the Kings are said to have presided. These were 
 simply solemn trials of great offenders under legis- 
 lative forms. It seems, however, that from an early 
 period the Comitia had occasionally delegated its 
 eriminal jurisdiction to a Qusestio or Commission, 
 which bore much the same relation to the Assemblv 
 24 
 
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Srit THE QU^STIONES. chap, x 
 
 wMch a Committee of the House of Commons bears 
 to the House itself, except that the Roman Commis- 
 sioners or'Qusestores did not merely report to the 
 Comitia, but exercised all powers which that bodj' 
 was itself in the habit of exercising, even to tht 
 passing sentence on the Accused. A Quajstio of 
 this sort was only appointed to try a particulai 
 offender, but there was nothing to prevent two or 
 three Qusestiones sitting at the same time ; and it la 
 probable that several of them were appointed simul- 
 taneously, when several grave cases of wrong to the 
 community had occurred together. There are also 
 indications that now and then these Qusestiones ap- 
 proached the character of our Standing Conimittees, 
 in that they were appointed pei'iodically, and with- 
 out waiting for occasion to arise in the commission 
 of some serious crime. The old Qusestores Parri- 
 cidii, who are mentioned in connection with transac- 
 tions of very ancient date, as being deputed to try 
 (or, as some take it, to search out and try) all cases 
 of parricide and murder, seem to have been appointed 
 regularly every year ; and the Duumviri Perduel- 
 lionis, or Commission of Two for trial of violent 
 injury to the Commonwealth, are also believed by 
 most writers to have been named periodically. The 
 delegations of power to these latter functionaries 
 bring us some way forwards. Instead of being ap 
 pointed when and as state-offences were committed, 
 they had a general, though a temporaiy jurisdiction 
 over such as* tniglit be perpetrated. Our proximity 
 
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DHAP. X. QU.ESTIONES PERPETU^. S7\ 
 
 to a regular criminal jurisprudence is also indicated 
 hj the general terms "Parricidium" and "Perduel- 
 lio," which mark the approach to something like a 
 classification of crimes. 
 
 The true criminal law did not however come 
 into existence till the year b.c. 149, when L, Cal- 
 purnius Piso carried the statute known as the Lex 
 Calpurnia de Repetundis. The law applied to case? 
 Repetundarum Pecuniarum, that is, claims by Pro- 
 vincials to recover monies improperly received by 
 a Governor-General, but the great and permaneuj 
 importance of this statute arose from its establish 
 ing the fii'st Qusestio Perpetua. A Qusestio Perpetua 
 was a Permanent Commission as opposed to those 
 which were occasional and to those which were tem- 
 porary. It was a regular criminal tribunal, whose 
 existence dated from the passing of the statute cre- 
 ating it and continued till another statute should 
 pass abolishing it. Its members were not specially 
 nominated, as were the members of the older Quaes- 
 tiones, but provision was made in the law consti- 
 tuting it for selecting from particular classes the 
 judges who were to officiate, and for renewing them 
 in conformity with definite rules. The offences of 
 which it took cognisance were also expressly named 
 and defined in this statute, and the new Qusestio 
 had authority to try and sentence all persons in 
 future whose acts should fall under the definitions 
 Df crime supplied by the law. It was therefore- a 
 
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373 HISTORY OF OEIMINAL LAW. chap. x. 
 
 regular criminal judicature, administering a true 
 criminal jurisprudence. 
 
 The primitive history of criminal law divides 
 itself therefore into four stages. Understanding 
 that the conception of Crime^ as distinguislied from 
 that of Wrong or Tort and from that of Sin^ in- 
 volves the idea of injury to the State or collective 
 community, we first find that the commonwealth, 
 in literal conformit)^ with the conception, itself inter- 
 posed directly, and by isolated acts, to a'^^enge itself 
 on the author of the evil which it had suffered. 
 This is the point from which we start ; each indict- 
 ment is now a bill of pains and penalties, a special 
 law naming the criminal and prescribing his punish- 
 ment. A -second step is accomplished when the mul- 
 tiplicity of crimes compels the legislature to delegate 
 its powers to particular Qusestiones or Commissions, 
 each of which is deputed to investigate a particular 
 accusation, and if it be proved, to punish the par- 
 ticular offender. Yet another movement is made 
 when the legislature, instead of waiting for the al- 
 leged commission of a crime as the occasion of ap- 
 pointing a Qusestio, periodically nominates Com- 
 missioners like the Qusestores Parricidii and the 
 Duumviri Perduellionis, on the chance of certain 
 classes of crimes being couimitted, and in the expec- 
 tation that they will be perpetrated. The last 
 stage is reached when the Qusestiones from being 
 periodical or occasional become permanent Benches 
 
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OHAP. X. THE QU^STIONES PEEPETTT^. 37? 
 
 or Clianibers — when the judges, instead of being 
 named in the particular law nominating the Cora- 
 mission, are directed to lie chosen through all future 
 time in a particular way and fi-om a particular class 
 ■ — and when certain acts are described in general 
 language and declai-ed to be crimes, to be visited, 
 in the event of their perpetration, with specified 
 penalties appropriated to each description. 
 
 If the Quaestiones Perpetuse had had a longer 
 history, they would doubtless have come to be re- 
 garded as a distinct institution, and their relation to 
 the Comitia would have seemed no closer than the 
 connection of our own Courts of Law with the 
 Sovereign, who is theoretically the fountain of jus- 
 tice. But the Imperial despotism destroyed them 
 before their origin had been completely forgotten 
 and so long as they lasted, these Permanent Com- 
 missions were looked upon by the Romans as the 
 mere depositaries of a delegated power. The cogni- 
 sance of crimes was considered a natural attribute 
 of the legislature, and the mind of the citizen never 
 ceased to be carried back from the Qugestiones to 
 the Comitia which had deputed them to put into 
 exercise some of its own inalienable functions. The 
 view which regarded the Qusestiones, even when 
 they became permanent, as mere Committees of the 
 Pojiular Assembly — as bodies which only ministered 
 to a higher authority — had some important leg^l 
 consequences which left their mark on the criminal 
 law to 1 he very latest period. One immediate result 
 
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874 THEOKY OF THE QU^STIONES. chap, x 
 
 was that the Comitia continued to exercise criminal 
 jurisdiction by way of bill of pains and penalties, 
 long after the Qusestiones had been established. 
 Though the legislature had consented to delegate its 
 powers for the sake of convenience to bodies external 
 to itself, it did not follow that it surrendered them. 
 The Comitia and the Qusestiones went on trying and 
 'punishing offenders side by side; and any unusual 
 outburst of popular indignation was sure, until the 
 extinction of the Republic, to call down upon its 
 object an indictment before the Assembly of the 
 Tribes. 
 
 One of the most' remarkable peculiarities of the 
 institutions of the Republic is also traceable to this 
 dependance of the Quaestiones on the Comitia. The 
 disappearance of the punishment of Death from the 
 penal system of Republican Rome used to be a very 
 favorite topic with the writers of the last century, 
 who were perpetually using it to point some theory 
 of the Roman character or of modern social economy. 
 The reason which can be confidently assigned for it 
 stamps it as purely fortuitous. Of the three forms 
 which the Roman legislature successively assumed, 
 one, it is well known — the Comitia Centuriata — was 
 exclusively taken to represent the State as embodied 
 for military operations. The Assembly of the Cen- 
 turies, therefore, had all powers which may be sup 
 posed to be properly lodged with a General com 
 manding an army, and, among them, it had authority 
 to subject all offenders. to the same correction to 
 
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oTiAP. X. PUNISHMENT OF EEAin. 37? 
 
 which a soldier rendered himself liable by breaches 
 of discipline. The Coniitia.Centuriata could there- 
 fore inflict capital punishment. Not so, however, 
 the Coraitia Curiata or Comitia Tributa. They were 
 fettered on this point by the sacredness with which 
 the person of a Komau citizen, inside the walls of the 
 city, was invested by religion and law; and, with 
 respect to the last of them, the Comitia Tributa, we 
 know for certain that it became a fixed principle that 
 ihe Assembly of the Tribes could at most impose a 
 fine. So long as criminal jurisdiction was confined 
 to the legislature, and so long as the assemblies of 
 the Centuries and of the Tribes continued to exercise 
 co-ordinate powers, it was easy to prefer indictments 
 for graver crimes before the legislative body which 
 dispensed the heavier penalties; but then it hap- 
 pened that the more democratic assembly, that of the 
 Tribes, almost entirely superseded the others, and 
 became the ordinary legislature of the later Repub- 
 lic. Now the decline of the Eepublic was exactly 
 the period during which the Qusestiones Perpetuse 
 were established, so that the statutes creating them 
 were all passed by alegislative assembly which itself 
 could not, at its ordinary sittings, punish a criminal 
 with death. It followed that the Permanent Judicial 
 Commissions, holding a delegated authority, were cir- 
 cumscribed in their attributes and capacities by the 
 limits of the powers residing with the body which 
 deputed them. They could do nothing which the 
 Assembly of the tribes could not have done ; and, as 
 
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o76 PUiSriSIIME^'T OF DEATU. cbAP. t 
 
 the Assembly could not sentence to death, the Qnajs 
 tiones were equally incompetent to award capital 
 punishment. The anomaly thus resulting was not 
 viewed in ancient times with anything like the favour 
 which it has attracted among the moderns, and in 
 deed, while it is questionable whether the Roman 
 chai-acter was at all the better for it, it is certain thai 
 the Roman Constitution was a great deal the worse. 
 Like every other institution which has accompanied 
 the human race down the current of its history, the 
 punishment of death is a necessity of society in cer- 
 tain stages of the civilising process. There' is a time 
 when the attempt to dispense with it baulks both of 
 the two great instincts which lie at the root of all pe- 
 nal law. Without it, the community neither feels that 
 it is sufficiently revenged on the criminal, nor thinks 
 that the example of his punishment is adequate to 
 deter others from imitating him. The incompetence 
 of the Roman Tribunals to pass sentence of death led 
 distinctly and directly to those frightful Revolution- 
 ary intervals, known as the Pioscriptions, dui'iug 
 which all law was formally suspended simply because 
 party violence could find no other avenue to the ven- 
 geance for which it was thirsting. No cause contrib- 
 uted so powerfully to the decay of political capacity 
 in the Roman people as this periodical abeyance of 
 the laws ; and, when it had once been resorted to, we 
 need not hesitate to assert that the ruin of Roman 
 liberty became mei-ely a question of time. If the 
 practice of the Tribunals had afforded an adequate 
 
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OHS.P. X. RESULTS TRACEABLE TO THE QU^ESTIONES. S7T 
 
 vent for popular passion, the forms of judicial pro- 
 cedure would no doubt have been as flagi'antly per- 
 verted as with us in the reigns of the later Stuarts, 
 but national character would not have suffei-ed as 
 deeply as it did, nor would the stability of Komar 
 institutions have been as seriously enfeebled. 
 
 I will mention two more singularities of the Ro- 
 man Criminal System which were produced by the 
 same theory of judicial authority. They are, the ex- 
 treme multiplicity of the Romaii criminal tribunals, 
 and the capricious and anomalous classification of 
 crimes which characterised Roman penal jurispru- 
 dence throughout its entire history. Every QucBstio^ 
 it has been said, whether Perpetual or otherwise, 
 had its origin in a distinct statute. From the law 
 which created it, it derived its authority ; it rigo 
 I'ously observed the limits which its charter pre- 
 scribed to it, and touched no form of criminality 
 which that charter did not expressly define. As then 
 the statutes which constituted the various Qusestionea 
 were all called forth by particular emergencies, each 
 of them being in fact passed to punish a class of acts 
 which the circumstances of the time rendered par- 
 ticularly odious or particularly dangerous, these en- 
 actments made not the slightest reference to each 
 other, and were connected by no common principle. 
 Twenty or thirty different criminal laws were in ex 
 istence together, with exactly the same number of 
 Qusestiones to administer them ; nor was any attempt 
 made during the Republic to fuse these distinct ju- 
 
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878 RESULTS TRACEABLE TO THE QUiESTIOtTES. chap, x 
 
 dicial bodies into one, or to give symmetry to the pro 
 visions of the statutes which appointed them and 
 defined their duties. The state of the Roman crimi- 
 nal jurisdiction at this period, exhibited some resem- 
 blance to the administration of civil remedies in 
 England at the time when the English Courts of 
 Common Law had not as yet introduced those ficti' 
 tious averments into their writs which enabled them 
 to trespass on each other's peculiar province. Like 
 the Qusestiones, the Courts of Queen's Bench, Com- 
 mon Pleas, and Exchequer, were all theoretical 
 emanations from a higher authority, and each enter- 
 tained a special class of cases supposed to be com- 
 mitted to it by the fountain of its jurisdiction ; but 
 then the Roman Qusestiones were many more than 
 three in number, and it was infinitely less easy to 
 discriminate the acts which fell under the cognisance 
 of each Qusestio, than to distinguish between the pro- 
 vinces of the three Courts in Westmnister Hall. 
 The difficulty of drawing exact lines between the 
 spheres of the different Qusestiones made the multi- 
 plicity of Roman tribunals something more than a 
 mere inconvenience ; for we read with astonishment 
 that when it was not immediately clear under what 
 general description a man's alleged offence ranged 
 themselves, he might be indicted at once, or suc- 
 cessively before several different Commissions, oa 
 the chance of some of them declaring itself compe- 
 tent to convict him ; and, although conviction by one 
 Qussstio ousted the jurisdiction of the rest, acquittal 
 
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CHAP. X. CLASSIFIUATI0N8 OF CRfMES. 379 
 
 by one of them could not be pleaded to an accusa- 
 tion })efore another. This was directly contrary to 
 the rule of the Rdman civil law ; and we may be sure 
 that a people so sensitive as the Eoraans to anomalies 
 (or, as their significant phrase was, to inelegancies) 
 in jurisprudence, would not long have tolerated it, 
 had not the melancholy history of the Qusestiones 
 caused them to be regarded much more as temporary 
 weapons in the hands of factions than as permanent 
 institutions flbr the correction of crime. The Empe 
 rors soon abolished this multiplicity and conflict of 
 jurisdiction ; but it is remarkable that they did not 
 remove another singularity of the criminal law which 
 stands in close connection with the number of the 
 Courts. The classifications of crimes which are con- 
 tained even in the Corpus Juris of Justinian are re- 
 markably capricious. Each Qusestio had, in fact, 
 confined itself to the crimes committed to its cogni- 
 sance by its charter. These crimes, however, were 
 only classed together in the original statute because 
 they happened to call simultaneously for castigation 
 at the moment of passing it. They had not therefore 
 anything necessarily in common ; but the fact of 
 their constituting the particular subject-matter of 
 trials before a particular Qusestio impressed itself nat- 
 urally on the public attention, and so inveterate did 
 the association become between the offences men- 
 tioned in the same statute that, even when formal 
 attempts were made by Sylla and by the Emperor 
 Augustus to consolidate the Eoman criminal law, the 
 
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580 LATER LAW OF CEIMES. chap. x. 
 
 legislator preserved the old grouping. The Statutes 
 of Sylla and Augustus were the foundation of the 
 penal jurisprudence of the Empire, and nothing can 
 be more extraordinary than some of the classifications 
 which they bequeathed to it. I need only g±ve a 
 single example in the fact that perjury was always 
 classed with Guttv^.g and wounding and with poison- 
 ing^ no doubt because a law of Sylla, the Lex Cor- 
 nelia de Sicariis et Veneficis, had given jurisdiction 
 over all these three forms of crime to the same Per- 
 manent Commission. It seems too that this capricious 
 grouping of crimes affected the vernacular speech of 
 the Romans. People naturally fell into the habit of 
 designating all the offences enumerated in one law by 
 the first name on the list, which doubtless gave its 
 style to the Law Court deputed to try them all. All 
 the offences tried by the Qusestio De Adulteriis 
 rt^ould thus be called Adultery. 
 
 I have dwelt on the history and characteristics of 
 the Eoman Qusestiones because the formation of a 
 criminal jurisprudence is nowhere else so instructive- 
 ly exemplified. The last Qusestiones were added by 
 the Emperor Augustus, and from that time the Ro- 
 mans may be said to have had a tolerably complete 
 criminal law. Concurrently with its growth, the an- 
 alogous process had gone on, which I have called the 
 conversion of Wrongs into Crimes, for, though the 
 Roman legislature did not extinguish the civil rem- 
 edy for the more heinous offences, it offered the suf- 
 ferer a redress which he was sure to prefer. Still, 
 
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OBAP. i. LATER LAW OF CEIMES. R81 
 
 even after Augustus had completed his leg slation, 
 several offences continued to be regarded as Wrongs, 
 which modern societies look upon exclusively a,« 
 crimes; nor did they become criminally punishabl-^". 
 till some late but uncertain date, at which the la\^ 
 1 legan to take notice of a new description of offences 
 called in the Digest crimina extraordinaria. These 
 were doubtless a class of acts which the theory of 
 Roman jurisprudence treated merely as wrongs ; but 
 the growing sense of the majesty of society revolted 
 from their entailing nothing worse on their perpetra^ 
 tor than the payment of money damages, and accord- 
 ingly the injured person seems to have been permit- 
 ted if he pleased, to pursue them as crimes extra ordi- 
 nem, that is, by a mode of redress departing in some 
 respect or other from the ordinary procedure. From 
 the period at which these crimina extraordinaria 
 were first recognised, th*. list of crimes in the Ro- 
 man s^tates must haveieen as long as in any com- 
 munity of the modern world. 
 
 It is unnecessary to describe with any minuteness 
 the mode of administering criminal justice under the 
 Roman Empire, but it is to be noted that both its 
 theory and practice have had powerful effect on 
 modern society. The Emperors did not immediately 
 abolish the Qusestiones, and at first they committed 
 an extensive criminal jurisdiction to the Senate, in 
 which, however servile it might show itself in fact, 
 the Emperor was no more nominally than a Senator 
 like the rest. But some sort of collateral crimina] 
 
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033 SOVEEEIGN THE FOUNTAIN OF JUSTICE. chap, x 
 
 jurisdiction had been claimed by the Prince from the 
 first ; and this, as recollections of the free common- 
 wealth decayed, tended steadily to gain at the ex 
 pense of the old tribunals. Gradually the punish- 
 ment of crimes was transferred to magistrates directly 
 nominated by the Emperor, and the privileges of 
 the Senate passed to the Imperial Privy Council, 
 which also became a Court of ultimate criminal ap- 
 peal. Under these influences the doctrine, familiar 
 to the moderns, insensibly shaped itself that the 
 Sovereign is the fountain of all Justice and the de- 
 positary of all Grace. It was not so much the fruit 
 of increasing adulation and servility as of the central- 
 isation of the Empire which had by this time per- 
 fected itself. The theory of criminal justice had, in 
 fact, worked round almost to the point from which 
 it started. It had begun in the belief that it was 
 the business of the collective community to avenge 
 its own wrongs by its own hand ; and it ended in 
 the doctrine that the chastisement of crimes belonged 
 in an especial manner to the Sovereign as represent- 
 ative and mandatary of his people. The new view 
 differed from the old one chiefly in the air of awful- 
 ness and majesty which the guardianship of justice 
 appeared to throw around the pei-son of the Sove- 
 reign. 
 
 This later Eoman view of the Sovereign's rela- 
 tion to justice certainly assisted in saving modern 
 societies from the necessity of travelling through the 
 eeries of changes which I have illustrated by the 
 
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CHAP. X. MODEKN HISTORY OF CRIMES. 383 
 
 history of the Qusestiones. In the primitive law of 
 almost all the races which have peopled Western 
 Europe there are vestiges of the archaic notion that 
 the punishment of crimes belongs to the general 
 asseuibly of freemen ; and there are some States- 
 Scotland is said to be one of them — in which the 
 parentage of the existing judicature can be traced 
 up to a Committee of the legislative body. But the 
 development of the criminal law was universally 
 hastened by two causes, the memory of the Koman 
 Empire and the influence of the Church. On the 
 one hand traditions of the majesty of the Caesars, 
 perpetuated by the temporary ascendency of the 
 House of Charlemagne, were surrounding Sovereigns 
 with a prestige which a mere barbarous chieftain 
 could never otherwise have acquired, and were com- 
 municating to the pettiest feudal potentate the char- 
 acter of guardian of society and representative of 
 the State. On the other hand, the Church, in its 
 anxiety to put a curb on sanguinary ferocity, sought 
 about for authority to punish the graver misdeeds, 
 and found it in those passages of Scripture which 
 speak with approval of the powers of punishment 
 committed to the civil magistrate. Th-e New Tes 
 tanient was appealed to as proving that secular 
 rulers exist for the terror of evil-doers; the Old 
 Testament, as laying down that " whoso sheddeth 
 man's blood, by man shall his blood be shed.'" 
 There can be no doubt, I imagine, that modern ideas 
 on the subject of crime are based upon two assump- 
 
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384 DOCTRINE OF THE CHURCH AS TO CRIMES, oeap. x 
 
 tions contended for by the Church in the Dart 
 Ages — first, that each feudal ruler, in his degree, 
 might be assimilated to the Roman Magistrates 
 spoken of by Saint Paul ; and next, that the of 
 fences which he was to chastise were those selected 
 for prohibition in the Mosaic Commandments, or 
 rather such of them as the Church did not reserve 
 to her own cognisance. Heresy, supposed to be in- 
 cluded in the First and Second Commandments, 
 Adultery and Perjury were ecclesiastical offences, 
 and the Church only admitted the co-operation of 
 the secular arm for the purpose of inflicting severer 
 punishment in cases of extraordinary aggravation. 
 At the same time, she taught that murder and 
 robbery, with their various modifications, were un- 
 der the jurisdiction of civil rulers, not as an accident 
 of their position, but by the express ordinance of 
 God. 
 
 There is a passage in the writings of King Alfred 
 (Kemble, ii. 209) which brings out into remarkable 
 clearness the struggle of the various ideas that pre- 
 vailed in his day a* to the origin of criminal juris- 
 diction. It will be seen that Alfred attributes it 
 partly to tl^'^ authority of the Church and partly to 
 that of the Witan, while he expressly claims for 
 treason against the lord the same immunity from 
 ordinary rules which the Roman Law of Majestas 
 uad assigned to treason against the Caesar. " After 
 this it happened," he writes, " that many nations 
 received the faith of Christ, and there were many 
 
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31IAP. X. KTifii ALFRED OJS CRIMINAL JUKISDIOTIOJS). 8b6 
 
 syuods assembled throughout the earth, and among 
 the English race also after they had received the 
 faith of Christ, both of holy bishops and of their 
 exalted Witan. They then ordained that, out of 
 that mercy which Christ had taught, secular lords, 
 '<pith their leave, might without sin take for every 
 misdeed the iot in money which they ordained ; ex- 
 cept in cases of treason against a lord, to which they 
 dared not assign any mercy because Almighty God 
 adjudged none to them that despised Him, nor did 
 Christ adjudge any to them which sold Him to 
 death ; and He commanded that a lord should be 
 loved like Himself.'* 
 
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Il^DEX. 
 
 ADOPTION. 
 
 Adoption, fiction of, 125. 
 
 . influence of the satra gentilicia 
 
 on the law of, 6, 26. 
 
 in Hindoo law, 188. 
 
 Adpreheusio ; or assumption of sove- 
 reign power in a newly discovered 
 country, 241. 
 
 iEquitas, the term, 56. See Equity. 
 
 .^quus, the word, 56. 
 
 Agnatic and cognatic relationship, 
 difference between, 66, 141. 
 
 Agnation described, 142, 143. 
 
 Agreement, Roman analysis of, S12. 
 
 Agri vectigales, Eoman practice of 
 letting out, 290. 
 
 liraitrophi of the Romans on the 
 
 banks of the Rhine and Dan- 
 ube, 292. 
 
 Alexander the Sixth, Pope, his Bull, 
 242. 
 
 Alfred, King, his remarks on criminal 
 jurisdiction, quoted, 384. 
 
 Alienation of property, ancient diffi- 
 culties of, 262. 
 
 archaic ceremonies of, 264. 
 
 Allodial property, of the ancient Ger- 
 mans, 221, 273. 
 
 America, United States of. Declaration 
 of Independence of, 91. 
 
 Anglo-Saxons, character of their King- 
 ship, 104. 
 
 their law of succession, 271. 
 
 their penal law, 368, 361, 367. 
 
 Archon of Athens, office of the, 9. 
 
 .iristoeracies, origin of the rule of, 9. 
 
 those of Greece, Italy, and Asia 
 
 Minor, 9. 
 
 difference between those of the 
 
 East and West, 10, 11. 
 
 -— aristocracies the depositaries and 
 administrators of the law, 1 1 . 
 
 BONORUM 
 
 Aristocracies, importance >f jt lieial, 
 
 before the invention of 'irritii-g, 12, 
 
 foundation of aristocracies, 127. 
 
 Aristotle, his "Treatise on Rhetoric" 
 
 referred to, 72. 
 Assignees in Bankruptcy, succession 
 
 of, 176. 
 Athenian wills, 190. 
 Athens, primitive penal law of, 369. 
 Augustus, the Emperor, his alterations 
 
 in the Roman Law, 39, 40. 
 Austin's "Province of Jurisprudence 
 
 Determined," referred to, 6. 
 
 Bayle referred to, 84. 
 
 Benefices of the invading chiefs of the 
 
 Roman Empire, 222. 
 transformation of the Benefice 
 
 into the hereditary Fief, 223. 
 Bengalee Wills, 191. 
 Bentham, his "Fragment on Govern 
 
 ment " referred to, 6. 
 causes of his influence in Eng 
 
 land, 75. 
 the Roman counterpart of Ben 
 
 thamism, 76. 
 
 his theory of Jurisprudence, 113. 
 
 his eulogy of the Bull of Pope 
 
 Alexander the Sixth, 242. 
 Bentham and Austin's rules as to 
 
 the essentials of a contract 
 
 312, 313. 
 Blackstone, Sir William, his theory of 
 
 the first principles of law, 110. 
 his justification for the exclusion 
 
 of the half-blood, 146. 
 his theory of the origin of pro- 
 perty quoted, 244. 
 
 his theory criticised, 246. 
 
 Bonornm Possessio i' the Romani 
 204, 205. 
 
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B88 
 
 INDEX. 
 
 BEACTON 
 
 Bractou, bis Plagiarisms, 79. 
 Burgundians, the, referred to, 100. 
 
 CsEsar, Julius, his contemplated addi- 
 tions to the Roman Statute Law, 40. 
 
 Capet, Hugh, character of his sove- 
 reignty, 104. 
 
 Capture in War, sources of the modern 
 International Law of, 239. ■ 
 
 ancient Law of,, 240. 
 
 Caracalla, effect of his constitution in 
 enlarging the Patria Potestas, 139. 
 
 Casuists, the, 888. 
 
 — — comparison of their system with 
 that of Grotius and his school, 
 389. 
 
 ■ origin of Casuistry, 340. 
 
 blow struck at Casuistry by Pas- 
 cal, 341. 
 
 Cessio in Jure of Property, in Roman 
 and in English Law, 279. 
 
 Cestui que Trust, special proprietor- 
 ship created for the, 285. 
 
 Chancellor, the Lord, compared with 
 a Roman PrEetor, 61, 62. 
 
 Chancery, Court of, in England, re- 
 marks on the, 42. 
 
 origin of its system, 42, 43. 
 
 Charlemagne, his claim to uniTersal 
 dominion, 102. 
 
 his distribution of Benefices, 222. 
 
 Children, disinherison of, under the 
 Romans, 209. 
 
 China, cause of the arrest of progress 
 in, 24. 
 
 Churches, Ea-stern and Western, con- 
 clusions of the East on theological 
 subjects accepted by the West with- 
 out dispute or review, 344. 
 
 • prolilems of the Western Church, 
 
 345. 
 
 Cieero referred to, 58. 
 
 hie allusions to the ancient Ro- 
 man Sacra^ 187. 
 
 Code Napoleon, restraints imposed by 
 it on the testamentary power, 171. 
 
 Codes, Ancient, 1. 
 
 sources of knowledge afforded by 
 
 the Greek Homeric poems, 2. 
 
 Themistes, 3, 4. 
 
 Hindoo Laws of Menu, 5. 
 
 difference between Case-law and 
 
 Code-law, 13. 
 
 — — era of Codes, 13. 
 
 the Twelve Tables, 1, 2, 13. 
 
 the Codes of Solon and Draco, 13. 
 
 COVTKAIT 
 
 Codes, importance of Codes to ancient 
 societies, 15—18. 
 
 Co-emption, or higher form of civil 
 marriage of the ancient Romans, 
 149. 
 
 Cognatic relationship described, lil, 
 142. 
 
 Co-heirs, rights and duties of, 176. 
 
 rights of, under the Roman Law 
 
 220. 
 
 Coloni of the Romans, 224. 
 
 origin and situation of the, 290. 
 
 Comitia Calata, ancient Roman execu- 
 tion of Wills in the, 193. 
 
 end of the, 197. 
 
 Comitia Centuriata, power of the, 374. 
 
 Curiata, powers of the, 375. 
 
 Tributa, powers of the, 375. 
 
 Commentaries of the Roman lawyers, 
 34. 
 
 Common law of England, formerly -in 
 unwritten law, 12. 
 
 difference between Case-law and 
 
 Code-law, 13. 
 
 Case-law and its anomalies 30. 
 
 similarity between English Case- 
 law and the Responsa Pruden 
 turn of the Romans, 32. 
 
 Confarreation, or religious marriage 
 of the ancient Romans, 149. 
 
 Constantino, the Emperor, his improve 
 ments in the Law, 41. 
 
 his modification of the Patria 
 
 Potestas, 138. 
 
 Contract,, movement of societies from 
 Status to, 1 64. 
 
 early history of, 295. 
 
 Contract and Political Economy, 
 
 296. 
 
 Rousseau's doctrine of an original 
 
 Social Contract, 299. 
 
 Montesquieu's apologue of the 
 
 Troglodytes, 301. 
 
 ■ early notions of Contract, 303. 
 
 Roman Contracts, 304, 305. 
 
 speciaUsing process in ancient 
 
 law, 306. 
 
 historical alliance between Con- 
 tracts and Conveyances, 308. 
 
 changes in the Nexum, 308. 
 
 Executory Contracts of Sale, 
 
 311. 
 
 primitive association of Convey 
 
 ances and Contracts, 311. 
 
 ancient and modern doctrine of 
 
 Contracts 313. 
 
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INDEX. 
 
 389 
 
 CONTRACT 
 
 Contract, the Eoman Obligation, 813. 
 Roman classification of Con- 
 tracts, 315. 
 
 the Verbal Contract, 318. 
 
 the Literal or Written Contract, 
 
 320. 
 
 the Real Contract, 321. 
 
 .Consensual Contracts, 322. 
 
 changes in Contract law, 326, 
 
 327. 
 history of the progress of Con- 
 tract law, 327. 
 
 Quasi-Can tracts, 332. 
 
 Contract law and Fiefs, 352. 
 
 Conveyances, relation of Wills to, un- 
 der the Roman Law, 197. 
 
 consequence of this relation, 
 
 199. 
 
 remedies, 200. 
 
 historical alliance between Con- 
 tracts and Conveyances, 308. 
 Co-ownership of property, amongst 
 the Hindoos, 252, 253. 
 
 regarded by the Roman Law as 
 
 exceptional and momentary, 
 263. 
 Corporations aggregate, 181. 
 
 sole, leading attribute of, 181. 
 
 " Corpus Juris Civilia " of Justinian, 65 
 
 ' resorted to by English Chancery 
 
 judges, 42. 
 Creation, Greek philosophical expla- 
 nation of the fabric of, 62. 
 Cr'editors, cause of the extravagant 
 powers given to, by ancient laws, 
 31]. 
 Crimes and Wrongs. See Delict and 
 
 Crime. 
 Croatia, co-ownership of the villagers 
 
 of, 259. 
 Curatores of male Orphans under the 
 
 Roman Law, 156. 
 Curse, inherited, Greek notion of an, 
 
 123. 
 Customary Law, 5. 
 
 Homeric terms for customs, 5. 
 
 origin of customary law, 8. 
 
 epoch of customary law and its 
 
 custody by a privileged order, 
 12. 
 Cyclops, Homer's account of, quoted, 
 120. 
 
 Death, disappearance of, from the 
 penal i.ystsm of republican Rome, 
 874. 
 
 DRACO 
 
 Death, causes for this, 374, 375. 
 
 death-punishment a necessity in 
 
 certain stages of society, 376. 
 
 Debtors, cause of the severity of an- 
 cient laws against, 311. 
 
 Decretals, forged, motives of the au- 
 thor of the, 79. 
 
 Delict and Crime, early history of, 356. 
 
 Penal law in ancient codes, 36b. 
 
 Delict and Crime, Crimes and Wrongs, 
 ci-imina and delicta, 358. 
 
 and Crime, Furtum or Theft of 
 
 the Roman Law, 858, 366. 
 
 Wrongs and 8ins both known to 
 
 primitive jurisprudence, 359. 
 
 difference between the ancient 
 
 and modern conception of 
 Crime, 'H'd. 
 
 the Roman Legis Actio Sacra- 
 
 menti, 363. 
 
 Homer's description of an ancient 
 
 law-suit, 365. 
 
 primitive penal law of Athens, 
 
 369. 
 
 old Roman criminal jurispru- 
 dence, 369. 
 
 the Qusestiones, 369, 370. 
 
 I Quaestores Parricidii, 370. 
 
 Duumviri Perduelliouis, 370. 
 
 the first true Eoman Criminal 
 
 law, 371. 
 
 the primitive history of criminal 
 
 law, 372. 
 
 extreme multiplicity of Roman 
 
 criminal tribunals, 377. 
 
 capricious classification of crimes, 
 
 379. 
 
 statutes of Sylla and Augustus, 
 
 380. 
 
 later law of crimes, 881. 
 
 crimina extraordinaria, 381. 
 
 mode of administering criminal 
 
 justice imder the Roman Em- 
 pire, 382. 
 
 modern history of crimes, 384. 
 
 King Alfred on criminal jurisdic- 
 tion quoted, 3S4. 
 
 Discovery, considered as a mode of 
 acquiring dominion, 241. 
 
 Dominion, its nature, limitation, and 
 mode of securing it, 98. 
 
 of the Romans, 307. 
 
 Dower, the principle of, engrafted on 
 the Customary Law of Western Eu. 
 rope, 218. 
 
 Draco, rudeness of the Code of, IS 
 
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390 
 
 INDEX. 
 
 DEACO 
 
 Draco, pei.al laws of, 355 
 Dumoulin referred to, 82. 
 Dumont's " Sophismea Anarchiques," 
 
 remarks, 88. 
 Duumviri Perduellionis, the, 370. 
 
 Edict of the Roman Praetor, 39, 64, 
 60, 61, 63, 203, 284. 
 
 Egypt, Modern, rule of auocossion to 
 the throne of, 235. 
 
 Eldon, Lord, his Chancellorship, 66. 
 
 Elphinstone's "History of India" 
 quoted, 235. 
 
 Emphyteusis, system of, 289, et seg. 
 
 rights of the Emphyteuta, 291. 
 
 Emptor Familiaa. See Familise Emp- 
 tor. 
 
 England, the Land-law of, at the pres- 
 ent time, 220. 
 
 English Common Law, formerly an 
 unwritten h.w, 12. 
 
 law, hesitation of our Courts in 
 
 declaring principles of, 38. 
 
 Equality of men, doctriiie of the, 88. 
 
 as understood by the Eoman ju- 
 risconsults, 89. 
 
 its meaning in its modem dress, 
 
 89. 
 
 ordinance of Louis Hutin quoted, 
 
 90. 
 
 declaration of American Inde- 
 pendence, 91. 
 
 —^ assumption of the Grotian school, 
 91. 
 
 Equity, early history of, 24. 
 
 equity considered as an agent by 
 
 which the adaptation of law to 
 social wants is carried on, 2Y. 
 
 meaning of the term equity, 27. 
 
 difference between equity and 
 
 legal fictions, 27. 
 between equity and leg- 
 islation, 27, 28. 
 
 remarks on the law of nature and 
 
 equity, 42, et seg. 
 
 the English Court of Chancery, 
 
 42. 
 
 origin of its system, 42, 43. 
 
 the equity of Eome, 43. 
 
 origin and history of the term 
 
 " Equity," 55. 
 the terms jilquitas and 'lo-drris, 
 55. 
 
 picture presented to the Roman 
 
 mind by the word "Eouity," 
 67. 
 
 FICTIONS 
 
 Equity, the English Chancelloi com 
 
 pared with the Roman Prsetjr, 62 
 
 exhaustion ot the power of 
 
 growth in Roman Equity, 65. • 
 features common to English and 
 
 Roman Equity, 65, et seq. 
 distinction between Law and 
 
 Equity in their conceptions of 
 
 proprietary right, 284. 
 Ethics, obligations of, to the Roman 
 Law, 336. 
 
 the Casuists', 338. 
 
 Grotius and his school, 339. 
 
 Familia, meaning of, in the language 
 
 of the ancient Roman Law, 201. 
 Familise Emptor, otBceof the, 199. 
 
 rights and duties of the, 199. 
 
 remarks on the expression Fa- 
 
 miliiE Emptor, 201. 
 Family, the, of Archaic society, 128. 
 
 disintegration of the Family, 163. 
 
 regarded as a corporation, 179. 
 
 organisations of elementary com- 
 munities, 227. 
 
 Highland chieftainship, 227. 
 
 Families, not Individuals, known 
 
 to ancient law, 250, 
 Indian, Russian, Croatian, and 
 
 Sclavonian laws respecting the 
 
 property of Families, 252-261. 
 Feudal view of the ownership of prop- 
 erty, 286. 
 Feudal services, 294. 
 Feudalism, its connection with territo- 
 rial sovereignty, 102. 
 
 feudal organisation, 102, 103. 
 
 the modern Will an accidental 
 
 fruit of, 217, 218. 
 Feudalism and Contract law, 
 
 353. 
 Fictions, legal, 20, 22. 
 
 early history of, 22. 
 
 meaning of fictio in old Roman 
 
 Law, 24. 
 
 object of the ficliones, 25. 
 
 instances cited from the English 
 
 and Roman Law, 25. 
 their former importance and 
 
 modern uselessness, 26, 27. 
 difference between legal fictions 
 
 and equity, 27. 
 and between legal fictions and 
 
 legislation, 28. 
 
 instances of legal fictions, SO. 
 
 Case-law and its anomalies, SO. 
 
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INDEX. 
 
 3Di 
 
 TIDEI-COMMISSA 
 
 Pidei-Commissa, or Bequests in Trust, 
 
 of the Eomaii Law, 217. 
 Fiefs, hereditary, gradual transforma- 
 tion of Beiieiicesinto, 223. 
 
 original tenures, 223, 224. 
 
 laws of fiefs, 353. 
 
 Foreigners, causes of immigration of, 
 
 into ancient Rome, 44, 45. 
 exclusion of, under the early Ro- 
 man republic, 46. 
 France, lawyers and judicial science 
 of, 11, et seq. 
 
 effects of the alliance between 
 
 the lawyers and the kings, on 
 the fortunes of, 77, 78. 
 
 difference between the Pays du 
 
 Droit Coutumier and the Pays 
 duDroit Ecrit, 81. 
 
 pre-eminence given in France to 
 
 Natural Law, 82. 
 
 Rousseau. 84. 
 
 the Revolution, 88. 
 
 Franks, the, referred to, 100. 
 
 Roman institution of the Patria 
 
 Potestas not known to the, 138. 
 Freewill and Necessity, question of, 
 
 unknown to the Greeks, 295. 
 Furtum, or Theft, of the Roman Law, 
 358. 
 
 Gains referred to, 50. 
 
 his description of the institution 
 
 of the Patria Potestas, 131. 
 
 his information respecting the 
 
 Perpetual Tutelage of Women, 
 148. 
 
 on the duplication of proprietary 
 
 right, referred to, 286. 
 
 Galatse, the Patria Potestas of the, 131. 
 
 Gens, or House,' of the Romans com- 
 pared with the Village Community 
 of India, 256. 
 
 Gentiles, Roman, their rights in cases 
 of Intestate Succession, 214. 
 
 German law of Succession, 271. 
 
 Germans, Wills of the ancient, 190, 
 192. 
 
 penal laws of the, 3 . 
 
 Patria Potestas of, 138. 
 
 primitive property of, 192. 
 
 the ancient law of allodial prop- 
 erty, 221. 
 
 "Germany" of Tacitus, itsvatne, 116. 
 
 suspicions as to its fidelity, 117. 
 
 allodial property of, 272. 
 
 Greece, aristocracies of, 10. 
 
 niNDOO 
 
 Greek theory of a Law of Nature, BOi 
 51. 
 
 Greeks, equality of laws on which thej 
 prided themselves, 56. 
 
 their tendency to confound law 
 
 and fact, 72. 
 
 their notion of an inherited curse, 
 
 123. 
 
 assistance afforded by, in the for- 
 mation of the Roman codes, 
 14. 
 
 limited Patria Potestas of the, 
 
 131, 132. 
 
 metaphysics of the, 343, 344. 
 
 their want of capacity for pro- 
 ducing a philosophy of law, 343. 
 
 Grote, Mr., his " History of Greece," 
 referred to, 4, 9. 
 
 Grotius, Hugo, and his successors, on 
 International law, 92. 
 
 his doctrines, 96. 
 
 success of his treatise " De Jure 
 
 Belli etPacia," 107. 
 
 his theory of a Natural State and 
 
 of a system of principles con- 
 genial to it, 110. 
 
 his moral philosophy and that of 
 
 his school, 339. 
 
 comparison of his system with 
 
 that of the Casuists, 340. 
 
 Guardianship, Perpetual of women, 
 under the Roman Law, 148. 
 
 amongst the Hindoos, 148. 
 
 amongst the Scandinavians, 148. 
 
 HEe.reditas, or Inheritance, definition, 
 
 175. 
 Hasres or Heir, his rights and duties, 
 
 176, 184, 220. 
 Half-blood relationship, 146. 
 the rule according to the customs 
 
 of Normandy, 146. 
 Haus-Gesetze of Germany, 225. 
 Heirs, rights of, under the Roman 
 
 Law, 127,_ 184, 220. 
 Highland chieftainship hereditary, 227. 
 
 form of Primogeniture, 283. 
 
 Hindoo laws of Menu, 5, 16, 17. 
 
 Customary Law, 6. 
 
 law of Succession, 271. 
 
 differenee between Inheritances 
 
 and Acquisitions, 272. 
 Perpetual Tutelage of Women 
 
 amongst the, 147. 
 right amongst the, to inherit a 
 
 dead man's property, 186. 
 
 Digitized by Microsoft® 
 
892 
 
 INDEX. 
 
 HINDOO 
 
 Hindoo, the Hindoo saa-a, 186. 
 
 the Suttee, 187. 
 
 the place of Wills amongst the 
 
 Hindoos occupied by Adop- 
 tions, 187. 
 — — rights of the first-born son 
 amongst the, 221. 
 
 primogeniture of the Hindoos in 
 
 public office or political power, 
 but not in property, 226. 
 Hindoos, form of Ownership of Prop- 
 erty amongst the, — the Village Com- 
 munity, 252. 
 
 Co-ownership, 253. 
 
 simplest form of the Village 
 
 Community, 254, 257. 
 
 Acquisitions of Property and 
 
 Inheritances, Hindoo distinc- 
 tion between, 272. 
 Hobbes, his theory of the origin of 
 
 law, 110. 
 Homer, his account of the Cyclops 
 
 quoted, 120. 
 his description of an ancient law- 
 suit, 365. 
 Homeric poems, rudimentary jural 
 ideas afforded by the, 2, 3. 
 
 Themis and Themistes, 4. 
 
 Homeric words for Custom, 5. 
 
 India, heroic and aristocratic eras of 
 the races of, 9, 10. 
 
 laws of Menu, 5, 16, \1. 
 
 Customary law of, 6. 
 
 stage beyond which India has 
 
 not passed,. 22. 
 
 Inheritance a form of universal suc- 
 cession, 172. 
 
 ■ Koman definition of an Inherit- 
 ance, 176. 
 
 old Roman law of, 188. 
 
 ' and Acquisition, Hindoo differ- 
 ences between, 272. 
 
 Injunction of the Court of Chancery, 
 284. 
 
 Institutes of the Roman lawyers, 34. 
 
 International Law, modern confusion 
 between it and J us Gentium, 60. 
 
 function of the Law of Nature in 
 
 giving birth to modern Inter- 
 national Law, 92. 
 
 - — postulates forming the founda- 
 ti OT of International Law, 92. 
 
 Grotius and his successors, 92. 
 
 Dominion, 98. 
 
 • territorial Sovereignty, 99. 
 
 .niS WATCEALE 
 
 International Law, the aute-Orotiau 
 
 system of the Law of Nations, 105. 
 
 preparation of the public mind 
 
 for the reception of the Gro- 
 
 tian system, 106. 
 success of the treatise " De Jure 
 
 Belli et Pacis," lii7. 
 points of junction between mod 
 
 ern pubUc law and territorial 
 
 sovereignty, lo8. 
 sources of the mode in case ot 
 
 Capture in War, 44. 
 Intestacy. See Succession, Intestate. 
 'luiJTijs, the Greek principle of, 56, 68. 
 Italy, aristocracies of, 9. 
 
 codes of, 16. 
 
 instability of society in ancient, 
 
 45. 
 territorial sovereignty of princes 
 
 of, 103. 
 
 Jews, WiUs of the, 191. 
 
 Julianus, Salvius, the Praetor, hie 
 Edict, 61. 
 
 effect of his measures on the 
 
 Praatorian Edicts, 63. 
 
 Jurisconsults, early Roman, 36-38. 
 
 later, 40. 
 
 Natural Law of the, 73. 
 
 Jurisprudence, golden age of Roman, 
 55. 
 
 Jurists, Roman, period of, 63, 65. 
 
 Jus Gentium, origin of, 45, et seg. 
 
 circumstances of the origin of, 
 
 48. 
 
 how regarded by a Roman, 49 
 
 ■ and by a modern lawyer, 49. 
 
 difference between the Jus Gen- 
 tium and the Jus Naturale, 50, 
 51. 
 
 point of contact between the old 
 
 Jus Gentium and the Jus Nat- 
 urale, 55. 
 
 difference between the Jus Gen- 
 tium and the Quiritarian Law, 
 66. 
 
 -^— influence of the, on modern civ- 
 ilisation, 99. 
 
 Jus Feciale, or International Law of 
 the Romans, 50. 
 
 Jus Naturale, or Law of Nature, 50. 
 
 difference between the Jus Natu- 
 rale and the Jus Gentium, 50. 
 
 Greek conceptions of Nature and 
 
 her law, 61. 
 
 point of contact between the old 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 39S 
 
 JUS NATURALE 
 
 Jus Gentium and the Law of 
 Nature, 55. 
 
 Jug Naturale, modern history of the 
 Law of Nature, 70. 
 
 Natural law of the Roman Juris- 
 consults, 73. 
 
 ancient counterpart of Bentham- 
 ism, 76. 
 
 vastness of the influence of the 
 
 Law of Nature on modern so- 
 ciety, 76. 
 
 history of the Law of Nature, 
 
 77, et seg. 
 
 pre-eminence given to Natural 
 
 law in France, 82. 
 
 its condition at the middle of the 
 
 18th century, 83. 
 
 Rousseau, 84. 
 
 the French Revolution, 86. 
 
 —^ equality of men, 89 
 
 function of the Law of Nature in 
 
 giving birth to modern Inter- 
 national Law, 92. 
 sources of the Modern Interna- 
 tional Law of Capture in War, 
 239. 
 
 Justinian's " Institutes " quoted, 44. 
 
 referred to, 55. 
 
 "Pandects" of, 64. 
 
 ^^— " Corpus Juris Civilis " of, 65. 
 
 his modifications of the Patria 
 
 Potestas, 138. 
 
 his scale of Intestate Succession, 
 
 213.« 
 
 Kings, origin of the doctrine of the 
 
 divine right of, 334. 
 Kingship, heroic, origin of, 9. 
 
 Lacedaemonian kipgs, authority of the, 
 
 9. 
 Land-law of England at the present 
 
 day, 220. 
 Land and goods, English distinction 
 
 between, 274. 
 Latlfundia, Roman mode of cultivating 
 
 the, 289. 
 Law, social necessities and opinions 
 
 always in advance of, 23. 
 >— agencies by which law is brought 
 into harmony with society, 24. 
 -^— ancient, lOf. 
 
 — — theories of a natural state and of 
 a system congenial to it, 109. 
 
 Grotiua, Blackstone, Locke, and 
 
 Hobbes, 110. 
 
 MEROVING IN 
 
 Law, theory of Montesquieu, 111. 
 
 Benthaiii, 113. 
 
 dissatisfaction with existing theo. 
 
 ries, 114. 
 
 pioper mode of inquiry, 115. 
 
 the Patriarchal theory, 118. 
 
 fiction of Adoption, 125. 
 
 the archaic Family, rj8. 
 
 the Patria I'otestas of the Ro- 
 mans, 130. 
 
 agnatic and cognatic relation- 
 ships, 141. 
 
 Guardianship of Women, 147. 
 
 ancient Roman Marriage, 149. 
 
 Master and Slave, 157. 
 
 Leges Barbarorum, 288. 
 
 Leges Corneliffi of Sylla, 39. 
 
 Leges JulisB of Augustus, 39, 40. 
 
 Legis Actio Saoramenti of the Romans 
 described, 362. 
 
 Legislation, era of, 24 
 
 considered as an agent by which 
 
 the adaptation of law to the 
 social wants is carried on, 28. 
 
 difference between it and leg,al 
 
 fictions, 27, 28. 
 
 Lex Oalpurnia de Repetiindis, the first 
 true Roman Criminal Law, 371. 
 
 Lex Plaetoria, purport of the, 156. 
 
 Lidi of the Germans, 224. 
 
 Local Contiguity as the condition of 
 community in political functions, 
 128. 
 
 Locke, John, referred to, 84. 
 
 his theory of the origin of law, 
 
 110. 
 
 Lombards, referred to, 110. 
 
 Louis Hutin, King of France, his ordi- 
 nance quoted, 90. 
 
 Mahometan Law of Succession, 235. 
 Majority and Minority, meaning of the 
 
 terms in Roman Law, 156. 
 Mancipation, Roman, 48, 198, 269, 
 
 307. 
 ^— mode of giving the effect of 
 Mancipation to a Tradition 
 270. 
 Manus of the Romans, 307. 
 Marriage, ancient Roman, 149. 
 
 later Roman, 150. 
 
 Master and Slave, 157. 
 
 under the Romans, 157. 
 
 in the United States, 158. 
 
 Menu, Hindoo Laws of, 5, 16, 17. 
 Merovingian kings of the Franks, 100, 
 
 Digitized by Microsoft® 
 
894 
 
 INDEa. 
 
 JfETAT EES 
 
 Metavprs, the, of the south of Europe, 
 2!)'l. 
 
 " lloniteur," the, during the period of 
 the French Revolution, 88. 
 
 Montesquieu's " Esprit des Lois," re- 
 iniirks on, 83. 
 
 — ■ — his Theory of Juri.'iprudence, 111. 
 
 Apologue of Montesquieu con- 
 cerning the Troglodytes, in the 
 " Leitres Persanes," 301. 
 
 Moral doctrines, early, 122. 
 
 Mortgagor, special proprietorship crea- 
 ted by the (Jourt of Chancery for 
 the, 28.5. 
 
 Moses, testamentary power not provi- 
 ded for by the Laws of, 191. 
 
 Naples, territorial sorereignty of the 
 monarehs of, 104. 
 
 Nations, Law of, 92, et seq. See In- 
 ternational Law and Jus Gentium. 
 
 Nature and her La^7, Greek concep- 
 tions of, 51. 
 
 Nexum of the ancient Romana, 46,305. 
 
 changes in the, 306. 
 
 Normandy, customs of, referred to, 146. 
 
 No/ios, the word not known to the Ho- 
 meric poems, 5. 
 
 Nuncupatio, of the Romans, 198. 
 
 Obhgations of the Roman Law, 313. 
 
 rights and duties of, 314. 
 
 Occupatio, or Occupancy, of the Ro- 
 man Law, a "natural mode of ac- 
 quiring property," 238, 243. 
 things which never had an owner, 
 
 238. 
 things which have not an owner, 
 
 238. 
 
 Capture in war, 239. 
 
 Discovery, 241. 
 
 objections to the popular theory 
 
 of Occupancy, 248. 
 Ordinance of Louis Hutin quoted, 90. 
 Orphans, Guardianship of male, under 
 the Roman Law, 154. 
 
 Pactes de Famille of France, 225. 
 
 Pascal, his "Lettres Provinciales," 
 841. 
 
 Paterfamilias in elementary commu- 
 nities, 227, 228 
 
 Fatria Pniestas, the, of the Eomans, 
 130. 
 
 of the Galatse, 1 31. 
 
 of the Greeks, 13a. 
 
 PE^TOR PERr.aRiNirs 
 Patria Potestas, causes which helped 
 to raitigrite the stringency of the 
 father's power over the persons of 
 his children, 136. 
 
 liabilities of the PaterfamiUaa, 
 
 140. 
 
 unity of person between the 
 
 Paterfamilias and the Eilius- 
 familias, 140. 
 
 rights and duties of the Pater 
 
 familias, 140, 141, 227, 228. 
 
 the Patria Potestas not a durable 
 
 institution, 141. 
 Patriarchal theory of primeval juris- 
 prudence, 118. 
 chief points from Scriptural ac- 
 counts, 119. 
 
 Homer's account of the Cyclops, 
 
 120. 
 Pays du Droit ifecrit and Pays du Droit 
 Coutumier, difference between the 
 81. 
 Peculium, the, of the Romans, 137. 
 
 Castrense Peculium, 137. 
 
 Quasi- castrense Peculium, 132. 
 
 Penal law in ancient codes, 355. 
 Perjury, how punished by the ancient 
 
 Romans, 380. 
 Persian monarchy, heroic and aristo- 
 cratic eras of the races composing 
 the, 10. 
 Persians, the ancient, their veracity, 
 
 3 . 
 ^6<Tts of the Greeks, meaning of the, 
 
 51. 
 Plebeian Wills of the Romana, 195. 
 legalised by, at the Twelve Ta- 
 bles, 196. 
 
 their influence on the civilisation 
 
 of the modern world, 197. 
 Political ideas, early, 124. 
 
 foundation of aristocracies, 127. 
 
 Political Economy and Contract, 296. 
 Polygamy, its influence on Primogeni- 
 ture, 236. 
 Possessory interdicts of the Eom^n 
 
 Law, 282. 
 Prffitor, origin of the office of, 59. 
 
 Edict of the, 39, 64, 60, 63. 
 
 the Roman, compared with an 
 
 English Chancellor, 61, 62. 
 
 restraints on the PrSBtor, 62. 
 
 the Pi-ajtor the chief equity judgfl 
 
 as well as the great common 
 law magistrate, 64. 
 Prastor Peregrinus, oflice of the, 60. 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 395 
 
 PE^TORIAN EDICT 
 
 Pi'ietorian Edict of the Romans, 39, 
 54, 60, 63. 
 
 the Edict um Perpetiium, 60. 
 
 that of Sa'rius Julianus, 61, &S 
 
 remedies given by the, 284. 
 
 Pratorian Will, the, 202. 
 
 described, 203. 
 
 Prescription of Property, history of, 
 
 275, et seq. 
 Primogeniture, changes in Law of 
 Succession, caused by, 218. 
 
 almost destroyed by the authors 
 
 of the French code, 219. 
 
 results of the French system, 
 
 219. 
 
 rights of the first born son 
 
 amongst the Hindoos, 221. 
 
 early history of Primogeniture, 
 
 222. 
 
 . Benefices, 222. 
 
 gradual transformation of Bene- 
 fices into hereditary Fiefs, 
 223. 
 
 the Pactes de Famille of France 
 
 and the Haus-Gesetze of Ger- 
 many, 225. 
 causes of the diffusion of Primo- 
 geniture, 226. 
 
 Primogeniture in public oflBces 
 
 or political power amongst the 
 Hindoos, but not in property, 
 226. 
 
 ancient forms of Primogeniture, 
 
 228. 
 
 why did Primogeniture gradually 
 
 supersede every other princi- 
 ple of Succession ? 228. 
 
 earlier and later Primogeniture, 
 
 229, 230. 
 
 Hindoo rule of the eldest son and 
 
 of the eldest line also, 232. 
 
 Celtic form of Primogeniture, 
 
 233. 
 
 Mahometan form, 234. 
 
 influence of Polygamy on Primo- 
 geniture, 235. 
 V ogress, causes of the arrest of, of 
 
 the greater part of mankind, 74. 
 Property, early history of, 237- 
 
 "natnralmodes" of acquisition, 
 
 237. 
 
 Occupancy, 238. 
 
 Capture in War, 239. 
 
 rule of Discovery, 241. 
 
 history of the origin of property, 
 
 243. 
 
 PROPERTY 
 
 Property, Blackstone on the tbforj 
 of Occupancy as the oiigiu of 
 property, 244. 
 
 aphorism of Savigny on the 
 
 origin of property. 247. 
 
 objections to the popular theory 
 
 of Occupancy, 248. 
 
 Co-ownership amongst the Hin- 
 doos, 252. 
 
 the Gens, or House of the Ro- 
 mans compared with the Vil- 
 lage Community of India, 
 256. 
 
 Russian viUage co-ownersliip, 
 
 258. 
 
 Croatian and Sclavonian Laws 
 
 respecting the property of 
 Families, 260. 
 
 ancient difficulties of Alienation, 
 
 263. 
 
 natural classification of property 
 
 265v 
 
 ancient modes of transfer of 
 
 property, 268. 
 
 definitioa of the Res Maneipi, 
 
 269. 
 
 Tradition of property, 270. 
 
 distinction between Res Manclpi 
 
 and Res nee Maneipi, 270. 
 
 Hindoo Law of Inheritances and 
 
 Acquisitions, 272, 273. 
 
 law of moveables and law of 
 
 land, according to the French 
 Codes, 274. 
 
 and in England, 274. 
 
 Usucapion, or Prescription, 275. 
 
 Cessio in Jure, or recovery, in 
 
 a Court of Law, of property 
 sought to be conveyed, 279. 
 
 influence of Courts of Law and 
 
 of their procedure upon Prop- 
 erty, 280. 
 
 — distinction between Property and 
 Possession, 281. 
 
 — and between Law and Equity in 
 their conceptions of proprie- 
 tary right, under the Roman 
 and English Law, 283. 
 
 — feudal view of Ownership, 286.' 
 
 — Roman and barbarian law of 
 Ownership, 287. 
 
 — Roman system of Tenancy, 289. 
 
 — the Coloni of the Romans and 
 the Metayers of the South of 
 Europe, 291. 
 
 — rights of the Emphyteuta, 291 .. 
 
 Digitized by Microsoft® 
 
S96 
 
 INDEX. 
 
 PHOPERTr 
 
 Property I tlie Agri Limitrophi of the 
 
 Rhine and the Danube, 292. 
 Proscriptions, Roman, origin of the, 
 
 376. 
 Pupilage or Wardship in modern juris- 
 prudence, 156. 
 
 compared with the Guardianship 
 
 of Orphans under the Roman 
 Law, 156. 
 
 Quasi-Contract, 332. 
 
 Meaning of, in Roman Law, 333. 
 
 Quasi, meaning of the word, in Roman 
 
 Law, 333. 
 Qutestiones Perpetu» of the Romans, 
 
 371. 
 
 theory of the Qusestionos, 373. 
 
 results traceable to the Quaesti- 
 
 ones, sn, 378. 
 Quajstores Parricidii of the ancient 
 
 Romans, 370. 
 Querela InofiSciosi Testament! of the 
 
 old Rom.m Law, 209. 
 Quiritarian Law, the, 16. 
 
 principles of the, 66. 
 
 difference between it and the Jus 
 
 Gentium, 56. 
 
 Recoveries, collusive, of property in 
 the Roman and Enghsh Law, 280. 
 
 Regency, form of, according to the 
 French custom regulating the suc- 
 cession to the throne, 233. 
 
 Reipus, the, of Germany, 273. 
 
 Res Mancipi and Res nee Mancipi, 266, 
 271. 
 
 definition of the Res Mancipi, 
 
 269. 
 
 Res nuUius of the Roman Law, 239. 
 
 Responsa Prudentium of the Romans, 
 described, 32. 
 
 similarity between them and 
 
 English Case-law, 32. 
 
 decline and extinction of the 
 
 Responses, 39. 
 
 Revolution, French, effects of the theo- 
 ry of the state of Nature on the, 88. 
 
 Rex Sacrorum, or Rex Sacrijicutus, 
 ofBce of the, 9, 59. 
 
 Roman Law, 1. 
 
 the Twelve Tables, 1, 2, 13, 32. 
 
 influence of the sacra on the law 
 
 of Adoption and of Wills, 6. 
 
 «las3ofcodesto'whichthe Roman 
 
 U 
 
 ROMAN LAW 
 
 Roman Law, probable assistance af 
 forded by Greeks, 14. 
 
 meaning of fictio, 24. 
 
 instances oi fictiones cited, 25. 
 
 the Responsa Prudentium de- 
 scribed, 32. 
 
 judicial functions of the Magis- 
 trates of Republican Rome, 34. 
 
 reasons why the Roman Lavf wad 
 
 not popularised, 35. 
 
 sources of the characteristic ex- 
 cellence of the Roman Law, 36 
 
 decline and extinction of the 
 
 Responses, 39. 
 
 • the Praetorian Edict, 39, 54, 60, 
 
 63. 
 
 the Leges Corneliae, 40. 
 
 later jurisconsults, 40. 
 
 remarks on the Statute Law of 
 
 the Romans, 40—42. 
 
 and on the Equity of the Romans, 
 
 42, 43. 
 
 golden age of Roman jurispru- 
 dence, 53. 
 
 Roman Equity, 55, 64. 
 
 features common to both English 
 
 and Roman Equity, 65, et seq. 
 
 International Law largely in- 
 debted to Roman Law, 93. 
 
 the Patria Potestas of the Roman 
 
 Law, 132, et seq. 
 
 Agnatic and Cognatic Relation- 
 ship, 141. 
 
 Perpetual Tutelage of Women, 
 
 147. 
 
 Roman Marriage, 149. 
 
 Guardianship of male Orphans, 
 
 154. 
 
 Law of Persons — Master and 
 
 Slave, 156. 
 
 Testamentary Law, 167, et seq. 
 
 Wills anciently executed in the 
 
 Comitia Oalata, 193, 194. 
 
 ancient Roman law of Intestate 
 
 Succession, 193. 
 
 Roman Wills described, 195. 
 
 the Mancipation, 198. 
 
 the Nunoupatio, 198. 
 
 the Pr^torian Will, 202. 
 
 first appearance of Sealing in 
 
 the history of jurisprudence aa 
 a mode of authentication, 203. 
 
 Querela InofBciosi Testamenti, 
 
 209. 
 
 Disinherison of Children under, 
 
 209. 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 397 
 
 ROMAN LAW 
 
 Roman Law, Intestate Succession un- 
 der, 212. 
 
 Fidei-Commissa, or bequests in 
 
 trust, 211. 
 
 rights of Co-heirs, 220. 
 
 Occupancy, 238. 
 
 Roman distinction between the 
 
 Law of Persons and the Law 
 of Tilings, 2.51. 
 
 influence of Koman classifica- 
 tions, 251. 
 
 Co-ownership of property re- 
 garded by the mature Koman 
 Law as exceptional and mo- 
 mentary, 253. 
 
 the Gens of the Romans com- 
 pared with an Indian Village 
 Community, 256. 
 
 Res Maucipi, and Res nee Mau- 
 
 eipi, 265, 266, 269. 
 
 Mancipation, 269. 
 
 Usucapion, or Prescription, 276. 
 
 the Cessio in Jure, 279. 
 
 distinction between Property and 
 
 Possession, 281. 
 
 Roman and Barbarian Law, 
 
 286. 
 
 Roman Contracts, 304 et seq. 
 
 tlie Four Contracts, 315. 
 
 connection between Theology 
 
 and Roman Law, 343. 
 
 causes of improvement in Roman 
 
 Law, 349. 
 
 Roman Law in the Eastern Em- 
 pire, 351. 
 
 Civil Wrongs of the Roman Law, 
 
 358. 
 
 the Legis Actio Sacramenti, 362. 
 
 old Roman Crimiiial Jurispru- 
 dence, 369. 
 
 extreme multiplicity of Roman 
 
 criminal tribunals, 377. 
 
 results traceable to the Quses- 
 
 tionea, 377, 378. 
 
 Romans, causes of the rapid progress 
 of the Stoical philosophy amongst 
 the, 53. 
 
 tlieir progress in legal improve- 
 ment, 54. 
 
 Rome, immigration of foreigners into, 
 44, 45. 
 
 exclusion of, under the early Re- 
 public, 44. 
 
 See of, origin of the tendency to 
 
 attribute secular superiority to 
 the, 103. 
 
 sociBrms 
 Rome, decline of ecclesiastical io&vt 
 
 enoe in international questions, lOf 
 
 early political ideas of, 125. 
 
 Rousseau, J. J., influence of his wiit- 
 
 ings, 84. 
 
 his doctrine of an original Social 
 
 Compact, 299, 300. 
 Russian villages. Co-ownership of th 
 
 occupiers of, 258. 
 
 Sacra, or Family Rites, of the Romans, 
 6, 26, 185, 186. 
 
 — of the Hindoos, 186. 
 
 Sacramental Action of the ancient Ro- 
 mans, 46. 
 
 Salic Law, origin of the, 152. 
 
 Savigny, on Possession and Property, 
 281, 282. 
 
 his aphorism on the origin of 
 
 property, 247. 
 
 Scasvola, Q. Mucins, his Manual of the 
 Civil Law, 39. 
 
 Scandinavian nations, their laws res- 
 pecting the Perpetual Tutelage of 
 Women, 147, 154. 
 
 Sclavonian laws respecting the propec- 
 ty of families, 260. 
 
 Sealing, first appearance of, in juris- 
 prudence, 83 a mode of authenti- 
 cation, 204. 
 
 Sin, mortal and venial, casuistical dis- 
 tinction between, 340. 
 
 Sins known to primitive jurisprudence, 
 359. 
 
 Slavery, ancient, 157. 
 
 under the Romans, 157. 
 
 in the United States of America, 
 
 158. 
 
 Socage, English law of, 228. 
 
 Social Compact, Rousseau's doctrine 
 of an original, 299, 833. 
 
 Dr. Whewell quoted, 335. 
 
 Societies, stationary and progressive, 
 21. 
 
 difference between stationary and 
 
 progressive societies, 22. 
 
 agencies by which Law is brought 
 
 into harmony with ProgreS' 
 sive Societies, 24. 
 
 perils of early, 72. 
 
 primitive, 116. 
 
 early moral doctnnes, 122. 
 
 early politioiil ideas, 123. 
 
 fiction of Adoption, 125. 
 
 foundation of aristocracies, 127 
 
 principle of Local Contiguity, 12-. 
 
 Digitized by Microsoft® 
 
898 
 
 INDEX. 
 
 SOCIETIES 
 
 Societies, the ancient Family, 129. 
 
 the Patria Potestas, 180. 
 
 agnatic and coguatie relation- 
 ships, 141. 
 
 • Guardianship of Women, 147. 
 
 ancient Roman Marriage, 149. 
 
 Master and Slave, 157. 
 
 uniformity of movement of the 
 
 progressive societies, 163. 
 — — disintegration of the Family, 163. 
 
 movement of societies from 
 
 status to contract, 164. 
 
 • Universal Succession, 172, 174, 
 
 176. 
 
 . primitive society and universal 
 
 succession, 178. 
 
 the ancient family a corporation, 
 
 178. 
 Society in primitive times not a col- 
 lection of individuals, but an ag- 
 gregation of families, 121. 
 Solon, Attic code of, 15. 
 " Sophismes Anarchiques " of Dumont, 
 
 remarks on, 88. 
 Sovereign, origin of the doctrine that 
 the monarch is the fountain of 
 justice, 382. 
 Sovereignty, territorial, proposition of 
 International Law on, 98, 99. 
 
 Ti-il le-sovereignty, 100. 
 
 Charlemagne and universal do- 
 minion, 102. 
 Territorial sovereignty an off- 
 shoot of feudalism, 102. 
 
 ■ the See of Rome, 103. 
 
 • Hugh Capet, 104. 
 
 the .4nglo-Saxon princes, 104. 
 
 Naples, Spain, and Italy, 104. 
 
 . Venice, 104. 
 
 ■ points of junction between terri- 
 torial sovereignty and modern 
 public law, 108. 
 Spain, territorial sovereignty of the 
 
 monarchs of, 104. 
 Status, movement of societies from, to 
 
 contract, 164, 165. 
 Statute Law of the Romans, 40, 44. 
 Stoic philosophy, principles of the, 
 
 62. 
 its rapid progress in Roman so- 
 ciety, 52. 
 
 alliance of the Roman lawyers 
 
 with the Stoics, 53. 
 Succession, rules of, according to the 
 
 Hindoo Customary law, 6. 
 Testamentary, ] 66. 
 
 snCCESsioK 
 
 Succession,' early history, 166. 
 
 influence of the Church in en 
 
 forcing the sanctity of Wills, 
 168. 
 
 ■ English law of. 168. 
 
 qualities necessarily attached to 
 
 Wills, 169. 
 
 natural right of testation, 171. 
 
 restraints imposed by the Code 
 
 Napoleon, 171. 
 
 nature of a Will, 172. 
 
 rights and duties of universal 
 
 successor, 172. 
 
 usual Roman definition of an In- 
 heritance, 176. 
 
 difference between modern testa- 
 mentary jurisprudence and the 
 ancient law of Rome, 177. 
 
 the Family regarded as a Corpo- 
 ration, 178. 
 
 old Roman law of Inheritance 
 
 and its notion of a Will, 183. 
 
 ancient objects of Wills, 1 84. 
 
 Sacra, or Family Rites, of the 
 
 Romans, 185. 
 
 and of the Hindoos, 186. 
 
 the invention of Wills due to 
 
 Romans, 188. 
 
 Roman ideas of Succession, 189. 
 
 Testamentary Succession less an- 
 cient than Intestate Succession, 
 189. 
 
 primitive operation of Wills, 
 
 190. 
 
 Wills of the ancient Germans, 
 
 190. 
 
 Jewish and Bengalee Wills, 191. 
 
 mode of execution of ancient 
 
 Roman wills, 193. 
 
 description of ancient Roman 
 
 Wills, 194, 195. 
 
 — influence oi^ ancient Plebeian 
 Wills on the civilisation of the 
 modern world, 197. 
 
 — the Mancipation, 198. 
 
 — relation of Wills to conveyances^ 
 198. 
 
 — the Testament per as et libram 
 198, 207. 
 
 — consequence of this relation of 
 Testaments to Conveyances, 
 199. 
 
 — remedies, 200. 
 
 — ancient Wills not wi-itten, 201. 
 
 — remarks on the expression Emp- 
 tor FamilioB, 201. 
 
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INDEX. 
 
 SCCOEsgiON 
 Succession, the Prfetorian Will, 220. 
 
 tlie Itonorum Possessio and the 
 
 Boiiorum Possessor, '204. 
 
 improvements iu the old Will, 
 
 205, 206. 
 
 — — ancient and modern ideas re- 
 specting Wills and Successors, 
 2ii9. 
 
 Disinherison of Children, 209. 
 
 the age of Wills coeval with that 
 
 of feudalism, 217. 
 
 introduction of the principle of 
 
 Dower, 218. 
 
 rights of Heirs and Co-heirs 
 
 under the Roman Law, 220. 
 
 Intestate, 189. 
 
 ancient Roman law of, 193, 212. 
 
 the Justinianean scale of Intes- 
 tate Succession, 213. 
 
 order of Intestate Succession 
 
 among the Romans, 214. 
 
 horror of intestacy felt by the 
 
 Romans, 216. 
 
 rights of all the children of the 
 
 deceased under the Roman 
 Law, 220. 
 
 Universal, 172, 184. 
 
 in what it consists, 172. 
 
 the universal successor, 176. 
 
 formula of old Roman investi- 
 ture referred to, 184. 
 
 Suttee of the Hindoos, 188.- 
 
 Sylla, L. Cornelius, his improvements 
 in the Roman Law, 40. 
 
 Tables, the Twelve Decemviral, 1, 2, 
 
 13, 32. 
 collections of opinions interpre- 
 tative of the, 33. 
 
 their legalisation of Plebeian 
 
 Wills, 196. 
 Law of the Twelve Tables re- 
 specting Testamentary Dispo- 
 sitions, 210. 
 Tablets, laws engraven on, 13. 
 Tacitus, value of his " Germany'' as a 
 record of primitive history, llfi. 
 
 suspicions as to its fidehty, 117. 
 
 Tarquins, cliange in the administration 
 of the law after the expulsion of 
 the, 59. 
 Tenancy, Roman system of, 289. 
 Testaments. See Succession, Testa- 
 men (ary. 
 Tlieft, ancient Roman law of, 298, 
 SC6, 367. 
 
 WOMEN 
 
 Tlieft, modern breaches of trust, 298 
 Themis and Themistes of the Greek 
 
 Homeric poems, 4, 120, 121. 
 Theology, connection between it and 
 
 Roman Law, 343. 
 Thirty Years' War, influence of the 
 
 horrors of the, on the success of the 
 
 treatise "De Jure BeUi et Pads" 
 
 of Grotius, 107. 
 Torts, law of, 368. 
 Tradition of property amongst the 
 
 Romans, 269. 
 
 practical effect of a Mancipation 
 
 given to a Tradition, 269. 
 Transfer of property, ancient modes 
 
 of, 268. 
 Troglodytes, the, 301. 
 Turkey, rule of succession to the 
 
 throne of, 235. 
 
 TJlpian, his attempt to distinguish be- 
 tween the Jus Naturale and the Jus 
 Gentium, 50. 
 
 Universitas juris, in what it consists, 
 173. 
 
 Usucapion, principle of Roman Law 
 known as, 205. 
 
 history of, 276. 
 
 Usus, or lower form of civil marriage 
 of the ancient Romans, 149. 
 
 Vandals, the, referred to, 100. 
 
 Venetians, their lapse from tribe sov- 
 ereignty to territorial sovereignty. 
 104. 
 
 Village Communities of India, 252, 
 254. 
 
 Visigoths, the, referred to, 100. 
 
 Voltaire, referred to, 84. 
 
 Warfare, ancient forms of, 240. 
 
 Wehrgeld, the, of Germany, 272. 
 
 Whewell, Dr., on original Social Com- 
 pact, quoted, 385. 
 
 his view of Moral Philosophy, 
 
 336. 
 
 Widow's share of her husband's estate, 
 218. 
 
 the reipus, or fine leviable on 
 
 the remarriage of a widow in 
 Germany, 273. 
 
 Wills, influence of the Sacra Gmti- 
 licia on the law of, 6. 
 
 See Succession, Testamentary. 
 
 Women, laws respecting the status of, 
 147. 
 
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400 
 
 IKDEX. 
 
 WOMEN 
 
 Women, Roman law of the Perpetual 
 Tutelage of, 147. 
 
 amongst the Hindoos, 148. 
 
 and amongst the Scandinarians, 
 
 148. 
 
 Guardianship of Women under 
 
 the Koman Law, 147. 
 
 — — tutelage of, amongst the Hin- 
 doos, 148. 
 
 ZEtIS 
 
 Women, tutelage of, amongst tin 
 Scandinavians, 148. 
 
 ancient Roman Marriage, 149. 
 
 later Roman Marriage, 149. 
 
 special Proprietorship created 
 
 by the Court of Chancery for, 
 
 286. 
 
 Zeua, not a lawmakt r, but a judge, i 
 
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