K [So No 1..7..8...4.. The Library, to which this volume belongs is given to the ©ompktnH Qlnuntg lar KsBomtion IN TRUST for the use of its members. Under the terms of the gift and of its acceptance by the Association, it is provided that if and when the library is not kept intact and the books are not available for the purpose intended, then the entire library shall become the property of Cornell TJniversity. In order that the usefulness of the library may not be impaired, the rules of the Association provide that this book must not be removed from the library room. 6551 Cornell University Library K 150.S42 1908a The evolution of law, a historical review 3 1924 017 105 044 (Snmll taut m^ixl mxtnt^ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017105044 THE EVOLUTION OF LAW A HISTORICAL REVIEW Based upon the Author's Commentaries on the Evolution of Law Following the Thread from the Earliest Known History of Mankind to the .Present Era and Times Observations by the late Senator John J. Ingalls on Law Government and Biography. FOURTH EDITION By HENRY W. §£OTT Of the New York Bar Author of "Scott's Probate Law and Practice," "Distinguished American Lawyers," "Scott's Commentaries on the Evolu- tion of Law," " Commentaries on Executive Author- ity," "Commentaries on the Laws of Nations," "Scott on Hoffman's Legal Outlines," "Review of Uniform Marriage and Divorce," etc., etc. New York THE BORDEN PRESS PUBLISHING CO. 1908 (g^ H^(^ i Entered according to Act of Congress in the year one thousand nine hundred and eight by HENRY W. SCOTT In the Office of the Librarian of Congress, at Washington, D. C. All rights reserved Nation Press, New York PUBLISHERS' ANNOUNCEMENT PUBLISHERS' ANNOUNCEMENT. It is with much satisfaction that the Publishers of this volume present it to the public with the statement that in the existence of this House, which covers a period of nearly fifty years, our records fail to disclose a work which we feel so well deserves the favorable consideration of those for whom it is intended. A Historical Review of the Evolution of Law from the earliest known period of human govern- ment! What a vast field! What a reflection for the mind! And how well the great scope is cov- ered! The task of doing it, and so briefly, never once losing the thread, is indeed the work of a master. The absence of tedious notes and refer- ences is such a relief. The aflSrmative terseness of the text stamps every statement as authority, based as it is upon the most careful and exhaustive re- search and the most painstaking labor. The work seems exactly suited to this busy age, and at the same time places within the reach of every reader of the English language a knowledge of the progress and evolution of the laws of all the centuries of the past and brings him within the very portals of the institutions of to-day which gov- ern and protect him. It is in our judgment an educational work, brief as it seems at a glance, that should challenge the attention of every reader in all countries where laws are observed and respected. It will be our pleasure to announce the publica- tion of several of the forthcoming works of the Au- thor in the near future. The Boeden Press Publishing Co., 86 Park Place, New York City, N. Y. PREFACE PEEFACE We present in this volume a historical review of the Evolution of Law, covering the subject as fully as can be done, maintaining the brevity we deem essential to meet the requirements of those who desire to take only general note of the subject. We invite especial attention to the Introduction, which covers many points of interest not usual to the formal introductions to other works; also to the observations by the late Senator John J. Ingalls on Law Government and Biography, first published as the Introduction to the author's "Distinguished American Lawyers" in 1891, but which we give prominence in this review on account of its application and literary excellence. We have not seen fit to chapter the text, but have arranged sub-heads, and classified them successive- ly in a Table of Contents. We also have made up a complete index which covers the subjects of the Introduction as well as of the text. The List of Authorities is also arranged alphabetically so that the reader need have no difficulty in finding any- thing contained in this volume. Other points in explanation of the work will be found in the Introduction. Henry W. Scott. New York, 1908. DEDICATION TO THE MEMORY OF GROVER CLEVELAND Distinguished citizen, lawyer and statesman, twice President of tlie United States of America, whose firm, unchangeable and lofty devotion to the principles of democratic government and whose steadfast and unyielding adherence to truth, honor and virtue will ever impress his greatness in private and public life, upon all mankind, and the institutions of all succeeding genera- tions; to whom the author is indebted for signal public honors and a valued friendship enduring for more than twenty years, until his death, this volume is REVERENTLY DEDICATED TABLE OF CONTENTS CONTENTS. PAGE. Publishers' Announcement 11 Preface 15 INTRODUCTION. General Observations by Author 33 Origin and Nature of Man, Differences Be- tween Man and other Animals 37 Eights of Man, Classified 37 Family Relations 37 Motives for Formation of Governments, and Belief in Divine Interference 38 Orginal and Subsequent Rights to Govern .... 38 Effect of Dissolution of Government 39 Necessity of Law 39 Internal and External Attributes of Law .... 39 Demosthenes, Aristotle, Cicero, Justinian, Bracton, Finch, Grotius, Puffendorf, San- derson, Daws, Hooker, Hobbes, Montes- quieu, Burlamaqui, Dagge, Blackstone ... 39 Laws of Nature, Man's Knowledge of 39 Man's Duty to Himself, His Fellow Creatures . 40 Political and Civil States 40 Socrates, Plato, Polybius, Milton, Hume, Sid- ney, Charondas, Zaleucus, Machiavel, Har- 25 TABLE OF CONTENTS. PAGE. rington, Confucius, Bolingbroke, Authors of the Federalist, Bentham, Napoleon, Locke, Frederick II., Rousseau, Maine. . . 40 Classification of Forms of Government: Pure and Simple, Pure and Mixed, Quasi Mixed, Corrupt and Simple, Corrupt and Mixed. 41 Feudalism in Europe, its Characteristics 41 Growth of the Commons : 42 Feudalism in England 42 Professor Hoffman on Plato 43 Taylor and Sydenham 44 Plato's Dialogues 46 Plato's Epistles 48 List of Authorities 52^ Observations by the Late Senator John J. In- galls on Law, Government and Biography 57 THE EVOLUTION OF LAW. Subject in General 6& Primitive Man 70 Unit of Ancient Society 72 Patriarchal Government 72 Origin of Theocracy 73 The Tribe 74 Formation of Crude States 74 Origin of Hereditary Rulers and Aristocracy. 75 Customary Law 76 Origin of Written Laws and Codes 77 Origin of Village Communities 77 26 TABLE OF CONTENTS. PAGE. The Most Perfect Theocracy 78 Egyptian Laws — Claim of Divine Origin 79 Neighboring Nations — ^Alleged Divine Origin of Laws 80 Nimrod 80 Codes of Hammurabi and Mann 81 Moses and Jethro 82 Egyptian Antiquity 82 Justice in Ancient Egypt 85 Divine Right of Sovereign 85 The Courts of Ancient Egypt 86 The Arch-Judge 86 Punitive Measures 87 Bribery 88 Equality Before the Law 88 Formality of Trials — Figure of Truth 89 Ancient Books of Law 90 The Pleadings, Trial and Judgment 91 No Advocates or Pleaders 92 Veracity — A Cardinal Virtue 93 Penalties — Offending Member of Person 93 No Rights to Women 94 Women's Rights Among Teutonic Races 94 The Israelites 95 Rights of Women in Israel 96 Law of Asylum 96 China — Confucius 97 Origin of Ancestor Worship 100 Deposition and Exile of Confucius 100 27 TABLE OF CONTENTS. PAGE. Preservation of Confucianism 101 Greece, Athens and Sparta 101 Lycurgus and Thales 102 Eeturn of Lycurgus — His Eef orms 103 Opposition of Masses 105 Origin of the Senate 105 Division of Land — Coinage 106 Laws of Lycurgus — Unwritten ■ — Domestic Laws 107 Unwritten Laws in Hands of Patricians 109 Solon 110 Debtor Could Not be Imprisoned Ill Repeal of Draco's Laws 112 Domestic Laws of Solon 113 Tables of Solon 113 Socrates — Plato 115 Origin of Advocacy — Demosthenes 116 Demosthenes — Early Life 117 Demosthenes — Manhood 118 His Death 119 Demosthenes — An Example 120 Eome 121 Decemviral Tables 121 Lex Tabularum 122 Gaius 124 Cicero 124 Justinian 125 Study of Roman Law 127 Germany — Romans and Teutons 129 28 TABLE OF CONTENTS. PAGE. The Fall of Rome 129 Feudalism Prevails 131 The New Empire 132 Russia 133 English Law 133 Teutonic Tribes — ^Advent in Britain — Alfred the Great — Alfred Chosen King 134 A United England 135 Alfred's Laws 136 Jury System 136 The Barrister in Alfred's Time 137 Preservation of Old Customs 138 Edward 1 138 Henry II. — John I. — Magna Charta 139 Old English Law Library 140 Lyttleton 140 Bracton 141 Feudalism 141 Japan — Primitive in Modern Times 142 Criminal Trials 142 Civil Causes 143 Reforms 143 Domestic Relations 144 Revolutions 145 Rousseau 145 Feudalism in France 145 The Social Contract 146 Effect on America 147 Church and State 148 29 TABLE OF CONTENTS. PAGE. Thomas Jefferson 148 United States — Religious Tolerance 149 Conclusion 151 Index 157-165 30 AUTHOR'S INTRODUCTION AUTHOR'S INTRODUCTION. The author desires to impress distinctly upon the mind of the reader the importance of careful attention to this introduction. It is not merely em- braced as a formality in making up a complete volume, but is rendered quite necessary, for the reason that the observations contained in this his- torical review of the Evolution of Law are so close- ly confined to the text as to render it somewhat difficult to include these suggestions therein. The material from which a connected narrative must be gathered is scattered throughout the entire range of legal and general literature, sacred, pro- fane, and civil history, and much valuable material is also practically buried in isolated articles treat- ing of but a single feature, and published in maga- zines, journals, and other periodicals in different parts of the world, and inaccessible except as a re- sult of a thorough and exhaustive research. Some twenty years ago the author determined upon a thorough course of research and study into the history and development of the law, from its most primitive beginning and from the most an- cient civilization; and in doing so, was met with 33 THE EVOLUTION OP LAW. two difficulties: first, the multitude of books, arti- cles, papers, etc., from which the subject might be studied, and secondly, the inaccessibility of many of them. These difficulties, however, were over- come by long and patient effort in finding and pur- chasing everything not readily accessible. About this time, which was in the year 1889, the author was fortunate in engaging as private secre- tary a very brilliant and learned scholar, who was a personal and literary friend of the late James G. Blaine, and who had, through the good offices of that great man, become attached to the army. But this position had become so distasteful to him alter a few years that it resulted in his giving it up and engaging in the pursuit of literature, with varying degrees of success and failure. Additional interest was then inspired in the in- vestigation and study, extendin,g over a period of several years of unremitting labor, resulting in the preparation of a manuscript of commentaries on the Evolution of Law, which was the foundation of the commentaries hereinafter referred to and to which the author has added the labor of succeed- ing years. During this period these labors also included a thorough search made through the British Museum in London, where much valuable material was found, to be obtained nowhere else in the world. The author's "Distinguished American Lawyers" being ready for the press about this time, the pub- M GENBEAL OBSERVATIONS BY AUTHOR. lishers of that work, knowing of the proposed com- mentaries, desired to embrace, in the edition of the former, an essay or historical review of them, which it was thought would be quite as interesting as the lives of the great advocates themselves. To accomplish this end, which was praiseworthy enough, the historical review, substantially as con- tained in this volume, was prepared, but upon later consideration it was found that it would swell the volume to a size too large for convenience, so there the matter ended. It had been our intention, and we have been re- peatedly urged, to publish the review in some form or other for all these years, but it was neglected, as such things are, when surrounded by a degree of uncertainty as to the best method of doing so, and especially when depending upon the move- ments of a busy practitioner. Again, in the year 1899, the manuscript was mis- laid, and only recently recovered. Upon recovery, steps were at once taken for the publication, not only of the review, after suitable revision, but also of the Commentaries. The latter, together with all of the author's writing, essays, etc., on the subject up to the present time, can be promised early in the year 1909 under the title of "Scott's Commen- taries on the Evolution of Law," consisting of two volumes, fully revised, thus adding to the entire manuscript, when published, the distinction of deeper study and the work of maturer years. 35 THE EVOLUTION OF LAW. And it can be vouchsafed that if the text shall fail in its composition to meet the expectations of a standard of excellence commensnrate with the importance of the subject, the completeness and comprehensiveness of the work and the faithfulness and the accuracy of the contents may be relied upon. It may be stated also that the author has been repeatedly advised by publishers that such a work would be unprofitable, yet we feel that, notwith- standing the personal expense its publication will entail, particularly the initial expense, when con- sidering all the time, labor and money expended, and the rare onllection of facts and material hither- to practically unknown to all save the oldest and ripest scholars, that a failure to give it to the legal literature of the world and to the profession, would not only border upon culpability, but would be al- most, if not wholly, unpardonable. If by such a commentary or treatise, the history and evolution of law, connectedly brought from man's primitive estate across the abyss of the ages through the barbaric wars, through ignorance and superstition, serfdom and slavery, the battles be- tween Church and State, the dark ages, the days of chivalry and feudalism, the rise and fall of em- pires and nations, to the Christian era, on to the humane laws of our own times, based upon liberty, justice and equality, be well received and appre- ciated by the profession and the thoughtfulness and 36 FAMILY RELATIONS. forbearance of enlightened mankind, we shall feel that our labors will have been well rewarded and that our efforts will not have been in vain. Following these suggestions or explanations, a few observations on the range of the subject, in- cluding a list of authorities reasonably obtainable, may be useful in this connection. In considering the origin and nature of man note should be made of the essential differences between man and other animals, emphasizing the principle of the triple nature of the soul. The fact that man is a social as well as a gre- garious animal, that he is endowed with reason, will power and a thirst for knowledge, that his moral responsibility for his acts leads him to distin- guish between vice and virtue and exercise an idea of reward and punishment; that he has a right to life and the fruits of bodily and mental labor, to reputation and to freedom, unrestrained, except by the laws of nature and general utility, all taken together, make society, government, religion and knowledge essential to his well-being and happi- ness. Under this head man's rights are either per- fect or imperfect, natural or adventitious, alien- able or inalienable. In the primitive aggregations of mankind we can trace back to the family, with its relations of hus- band to wife, parent to child and master to ser- vant, as the unit of archaic society, with the father as the head or chief. The family was the basis. 37 THE EVOLUTION OF LAW. The motives that led mankind to the formation of civil government were primarily the social prin- ciple, permitting men to live in a community peace- fully and for the benefit of all, and the attach- ment of the sexes with its resulting progeny. These, however, were blighted in the outset by impotency and fear, laying the foundation for the supersti- tious belief that the god or gods ordered a certain man or men to represent them and rule the people according to divine command, thus placing the great masses into the hands of the rulers and at their mercy. Governments were first established for the great- er safety and welfare of the governed, not for the benefit of the rulers. The original right to govern was supposed to have arisen from divine command or the consent of the governed. Subsequently the idea of divine command dwindled away, and the right to govern was founded on the consent of the governed, or their involuntary subjection by ty- rants; or on the idea that the royal descendant inherited all the rights and powers of his prede- cessor; or on expediency in choosing a leader in times of danger to the community as a whole, or on the common choice by the people of a man possess- ing all the kingly virtues. Proving the last named custom, history often tells us of revolutions, when the people arose in a body and deposed the tyrannical sovereign, and placed the right to govern in the hands of a man 38 NECESSITY OF LAW. who would not abuse his powers, and rule in the interests and for the welfare of the masses. The dissolution of government does not reduce man to a state of nature, but merely to conditions of a civil union, with the right of sovereignty in the hands of the members, and giving up of certain natural rights, such as the avenging of an injury, or the right to certain liberties and other things influenced by law and order and the general happi- ness of society. Then comes the necessity of juris- diction and law as a direct result of civil union. Thus, upon the establishment of law, and follow- ing it down after it has taken tangible form, we come across its champions, such as Demosthenes, Aristotle, Cicero, Justinian, Bracton, Finch, Gro- tius, PufEendorf, Sanderson, Daws, Hooker, Hobbes^ Montesquieu, Burlamaqui, Dagge and Blackstone and many others. The internal properties of the law then arise, such as a rule of action, sanction, obligation and permission, and the external attributes, embracing the philosophy of legislation, the outline of codes and the rules of legislation. The question also arises as to the laws of nature as applied to man in all stages, such as the differ- ences between the laws of nature and the Divine Positive Law, and the theories advanced as to the manner in which man became acquainted with the laws of nature ; whether he obtained them from pre- cept, by inspiration from human reason alone, 39 THE EVOLUTION OP LAW. from sentiment alone, from reason and sentiment united, from the laws of man alone, or from the consent of mankind. In this study we find that the laws of nature relate to man's duty to himself and his duty to his fellow creatures. Man's duty to himself consists of the cultivation of his moral and religious nature, the acquisition of all useful knowledge, the preservation of the health of his body and mind, the honest procurement of property, and the pursuit of salutary pleasures. Man's duties to his fellow creatures are either absolute and common to all people, or hypothetical, arising from the establish- ment of society, government, law and order. Then comes the distinction of political law from civil, and the difference between political and civil states; the nature and objects of a constitution affected by the physical conditions of the governed, and the necessity for laws varying with the great and radical changes in the genius of the people; various divisions of the forms of government treat- ed of by the ancients, such as Socrates, Plato, his pupil, Aristotle, Polybius, Charondas, Zaleucus and Cicero, and the opinions of some of them as to the ideal forms of government. Machiavel, Milton, Hume, Montesquieu, Sidney, Harrington, Confucius, Bolingbroke, the Authors of the Federalist, Bentham and Napoleon, Locke, Frederick II. of Prussia, Rousseau, Maine and 40 CLASSIFICATION OF FORMS OF GOVERNMENT. other modern champions have contributed each in his turn to the advancement of political science. Then we have the classification of all conceivable forms of civil government into the Pure and Simple, comprising Theocracy, Patriarchy, Simple Monarchy, Simple Aristocracy, Simple Democracy ; the Pure and Mixed, comprising a Monarchy com- bined with an Aristocracy, Monarchy combined with Democracy, Aristocracy combined with Democracy, Monarchy combined with Aris- tocracy and Democracy; Quasi Mixed Republic or Democracy, in which the various principles rather than the governments are combined; the Corrupt and Simple, comprising a Despotism or Tyranny, an Oligarchy or Ochlocracy; and the Corrupt and Mixed, comprising either of the foregoing govern- ments singly or in a confederacy. Then we have Feudalism as known to the conti- nent of Europe: First, the occupation of the con- quered land by barbarians, their allotment among the victors; allodial property; beneficia and feuds; how Counts and Dukes made their offices heredi- tary; the prevalence of feudal over allodial land; and rise of tenures; the characteristics of feuds, as homage, fealty, investiture, reliefs, primer seisin^ fine for alienation, attornment, escheat, aids, ward- ships, and marriage; the rise of the landed aris- tocracy, orders and ranks of subjects, and the priv- ileges exercised by lords within their fiefs, as the coinage of money, private war, taxation, legisla- 41 THE EVOLUTION OF LAW. tion, and judicial jurisdiction; surnames and ar- morial bearings; the progression of the feudal sys- tem toward its modern form and aspect, and the gradual substitution of royal for territorial juris- diction, noting the growth of the Commons, the progress of taxation, and the preservation of the Eoman Law as it appears in countries of Europe to-day; and the feudal system in England and its influence on the jurisprudence of that country and of the United States. If space permitted we would gladly extend these observations and give to our readers a complete re- view of the "Legal Outlines," by Professor Hoffman, for many years Professor of Law of the University of Maryland, who gave to the legal literature of England and America, in the year 1836, a publish- ed volume consisting of ten lectures, which, though almost entirely argumentative, contain much val- uable original information, but only as it comes out in his arguments. Had Professor Hoffman also given to us a treatise on the subject, the profession to-day would owe him a debt it could never repay, for his learning was great and his wisdom pro- found. A review of the theoretical laws of Plato and oth- ers of ancient times would be instructive as well as interesting, but space forbids. However, we present in conclusion a few thoughts of Professor Hoffman on Plato, together with a list of Plato's works as arranged by him. These views so fully coincide 42 PEOFESSOE HOFFMAN ON PLATO. with our own, and are so splendidly expressed, that we may be excused for inserting them for the bene- fit of those to whom they may appeal. We quote: "As the works of Plato are volumi- nous and in this country seldom to be found except in the hands of veteran students, it may be well to explain of what they consist before we proceed to speak of his opinions. An enumeration of all the works of this eminent philosopher, with their names and extent, may invite the student, through curiosity or a more worthy motive, to a further acquaintance with them than what may be gleaned from the sketch here given. "The whole of Plato's works, then, are contained in fifty-five dialogues and twelve epistles. Hermo- dorus, however, in his collection makes only thirty- five dialogues, but gives thirteen epistles. The rea- son of this variance may be that there is some doubt whether some of the dialogues be not the production of one or more of his distinguished pupils, as is certainly the fact with the dialogue called 'Epinomis.' Each of the dialogues is desig- nated by a short and pithy name, such as 'De Po- litico,' 'De Kepublica,' 'De Legibus.' His works may be divided into four classes, viz.: Physical, Logical, Ethical and Political. The treatise 'De Republica' is not properly a dialogue, as the whole is recited by Socrates; but he details the opinions of the other supposed interlocutors. "As the writings of Plato may now be studied by 43 THE EVOLUTION OF LAW. those who are not deeply versed in the Greek and Latin languages, they having recently assumed an English garb, any one may now speak of them with a familiarity which a few only could formerly have possessed. And, indeed, were scholars in those languages more frequent, and even much ad- dicted to their perusal, still they would not be jus- tified in disregarding the laborious researches of such translators as Taylor and Sydenham, who de- voted much time and deep investigation to attain a thorough knowledge of their author. Nine of the dialogues were translated by Sydenham, and the remainder, together with the epistles, by Taylor; and the whole, with learned annotations, were pub- lished in 1803 in five quarto volumes. "The works of Plato being often referred to on subjects of natural and political jurisprudence and ethicks, we shall present to the student the names of all of them, together with the volume and page in which they may be found in the translations of Taylor and Sydenham. We would previously ob- serve, however, if it be not sinning against all authority, that after a pretty careful examination of his works, mainly, we confess, through the aid furnished us by Taylor and others, we are strongly inclined to the opinion that the wisdom, learning and acumen of the divine Plato have been greatly overrated. "It appears to us that there is much of wordy jargon, inexplicable subtlety, and occult and use- 44 TAYLOE AND SYDENHAM. less learning; often combined, indeed, with bold and striking thoughts, close and deep reasoning, and numerous apothegms and aphorisms of truth and wisdom. The prevailing character, however, of his works is mysticism, symbolical and incompre- hensible physicks, logical cant, acroamatick specu- lations, and still more acroamatick words and terms, perhaps at no time fully comprehended by his disciples, or by his readers in after ages, and possibly as little understood by himself. "His imagination was certainly brilliant, and his eloquence of the highest order; but that his wis- dom was not proof against the affectation and ped- antry of his age is abundantly manifest through- out his writings, in the various fantastical notions and sublime nothings which a philosopher of tt.f present age would utterly repudiate. "On the whole, therefore, we cannot doubt thai the age of Platonism is forever past, and that the remark of Dionysius on another occasion may be correctly applied to much of the philosophy of this greatly distinguished man, viz.: that many of the notions are 'Verha otiosorum senum ad imperitos juvenes.' And though the wise and learned and aged of many nations and times have sought in- struction in the pages of the divine Plato, much of this must be ascribed to circumstances which have perhaps entirely passed away, and can never recur. "These we need not enumerate, as they will read- ily suggest themselves to the mind of a student 45 THE EVOLUTION OF LAW. tolerably acquainted with the progress of human knowledge, from the days of Plato to the dark ages, and from the revival of literature to the eighteenth century, when the present philosophy of matter and mind became fully established. But, parting with what may be considered too digressive, we shall now present the promised list of Plato's writings." PLATO'S WEITINGS GIVEN BY PEOFBSSOE HOFFMAN, AS CONTAINED IN FIVE VOLUMES TBANSLATED INTO ENGLISH BY TAYL NOTATIONS, ETC. : DIALOGUES. VOLUME FIRST. No. Pages. 1. "The First Alcibiades" 9 to 98 2 to 10. "The Kepublic"— Ten Books or Dialogues 99 to 478 VOLUME SECOND. 11 to 23. "The Laws"— Twelve Dia- logues 1 to 384 24. "Epinomis, or the Philosopher" . . 385 to 414 46 PLATO'S DIALOGUES AND EPISTLES. This dialogue is supposed by Diogenes Laertius to be the production of one of his disciples. 25. "The Timseus" 414 to 575 26. "The Critias, or Atlanticus" 575 to 593 VOLUME THIRD. 27. "The Parminedes" 1 to 201 28. "The Sophista" 202 to 283 29. "The Phsedrus" 283 to 373 30. "The Greater Hippias" 373 to 429 31. "The Banquet" 429 to 531 VOLUME FOUETH. 32. "The Thseteus" 1 to 99 33. "The Politicus" 100 to 175 34. "The Minos" 175 to 193 35. "The Apology of Socrates" 193 to 229 36. "The Crito" 229 to 245 37. "The Phsedo" 245 to 343 38. "The Gorgias" 343 to 461 39. "The Philebus" 461 to 571 40. "The Second Alcibiades" 571 to 575 VOLUME FIFTH. 41. ''Euthyphra" 1 to 27 42. "The Meno" 28 to 101 47 THE EVOLUTION OP LAW. 43. "Protagoras" 101 to 157 44. "The Theages" 157 to 179 45. "The Laches" 179 to 211 46. "The Lyris" 211 to 239 47. "The Charmides" 239 to 269 48. "The Lesser Hippias" 269 to 309 49. "The Euthydemus" 309 to 355 50. "The Hipparchus" 355 to 371 51. "The Rivals" 371 to 408 52. "Menexenus" 408 to 431 53. "Clitopho" 431 to 439 54. "The lo" 439 to 489 55. "The Cratylus" 489 to 575 The "Epistles" are twelve in number, and are as follows : Nos. 1, 2, 3, "Epistles to Dionysius." (These are by some supposed to have been written by Dion, one of his disciples.) No. 4, Plato to Dion; 5, Dion to Perdiccas; 6, Plato to Hermias and others; 7, Plato to the Kin- dred of Dion ; 8, Plato to the Familiars of Dion ; 9, Plato to Archytas; 10, Plato to Aristodorus; 11, Plato to Laodamus; 12, Plato to Archytas. In the same lecture the learned Professor con- tinues at length on Plato's works in a most able and exhaustive manner, and adds the views of many other eminent legislators and philosophers of ancient times; but as interesting as a pursuit of these phases of the side lights of the times might 48 PLATO'S DIALOGUES AND EPISTLES. be, we bring this feature of the subject to a close, repeating our promise to give our full and complete Commentaries on the Evolution of Law to legal literature during the early part of the coming year. Heney W. Scott. New York City, July, 1908. 49 LIST OF AUTHORITIES THE EVOLUTION OF LAW. LIST OF AUTHORITIES. The following is a list of authorities referred to in the Introduction, reasonably accessible, par- ticularly in the larger cities, or which may be pur- chased by the exercise of some patience : Amer. Jour, of Semitic Lang., Vol. XXII, pp. 1-28, Chicago, 1905. American Jour, of Soc, Vol. IX, pp. 737-754, Chicago, 1904. American Law Rev., Vol. XXXVI, pp. 801-824, St. Louis, 1902. American Law Reg., Vol. XLIX, pp. 284-296, Phil- adelphia, 1901. Amos's "Fortescue." Aristotle's "Ethics," Gillies's translation. Aristotle's "Politics," Vol. II, Gillies's translation. Bentham's "Fragment on Government." Bentham's "Principles of Morals and Legislation." Blackstone's "Commentaries," Vol. II. Bissell's "Law of Asylum." Blumenbach on "The Variety of Human Nature." Burlamaqui's Institutes, Vol. I. Burlamaqui's "Natural Law," Vol. I. Campbell's "Grotius," Vols. I and II. Columbian Law Rev., Vol. V, pp. 1-19, 1905. Cruise's "Digest of the Eeal Law," Vol. I. Dagge's "Criminal Law," Vols. I and III. Dew's "Digest of the Laws." Draper's "Intellectual Development of Europe." 52 LIST OP AUTHOWTIBS. Ellis's "Summary of Boman Law." Eunomus, Dialogue I, Sec. 17. Fleugel's "Biblical Legislation." Gibbon's "Boman Empire," Vol. III. Goguet's "Origin of Laws," Vols. I and VI. Good's "Book of Nature," Vols. I and II, Series 2 and 3. Guizot's "History of Civilization." Hallam's "Middle Ages." Harper's "Code of Hammurabi." Harrington's "Oceana." Harrington's "Political Aphorisms." Harrington's Works. Hegel's "Philosophy of Bights." Hooker's "Ecclesiastical Polity," Book I. Hobbes's "De Corpore Politico." Hume's "Essays," Vol. I, Part II; "Essays," XII, XIII and XVI. Journal African Sociology, Vol. I, London, 1901. Jour. Anthropol. Soe. of Bombay, Vol. VI, pp. 409-426, Bombay, 1903, Juridical Rev., Vol. XVII, pp. 93-104, Edinburgh, 1905. Kent's "Messages of the Bible." Lww Mag. d Rev., Vol, XXXI, pp. 385-399, Lon- don, 1906. Lawrence on the "Physiology of Man." Lord Kaime's "Sketches of the History of Man." Locke on Government. Macaulay's "Budiments of Political Science." 53 LIST OF AUTHOMTIES. Maine's "Ancient Laws." Macbiavel's "Prince." Millar's "English Government," Vol. I. Millar on "Ranks." Montesquien's "Spirit of Laws," Books I, VI, XXXIX. Paine's "Rights of Man." Paley's "Philosophy." Plowden's "Jnra Anglorum." Pnffendorf, Books 1, 2, 7. Priestley's "Lecture on History." Quarterly Journal, Vol. CC, London, 1904. Reid's "Essay on the Powers of the Human Mind." Robertson's "Charles V," Vol. I. Rousseau's "Social Contract." Rutherford's "Institutes of Natural Law," Vols. I and II. Seebohn's "Tribal Customs." Sidney on Government. St. Germain's "Doctor and Student." Stuart's "Natural Rights." Sullivan's "Lectures on Feudal Law." Ward's "Inquiry into Foundation and History of the Law of Nations." Westminster Rev., Vol. 156, pp. 411-426, London, 1901. White on the "Regular Gradation in Man and Ani- mals." Wright's "Tenures." York's "Law of Forfeiture." 54 OBSERVATIONS BY THE LATE SENATOR JOHN J. INGALLS ON LAW, GOVERNMENT AND BIOGRAPHY OBSEEVATIONS BY THE LATE SENATOR JOHN J. INGALLS ON LAW, GOVERNMENT AND BIOGRAPHY. The paper following was written by the late Sen- ator Ingalls at the request of the author as a per- sonal tribute to the students and younger members of the American bar. It was embraced in the work of the author entitled "Distinguished American Lawyers" as the Introduction to that book, which was published by Charles L. Webster & Company, of New York, in 1891, and from that found its way into many places in literature, and is re- garded as one of the classic productions of his pen. Deeming it not inappropriate, referring as it does to legal biography and the profession of law, we give it prominence in this volume. The author acknowledges a debt of gratitude to the late Senator Ingalls for inestimable and man- ifold kindnesses rendered to him in his youth, and is grateful for a friendship lasting until the great man's death. The solicitude of Senator Ingalls for young men of ambition and studious habits was practically unlimited, and it can be said with perfect truth that not one of them ever appealed to him in vain for inspiration, for hope and for encouragement in his struggles for the goal. 57 THE EVOLUTION OF LAW. A suggestion of his to young men was that life is too short to consume it in continually settling up old scores, though he in his early life had not ob- served these wise words of later years. Another was that one ought not to be too modest in the recognition of one's own capabilities. As an illus- tration, when speaking of his own eloquence and power of drawing great throngs when a speech was to be delivered by him in the Senate, the great man often said, to the author, "I refer to this as to a fact, and with the same formality and indifference as I would to the size of the shoe I wear, or the length of my trouser leg." His private life was stainless, his nature pure and wholesome as the fresh-blown rose, and he left to posterity a monument to commemorate his genius, oratory and industry, which will not per- ish from the earth as long as it is exalting to nurture aspiration for honorable station and re- ceive the just rewards for the achievements of men. If it be true, as science avers, that every vibration of the atmosphere is carried onward forever, then somewhere to-day in the infinite regions of space may be heard the expressions of the many beauti- ful thoughts to which he gave eloquent utterance in his life, still rivalling in rhythmic measure the exquisite harmony of the celestial spheres ! 58 LAW, GOVERNMENT AND BIOGRAPHY. By John J. Ingalls. As there is no study so interesting to humanity as human nature, and no subject so attractive to mankind as man, so the departments of literature that have been most sedulously cultivated in an- cient and modern times have been history and bi- ography. History records the birth, growth and death, the struggles, the intercourse and the destinies of na- tions. Biography narrates the lives of the indi- viduals of which nations are composed. One treats of peoples and races; the other of persons. The first is general, and chronicles great political move- ments, wars, disputed successions, and the ambi- tions of dynasties which modify governments and change the boundaries of kingdoms; the latter is special and is confined to the personal events, in- cidents, traits, qualities and characteristics of its subjects. Biography preceded history, and ancient litera- ture is rich in examples. The Book of Job, the earliest known production of the human intellect, and the most interesting, because it shows that man, in the infancy of the race, was troubled by the same problems that perplex us now, is a bi- ography. The Old Testament abounds in these com- positions, of which the lives of the patriarchs and the story of Ruth are familiar instances. The myth- 59 THE EVOLUTION OF LAW. ologies of Greece and Eome are biographies, and the literature of those nations has given no more valuable treasure to the world than Plutarch's lives and the Sophists by Philostratus, The demand for individual biographies having become so insatiable in modern times, they have grown beyond the dimensions of any catalogue, and the annual flood continues unabated; some philo- sophical, others historical, descriptive and critical. Much is insignificant and worthless, but among the melancholy waste of trite and insipid plati- tudes there are occasional exceptions, so rich and picturesque in thought, style, treatment and scope, and so important on account of the relationship of the subject to the age that they survive in im- mortal vigor and appeal with unimpaired zest to every succeeding generation. Such are Boswell's Life of Johnson ; Sterling, by Carlyle; Goethe, by Lewes; Fronde's Caesar, and last but most important, Otto Trevelyan's Charles James Fox, which, in composition, spirit, construc- tion and discernment, stand easily foremost, with the dignity of history, the charm of biography, and the intense passion of romance and tragedy. It was of such books that Dr. Johnson said : "No species of writing seems more worthy of cultiva- tion than biography, since none can more certainly enchain the heart by irresistible interest, or more widely diffuse instruction to every diversity of con- dition." 60 LAW;, GOVBENMENT AND BIOGRAPHY. This volume does not aspire to the dignity of Tacitus, nor to the analytical dissertation of Con- dorcet. It is a collection of sketches of the lives of "Distinguished American Lawyers," many of whom have been prominent in public life as well as at the bar, and is intended specially for the young who are struggling in obscurity against the obstacles of poverty, and who require the stimulus presented by the contemplation of the careers of such as have encountered similar difficulties and achieved renown in every field of human effort. To these it will be an inspiration and a prophecy. There is no prescription for success. To him that hath shall be given, and from him that hath not shall be taken away even that which he seem- eth to have. Two shall be grinding at the mill, and one shall be taken and the other left. A man may apparently deserve fame and fortune and ob- tain neither; or he may deserve neither and obtain both. Destiny is not logical nor just. It seems some- times as if there must be a peculiar assemblage of faculties that commands success, so that those dis- qualified and having neither mental nor moral equipment acquire without effort the prizes of the world — riches, station and felicity — while those of whom success might have been predicted are doom- ed to penury and obscurity. Many brilliant youths fail to fulfill their early promise and do not justify the prophecies of great- 61 THE EVOLUTION OF LAW. ness because they loiter by the way, while their dull competitors press sturdily onward, resisting the temptation to "pluck every flower and repose in every shade." Others do not succeed for want of opportunity. In a domain of law there should be no such thing as luck, and every man should receive the just re- ward of his labors and go to his own place. But any philosophy of life that rejects chance as a factor is fatally defective. It is usual for those who seek to exalt human destiny to assert that great men make the environment of their great- ness. This may sometimes be true, but the rule is otherwise. Grant, Sherman and Sheridan had little to do with bringing on the Civil War. They would have prevented it if they could, but had it not occurred their lives would probably have been spent in the inglorious inactivity of camps and gar- risons on the frontier, or the obscurity of humble private avocations. But for the French Eevolu- tion, in which Napoleon was too young to partici- pate, the great commander might have died a sub- altern of artillery or a soldier of fortune on other fields. No man can be a leader imless there is a crisis, and no orator can be eloquent unless there is an occasion. He may charm by rhetoric, attitude and gesture, but Demosthenes, Chatham, Burke and Webster are immortal because they interpreted the 62 LAW^ GOVERNMENT AND BIOGEAPHY. purposes and gave voice to the passions of epochs. Sometimes the man does not appear with the emer- gency. No person bears the same relation to our Civil War, the most important period of our history, as Samuel Adams and Patrick Henry sustain to the American Revolution, or Gladstone to the cause of Home Rule in Ireland. The only conspicuous ut- terance that rises spontaneously to the memory is the little speech of Lincoln at Gettysburg, which was read from three foolscap pages in less than ten minutes, while Everett declaimed two hours from the same pavilion, and his words are forgotten. Opportunity comes once to all, but the capacity to recognize and grasp it is an endowment given to few, and neglected, it seldom presents itself again. The reader of these narratives, therefore, will search them in vain for any precepts that will instruct him how to inevitably become eloquent, or rich, or renowned. Of the journey to these goals there is no itinerary. Along the voyage of life there are beacons and buoys upon reefs and headlands to invite and warn, but no pilot can unerringly steer into these fortu- nate havens. Every navigator upon this sea is a Columbus. He sets sail for an undiscovered con- tinent. He has ship, cargo, chart and compass, but no underwriter can issue a jwlicy of insurance against loss and wreck. But the perusal of these pages will be of inesti- 63 THE EVOLUTION OF LAW. mable value in teaching the ingenuous and ambi- tious youth of America that though there is no in- dispensable formula for success, so there are no ob- stacles which undaunted resolution, industry and courage cannot surmount. Humble birth, poverty and privation are rather hostages than foes to for- tune. Of those recorded in this volume, indeed, of all the leaders in letters, arts and arms in modern times, few have been born to the purple. Natal silver spoons have not been frequent in mouths that have charmed, taught or commanded mankind in riper years. The presidents, legislators, judges, inventors and merchant princes of 1920 will not be the gilded youths of 1890, leading lives of sensual indulgence and faring sumptuously every day, but the sons of farmers, artisans and laborers, who are striving to enter in at the strait gate against discourage- ments that seem sometimes insuperable. No one reaches the full stature of his powers except under the stress and pressure of necessity, and he who would have wings must tempt the abyss. The careers herein depicted illustrate vividly the opportunities afforded to young men of character, energy and ambition in the United States. The re- moval of hereditary bars, the abolition of caste, privilege, authority and prerogative have prevent- ed here the social stratification which exists under other governments, and leaves the individual free to follow the dictates and preferences of his own fac- 64 LAW^ GOVERNMENT AND BIOGRAPHY. ulties, and to act in any direction that Ms own gen- ius may impel. The profession of law in other lands is aristocratic and exclusive in its limiftations, and difficult of access; but here the tendency to fill its ranks by constant reinforcements increases from year to year. Much flippant and puerile, but harmless, criti- cism has been directed at the legal profession and its practitioners by the self-confessed humorists of the press, based upon alleged torpor of conscience and moral flexibility. But the lawyers of every age have been the recognized leaders of enlightened public opinion, the champions of human rights and the defenders of civil and religious liberty. In periods of danger and tumult, when established institutions are threatened by false instructions or by appeals to violence, the thoughtful and conserv- ative masses of the people have always turned to the bar for advice, counsel and direction. Of the law it can be said, as of no other pro- fession, that a knowledge of its principles is of benefit and advantage in every occupation and in all conditions of life. Next to the profession of arms, it is the profession of honor. Forensic tri- umphs are second only to victories won upon the battlefield, and an acquaintance with the lives of those who have achieved renown in such memor- able contests, the gladiators of the intellectual arena, must be of absorbing interest as well as of incalculable advantage to the ambitious young 65 THE EVOLUTION OF LAW. students who are preparing for the contests of the future. The compiler of this series is a young man of unusual diligence, thoughtfulness and application, himself a member of the bar and an author of con- siderable repute, who is in cordial sympathy with those for whose encouragement this work is espe- cially intended. John J. Ingalls. Oak Ridge, April, 1891. «B THE EVOLUTION OF LAW A HISTORICAL REVIEW. The Evolution of Law SUBJECT IN GENERAL. It would require volumes to exhaust the history of the evolution of law in all its comprehensive- ness; but the subject is quite well covered in the author's commentaries, embraced in two volumes, and in an additional volume dealing with the na- ture of man, the necessity for laws to govern him, and much of the theoretical laws of ancient times. This volume, based upon all of the author's writ- ings, is only designed to maintain the thread of the subject for the use and edification of those who do not see fit to give more thought and attention to it. Laws existed ages before the era of advocacy, and it is evident that their permanent establishment made the legal profession a necessity, having devel- oped from its crude state until it is now recognized, next to the profession of arms, the profession of honor. All ancient chronology falls easily into three general divisions: The fabulous, the legendary and the probable or natural. The fabulous should not be wholly cast aside, nor the legendary 69 THE EVOLUTION OF LAW. denied; neither should the former be construed as actual, nor the latter held as literally true. The conclusions of those who are credited authority on ancient history should not be blindly accepted, but they should be carefully weighed, and only what is logical and natural should be given consideration. Therefore, in this review we follow the laws that have governed the human race, from the most prim- itive times to the present, and have endeavored to treat the legendary in a rational and impartial manner, in the light of scientific development and modern civilization. PBIMITTVE MAN. From the dawn of enlighten,ed civilization man has been what is called a social animal, but science, anthropology and ethnology establish the fact that, in primitive and prehistoric times, generally ac- cepted as the era known as the Stone Age, man, in whatever form or shape he then was, roamed about the regions of the earth like the wild beasts, living individually in a cave and hunting for his food. The only companion he might have had to share his rocky abode was the female, whom he carried off to his quarters by main force. The strongest took what was his conception of the best, and his posses- sion was disputed only by one fit to best him with stone club, tooth and nail. History, as is often said, repeats itself, and man 70 PRIMITIVE MAN. of to-day, notwithstanding his boasted enlighten- ment and civilization, in many instances reverts to the instincts of his primitive ancestors, and the habits of the beasts are uppermost in his actions. Man existed in this savage stage for ages before his nature, through the aggregation of in,dividuals, became subdued and enabled him to live more or less at peace with his fellow creatures, who were the progeny of his own flesh and blood. He then entered into the barbaric stage, living apart with his own family, the weaker being unable to defend himself from the incursions of the strong- er. Hence the Attest survived, and the other kind passed away, either through starvation or a cruel death at the hands of a brother. On their hunting expeditions the males captured the females of other families, whose protectors were also on the hunt for food. Children were begotten, and the families grew in numbers and strength. As the descendants multiplied, the strongest of a particular family was looked up to as the head. In^ order that he might successfully repel the attacks of neighboring fam- ilies, the head, who was usually the father of the family, endeavored to retain under his control as many able-bodied men as he could. He therefore settled all disputes of members of his family, thus fostering the instinct of protecting the life of all, lessening the disposition to kill one another. Only when the authority of the father was ques- tioned, or for the commission of an offence against 71 THE EVOLUTION OF LAW. his own family, was death the penalty. Occasion- ally the o£fender was strong enough to protect him- self from the attacks of his relatives, and either be- came a wanderer on the face of the earth, captured a female and reared a family of his own, or by the strength of his arm made himself the head of a family, UNIT OF ANCIENT SOCIETY. In this way, man, from being a cave-dweller in compai^ with his female companion, evolved the first unit of primitive society, the family ; and from his first law, the satisfaction of his appetite, he began to obey the customs of his family as laid down by the father. Maine in his "Ancient Law" says: "Archaic Law * * in all its provinces, is full of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in view of the men who composed it, it was an ag- gregation of families." The unit of ancient society, then, was the family. PATEIAECHAL GOVERNMENT. So from the best authorities, the most primitive form of government of the first aggregation of people in the similitude of a community, was the patriarchal, its laws simulating in their simplicity the mild authority of the head of a family, in whom 72 ORIGIN OF THEOCRACY. were supposed to be posited wisdom and virtue in a greater degree, and more fully developed, as were his physical attributes; consequently the father or head of a tribe was looked up to as a model worthy of emulation, and one to whom obedience was due. This father of the family, or Pater Familias, as he was called in Rome, where the family as a form of government reached the crest of development, had absolute power over his descendants even to the question of life and death, and was the final arbiter in all disputes between the members of his family. This strictly patriarchal form of goverimient, co- eval with the dawn of the most primitive aggrega- tion of human beings, from which, through the slow process of the march of civilization^ has been evolved the present theory of laws that to-day guide the came more Saxons, Bngles, Jutes, and Celts from across the Baltic. These were a thrifty people, and they tilled the rich soil of Eng- land with a faith and vim that was strange to the savage Britain. In a century the entire Eastern coast was dotted with the villages and homes of the foreigners. They had come to stay. Then the Dane, the sea wanderer, who had no patience to construct, but revelled in destruction, came and made havoc of the peaceful homes of the farmers. They took what they wanted, destroyed the rest, and sailed away. This was repeated for many years. In the interest of common defence of life and property, the tribes that inhabited Britain, from being a dozen little kingdoms, combined and became one. 134 TEUTONIC TBIBES — ADVENT IN BEITAIN — ALFRED THE 6BEAT. A King was chosen, a man with a strong arm and clear brain, who commanded respect by his appearance and deeds. He was an Bngle, and his name was Egbert. Alfred was the grandson of Egbert. A few years before his birth, the Engles were converted into Christians, and the beautiful and pure doctrines of primitive Christianity now governed their actions. Alfred was sent to Eome to become a bishop of the Church. He returned a mild, gentle and civil young man. ALFRED CHOSEN KING — ^A UNITED ENGLAND. In the meantime the Danes were still maraud- ing the British Coast, and the father and brothers of Alfred had fallen in battle while defending their homes. In their extremity the Anglo-Saxons turned to Alfred, the gentle and silent, and placed their hopes in him. Through expert generalship he was able to finally defeat the Danes and make many prisoners, among whom was their King. He converted them to Christianity, which broke the fierce spirit of the Dane, and peace followed. There was now a united Kingdom, and it was Alfred who formed Brittany into England. The English love of law and order dates from then. 135 THE EVOLUTION OF LAW. ALFEBD^S LAWS. In Alfred's time the King's word was law, and it was he who proclaimed that a King was not divine, but merely human, and therefore a King's edicts should be endorsed by the people in Folk- moot, or general town-meeting. This was the origin of popular government, and here is an instance where a great ruler voluntarily relinquished some of his power. History tells us that usually there had to be a revolution, forcing the King to renounce a part of his supposedly divine right. But Alfred was very close to the common people. In his long struggles for home and freedom against the savage Dane, he had slept on the ground with his soldiers and tilled the soil with the farm- ers. He set himself to educate the people. He pre- dicted a time when all men would be able to read and write and take an active and personal part in the government. JTJEY SYSTEM. Alfred was the first man who introduced the jury system in England. It is claimed that he did not originate it, which is a fact. It goes back to the time when there was no law, when an entire village would turn loose on an offender and pull him limb from limb, a fact which led to a degree of delibera- THE BAKEISTEE IN ALFRED^S TIME. tion, and the case being handed over to a committee to investigate the deed and hand in their verdict. "Lynch Law" typifies a primitive jury trial. The early Greeks had trials by jury, as in the case of Socrates. But the jury system in England dates back no further than Alfred's time. He had abso- lute power, and was the sole judge and ruler. But on certain occasions he relinquished his power and said, "I do not feel able to try this man, for as I look into my heart I see that I am prejudiced. Neither will I name men to try him, for in their selection I might also be prejudiced. "Therefore, let one hundred men be called, and from these let twelve be selected by lot, and they shall listen to the charges and weigh the defence, and their verdict shall be mine." THE BARRISTER IN ALPEED-'S TIME. In the time of King Alfred the barrister was an employee of the court, and it was his business to get the facts and explain them to the King in the fewest words. If a barrister accepted a fee from a man suing for justice, he was disbarred. Finally, however, the practice of feeing, in order to renew the zeal of the barrister, was tolerated, but clients had to slyly slip all gratuities, as they were called, into the pocket of the barrister. The general practice of paying the barrister, in- stead of the court, was not adopted till several hun- 137 THE EVOLUTION OF LAW. dred years later, and it was then regarded as an expeditious move to allay litigation and punish the client for not settling his own troubles. At present, with our complex code and practice of the several courts, it is absolutely necessary to hire a lawyer to attend to the preliminaries and trial of a case. Chief Justice Fuller has prophesied that there will come a day in America when damage cases will be heard by a tribunal without the help of lawyers. A man will file his claim of damages, and it will receive attention. He states that the accept- ance of a case on a contingent fee will yet be a mis- demeanor. Justice should be cheap and easy, in- stead of costly and complex. PRESEEVATION OF OLD CUSTOMS. So are we imbued with old-time customs that many of them used in ancient times are in vogue to this day. Attorneys are still regarded as officers of the court, and we still use the word "Court," signifying a place where royalty dwells. EDWARD I. From the time of Edward I. Great Britain made rapid strides in her system of jurisprudence. The English people were pleased to call that monarch the Justinian of modern times, and Sir Matthew Hale affirms in his history of the Common Law: 138 HBNBY n. — MAGNA CHAETA — JOHN I. "More was done in the first thirteen years of his reign to settle and establish the distribution of justice in the kingdom than all the years since that time put together." HBNEY II. — MAGNA CHAETA — JOHN I. The reign of Henry II. was one of legislation. Feudalism was struck a deadening blow. Liberty was the keynote. There always was a council of lords and prelates to advise the King, but it was in this reign that the mass of people was repre- sented in the House of Commons by those whom they chose. The ancient right to speak for themselves was thus brought back to them, but they spoke through chosen representatives. Henry the Second developed the jury system and established a Circuit of Kings' Judges, who trav- elled about the country and heard civil and crim- inal cases. In the reign of John, the Magna Oharta came into existence in the year 1215. This was an em- bodiment of the ancient customs of the Saxon tribes, and by it all classes had rights, and the King was a rebel if the laws of the Charta were not obeyed by him. This was the culmination of the long struggle for rights, and Englishmen date the birth of their na- tional freedom from the reign of John. 139 THE EVOLUTION OF LAW. OLD ENGLISH LAW LIBBAEY. The most reliable information relative to the primitive constitution of the English people and the subsequent changes may be found in Stubb's Constitutional History of England. In the time of the first Edward a complete law library embraced Bracton, Glanville and Fleta, and in his reign the Chief Justice of the Court of King's Bench, with a view to the establishment of a code of procedure in his court, as well as to ex- pedite the trial of cases, published a collection of writs, which he thoroughly revised and designated "Kegistrum Brevium." Later he composed an original work in Latin, which he divided into two volumes, known as "Hengham Magna" and "Hengham Parva." They were quaint books, and serve as a curious contrast to those of this age of learning and wis- dom in the domain of jurisprudence. Notwithstanding all this, the crude instructions given to the then legal world in reference to the conduct of actions from their beginning to their ending, were received with delight, for the good Judge's learning was great and his wisdom pro- found. Lyttleton's writings and Lord Coke's Commen- taries on Lyttleton became the most celebrated ever composed on jurisprudence up to that date, and each contributed his store of knowledge to the un- 140 FEUDALISM. precedented advancement of science in the practice of law in the English forum. BBAOTON. Lyttleton wrote in French, the prevalent court language of the third Edward's time, and Bracton, an ecclesiastic of Richard I.'s reign, wrote in Latin more puzzling in its construction and more difficult to translate than the French of Lyttleton. It was Bracton who interpreted the "Magna Charta" as the spirit of the time and the people demanded it to be rendered. By way of a reflection upon Bracton, Sir Henry Maine, an eminent classical authority, tells us that he [Bracton] "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 Eoman law was formally proscribed will always be among the most hopeless enigmas in the history of juris- prudence." FEUDALISM. Feudalism as a state of society and government played its part in the evolution of law among all the nations and still exists in a few countries to- day. It is interesting to a student of the present age, who looks back upon feudalism as an ancient THE EVOLUTION OP LAW. form of society, to watch the progress of a nation that has just emerged from a feudal state to mod- ern ideas of society, government and law. We refer to that country of the Far East, Japan, which is trying to educate its inhabitants accord- ing to Western principles as to law and govern- ment. Japan was in ancient times influenced by Confucianism, and, like China, was purely a feudal government. JAPAN — PEIMITIVB IN MODERN TIMES. One fact concerning feudalism is that it com- pletely prevents any organized system of laws. The lord of the land was absolute, and the "Jus vitae necisque," the right of life and death, was in his hands. In Japan, even during the early part of the 19th century, civil and criminal trials were conducted privately, and the knowledge of the law and prac- tice became secret in the hands of officials, just as in Eome it was in the hands of patricians, till Cseus Flavius, a clerk of court, betrayed the secret. CRIMINAL TRIALS. One remarkable rule in criminal cases was that there could be no conviction unless there was a vol- untary confession by the accused. 142 EEFOBMS. But torture was permitted by the judge, and many an innocent person who could not bear the suffering confessed to a crime of which he was totally guiltless, while the hardy criminal very often escaped unpunished. CIVIL CAUSES. Civil causes underwent a preliminary examina- tion as in Egypt, and the practice became techni- cal and intricate to the utter bewilderment of those who were not in the secret. Judges would ask the parties to come to terms out of court. REFORMS. The judgments of the court were to be in writ- ing, and the punishments in criminal cases were extremely cruel. But in 1868 there was a reform, and torture and severe punishments, except behead- ing, were abolished. Between 1870-1878 there were more changes, and all capital punishment, except for high trea- son, murder and arson in its first degree, was pro- hibited. Civil and criminal codes were promul- gated, according to Western ideas. By virtue of these codes, appeals to higher courts are allowed on both questions of law and fact, which is not the case in England and America, where an appeal can only be sustained on a question of law, or of law and fact. 143 THE EVOLUTION OF LAW. By 1891 the Codes were revised and completed. They do not provide for a jury system, which in England and America is considered to be one of the safeguards of liberty, on the ground that the people are not sufficiently educated, and a case can be heard and tried to better advantage to litigants by one man who is trained for the position. The judges are appointed for life, and they need not necessarily be barristers. They are specially trained, as in Germany. They may be removed only by a Disciplinary Court, when proven guilty of gross misconduct in administering justice. DOMESTIC RELATIONS. The feudal system was entirely done away with, and there are now individual rights to property. But the law as to family relations was changed but slightly from the customs of ancient times. These customs are too deeply rooted in the na- ture of the Japanese, and filial love and respect play a great part in the government of the Japa- nese, as they do in China. Though I have said that by 1891 their Codes were completed, the thrifty Japanese feel that there is still room for improvement, and they are con- stantly straining to better all the departments of their Empire. They are in the wake of the most advanced West- ern nation, and before long bid fair to be on an equal footing with them. 144 FEUDALISM IN FRANCE. REVOLUTIONS. In no country has a reform in the existing laws been brought about peacefully. It has been only by revolution that the people have been able to obtain their rights. Those nations that have had their struggles earlier in the history of the world are now far in advance in their adminis- tration of justice. Other nations are struggling to-day for their rights, and the rest will have their day, even to the most savage and uncivilized. It is the same story repeated over and over again, and the country that does not acknowledge the rights of the masses perishes in time. ROUSSEAU. A study of the causes that led up to the French Revolution is interesting in connection with this point. Some people trace the revolution directly to Jean Jacques Rousseau. He is blamed by some and lauded by others. In fact, a revolution is the effect of a long train of evils. Rousseau saw the evils and uncovered them to the public gaze. But he did not cause them. FEUDALISM IN FRANCE. In this time, the eighteenth century, there were in France more than a hundred offences punish- 145 THE EVOLUTION OF LAW. able by death. Church dominated State, and all heretics were to be exterminated, as promised by the King in his coronation oath. Secret arrest was very popular with high Church and State officials. A suspected man could be re- moved from friends and family, and he would dis- appear. It was useless to search or inquire, the inquirer might disappear in some mysterious way. The masses had no rights. They had the privi- lege of living until there was an order that a man should die. The torture, in order to force confession from innocent persons, was in full swing. To doubt Scripture was treason against the State. THE SOCLiL CONTRACT. These and many other worse conditions pre- vailed. Eousseau laid them bare to the world, and especially to the downtrodden of France. He then wrote the "Social Contract," which embodied ideas entirely reformatory to the times. The opening clause reads, "Man is born free, but is everywhere enslaved." Freedom, equality and fraternity is the burden of the book. The argument of the "Social Contract" is that in all forms of government the people enter into a natural agreement with their prince or ruler, wherein they waive their right of freedom in con- sideration of his seeing that laws giving the great- est good to the greatest number shall be passed and enforced. 146 EFFECT ON AMERICA. Every individual of the State signs the contract ; should he breach it, all benefits shall be denied him. A prince who so forgets his duties as to neglect his office and work for private gain or the benefit of a few should be deposed. "The individual by giving himself up to all gives himself up to none; and there is no member from whom he does not require the same right as that which he gives up himself. He gains an equivalent for what he loses, and a still greater power to preserve what he has. "Each of us puts his person and his power under the superior direction of the general will of all, and as a collective body receive each member into that body as an indivisible part of the whole." He also advocated religious tolerance, and absolute separation of State from Church. EFFECT ON AMERICA. Ideas such as these, brought to the foreground by the existing evils, wrought marvellous changes, and we can trace one of the causes of the Ameri- can Eevolution to the Social Contract. It was the first expression of liberty as we in America under- stand it to-day. Governments to-day are carried on by the people through their representatives, and all officials are the servants of the people. The world is not at a standstill. We will not have another Dark Age, and there is room for 147 THE EVOLUTION OF LAW. more improvement. The people have just obtained their freedom, and are just awakening to their rights and powers. CHURCH AND STATE. In every country whose history stretches back into the twilight of civilization the connection be- tween its religion and its secular government is so interwoven that it would have been impossible for one to have existed without the other. This idea obtains in all Oriental nations to-day; their people earnestly believe that without this con- comitant of religion the State could not exist, and that it is of little importance whether the State per- ishes, if only its religion is preserved. Church and State have ever been united in Eng- land, and remain so to-day, a relic of the barbaric idea. THOMAS JEFFERSON. Thomas Jefferson states that he traced the mat- ter of the inclusion of the Mosaic law into the laws of Alfred the Great down to the time of Bracton, and even further into antiquity, and found that the words "Ancien Scripture" had been trans- lated into "Holy Scripture" ; the real meaning be- ing "ancient writings." Tracing it down through the law books, he finds where Sir Matthew Hale states that "Christianity 148 UNITED STATES — EBLI6I0US TOLKEANCE. is parcel of the laws of England," and that Lord Mansfield had just decided that the "Essential principles of revealed religion are part of the Com- mon Law," which carried the doctrine still further, and as Jefferson observes : "Leaving us to find out, at our peril, what in the opinion of the judge, and according to the measure of his foot or faith, are those essential principles of revealed religion obligatory on us as a part of the Common Law." Jefferson had an aversion to being governed by the laws of Christianity, repugnant to the Common Law; and he significantly adds in his note-book where this record appears that because Christi- anity is true, it does not become a part of the Com- mon Law; that the Newtonian law is true, but no part of the Common Law. Perhaps since Jefferson no student in our coun- try has penetrated so far in his research into the antiquity of the law, and while we might find those differing with our opinion, yet we think his ex- ample worthy the emulation, not only of students, but of any lawyer who has not done likewise. UNITED STATES — EBLIGIOUS TOLEEANCB, The great stumbling block or impediment ob- structing the progress of law has been that the State has ever been subordinate to the Church. When our government was formed, however, the State was absolved from the bondage of the Church, 149 THE EVOLUTION OP LAW. and in a very short period, exceeding a single cen- tury by only a few years, the result has been a material prosperity, accumulated wealth and the education of the masses, unparalleled in the history of great States ; here, too, woman has been exalted as in no other nation, raised to a pedestal from which she is admired and respected for her mod- esty in its broad sense, and consequently the chil- dren of these mothers, the autochthonous genera- tions of America, are the most progressive of all the peoples of the world, endowed with a high moral organization, and true to all the obligations of a refined and cultured state of society. In tracing the thread of the evolution of law through Egypt, Sparta, Greece, Rome and England to our own country, we have not elaborated on the corresponding advancement of the French, Span- ish and German nations in the same domain, as they, too, gathered from the same fields, and it would be but a work of supererogation to cut any sheaves from there. The law student of to-day, necessarily under the established curriculum, is familiar with those great expounders and expositors, Coke and Blackstone, who have thrown so much light on the history of the evolution of law, and whose wisdom and learn- ing astound the legal world even to this day. It would be a delightful task to follow the great advocates into the English forum, among them Burke and Erskine, renowned not only for the 150 CONCLUSION. splendor of their eloquence, but for their celebrated pleas in behalf of justice, and who, without ques- tion, transferred the storied laurels of utterance from Greece and Eome to their own brows — a mon- ument to the grace and elegance of our language, which will last as long as words are spoken and enlightened man endures. CONCLUSION. Acknowledging, with a due sense of gratitude, our indebtedness to the common law of England for the basis of our own system of jurisprudence, brings us to the conclusion of this review, and leaves little to be added, save reference to such im- provements as have been made through wise legis- lation dictated by the love of liberty and the spirit of patriotism, industry and virtue, enduing our forefathers and their descendants. We have threaded our way through the evolu- tion of law from man's primitive nature and estate, through the fanciful weavings of tradition and the weird stories of the priests of Memphis, through the dazzling and sublime idolatry of the Pagan world to the limbo of dead gods, and we witness the battle still raging. We have stood upon the heights and viewed the civilization of ancient Egypt, and gazed upon the magnificence and scope of her ruins, have dwelt upon the arts and sciences, and the wisdom and 151 THE EVOLUTION OF LAW. learning of Greece and Rome, who have left noth- ing to tell the story of their greatness but the ruins of their colossal buildings, the splendor of their grand palaces and the requiem of their his- torians. We stand in awe of the existence of the Chinese Empire for more than four thousand years, and of Great Britain for more than twenty centuries, and join in her boast that her drum beats are heard around the world, and that the sun never sets on her dominions; but the new light of love and vir- tue, and faith and hope, simplifies the lesson of the tale of the Christ shedding the purple robes of paradise and coming down to the bleak coasts of mortality to give His blood for the salvation of the world, and, reflecting on all the past, we look upon our own wondrous age and our own great Republic, scarcely more than one century old, and find we have achieved much more than all of these; that we too have had our struggles and bitter trials, our triumphs, our glories and renown, one mighty war of brother against brother, shedding the blood of three hundred thousand men upon the red sands of battlefields, but the cause of our strife was given unto the nurture and warmth of human hands and loved by human love, so that all bow with reverential solemnity as the graves of the fall- en heroes of the North are laden with the roses and the lilies, and those of the South with the mag- nolia and the jessamine. 152 CONCLUSION. The same flag is the symbol of our glory, and the same flag the emblem of our power, and the same constitution guides our footsteps and enables us to direct with a flrm and unerring hand the destiny of this great nation. We, too, have had our heroes, in war, in states- manship and martyrdom, who will ever be revered and venerated by all mankind, and though their lifeless tenements shall lie voiceless in the sepul- chres of the dead for all the centuries to come, their memories shall live on so long as the hosts of heaven shall greet mortality on the shores of eter- nity. May our laws still progress, tempered and exalted meanwhile with mercy and love, inspired by truth, virtue and a solicitude for our fellow creatures, and may obedience to them become more sacred and benign, and may we hope that the Power re- sponsible for the existence of all things will re- ward our patient and honest endeavors to pene- trate the darkness, to unveil the mysteries of life, and enable us, when it seems meet, to take that place in nature, hand in hand with nature's God, which is our rightful heritage. FINIS. 153 INDEX INDEX. PAGE. Alfred's Laws 136, 137 Allodial Propbety 41 Ancient Books of Law 90, 91 Aristotle 39 Authors of the Federalist 40 barrister in King Alfred's Time 137, 138 Beneficia 41 Benefit of Established Governments. . .37, 132 Bbntham 40 Blackstone 39, 150 bolingbroke 40 Bracton 140, 141 Bribery in Egypt 88 burlamaqui 39 Characteristics of Feuds 41, 42, 142 Chaeondas 40 CHINA: Confucius — His Principles 97-100 Origin of Ancestor Worship 100 Deposition and Exile of Confucius . . 100, 101 Preservation of Confucianism 101 Cicero 39, 124, 125 Civil Causes in Japan 143 Codes op Hammurabi 81 Code, Hindoo 81 Coinage in Greece 106, 111 157 INDEX PAGE. Confucius 97-101 ooeeupt and mixed govbenmbnts 41 oobeupt and simplb govbenmbnts 41 Criminal Teials in Japan 142, 143 Oeudb States, Foemation of 74 OusTOMAET Law 76 Dagge 39 Daws 39 Debtob Could Not Be Impeisonbd Ill Dbcemvieal Tables 121, 122 Demosthenes 39, 116, 117 " Baely Life 117, 118 " Manhood 118, 119 " His Death 119,120 " An Example 120 Despotism 41 DlFFEEENCE BETWEEN MAN AND OTHBE Animals 37 dlffeeence between political and civil States 40 Divine Eight of Sovbeeign 37, 79, 80, 85, 136 Divine Positive Law 39 Division of Land 106 Domestic Laws of Solon 113, 114 Domestic Eelations in Japan 144 Bdwaed L, his Eefoems 138, 139 Effect of Dissolution of Government 39 EGYPT : Its Antiquity 82, 83, 84 158 INDEX PAGE. The Abch- Judge 86 Its Books of Law 90, 91 Beibeey 88 Courts 86 Divine Eight of Soveeeign 85 Equality Bbfobe the Law 88, 89 FOEMALITY of TEIALS 89 Figure of Truth 89 Justice 85 Penalties 87, 93 Pleadees 92 Pleadings, Teial and Judgment 91, 92 Punitive Mbasuees 87 Eights to Women 94 Vbeaoity — ^A Cardinal Vietue 93 ENGLISH LAW: Teutonic Tribes — ^Advent in Britain, 133, 134, 135 Alfred Chosen King 135, 136 Kingdom United 135 Alfred's Laws 136, 137, 138 The Jury System Inaugueatbd 136 Edwaed 1 138 Hbney II. — His Eefoems 139 John I. — Magna Chaeta 139 An Old English Law Libeary 140 Lyttlbton 140 Bracton 140, 141 Feudalism in England 141, 142 159 INDEX PAGE. External Attributes of Law 39 Family Eblations 37, 72, 94, 100, 107, 113, 144 FEUDALISM : In Europe 41, 42 In England 41, 42 Its Characteristics 41 In France 145 In Japan 142 In Germany 131 In Russia 133 Feuds — Their Characteristics 41 Finch 39 Fleta 140 Formation of Crude States 74, 130 FRANCE : Revolutions 145 Rousseau 145 Feudalism 145 The Social Contract 146, 147 The Social Contract, Its Effect on America 147, 148 Forms of Government 41 Frederick II. of Prussia 40 GERMANY : Romans and Teutons 129 The Fall of Rome 129, 130 Prevalence of Feudalism 131 160 INDEX PAGE. The New Empihe 132, 133 GREECE : LYOUEGtrs 102 Thales 102 Return of Lyouegus — His Reforms. . .103, 104 Opposition of the Masses 105 Origin of the Senate 105 Division of Land — Coinage 106 Unwritten Laws 107, 109 Domestic Relations 108, 109 Solon 110, 111 Imprisonment of Debtor Ill Repeal of Dracoes Laws 112 Domestic Laws of Solon 113 Solon's Tables 110, 113, 114 Socrates — Plato 115 Glanville 140 Grotius 39 Growth of the Commons 42 Hale^ Sir Matthew 148 Harrington 40 Henry II 139 Hereditary Counts and Dukes 41 Hindoo Code of Manu 81 HOBBES 39 Hoffman 42, 43 Hooker 39 Hume 40 Internal Properties op Law 39 161 INDEX PAGE. ISEAELITES, THE : Relation to Neighboring Tribes 95, 96 Women's Rights 96 Law of Asylum 96, 97 JAPAN : Primitive in Jd^ODERN Times 142 Criminal Trials 142 Civil Causes 143 Reforms 143 Domestic Relations 144 Jefferson, Thomas 148, 149 Jethbo 82 Justice in Ancient Egypt 85 Justinian 125, 126 LAW: Egyptian 82-93 Attributes of 39 Divine Origin of 37, 79, 80 Customary 76 of Asylum in Greece 97 Domestic Laws op Solon 113 Study of Roman Law 127 Alfred^s Laws 136, 137 Laws of Nature Applied to Man 39 Laws op Nature — Manx's Knowledge of. . . 39 Locke 7 40 Machiavel 40 Maine 40 162 INDEX PAGE. Man^s Duty to Himself, His Fellow Cebatures 40 Milton 40 Montesquieu 39 Moses 82, 95, 96 Motives foe Fobmation of Government 38 Napoleon 40 Necessity of Jurisdiction and Law 39 NiMEOD 80 Ochlocracy 41 Oligarchy 41 Origin of Advocacy 116 " " Ancestor Worship 100 " " Belief of Divine Interference. 38 " " Hereditary Eulers and Aristoc- racy 75 " AND Nature of Man 37 " OF Theocracy 73 " " Village Communities 77 " " Written Laws and Codes 77 Original Eight to Govern 38 Patriarchal Government 72 Plato 40, 42-48 Plato^s Dialogues 46 " Epistles 48 polybius 40 Preservation op Confucianism 101 " « Old Customs 138 puffendorf 39 Punitive Measures in Ancient Egypt 87 163 INDEX PAGE. Pure and Mixed Goveenments 41 Pure and Simple Governments 41 Quasi Mixed Democeact 41 " '^ Eepublio 41 Eanks and Orders 41 Religious Tolerance in the United States 149 Repeal of Draco's Laws 112 Revolutions 145 Rights of Lords 41 Rights of Man^ Classified 37 Rise of Landed Aristocracy 41 Rise of Tenures 41 Rights of Women in Egypt 94 " " " " Israel 96 " " " AMONG Teutons 94 ROME: Numa Pompilius 121 Decemviral Tables 121, 122 Lex Tabularum 122, 123 Gaius 124, 142 Cicero 124 justinla.n 125, 126 Study of Roman 1iA.w 127 Romans and Teutons 129 Fall of Rome 129 Rousseau 145 Russia. 133 Sanderson 39 Senate^ Origin of 105 164 INDEX PAGE. Simple AEiSTOCEAcy 41 " Democeacy 41 " monaechy 41 Social Oonteact^ The 146 soceates 40, 115 Solon 110-115 States, Ceude, Fobmation of 74 Subsequent Eights to Goveen 38 Sydenham 44 Tayloe 44 Tables op Solon 113-115 Teutons 94, 129 Theoceacy, Oeigin of 73 " The Most Peefect 78 Teibb, The 74, 130, 131 Teuth, Figueb op 89 Tyeanny 41 Unit op Ancient Society 72 United States 149-151 Veeacity in Egypt 93 WOMEN'S EIGHTS: In Egypt 94 Among Teutons 94 " the Iseablites 96 Zaleuous 40 165