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ANCIENT LAW 
 
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By SIR HENRY S. MAINE 
 
 ANCIENT LAW. Its Connection with the Early 
 History of Society, and its Relation to Modem 
 Ideas. Introduction and Notes by the Rt. 
 Hon. Sir Frederick Pollock, Bart. gs. net. 
 
 ANCIENT LAW. 7S- 6d. net. 
 
 INTRODUCTION AND NOTES TO MAINE'S 
 ANCIENT LAW. By the Rt. Hon. Sir 
 Frederick Pollock, Bart. 3s. 6d. net. 
 
 LECTURE ON THE EARLY HISTORY OF 
 INSTITUTIONS. 7S- 6d. net. 
 
 POPULAR GOVERNMENT. Four Essays. 
 
 7$. 6d. net. 
 
 INTERNATIONAL LAW. Whewell Lectures, 
 delivered at Cambridge, 1887. 7s. 6d. net. 
 
 A BRIEF MEMOIR OF HIS LIFE. By the 
 Rt. Hon. Sir M. E. Grant Duff. With 
 some of his Indian Speeches and Minutes. 
 Selected and edited by Whiteley Stokes. 
 With Portrait. i6s. net. 
 
 All Rights Rbservbd 
 
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ANCIENT LAW 
 
 ITS CONNECTION WITH THE EARLY HISTORY 
 
 OF SOCIETY AND ITS RELATION 
 
 TO MODERN IDEAS 
 
 BY SIR HENRY SUMNER MAINE 
 
 K.C.S.I., LL.D., F.R.S. 
 
 FOKEICN ASSOCIATE HBMBElT^F THB IHSTITUTS OF PKANCS 
 
 WITH INTRODUCTION AND NOTES BY 
 
 THE RIGHT HON. SIR FREDERICK POLLOCK, BART. 
 
 LL.D., D.C.L. 
 
 LONDON 
 JOHN MURRAY, ALBEMARLE STREET, W. 
 
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/3 z / / ^ f , 
 
 n 
 
 First Edition, with Sir Frederick 
 
 Pollock's Notes . . January 1906 
 
 Reprinted 
 
 August 1907 
 
 Reprinted 
 
 /une 1909 
 
 Reprinted 
 
 /a/y 1913 
 
 Reprinted 
 
 , July 1916 
 
 Reprinted 
 
 April 1920 
 
 Reprinted 
 
 . March 1924 
 
 Reprinted 
 
 February 1927 
 
 R es 
 
 LcAn 
 
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/ ij^ 
 
 PREFACE 
 
 TO 
 
 THE TENTH EDITION 
 OF THE ORIGINAL WORK 
 
 The theory of legal development propounded in 
 this volume has been generally accepted ; but it 
 has been thought that, in his Fifth Chapter on 
 " Primitive Society and Ancient Law/' the Author 
 has not done sufficient justice to investigations 
 which appear to show the existence of states of 
 society stiU more rudimentary than that vividly 
 described in the Homeric lines quoted at page no, 
 and ordinarily known as the Patriarchal State. 
 The Author at page io6 has mentioned " accounts 
 by contemporary observers of civilisations less 
 advanced than their own," as capable of affording 
 peculiarly good evidence concerning the rudiments 
 of society ; and, in fact, since his work was first 
 published, in 1861, the observation of savage or 
 extremely barbarous races has brought to light 
 forms of social organisation extremely unlike that 
 to which he has referred the beginnings of law, 
 
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PREFACE TO THE TENTH EDITION 
 
 and possibly in some cases of greater antiquity. 
 The subject is, properly speaking, beyond the 
 scope of the present work, but he has given his 
 opinion upon the results of these more recent 
 inquiries in a paper on " Theories of Primitive 
 Society," published in a volume on " Early Law 
 and Custom " (Murray, 1883). 
 
 H. S. M. 
 
 London . November i88^ 
 
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PREFACE 
 
 TO 
 
 THE FIRST EDITION 
 
 The chief object of the following pages is to 
 indicate 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 prosecuted 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 earlier portions 
 the traces of the most remote antiquity and 
 supplying from its later rules the staple of the 
 civil institutions by which modern society is even 
 now controlled. The necessity of taking the 
 Roman law as a typical system, has compelled 
 the Author to draw from it what may appear a 
 disproportionate number of his illustrations ; but 
 it has not been his intention to write a treatise 
 on Roman jurisprudence, and he has as much 
 as possible avoided all discussions which might 
 
 Ix 
 
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X PREFACE TO THE FIRST EDITION 
 
 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 beUeved to be the ultimate 
 source of most of the views which have been 
 prevalent, tiU quite recently, on the subjects 
 treated of in this volume. It was impossible for, 
 the Author to proceed far with his undertaking, 
 without stating his opinion on the origin, meaning, 
 and value of those speculations. 
 
 H. S. M, 
 
 London : January 1 86t. 
 
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CONTENTS 
 
 rAGE 
 
 Introduction. By Sir Frederick Pollock . . . xiii 
 
 CHAPTZR 
 
 I. Ancient Codes i 
 
 Note A. Antiquity of Roman Law . . .18 
 „ B. Customary Law in Homer . . .20 
 „ C. Early Forms of Law : " Written " and 
 
 " Unwritten " Law : Early Codes . 32 
 
 II. Legal Fictions 26 
 
 Note D. English Case-Law and Fiction . . 46 
 
 III. Law of Nature and Equity .... 48 
 Note E. The Law of Nature and " lus Gentium " 73 
 
 „ F. Equity 77 
 
 IV. The Modern History or the Law of Nature 79 
 Note G. Medieval and Modern Treatment of the 
 
 Law of Nature : Bracton : French 
 
 Publicists 114 
 
 „ H. The Origins of the Modern Law of 
 
 Nations 120 
 
 V. Primitive Society and Ancient Law . . 123 
 Note I. Montesquieu, Bentham, and Historical 
 
 Method 174 
 
 „ K. The Patriarchal Theory . . .176 
 
 „ L. Status and Contract .... 183 
 «l 
 
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Xn CONTENTS 
 
 CHAPTER PAOB 
 
 VI. The Early History of Testamentary Suc- 
 cession i86 
 
 Note M. Testamentary Succession . . **4 
 
 VII. Ancient and Modern Ideas respecting Wills 
 
 AND Successions 
 
 Note N. Primogeniture .... 
 
 VIII. The Early History of Property 
 
 Note O. Capture, Occupation, Possession . 
 „ P. The Indian Village Community 
 „ Q. Res Mancipi; Alienation in Early Life 
 
 IX. The Early History of Contract 
 
 Note R. Contract in Early Law . . . 
 
 X. The Early History of Delict and Crime 
 Note S. Archaic Procedure 
 
 331 
 256 
 
 311 
 
 315 
 317 
 
 319 
 374 
 
 377 
 405 
 
 Index 408 
 
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INTRODUCTION 
 
 Sir Henry Maine's " Ancient Law " is now ja 
 classical text. The object of this edition i^o 
 reproduce it, accompanied by such help to right 
 understanding and profitable use as a younger 
 generation may reasonably require. More than 
 forty years have passed since the book was first 
 pubUshed in 1861. During those years, and to 
 a great extent under the influence of Maine's 
 own work, research into the early history of 
 laws and institutions has been more active, 
 systematic, and fruitful than it ever was before. 
 Many new facts have been disclosed ; our know- 
 ledge of others has been freed from error and 
 misconception ; as many, perhaps more, which 
 were formerly accessible, but neglected as being 
 insignificant or of merely local interest, have 
 found their due place and importance in a wider 
 field of knowledge. The materials thus acquired 
 enable us to confirm and supplement Maine's 
 work in many points. If they also show us that 
 it calls for amendment in some places, no one 
 who is at all acquainted with the progressive 
 character of legal and historical learning will 
 find in this any cause for disappointment. The 
 wonder is not that Maine's results, after more 
 
 xiU 
 
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MV INTRODUCTION 
 
 than a generation, should stand in need of some 
 correction, but that, in fact, they need so little as 
 they do. Later speculation and research have, 
 on the whole, confirmed Maine's leading ideas 
 in the most striking manner, partly by actual 
 verification of consequences indicated by him as 
 probable, partly by new examples and appUca- 
 tions in regions which he had not himself explored. 
 There is no better witness to the intrinsic 
 weight of Maine's work than the nature of some 
 criticism it has met with, from competent persons 
 on the Continent rather than at home. So far 
 as those learned persons complain of anything, 
 they miss that symmetrical construction of a 
 finished system to which their training has ac- 
 customed them. Now it is to be observed that 
 no words of Maine's own ever gave his readers 
 the promise of a systematic doctrine. Not one 
 of his books professed on the face of it to accoimt 
 for the ultimate origin of human laws, or to settle 
 the relations of jurisprudence to ethics, or to 
 connect the science of law with any theory of 
 pohtics or of social development. Yet it does 
 not seem to have occurred to the critics in question 
 to charge Maine with remissness in not having 
 attempted these things. The disappointment ex- 
 pressed was that he did not fuUy accompHsh 
 them, or that, if he had a solution, he never 
 sufficiently declared it. Regret that Maine's 
 work was not more openly ambitious is legitimate, 
 though I do not share it ; expression of it might 
 have signified much or Uttle. It might have been 
 thoroughly sincere, and due to imperfect under- 
 standing of the relations to time, circumstances 
 
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INTRODUCTION XV 
 
 and materials, which determined Maine's manner 
 of working, and, as I beUeve, determined it for 
 the best. It might also have been, in the critic's 
 intention, the easy comphment of the professional 
 and disciphned scholar to a brilliant amateur. 
 Very different from this was the actual criticism. 
 It assumed that the author had proved himself 
 a master, and that, accordingly, the highest and 
 most exacting standard was to be applied both 
 to his method and to his results. When we 
 turn from Dareste or Vanni to the original 
 preface to " Ancient Law," we are astonished 
 by the studiously modest terms in which Maine 
 defined his own undertaking : " The chief object 
 of the following pages is to^ indicate 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." In Uke manner, 
 on the first pubhcation of the lectures on Village 
 Communities, he apologised for their fragmentary 
 character, and in the height of his mature fame 
 he described " Early Law and Custom " only as 
 an endeavour " to connect a portion of existing 
 institutions with a part of the primitive or very 
 ancient usages of mankind, and of the ideas 
 associated with those usages." It is worth while 
 to observe Maine's caution in disclaiming authority 
 to lay down what ancient usages, if any, are 
 really primitive — a caution sometimes neglected 
 by his followers, and often by the champions of 
 other theories. 
 
 Maine's dignified and almost ironical reserve 
 about his own work has certainly made it rather 
 difficult for a student approaching it for the 
 
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XVI INTRODUCTION 
 
 first time to form any general notion of what it 
 has really done for legal and historical science. 
 Although Maine himself was the last person of 
 whom the answer to such a question could be 
 expected, we who are in no way bound to reticence 
 must say that he did nothing less than create 
 the natural history of law. He showed, on the 
 one hand, that legal ideas and institutions have 
 a real course of development as much as the 
 genera and species of Uving creatures, and in 
 every stage of that development have their normal 
 characters ; on the other hand, he made it clear 
 that these processes deserve and require distinct 
 study, and cannot be treated as mere incidents 
 in the general history of the societies where they 
 occur. There have been complaints, often too 
 well justified, of the historical ignorance prevaihng 
 among lawyers. " Woe unto you also, ye law- 
 yers 1 " Freeman said — whether in print in those 
 terms, I know not ; but I have heard him say 
 it — ^when he was grieved at the fictions about 
 mediaeval institutions that still passed current 
 for history twenty-five or thirty years ago. But 
 Maine has taught us that the way to impart a 
 historical habit of mind to lawyers is to show 
 them that law has an important history of its 
 own, not at all confined to its pohtical and con- 
 stitutional aspects, and offers a vast field for the 
 regular appUcation of historical and comparative 
 method. When once a lawyer has grasped this, 
 he is entitled to point out in turn that a historian 
 who is not content to be a mere chronicler can 
 hardly do without some understanding of legal 
 ideas and systems. And the importance of the 
 
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INTRODUCTION XVll 
 
 legal element, so far from diminishing as we 
 retrace the growth of our modern institutions 
 into a semi-historic past, rather increases. Others 
 have shown this besides Maine, but none before 
 him. It is easy to underrate his originaUty now 
 that his points have been taken up by many 
 teachers and become current in the schools. Any 
 student who harbours doubt as to the extent of 
 Maine's contributions to the historical philosophy 
 of law may do weU to ask himself in what books, 
 legal or historical, of earlier date than " Ancient 
 Law," he could have found adequate perception, 
 or any distinct perception, of such matters as__ 
 these : The sentiment of reverence evoked by 
 the mere existence of law in early communities ; 
 the essential formahsm of archaic law ; the pre- 
 dominance of rules of procedure over rules of 
 substance in early legal systems ; the funda- 
 mental difference between ancient and modern 
 ideas as to legal proof ; the relatively modern 
 character of the individual citizen's disposing 
 power, especially by will, and freedom of con- 
 tract ; and the stUl more modern appearance 
 of true criminal law. Nowadays it may be said 
 that " all have got the seed," but this is no 
 justification for forgetting who first cleared and 
 sowed the ground. We may tiU fields that the 
 master left untouched, and one man will bring a 
 better ox to yoke to the plough, and another a 
 worse ; but it is the master's plough still. 
 
 It will now be proper to consider in a general 
 way what resources were available for Maine's 
 purposes when he wrote " Ancient Law," or 
 rather when he prepared and delivered the lectures 
 
 b 
 
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XVIU INTRODUCTION 
 
 of which it was a revised publication (" Early 
 Law and Custom," p. 194). We shall be pretty 
 safe in taking legal and historical scholarship 
 as they stood, for an English student who had not 
 frequented Continental seats of learning, about 
 the middle of the nineteenth century. 
 
 First, in Roman law Savigny, then still 
 living, was the person of greatest authority ; the 
 historical school which he took a principal part 
 in founding was dominant in Germany and 
 beginning to prevail elsewhere. Savigny's work, 
 as well as that of his contemporaries and im- 
 mediate followers, dealt only with the Roman 
 materials. Comparative investigation of archaic 
 legal systems had scarcely been undertaken at 
 all, certainly not on any considerable scale, and 
 this may perhaps account for more than one 
 conjecture of Savigny's which has not proved 
 tenable. The work of Rudolf von Ihering, the 
 character of whose genius, individual as it was, 
 perhaps most nearly resembled Maine's in the 
 same generation, was only beginning. His views 
 on the evolution of modern from archaic law 
 V coincide remarkably with those of Maine in 
 several points ; for example, in the position that 
 all jurisdiction, if we could trace it far back 
 enough, would be found to be in its origin not 
 compulsory, but voluntary. But there can be no 
 question of borrowing either way. Maine had 
 formed his own ideas before any part of Ihering's 
 great work, " Der Geist des romischen Rechtes," 
 was published ; and Ihering was never in a 
 position to make much use of Maine's work, even 
 if he had the time ; for, as I came to know from 
 
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INTRODUCTION XIX 
 
 himself, he could not read English with any 
 facility. 
 
 The Uterature of Roman law to be found in our </ 
 own language was, with few exceptions, antiquated 
 or contemptible, and such incidental references 
 to Roman law as occurred in EngUsh text-books 
 were almost always crude, often inappropriate 
 or quite erroneous. Blackstone has some very 
 bad mistakes in this kind. For many years after 
 the publication of " Ancient Law " this state of 
 things remained unamended. At the present 
 time it is very different. In our own language 
 Muirhead, Poste, Dr. Moyle, Dr. Roby, and the 
 late Dr. Greenidge have made excellent provision 
 of various kinds both for beginners and for 
 advanced students, and Sohm's Institutes are 
 accessible in Mr. Ledlie's scholarly translation. 
 Professor Girard's " Manuel elementaire de droit 
 romain " (3rd ed., 1901) is, notwithstanding its 
 modest title, one of the most learned and com- 
 prehensive, as well as the most recent, works on 
 the subject. The reader of " Ancient Law " will 
 understand that, as Maine was careful to explain 
 in his first preface, the portions dealing with 
 Roman law were never intended to take the place 
 of an academic treatise. In fact, they assume 
 the elementary knowledge which may be obtained 
 from a good edition of Justinian's Institutes. 
 It would therefore be idle to attempt a detailed 
 commentary on them from a technical point of 
 view which would not be appropriate ; and any 
 reader who thinks he can use Maine's work as a 
 substitute for first-hand acquaintance with the 
 texts and the best commentators, instead of a 
 
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XX INTRODUCTION 
 
 companion and aid, must do so wholly at his 
 own peril. Still less can Maine be censured for 
 having adopted, at the time, current views of 
 the highest authorities in Roman legal history 
 which have since been abandoned. 
 
 Germanic legal antiquities had been investi- 
 gated to a considerable extent ; but the Con- 
 tinental scholars who had done this were stiU 
 hardly aware of the wealth or importance of the 
 material awaiting scientific treatment in England. 
 On the other hand, those who made their results 
 known to English readers, John Mitchell Kemble 
 the foremost, were not learned in the modem 
 law of England, and had not the means of con- 
 necting its later or even its mediaeval history with 
 the earliest monuments of English institutions. 
 Thus no one had made any serious attempt to 
 sift the mass of information collected by English 
 professional writers and antiquaries of the six- 
 teenth and seventeenth centuries, whose indus- 
 trious labour assuredly deserves all praise, and 
 whose judgment has in some cases been restored 
 to credit which it had not deserved to lose. We 
 need hardly say that Maine, not being a technical 
 antiquary, did not attempt any such thing him- 
 self. Indeed, the work he actually did was 
 needful to disclose the right hnes of antiquarian 
 research, and rescue it from the state of mere 
 dilettante curiosity. 
 
 EngUsh legal history was very imperfectly 
 known, and what was known was concealed under 
 huge masses of comparatively modern formahsm. 
 There was much to be learnt (as there still is") 
 from Blackstone, whose work was admirable in 
 
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INTRODUCTION XXI 
 
 its day, notwithstanding conspicuous faults of 
 method and arrangement mostly not his own ; 
 but Blackstone had ceased to be generally read 
 with attention even by lawyers, and was not a 
 safe guide for any period before the thirteenth 
 century. Whatever was before the Great Charter 
 (and I am taking the earliest possible date) lay 
 under a cloud of thick darkness, pierced only in 
 part by the briUiant Ughts of Kemble and Palgrave. 
 These fell, moreover, chiefly on the political and 
 constitutional aspects of the common law, leaving 
 in shadow those technical archaisms which we 
 now know for landmarks. Palgrave, again, was 
 often exuberant and fanciful, Kemble not seldom 
 rash ; and their work (though its general merit 
 can hardly be exaggerated) is by no means free 
 from positive mistakes, which, considering its 
 novelty at the time, is in no way surprising. 
 In every branch of the law scientific or even well 
 written and tolerably arranged text-books were 
 rare ; in some they were wholly wanting. Con- 
 stitutional law (and that from a political more 
 than a legal point of view) was the only depart- 
 ment which could be said to have found an 
 adequate historian. On the whole, historical know- ' 
 ledge of English law before the twelfth century 
 was not to be found, and after the twelfth century 
 was pretty much what Blackstone had left it. 
 In consequence of the general indifference to 
 historical study, besides the real difficulties then 
 attending it, lawyers and judges, even really 
 learned ones, were commonly prone to accept 
 superficial explanations which a Uttle more re- 
 search, not of a recondite kind, would have 
 
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XXll INTRODUCTION 
 
 proved to be erroneous. In particular there 
 was a strong tendency to exaggerate Roman 
 influence in the formation of EngUsh institutions, 
 by no means without plausible excuse. Perhaps 
 it was knowledge of Kemble's work that saved 
 Maine from this rife and dangerous error. Clearly 
 the English materials were not in a fit state, 
 when Maine was writing " Ancient Law," to be 
 used with effect for any purpose of historical 
 generalisation or comparison ; and he had no 
 choice but to leave them alone for the most part, 
 and build on other and at that time safer ground. 
 Asiatic systems of law were more or less 
 known to Orientalists, but only in so far as their 
 texts were documents of Arabic or Sanskrit litera- 
 ture. On the other hand, it was the duty of a 
 considerable number of British magistrates and 
 officials in India to have some acquaintance with 
 so much of Hindu and Mahometan law as was 
 recognised and applied by the civil courts ; but 
 this was only for the necessities of judicial business. 
 Few men, if any, followed the splendid example 
 of Sir William Jones in combining literary with 
 practical knowledge, as indeed very few can at 
 any one time reasonably be supposed capable of 
 it. As to the Mosaic law, it was still the received 
 opinion that there was an impassable or at least 
 a highly perilous gulf between sacred and profane 
 history. Knowledge of the text of the Old Testa- 
 ment, far more complete and more generally 
 diffused in Enghsh-speaking countries than any- 
 where else, had therefore produced httle result 
 for secular learning. Neither the philological nor 
 the official handhng of Asiatic law-books caused 
 
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INTRODUCTION XXIU 
 
 any appreciable number of scholars to perceive 
 the importance of Asiatic custom for the general 
 study of legal ideas and history. Maine's pointed 
 references to Hindu institutions, at a time before 
 he had or expected to have anything to do with 
 India, could have been made only by a man of 
 quite extraordinary insight. It would be in- 
 teresting to know from what quarter his attention 
 was first directed that way. 
 
 It has been thou^^ht proper to reprint the text 
 of " Ancient Law " as last revised by Maine not 
 only without alteration, but without the in- 
 terruption of editorial footnotes. Such com- 
 ments as I have been able to add will be found 
 collected in notes at the end of each chapter. 
 As " Ancient Law " touches on a greater variety 
 of matters than almost any modem book of 
 serious learning which is not of an encyclopaedic 
 nature, I have perforce omitted some topics, 
 not because they might not have been considered 
 with profit by a person competent in them, but 
 because I was not competent. For the same 
 reason I can by no means vouch for the accuracy 
 in detail, according to the present state of know- 
 ledge, of everything I have passed over without 
 remark. But my experience of the points I am 
 qualified to test has led me to presume that 
 such errors as may be discovered by specialists 
 will seldom be found to affect the general course 
 of the argument. I have purposely not dwelt 
 on matters of elementary information which any 
 student capable of profiting by Maine's work is 
 equally capable of verifying for himself with little 
 trouble. Maine did not write, for example, for 
 
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XXIV INTRODUCTION 
 
 readers who had never heard of Hobbes or Montes- 
 quieu. Such a nanae as Du MoUn's, on the other 
 hand, may well be strange, not only to an educated 
 EngHshman (as that of Bracton or Plowden 
 might be to an educated Frenchman), but to an 
 English lawyer who has not made a special study 
 of the Reformation controversies or the revival of 
 classical Roman law ; and in this case it would 
 be vexatious to put off such readers with a bare 
 reference to the French biographical dictionaries. 
 
 I have to thank the owners and the editor of 
 the Edinburgh Review for permission to make 
 free use of an article entitled " Sir Henry Maine 
 as a Jurist," contributed by me in 1893. 
 
 In the second issue of these Notes (1907) some 
 additional references and explanations have been 
 given, which it is hoped will make them more 
 useful. p p 
 
 For general information about Maine's hfe and 
 works the following publications may be con- 
 sulted : " Sir Henry Maine : a brief memoir of his 
 life," by Sir M. E. Grant Duff, 1892 ; " Sir Henry 
 Maine and his Work," in " Oxford Lectures and 
 other discourses," 1890, by the present writer ; and 
 the articles in the Dictionary of National Biog- 
 raphy (1893), and the Supplement to the ninth 
 edition of the EncyclopsecMa Britannica (1902), 
 by Leslie (afterwards Sir L.) Stephen and the 
 present v^Titer respectively. 
 
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9 
 
 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 imphed 
 that the body of their system rested on the Twelve 
 Decemviral Tables, and therefore on a basis of 
 written law. Except in one particular, no in- 
 stitutions anterior to the Twelve Tables were 
 recognised at Rome. The theoretical descent 
 of Roman jurisprudence from a code, the theo- 
 retical ascription of English law to immemorial 
 unwritten tradition, were the chief reasons why 
 the development of their system differed from 
 the development of ours. Neither theory corre- 
 sponded exactly with the facts, but each produced 
 consequences of the utmost importance. 
 
 I need hardly say that the publication of the 
 Twelve Tables is not the earhest point at which 
 we can take up the history of law. The ancient 
 Roman code belongs to a class of which almost 
 
 I 
 
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2 ANCIENT CODES Ichap. i 
 
 every civilised nation in the world can show a 
 sample, and which, so far as the Roman and 
 Hellenic worlds were concerned, were largely 
 diffused over them at epochs not widely distant 
 from one another. They appeared under ex- 
 ceedingly similar circumstances, and were pro- 
 duced, to our knowledge, by very similar causes. 
 Unquestionably, many jural phenomena lie behind 
 these codes and preceded them in point of time. 
 Not a few documentary records exist which pro- 
 fess to give us information concerning the early 
 phenomena of law ; but, until philology has 
 effected a complete analysis of the Sanskrit litera- 
 ture, our best sources of knowledge are undoubt- 
 edly the Greek Homeric poems, considered of 
 course not as a history of actual occurrences, 
 but as a description, not wholly ideahsed, of a 
 state of society known to the writer. However 
 the fancy of the poet may have exaggerated 
 certain features of the heroic age, the prowess 
 of warriors and the potency of gods, there is no 
 reason to believe that it has tampered with 
 moral or metaphysical conceptions which were 
 not yet the subjects of conscious observation ; 
 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 
 under philosophical or theological influences. If 
 by any means we can determine the early forms 
 of jural conceptions, they will be invaluable to 
 us. These rudimentary ideas are to the jurist 
 what the primary crusts of the earth are to the 
 geologist. They contain, potentially, all the forms 
 
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CHAP. I] RUDIMENTARY JURAL IDEAS 3 
 
 in which law has subsequently exhibited itself. 
 The haste or the prejudice which has generally 
 refused them all but the most superficial examina- 
 tion, must bear the blame of the unsatisfactory 
 condition in which we find the science of juris- 
 prudence. 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 absolutely un- 
 verified, 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 important influence which, when once 
 entertained and believed in, they are enabled 
 to exercise on the later stages of jurisprudence. 
 
 The earUest notions connected with the con- 
 ception, 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, appears 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 is described in the 
 lUad as the assessor of Zeus. It is now clearly 
 seen by all trustworthy observers of the primitive 
 condition of mankind that, in the infancy of 
 the race, men could only account for sustained 
 or periodically recurring action by supposing a 
 personal agent. Thus, the wind blowing was a 
 person and of course a divine person ; the sun 
 
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4 ANCIENT CODES [chap, i 
 
 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 
 peculiarity of the conception is brought out by 
 the use of the plural. Themistes, Themises, the 
 plural of Themis, are the awards themselves, 
 divinely dictated 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 under- 
 stood that they are not laws, but judgments, 
 or, to take the exact Teutonic equivalent, 
 " dooms." " Zeus, or the human king on earth," 
 says Mr. Grote, in his History of Greece, " is 
 not a law-maker, but a judge." He is provided 
 with Themistes, but, consistently with the beUef 
 in their emanation from above, they cannot be 
 supposed to be connected by any thread of prin- 
 ciple ; they are separate, isolated judgments. 
 
 Even in the Homeric poems we can see that 
 these ideas are transient. Parities of circumstance 
 were probably commoner in the simple mechanism 
 of ancient society than they are now, and in the 
 succession of similar cases awards are likely to 
 follow and resemble each other. Here we have 
 ^ the germ or rudiment of a custom, a conception 
 posterior to that of Themistes or judgments. 
 However strongly we, with our modern associa- 
 tions, may be inclined to lay down d priori that 
 the notion of a Custom must precede that of a 
 
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="*'•• ■! THEMISTES 5 
 
 judicial sentence, and that a judgment must 
 affirm a custom or punish its breach, it seems 
 quite certain that the historical order of the 
 ideas is that in which I have placed them. The 
 Homeric word for a custom in the embryo is 
 sometimes " Themis " in the singular — more often 
 " Dike," the meaning of which visibly fluctuates w, 
 between a " judgment " and a " custom " or 
 " usage." No/Aos, a Law, so great and famous 
 a term in the poHtical vocabulary of the later 
 Greek society, does not occur in Homer. 
 
 This notion of a divine agency, suggesting 
 the Themistes, and itself impersonated in Tliemis, 
 must be kept apart 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 Manu, seems to belong to a 
 range of ideas more recent and more advanced. 
 " Themis " and " Themistes " are much less 
 remotely linked with that persuasion which clung 
 so long and so tenaciously to the human mind, 
 of a divine influence underlying and supporting 
 every relation of life, every social institution. 
 In early law, and amid the rudiments of political 
 thought, symptoms of this behef meet us on all 
 sides. A supernatural presidency is supposed 
 to consecrate and keep together all the cardinal 
 institutions of those times, the State, the Race, 
 and the Family. Men, grouped together in the 
 different relations which those institutions imply, 
 are bound to celebrate periodically common rites 
 and to offer common sacrifices ; and every now 
 and then the same duty is even more significantly 
 
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b ANCIENT CODES [chap, i 
 
 recognised in the purifications and expiations 
 which they perform, and which appear intended 
 to deprecate punishment for involuntary or 
 neglectful disrespect. Everybody acquainted 
 with ordinary classical literature will remember 
 the sacra gentilicia, which exercised so important 
 an influence on the early Roman law of adoption 
 /^nd of wills. And to this hour the Hindoo 
 
 T Customary Law, in which some of the most curious 
 features of prirnitive society are stereotyped, 
 makes almost all the rights of persons and all the 
 rules of succession hinge on the due solemnisation 
 of fixed ceremonies at the dead man's funeral, 
 that is, at every point where a breach occurs in 
 the continuity of the family. 
 
 Before we quit this stage of jurisprudence, a 
 caution may be usefully given to the English 
 student. Bentham, in his " Fragment on Govern- 
 ment," and Austin, in his " Province of Juris- 
 pradence Determined," resolve every law into 
 
 *S a command of the lawgiver, an obligation imposed 
 thereby on the citizen, and a sanction threatened 
 in the event of disobedience ; and it is further 
 predicated of the command, which is the first 
 element in a law, that it must piescribe, 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 httle 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 generaUty is even now 
 quite in conformity with this dissection ; and 
 
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c"*""'] bentham's analysis 7 
 
 it is curious that, the farther we penetrate into 
 the primitive history of thought, the farther we 
 find ourselves from a conception of law which at 
 all resembles a compound of the elements which 
 Bentham determined. It is certain that, in the 
 infancy of mankind, no sort of legislature, nor 
 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, J^ 
 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 pre- 
 supposing 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 reaUse a view so far removed from us 
 in point both of time and of association, but it 
 will become 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 hfe under the patriarchal despotism, 
 was practically controlled in all his actions by 
 a regimen not of law but of caprice. I may add 
 that an EngHshman should be better able than 
 a foreigner to appreciate the historical fact that 
 the " Themistes " preceded any conception of 
 law, because,^ amid the many inconsistent theories 
 which prevail concerning the character of English 
 jurisprudence, the most popular, or at all events 
 the one which most affects practice, is certainly 
 a theory which assumes that adjudged cases and 
 precedents exist antecedently to rules, principles, 
 and distinctions. The " Themistes " have too. 
 
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8 ANCIENT CODES [chap, i 
 
 it should be remarked, the characteristic which, 
 in the view of Bentham and Austin, distinguishes 
 single or mere commands from laws. A true law 
 enjoins on all the citizens indifferently a number 
 of acts similar in class or kind ; and this is exactly 
 the feature of a law which has most deeply im- 
 pressed itself on the popular mind, causing the 
 term "law" to be applied to mere uniformities, 
 successions, and simiUtudes. A command pre- 
 scribes only a single act, and it is to commands, 
 therefore, that " Themistes " are more akin than 
 to laws. They are simply adjudications on insu- 
 lated states of fact, and do not necessarily follow 
 each other in any orderly sequence. 
 
 The Uterature of the heroic age discloses to 
 us law in the germ under the " Themistes " and 
 a Httle more developed in the conception of 
 " Dike." The next stage which we reach in the 
 history of jurisprudence is strongly marked and 
 surrounded by the utmost interest. Mr. Grote, in 
 the second part and ninth chapter of his History, 
 has fully described the mode in which society 
 gradually clothed itself with a different character 
 from that deUneated by Homer. Heroic kingship 
 depended partly on divinely given prerogative, 
 and partly on the possession of supereminent 
 strength, courage, and wisdom. Gradually, as 
 the impression of the monarch's sacredness became 
 weakened, and feeble members occurred in the 
 series of hereditary kings, the royal power decayed, 
 and at last gave way to the dominion of aris- 
 tocracies. If language so precise can be used of 
 the revolution, we might say that the ofBce of 
 the king was usurped by that council of chiefs 
 
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CKAr.i] ARISTOCRATIC PERIOD 9 
 
 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 mere formal hierophant, 
 like the Rex Sacrificulus at Rome. In Greece, 
 Italy, and Asia Minor, the dominant orders seem 
 to have universally consisted of a number of 
 famihes united by an assumed relationship in 
 blood, and, though they aU 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 pre- 
 maturely overthrown by the popular party, they 
 all ultimately approached very closely to what we 
 should now understand by a pohtical aristocracy. 
 The changes which society underwent in the 
 communities of the further Asia occurred of 
 course at periods long anterior in point of time 
 to these revolutions of the Italian and Hellenic 
 worlds ; but their relative place in civiHsation 
 appears to have been the same, and they seem 
 to have been exceedingly similar in general 
 character. There is some evidence that the races 
 which were subsequently united under the Persian 
 monarchy, and those which peopled the peninsula 
 of India, had all their heroic age and their era 
 of aristocracies ; but a mihtary and a rehgious 
 oligarchy appear to have grown up separately, 
 nor was the authority of the king generally 
 
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rO ANCIENT CODES i"""" ' 
 
 superseded. Contrary, too, to the course of events 
 in the West, the reUgious element in the East 
 tended to get the better of the miUtary and 
 political. Military and civil aristocracies dis- 
 appear, annihilated or crushed into insignificance 
 between the kings and the sacerdotal order ; 
 and the ultimate result at which we arrive is, 
 a monarch enjoying great power, but circum- 
 scribed by the privileges of a caste of priests. 
 With these differences, however, that in the East 
 aristocracies became religious, in the West civil 
 or political, the proposition that a historical 
 era of aristocracies 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 universally the depositaries 
 and administrators of law. They seem to have 
 succeeded to the prerogatives of the king, with 
 the important difference, however, that they do 
 not appear to have pretended to direct inspiration 
 for each sentence. The connection of ideas which 
 caused the judgments of the patriarchal chieftain 
 to be attributed to superhuman 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 particular 
 disputes to be explained by supposing an extra- 
 human interposition. What the juristical oli- 
 garchy now claims is to monopolise the knowledge 
 of the laws, to have the exclusive possession of 
 the principles by which quarrels are decided. 
 
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CHAP- CUSTOMARY LAW II 
 
 We have in fact arrived at the epoch of Custom- 
 ary Law. Customs 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 engine of tyranny. Before 
 the invention of writing, and during the infancy 
 of the art, an aristocracy invested with judicial 
 privileges formed the only expedient by which 
 accurate preservation of the customs of the race 
 or tribe could be at all approximated 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 cus- 
 tody 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 exclusively to a privileged minority,! 
 whether a caste, an aristocracy, a priestly tribe, J 
 or a sacerdotal college, is true unwritten law. 
 Except this, there is no such thing as unwritten 
 law in the world. English case-law is sometimes 
 spoken of as unwritten, and there are some 
 English theorists who assure us that if a code of 
 English jurisprudence were prepared we should 
 be turning unwritten law into written — a con- 
 version, as they insist, if not of doubtful poUcy, 
 at aU 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 
 
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12 ANCIENT CODES [chaf. i 
 
 been termed unwritten. The elder English judges 
 did reaUy pretend to knowledge of rules, principles, 
 and distinctions which were not entirely revealed 
 to the bar and to the lay-pubhc. Whether all the 
 law which they claimed to monopohse was really 
 unwritten, is exceedingly questionable ; but at aU 
 events, on the assumption that there was once a 
 large mass of civil and criminal rules known 
 exclusively to the judges, it presently ceased 
 to be unwritten law. As soon as the Courts at 
 Westminster HaU 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 adjudged printed precedents, 
 then thrown into a form of words var3nng with 
 the taste, precision, and knowledge of the particu- 
 lar judge, and then applied to the circumstances 
 of the case for adjudication. But at no stage of 
 this process has it any characteristic which dis- 
 tinguishes 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 jurisprudence. We arrive at the era of Codes, 
 those ancient codes of which the Twelve Tables 
 of Rome were the most famous specimen. In 
 Greece, in Italy, on the Hellenised sea-board of 
 Western Asia, these codes all made their appear- 
 ance 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 
 
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CHAP. I] THE XII TABLES I3 
 
 community. Everywhere, in the countries I have 
 named, laws engraven on tablets and published 
 to the people take the place of usages deposited 
 with the recollection of a privileged oUgarchy. 
 It must not for a moment be supposed that the 
 refined considerations now urged in favour of what 
 is C9,Ued 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 axistocracies seem to have abused their 
 monopoly of legal knowledge ; and at aU events 
 their exclusive possession of the law was a formid- 
 able impediment to the success of those popular 
 movements which began to be universal in the 
 western world. But, though democratic senti- 
 ment may have added to their popularity, the 
 codes were certainly in the main a direct result 
 of the invention of writing. Inscribed tablets 
 were seen to be a better depository 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 classifi- 
 cation, or to terseness and clearness of expression, 
 but in their publicity, and in the knowledge which 
 they furnished to everybody, as to what he was 
 to do, and what not to do. It is, indeed, true 
 that the Twelve Tables of Rome do exhibit some 
 traces of systematic arrangement, but this is 
 probably explained by the tradition that the 
 framers of that body of law called in the assistance 
 
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14 ANCIENT CODES [chap, i 
 
 of Greeks who enjoyed the later Greek experience 
 in the art of law-making. The fragments of the 
 Attic Code of Solon show, however, that it had 
 but little order, and probably the laws of Draco 
 had even less. Quite enough too remains of these 
 collections, both in the East and in the West, to 
 show that they mingled up reUgious, 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 
 community — 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 jurisprudence created by feudaUsm, it 
 is likely that all modern law would be distinctly 
 traceable to one or more of these 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 suc- 
 cessfully assailed the ohgarchical monopoly, and 
 a code was nearly universally obtained early in 
 the history of the Commonwealth. But, in the 
 East, as I have before mentioned, the ruling 
 
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•=»*»••'] LAWS OF MANU 15 
 
 aristocracies tended to become religious rather 
 than military or political, and gained, therefore, 
 rather than lost in power ; while in some 
 instances the physical conformation of Asiatic 
 countries had the effect of making individual 
 communities larger and more numerous than in 
 the West ; and it is a known social law that 
 the larger the space over which a particular 
 set of institutions is diffused, the greater is its 
 tenacity and vitality. From whatever cause, the 
 codes obtained by Eastern societies were obtained, 
 relatively, much later than by Western, and wore 
 a very different character. The reUgious oligar- 
 chies of Asia, either for their own guidance, or for 
 the reUef of their memory, or for the instruction 
 of their disciples, seem in all cases to have ulti- 
 mately 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 know- 
 ledge appears 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 Manu, which 
 is certainly a Brahmin compilation, undoubtedly 
 enshrines many genuine observances of the Hindoo 
 race, but the opinion of the best contemporary 
 orientaHsts is, that it does not, as a whole, repre- 
 sent a set of rules ever actually administered in 
 Hindostan. It is, in great part, an ideal picture 
 of that which, in the view of the Brahmins, ought 
 to be the law. It is consistent with human nature 
 and with the special motives of their authors 
 
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l6 ANCIENT CODES [chap, i 
 
 that codes like that of Manu should pretend to 
 the highest antiquity and claim to have emanated 
 in their complete form from the Deity. Manu, 
 according to Hindoo mythology, is an emanation 
 from the supreme God; but the compilation 
 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 
 oligarchy and also against the spontaneous deprava- 
 tion and debasement of the national institutions. 
 The Roman Code was merely an enunciation in 
 words of the existing customs of the Roman 
 people. Relatively to the progress of the Romans 
 in civiUsation, it was a remarkably early code, and 
 it was pubUshed at a time when Roman society 
 had barely emerged from that intellectual con- 
 dition in which civil obligation and reUgious duty 
 are inevitably confounded. Now a barbarous 
 society practising a body of customs, is exposed 
 to some especial dangers which may be absolutely 
 fatal to its progress in civilisation. The usages 
 which a particular community is found to have 
 adopted in its infancy and in its primitive seats 
 are generally those which are on the whole best 
 suited to promote its physical and moral well- 
 being ; and, if they are retained in their integrity 
 until new social wants have taught new practices, 
 the upward march of society is almost certain. 
 But unhappily there is a law of development which 
 
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CHAP. DEGENERATION I7 
 
 ever threatens to operate upon unwritten usage. 
 The customs are of course obeyed by multitudes 
 who are incapable of understanding the true 
 ground of their expediency, and who are therefore 
 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 
 instruments in the maturity of jurisprudence, is 
 the most dangerous of snares in its infancy. Pro- 
 hibitions and ordinances, originally confined, for 
 good reasons, to a single 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 prohibition is extended to all food 
 resembHng it, though 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 history is necessary 
 for the maintenance of the national existence 
 degenerates into the most disastrous and bUghting 
 of aU 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 re- 
 semblance between what appear to have been 
 their original customs. Even now, Hindoo juris- 
 
 2 
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l8 NOTES [<=«*"• • 
 
 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 em- 
 bodied 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 pubUshed 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 unhappy a 
 destiny. 
 
 NOTE A 
 
 ANTIQUITY OF ROMAN LAW 
 
 The description of Roman law, in the preface to the first 
 edition, as "bearing in its earlier portions the traces of the most 
 remote antiquity," is literally correct unless, contrary to the 
 usage of good authors, we press the . superlative to its extreme 
 construction, as if it had been meant to exclude the possibility 
 that traces of still more remote antiquity may be found elsewhere. 
 Maine obviously did not mean to deny that Germanic and Hindu 
 law, for example, have at some points preserved more archaic 
 features than those of the earliest Roman law known to us ; 
 much less to disparage the extremely modem character of classical 
 Roman law, which gives it most of its value for modem juris- 
 prudence : compare the passage cited from " Early Law and 
 Custom " in Note F below. It may be still a natural temptation 
 for a student unacquainted with other legal antiquities to suppose 
 
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CHAP. I] NOTES 19 
 
 that the law of the Twelve Tables, or the law of the later 
 Roman Republic as a whole, belongs to a more archaic type 
 than it really does. Fifty years ago the temptation was almost 
 inevitable ; and we have to remember that Maine had been 
 endeavouring, with indifferent success at the time, to revive 
 the study of Roman law in a country where the educated public 
 was in a state of absolute ignorance on the subject (as it j robably 
 still is), and the tradition of the civilians, confined, under the 
 old division of jurisdictions and practice, to a small minority of 
 the legal profession, was at least a century out of date. If Maine 
 did use language tending to exaggerate the intrinsic merits and 
 the practical importance of Roman jurisprudence, it was under 
 those conditions a fault on the right side. But modem students 
 must be warned not to assume that Roman law was in fact 
 it any one time a perfect and symmetrical whole, or that its 
 liistoiy can be deduced from any one formula. The Twelve 
 Tables were no doubt regarded as an ultimate source of law 
 for the field they covered, but they did not purport to include 
 the whole of the recognised customary law. For the classical 
 period of the Empire the most important and fruitful written 
 smbodiment of law was the Praetor's Edict, as almost every 
 title of the Digest bears witness. Moreover, the Twelve Tables 
 themselves were no mere consolidation, but a reforming code, 
 [t is certain that they incorporated Greek materials, and it is 
 of very little importance whether the story of a special com- 
 mission being sent to Greece is literally acceptable or not. In 
 my case the means of information were at hand in the Greek 
 :ities of southern Italy, a region where the Greek language is 
 lot yet extinct Borrowing of this kind from neighbours who 
 lave reached a more advanced stage is by no means abnormal 
 n archaic legislation. Indeed, it is rather common for the law- 
 giver of the heroic age to be represented as a stranger, or as 
 laving learnt the wisdom of older and greater kingdoms ; and 
 5ven if the personal element of such a tradition is dubious, it is 
 lot likely to be a gratuitous invention. Ingenious paradoxical 
 loubts have quite lately been cast on the antiquity of the Twelve 
 Tables; but the hypothesis that they are really a compilation 
 )r fabrication of the second century B.C. has not met with a 
 avourable reception : see Dr. A. H. J. Greenidge, " The Authenticity 
 )f the Twelve Tables," English Historical Review, January, 1905, 
 ind Professor Goudy in the Juridical Review, June, 1905. It is 
 )erhaps unnecessary to warn English students against implicit 
 Lcceptance of the conjectural restorations of the Decemvirs' work 
 issayed by various learned persons. The most elaborate of these, 
 hat of Voigt, is described by the no less learned M. Girard as con- 
 aining " une restitution tout k fait inacceptable et un commentaire 
 ort aventureux " (Manuel 616mentaire du droit roraain, 3* 6d., 1901, 
 
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I 
 
 20 ' NOTES [CHAP, I 
 
 p. 23). Dr. Roby ("Roman Private Law in the. Times of Cicero 
 and of the Antonines," 1902, vol. i., p. x) calls it in even plainer 
 terms a house of cards. 
 
 NOTE B 
 
 CUSTOMARY LAW IN HOMER 
 
 Maine's reference to the Homeric poems as some of our best 
 evidence for the archaic forms of legal ideas in Indo-European 
 communities is a brilliant example of his insight. As he points out, 
 the poet or poets had no conscious theory of the matter at all, 
 and this is our best warranty for the witness of the poems being 
 true. They describe a society in which custom is understood if 
 not always observed, positive duties are definable if not easily 
 enforceable, and judgments are rendered with solemnity and 
 regarded as binding, although we hear nothing of any standing 
 authority such as could be called either legislative or executive 
 in the modern sense. And Maine is clearly right in holding (p. 2) 
 that the description is not wholly idealised — we might even say 
 not much — and is of a state of society known to the writer. To 
 all appearance the usages described are real, and those of the 
 singer's own time. The deliberate archaism of modem fiction has 
 no place in Homer ; only the wealth and prowess of the heroic 
 age are exaggerated. The Chanson de Roland endows Charlemagne 
 and his peers with the arms and manners of the twelfth century, 
 as the Arthurian cycle attributes those of the fourteenth to the 
 knights of the Round Table ; and we cannot believe that Homer 
 did otherwise. 
 
 Maine gives a hint (p. 6) that the analysis of positive law laid 
 down by Bentham and Austin (following Hobbes, though Bentham 
 seems not to have been aware of it) cannot be made to fit archaic 
 society. For in communities like those of the Homeric age, or 
 of Iceland as described in the Sagas, there is no sovereign (in 
 Hobbes's sense) to be found, nor any legislative command, nor 
 any definite sanction ; and yet in Iceland there were regularly 
 constituted courts, with a regular and even technical procedure, 
 as the Njils Saga tells us at large. Maine afterwards worked 
 out this position in the lectures on Sovereignty in " The Early 
 History of Institutions," which are the foundation of sound modem 
 criticism on the Hobbist doctrine. In those classical pages he 
 dealt rather tenderly with Bentham and Austin, whom to some 
 extent he regarded as his masters, in spite of the wholly unhistorical 
 character of their work ; and, apart from any particular feeling in 
 this case, it was not his habit to exhibit the full consequences of 
 his ideas. Those who come after him are firee to push the 
 conclusion home, as Mr. Bryce has done {" Studies in History and 
 
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CHAP. I] NOTES 21 
 
 Jurisprudence," Essay X). As to the absence of executive sanction 
 in archaic procedure, cp. " Early Law and Custom," p. 170. 
 
 With regard to the " Themistes " of the Homeric chiefs, the 
 word appears to be not an anomalous plural of Seins, but distinct, 
 and to mean principles of law or justice; "Themis," the singular 
 noun, being " right" in the abstract sense (E. C. Clark, " Practical 
 Jurisprudence," pp. 42-9). Once it means "tribute," which does 
 not offer much difficulty when compared with the constant use 
 of consuetudo in medieval Latin. Some of the language used here 
 by Maine seems to imply that the decisions called by this name 
 were or might be arbitrary ; but Maine himself added the desirable 
 qualification in his chapter on " The IQ^ng and Early Civil Justice." 
 "The Homeric King is chiefly busy with fighting. But he is 
 also a judge, and it is to be observed that he has no assessors. 
 His sentences come directly into his mind by divine dictation from 
 on high." That is, if the king is just ; we read in the Iliad, though 
 it occurs only in the course of a simile, of unjust kings who give 
 crooked judgments, disregarding the voice of the gods : 
 
 'fis 5* iirh XaAaTTt -Traffa Ke\aivT) ^4^pt$€ x^^ 
 ij/mr' dTwp^vif, Sre XaPpirkTov x^" iiSwp 
 
 ol ^tjj civ dyopy (TKoX^ds Kpivujffi dSfucrraSf 
 
 iK 5^ SIktjv i^dffdjfftf BeiHv 67rtv odx d\&yovres . , . 
 
 n. 384 sqq. 
 
 " These sentences, or 6efua-T€s — ^which is the same word with 
 our " Teutonic word ' dooms ' — are doubtless drawn from ^e- 
 existing custom or usage, but the notion is that they are conceived 
 by the king spontaneously or through divine prompting. It is 
 plainly a later development of the same view when the prompting 
 comes from a learned lawyer, or from an authoritative law-book" 
 (" Early Law and Custom," p. 163). 
 
 Custom, indeed, is so strong in Homer that the gods themselves 
 are bound by it. Zeus is the greatest of chiefs, but he owes 
 justice to his people, and justice implies the observance of rule. 
 Power is not wanting, but a sense of duty moderates it. Thus in 
 the Iliad Zeus is tempted to rescue Sarpedon from his fate, but 
 dares not break his custom in the face of Hera's rebuke (" Do it 
 if thou wilt: but the rest of the gods in no wise approve": 
 n, 443) : and in the Odyssey the Sun-God threatens to go down 
 and shine among the dead men if he is not to be avenged for the 
 sacrilege of Odysseus' men who have killed and eaten his oxen : — 
 
 ZcC irdrep ^S' tfXXot fuixapes $eol alkv ibvm, 
 
 rural Sfi irdpovs Aaepnddea 'OSvff^os, 
 
 oX fi€v /Sous iKTeaiav iiripPiov, ^a-tv iyii ye 
 
 XoipiffKov ixiv liiv els oipavbv iffrepdevra, 
 
 ilS irdr' Kf M yatav dir' oipaviSev trporpaTottfrii'. 
 
 el Si fioi oi rlaovai podv imetKi' ip-m^ip, 
 
 iiaopju eh 'Aliao Koi iv veKieim tpaebia. 
 
 ifc. 377 sqq. 
 
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22 NOTES [CHAP. I 
 
 NOTE C 
 
 EARLY FORMS OF LAW: "WRITTEN" AND "UNWRITTEN" 
 LAW : EARLY CODES 
 
 It should be noted that the growth of institutions is much too 
 complicated, even if we confine our attention to one society, to be 
 represented as a simple series in order of time. We constantly 
 speak of one rule or custom as belonging to a more advanced 
 stage of ideas than another ; but this does not mean that in every 
 society where it is found it^ust have been preceded in fact by 
 a less advanced institution belonging to the next lower grade of 
 culture. Imitation of neighbours or conquerors, or peculiar local 
 conditions, may materially shorten a given stage in the normal 
 development, or even cut it out altogether. What we do mean is 
 that the order is not found reversed. Chalk is not everywhere in 
 England, nor red sandstone ; but where red sandstone is, we know 
 that chalk is not below it. Iron was known in Africa so early that 
 Africa may be said not to have had a bronze age ; but this does 
 not make it more credible that any tribe should ever have abandoned 
 iron for bronze. In like manner there may have been tribes that 
 had lawgivers almost or quite as soon as they had judges. But no 
 one has heard of a nation which, having acquired a body of 
 legislation, reverted from it to pure customary law (cp. Kohler, 
 "Zur Urgeschichte der Ehe," pp. 7-10). 
 
 A king's or chieftain's judicial dooms are very different from 
 express laws promulgated for general observance ; but it is notice- 
 able that early traditions ascribe a divine origin to both. In the 
 former case the judge enjoys, in some undefined way, the confidence 
 of the gods ; in the latter the human lawgiver is merely the scribe 
 or reporter of a " Deity dictating an entire code or body of law," 
 which, as Maine points out (above, p. 5), is a more artificial 
 conception and belongs to a later stage. It appears, however, as 
 early as anything that can be called legislation ; and the tendency 
 to refer the commandments of the law to a divine or semi-divine 
 origin is quite regular. There is no reason, it may be added, why 
 a lawgiver or recorder of divine law should not also be a speaker of 
 dooms. A ruling ascribed to Moses, whom Sir Edward Coke 
 claimed as the first law reporter, is at this day a practical decision, 
 for it governs the civil law of succession in some Jewish communi- 
 ties (such as the Jews of Aden : Sir Courtenay Ilbert, "The Govern- 
 ment of India," p. 397). Even if the Mosaic law has to admit the 
 superior antiquity of King Hammurabi's code, we may safely say 
 that the case of Zelophehad's daughters is the earliest recorded 
 case which is still of authority. 
 
 When the king or chief ceases to bear all offices in his own person, 
 
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CHAP, r] NOTES 23 
 
 and the political division of labour begins, those functions which 
 had a sacred character naturally become attached to a priesthood 
 or sacred tribe or family, and among them the custody and interpre- 
 tation of the law. The distinction between religious and secular 
 law is, one need hardly say, much later. Thus we find in both 
 Germanic and Roman antiquity more than traces of priests, or nobles 
 who claimed the priest's office as a birthright, being the first judges 
 (Grimm, " D.R.A." 272, i. 378 in 4tb ed.). In Iceland the rather 
 vague but not ineffectual authority which was ascribed to the 
 Speaker of the Law seems to have had a religious character. At 
 any rate we read in the Njals Saga that to him, and him alone, 
 was left the momentous decision of the question, which had all but 
 led to civil war, whether Christianity should be adopted (Dasent, 
 " Burut Njal," ch. ci.). There seems to be no reason against accept- 
 ing this incident as mainly historical. It is worth observing that 
 Thorgeir would not make his award until both the Christian and 
 the heathen party had given pledges to abide by it : a striking 
 illustration of the voluntary and arbitral character of early juris- 
 diction. Edward I. of England, more than two centuries later, used 
 similar precaution when he adjudicated on the claims to the crown 
 of Scotland. 
 
 Whether a monopoly of legal knowledge is established m the 
 hands of a privileged caste or order, or a tradition of learning is 
 handed down in something like a school, or, without any profes- 
 sion of secrecy, certain persons enjoy for the time being the reputa- 
 tion of superior knowledge, appears to depend on the particular 
 circumstances of each community. Besides the Speaker of the Law, 
 we find in the Iceland of the Sagas a few specially wise men, Nj41 
 himself, and after his death one or two others, whose advice is 
 eagerly sought by their neighbours, and whose deliberate opinion is 
 almost conclusive ; yet there is no possible distinction of race or 
 rank in that singularly homogeneous republic. A like position is 
 ascribed to Nestor. This kind of reputation is obviously not less 
 but more important in a society where jurisdiction and judicial 
 power have not yet become compulsory ; for the chances that any 
 judgment or award will be observed will, in such a society, depend 
 largely on the respect in which the acting judge or daysman is 
 held. 
 
 Maine adds that law preserved as a kind of trade secret by a 
 privileged class is the only real unwritten law. This may be lite- 
 rally true. But our current professional use of the term is really 
 a matter of literary convention. We find it useful to confine the 
 term " written law " to an enactment or declaration which is autho- 
 ritative not only in matter but in form, so that its very words not 
 only contain but constitute the law. An exposition whose very 
 words are not binding is " unwritten law," however great its authority 
 may be in substance. Consider the case of a judge in England, or 
 
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24 KOTES [CHAP. I 
 
 any other jurisdiction under the system of the Common Law, making 
 a careful statement of some point of law in a book written and 
 published by him. This is only a private learned opinion, and has, 
 properly speaking, no authority at all. But the same or another 
 I'udge may adopt the statement in a reported judgment. It then 
 acquires authority as a judicial exposition of the law, but still its 
 actual terms are not binding, and it counts as "unwritten law." 
 Finally, the proposition may be embodied in a statute. It then 
 becomes " written law," and the Courts will have for the future to 
 treat not only the substance but every word of it as authentic. 
 The distinction is quite real, and no better way of expressing it has 
 been found. French usage, moreover, presents a close analogy. 
 Under the old monarchy the provinces of written law {;pays de droit 
 icrif) were those where the texts of Roman law were received as 
 having binding authority, while in the ^ays de droit coutumier they 
 were cited only for example and illustration, on the merits of the 
 reason embodied in them, as they may be and sometimes are in 
 England. Thus the same text might be "written" law in one 
 province and " unwritten " (though there is no corresponding French 
 term) in another. A learned modem writer says of the antithesis 
 between ius scrijitum and ius non scriftum, after careful examina- 
 tion of the various meanings with which they occur in the writings 
 of the classical Roman lawyers : " Its general practical use with 
 them is as a distinction between customary law, on the one hand, 
 and law drawn up and issued in any regular manner by any 
 legislative authority, on the other. . . . The above is also the 
 practical use of the distinction ... by our English jurists, so far 
 as they use it at all. . . . With modem Continental writers written 
 and unwritten in general designate respectively enacted and 
 customary law " (E. C. Clark, " Practical Jurispmdence," p. 272). 
 
 Maine's brief remarks on early codes (above, pp. 12-18) include 
 a few sentences on Hindu law ; these were written at a time 
 when the existence of the books called by the names of Manu 
 and Narada was hardly known outside Anglo-Indian official circles 
 except to a few students of Sanskrit. In later years, after having 
 been a member of the Government of India, he returned to the 
 subj ect. The chapters in ' ' Early Law and Custom " on " The Sacred 
 Laws of the Hindus," " Religion in Law," and " Classifications of 
 Legal Rules," should be read accordingly as a supplement; and 
 the second and third lectures in "Village Communities" should 
 also be consulted as to the general nature of archaic customary 
 law, and the effect produced on it by contact with a modem system. 
 
 An entirely new light has been thrown on the early history of 
 written law by the discovery of Hammurabi's Babylonian code ; an 
 extensive, practical, and mainly secular code which dates from 
 considerably more than two thousand years before the Christian 
 era, which seems to presuppose even earlier authentic dooms 
 
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CHAP. I] NOTES 25 
 
 committed to writing, and which refers to conveyancing documents 
 as in common use (English translation by C. H. W. Johns, Edinb. 
 1903). Less striking, but still of importance, are the Tables of 
 Gortyn in Crete, discovered in 1884. They are later than the Roman 
 Twelve Tables, but preserved in an authentic and not much muti- 
 lated inscription. See Dr. H. J. Roby thereon, with translation, 
 L.Q.R. ii. 135. 
 
 Timely codification of customs, as Maine observes (pp. 14, 15), 
 may prevent degradation ; I must confess that the ascription of 
 such an effect to the Twelve Tables, though ingenious and pleasing 
 as a conjecture, appears to me to go beyond what is warranted 
 by our knowledge of the state and tendencies of Roman society 
 under the earlier Republic. It is certain that conversely the fixing 
 of law in a codified form at a later stage may arrest a normal and 
 scientific development. Such was the result of the Ordinance 
 which stereotyped the French law of negotiable instruments in 1673 
 (Chalmers, " Bills of Exchange," Introduction, p. Ivi). It would seem, 
 indeed, that the Twelve Tables themselves went near to stereotype 
 an archaic and formalist procedure, and that the Romans of later 
 generations escaped from great inconvenience only by the devices 
 of legal fictions and equity which Maine considers in the following 
 chapter. 
 
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CHAPTER II 
 
 LEGAL FICTIONS 
 
 When primitive law has once been embodied 
 in a Code, there is an end to what may be called 
 its spontaneous development. Henceforward the 
 changes effected in it, if effected at all, are effected 
 deliberately and from without. It is impossible 
 to suppose that the customs of any race or tribe 
 remained unaltered during the whole of the long 
 — in some instances the immense — interval be- 
 tween their declaration by a patriarchal monarch 
 and their publication in writing. It would be 
 unsafe too to affirm that no part of the alteration 
 was effected deliberately. But from the little 
 we know of the progress of law during this period, 
 we are justified in assuming that set purpose 
 had the very smallest share in producing change. 
 Such innovations on the earliest 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, however, with 
 the Codes. Wherever, after this epoch, we trace 
 the course of legal 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, 
 
 26 
 
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CHAP. II] RARITY OF PROGRESS 27 
 
 It may seem at first sight that no general 
 propositions worth trusting can be elicited from 
 the history of legal systems subsequent to the 
 codes. The field is too vast. We cannot be 
 sure that we have included a sufficient' number of 
 phenomena in our observations, or that we accu- 
 rately 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 stationary and pro- 
 gressive societies begins to make itself felt. It 
 is only with the progressive societies that we are 
 concerned, and nothing is more remarkable than 
 their extreme fewness. In spite of overwhelming 
 evidence, it is most difficult for a citizen of Western 
 Europe to bring thoroughly home to himself 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 moment when external completeness 
 was first given to them by their embodiment 
 in some permanent record. One set of usages 
 has occasionally been violently overthrown and 
 superseded by another ; here and there a primitive 
 code, pretending to a supernatural origin, has 
 been greatly extended, and distorted into the 
 most surprising forms, by the perversity of 
 sacerdotal commentators ; but, except in a small 
 
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28 LEGAL FICTIONS [chap, ii 
 
 section of the world, there has been nothing like 
 the gradual amelioration of a legal system. There 
 has been material civiUsation, but, instead of 
 the civilisation expanding the law, the law has 
 limited the civiUsation. The study of races in 
 their primitive condition affords us some clue 
 to the point at which the development of certain 
 societies has stopped. We can see that Brah- 
 minical India has not passed beyond a stage 
 which occurs in the history of aU the families 
 of mankind, the stage at which a rule of law is 
 not yet discriminated from a rule of religion. 
 The members of such a society consider that 
 the transgression of a rehgioiis ordinance should 
 be punished by civil penalties, and that the 
 violation of a civil duty exposes the deHnquent 
 to divine correction. In China this point has 
 been passed, but progress seems to have been 
 there arrested, because the civil laws are co- 
 extensive with all the ideas of which the race is 
 capable. The difference between the stationary 
 and progressive societies is, however, one of the 
 great secrets which inquiry has yet to penetrate. 
 Among partial explanations of it I venture to 
 place the considerations urged at the end of the 
 last chapter. It may further be remarked that 
 no one is likely to succeed in the investigation 
 who does not clearly reaUse that the stationary 
 condition of the human race is the rule, the pro- 
 gressive 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 
 
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CHAP. II] PROGRESSIVE LAW 29 
 
 character of all the changes which it underwent 
 is tolerably well ascertained. From its commence- 
 ment 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 improvement was continued through 
 periods at which all the rest of human thought 
 and action materially slackened its pace, and 
 repeatedly threatened to settle down into stag- 
 nation. 
 
 I confine myself in what follows to the pro- 
 gressive 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 between them, but it has a 
 perpetual tendency to reopen. Law is stable ; 
 the societies we are speaking of are progressive. 
 The greater or less happiness of a people depends 
 on the degree of promptitude with which the 
 gulf is narrowed. 
 
 A general proposition of some value may be 
 advanced with respect to the agencies by which 
 Law is brought into harmony with society. 
 These instrumentalities seem to me to be three 
 in number. Legal Fictions, Equity, and Legislation. 
 Their historical order is that in which I have 
 placed them. Sometimes two of them will be 
 seen operating together, and there are legal 
 systems which have escaped 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 
 
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30 LEGAL FICTIONS [chap, ii 
 
 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 sequence to the periods at which they exercised 
 a sustained and substantial influence in trans- 
 forming the original law. 
 
 I employ the word " fiction " in a sense con- 
 siderably wider than that in which EngUsh lawyers 
 are accustomed to use it, and with a meaning 
 much more extensive than that which belonged 
 to the Roman " fictiones." Fictio, in old Roman 
 law, is properly a term of pleading, and signifies 
 a false averment on the part of the plaintiff which 
 the defendant was not allowed to traverse ; such, 
 for example, as an averment that the plaintiff 
 was a Roman citizen, when in truth he was a 
 foreigner. The object of these " fictiones " was, 
 of course, to give jurisdiction, and they therefore 
 strongly resembled the allegations in the writs 
 of the English Queen's Bench and Exchequer, 
 by which those courts contrived to usurp the 
 jurisdiction of the Common Pleas : — the allegation 
 that the defendant was in custody of the king's 
 marshal, or that the plaintiff was the king's 
 debtor, and could not pay his debt by reason 
 of the defendant's default. But now I employ 
 the expression " Legal Fiction " to signify any 
 assumption which conceals, or affects to conceal, 
 the fact that a rule of law has undergone altera- 
 tion its letter remaining unchanged, its operation 
 
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*="*^-"l USES OF FICTION 31 
 
 being modified. ) The words, therefore, include 
 the instances of fictions which I have cited from 
 the English and Roman law, but they embrace 
 much more, for I should speak both of the English 
 Case-law and of the Roman Responsa Prudentium 
 as resting on fictions. Both these examples will 
 be examined presently. The fact is in both cases 
 that the law has been wholly changed ; the 
 fiction is that it remains what it always was. 
 It is not difficult to understand why fictions in 
 all their forms are particularly congenial to the 
 infancy of society. They satisfy the desire for 
 improvement, which is not quite wanting, at 
 the same time that they do not offend the super- 
 stitious disrelish for change which is always 
 present. At a particular stage of social progress 
 they are invaluable expedients for overcoming 
 the rigidity of law, and, indeed, without one of 
 them, the Fiction of Adoption which permits 
 the family tie to be artificially created, it is 
 difficult to understand how society would ever 
 have escaped from its swaddling-clothes, and 
 taken its first steps towards civilisation. We 
 must, therefore, not suffer ourselves to be affected 
 by the ridicule which Bentham pours on legal 
 fictions wherever he meets them. To revile them 
 as merely fraudulent is to betray ignorance of 
 their pecuhar office in the historical development 
 of law. But at the same time it would be equally 
 foolish to agree with those theorists who, dis- 
 cerning 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 
 
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32 LEGAL FICTIONS [chap, ii 
 
 not be discarded without a severe shock to the 
 ideas, and considerable change in the language, 
 of English practitioners ; but there can be no 
 doubt of the general truth that it is unworthy 
 of us to effect an admittedly beneficial object 
 by so rude a device as a legal fiction. I cannot 
 admit any anomaly to be innocent, which makes 
 the law either more difficult to understand or 
 harder to arrange in harmonious order. Now, 
 among other disadvantages, legal fictions are the 
 greatest of obstacles to symmetrical classification. 
 The rule of law remains sticking in the system, 
 but it is a mere shell. It has been long ago 
 undermined, and a new rule hides itself under 
 its cover. Hence there is at once a difficulty in 
 knowing whether the rule which is actually 
 operative should be classed in its true or in its 
 apparent place, and minds of different casts wiU 
 differ as to the branch of the alternative which 
 ought to be selected. If the EngUsh law is ever 
 to assume an orderly 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 instrumentahty by which the adapta- 
 tion of law to social wants is carried on I call 
 Equity, meaning by that word (any body of rules 
 existing by the side of the original civil law, 
 founded on distinct principles and claiming in- 
 cidentally to supersede 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 preceded it, in that the inter- 
 
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cHAi"- "] LEGISLATION 33 
 
 ference with law is open and avowed. On the 
 other hand, it differs from Legislation, 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 enunciates 
 it, but on the special nature of its principles, to 
 which it is alleged that all law ought to conform. 
 The very I conception of a set of principles, invested 
 with a higher sacredness than those of the original 
 law and demanding application independentlj- 
 of the consent of any external body, belongs to 
 a much more advanced stage of thought than 
 that to which legal fictions originally suggested 
 themselves. 
 
 Legislation, the enactments of a legislature 
 which, whether it take the form of an autocratic 
 prince or of a parliamentary assembly, is the 
 assumed organ of the entire society, is the last of 
 the amehorating instrumentalities. It differs from 
 Legal Fictions just as Equity differs from them, 
 and it is also distinguished from Equity, as 
 deriving its authority from an external body or 
 person. Its obligatory force is independent of 
 its principles. The legislature, whatever be the 
 actual restraints imposed on it by pubhc opinion, 
 is in theory empowered to impose what obliga- 
 tions it pleases on the members of the community. 
 There is nothing to prevent its legislating in the 
 wantonness of caprice. Legislation may be dic- 
 tated 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 
 
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34 LEGAL FICTIONS [chap, ii 
 
 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 paramount sacredness entitling 
 them at once to the recognition of the courts even 
 without the concurrence 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 head of Legislation. They 
 aU, he would say, involve law-making ; they 
 differ only in respect of the machinery by which 
 the new law is produced. That is perfectly true, 
 and we must never forget it ; but it furnishes no 
 reason why we should deprive ourselves 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 
 lawyers ; and it will never do to neglect the 
 distinction between them, however conventional, 
 when important practical consequences follow 
 from it. 
 
 It would be easy to select from almost any 
 regularly developed body of rules examples of 
 legal fictions, which 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 de- 
 tected. The first authors of these fictions did not 
 perhaps intend to innovate, certainly did not wish 
 to be suspected of innovating. There are, more- 
 over, and always have been, persons who refuse 
 to see any fiction in the process, and conventional 
 
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CHAP. II) JUDICIAL LEGISLATION 35 
 
 language bears out their refusal. No examples, 
 therefore, can be better calculated to illustrate the 
 wide diffusion of legal fictions, and the efficiency 
 with which they perform their twofold ofi&ce of 
 transforming a system of laws and of concealing 
 the transformation. 
 
 We in England are weU accustomed to the ex- 
 tension, modification, and improvement of law by a 
 machinery which, in theory, is incapable of altering 
 one jot or one line of existing jurisprudence. The 
 process by which 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 reports, we habitually employ a double 
 language, and entertain, as it would appear, a 
 double and inconsistent set of ideas. When a 
 group of facts comes before an English Court for 
 adjudication, the whole course of the discussion 
 between the judge and the advocates 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 Utigated, 
 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 had been rendered and 
 reported, we slide unconsciously or unavowedly 
 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 
 
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36 LEGAL FICTIONS [chap- 
 
 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 com- 
 paring the precedents is not the same with that 
 which would have been obtciined if the series of 
 cases had been curtailed by a single example. 
 The fact that the old rule has been repealed, and 
 that a new one has replaced it, eludes us, because 
 we are not in the habit of throwing into precise 
 language the legal formulas which we derive from 
 the precedents, so that a change in their tenor is 
 not easily detected unless it is violent and glaring. 
 I shall not now pause to consider at length the 
 causes which have led English lawyers to acquiesce 
 in these curious anomahes. Probably it will be 
 found that originally it was the received doctrine 
 that somewhere, in nubibus or in gremio magis- 
 tratuum, there existed a complete, coherent, sym- 
 metrical body of EngHsh law, of an amphtude 
 sufficient to furnish principles which would apply 
 to any conceivable combination of circumstances. 
 The theory was at first much more thoroughly 
 beheved in than it is now, and indeed it may have 
 had a better foundation. The judges of the 
 thirteenth century may have really had at their 
 command a mine of law unrevealed to the bar 
 and to the lay-pubUc, for there is some reason for 
 suspecting that in secret they borrowed freely, 
 though not always wisely, from current compendia 
 of the Roman and Canon laws. But that store- 
 house was closed as soon a;s the points decided 
 at Westminster Hall became numerous enough 
 to supply a basis for a substantive system of 
 
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CHAP. H] ANSWERS OF THE LEARNED 37 
 
 jurisprudence ; and now for centuries English 
 practitioners have so expressed themselves as to 
 convey the paradoxical proposition that, except 
 by Equity and Statute law, nothing has been 
 added to the basis since it was first constituted. 
 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 complicated interests of modern society. 
 A body of law bearing a very close and very 
 instructive resemblance to our case-law in those 
 particulars which I have noticed, was known to 
 the Romans under the name of the Responsa 
 Prudentium, the " answers of the learned in the 
 law." The form of these Responses varied a 
 good deal at different periods of the Roman 
 jurisprudence, but throughout its whole course 
 they consisted of explanatory glosses on authori- 
 tative written documents, and at first they were 
 exclusively collections of opinions interpretative 
 of the Twelve Tables, As with us, all legal 
 language adjusted itself to the assumption that 
 the text of the old Code remained unchanged. 
 There was the express rule. It overrode all 
 glosses and comments, and no one openly admitted 
 that any interpretation of it, however eminent 
 the interpreter, was safe from revision on appeal 
 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 over- 
 
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38 LEGAL FICTIONS [chap, ii 
 
 ruled the provisions of the Decemviral law. The 
 authors of the new jurisprudence during the whole 
 progress of its formation professed the most 
 sedulous respect for the letter of the Code. They 
 were merely explaining 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 presented themselves 
 and by speculating on its possible appUcation to 
 others which might occur, by introducing prin- 
 ciples of interpretation derived from the exegesis 
 of other written documents which fell under their 
 observation, they educed a vast variety of canons 
 which had never been dreamed of by the compilers 
 of the Twelve Tables and which were in truth 
 rarely or never to be found there. All these 
 treatises of the jurisconsults claimed respect on 
 the ground of their assumed conformity with the 
 Code, but their comparative authority depended 
 on the reputation of the particular jurisconsults 
 who gave them to the world. Any name of uni- 
 versally acknowledged greatness clothed a Book 
 of Responses with a binding force hardly less than 
 that which belonged to enactments of the legisla- 
 ture ; and such a book in its turn constituted a 
 new foundation on which a further body of 
 jurisprudence might rest. The responses of the 
 early lawyers were not however published, in the 
 modern sense, by their author. They were re- 
 corded and edited by his pupils, and were not 
 therefore in all probabiHty arranged according to 
 any scheme of classification. The part of the 
 students in these pubUcations must be carefully 
 noted, because the service they rendered to their 
 
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CHAP. II] ANSWERS OF THE LEARNED 39 
 
 teacher seems to have been generally repaid by 
 his sedulous attention to the pupils' education. 
 The educational treatises caUed Institutes or 
 Commentaries, which are a later frmt of the duty 
 then recognised, are among the most remarkable 
 features of the Roman system. It was apparently 
 in these Institutional works, and not in the books 
 intended for trained lawyers, that the jurisconsults 
 gave to the public their classifications and their 
 proposals for modifying and improving the tech- 
 nical phraseology. 
 
 In comparing the Roman Responsa Prudentium 
 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 bench, but the bar. The 
 decision of a Roman tribunal, though conclusive 
 in the particular case, had no ulterior authority 
 except such as was given by the professional 
 repute of the magistrate who happened to be 
 in office for the time. Properly speaking, there 
 was no institution at Rome during the republic 
 analogous to the English Bench, the Chambers 
 of Imperial Germany, or the Parliaments of 
 Monarchical France. There were magistrates in- 
 deed, invested with momentous judicial functions 
 in their several departments, but the tenure of 
 the magistracies was but for a single year, so that 
 they are much less aptly compared to a permanent 
 judicature than to a cycle of offices briskly circu- 
 lating among the leaders of the bar. Much might 
 be said on the origin of a condition of things 
 which looks to us hke a startling anomaly, but 
 which was in fact much more congenial than our 
 
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40 LEGAL FICTIONS ch>^p " 
 
 own system to the spirit of ancient societies, 
 tending, as they always did, to spht into distinct 
 orders which, however exclusive themselves, toler- 
 ated no professional hierarchy above them. 
 
 It is remarkable that this system did not 
 produce certain effects which might on the whole 
 have been expected from it. It did not, for 
 example, 'popularise the Roman law, — ^it did not, 
 as in some of the Greek republics, lessen the effort 
 of intellect reqmred for the mastery of 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 Roman jurisprudence would 
 have become as minute, technical, and dif&cult as 
 any system which has since prevailed. Again, a 
 consequence which might still more naturally have 
 been looked for, does not appear at any time to 
 have exhibited itself. The jurisconsults, until the 
 liberties of Rome were overthrown, formed a class 
 which was quite undefined and must have fluctu- 
 ated greatly in numbers ; nevertheless, there does 
 not seem to have existed a doubt as to the particu- 
 lar individuals whose opinion, in their generation, 
 was conclusive on the cases submitted to them. 
 The vivid pictures of a leading jurisconsult's daily 
 practice which abound in Latin Uterature— the 
 clients from the country flocking to his ante- 
 chamber in the early morning, and the students 
 standing round with their note-books to record 
 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 
 
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CHAP. II] ANSWERS OF THE LEARNED 4I 
 
 direct contact of the client and the advocate, the 
 Roman 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 Muraena," 
 that the reverence of the commons for forensic suc- 
 cess was apt to be excessive rather than deficient. 
 We cannot doubt that the peculiarities which 
 have been noted in the instrumentality by which 
 the development of the Roman law was first 
 effected, were the source of its characteristic 
 excellence, its early wealth in principles. The 
 growth and exuberance 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 intrusted 
 by king or commonwealth 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 country chent was not a whit 
 more entitled to form the basis of the juriscon- 
 sult's Response, or legal decision, than a set of 
 hypothetical circumstances propounded by an 
 ingenious pupil. AH combinations of fact were 
 on precisely the same footing, whether they were 
 real or imaginary. It was nothing to the juris- 
 consult that his opinion was overruled for the 
 moment by the magistrate who adjudicated on 
 his chent' 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 cUent's advantage, for the client was 
 
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42 LEGAL FICTIONS [chap, ii 
 
 in earKer 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 Ukely to be secured by viewing each 
 case as an illustration of a great principle, or an 
 exemplification of a broad rule, than by merely 
 shaping it for an insulated forensic triumph. It 
 is evident that powerful influence must have been 
 exercised by the want of any distinct check on 
 the suggestion or invention of possible questions. 
 Where the data can be multiplied at pleasure, the 
 faciUties for evolving a general rule are immensely 
 increased. As the law is administered among 
 ourselves, the judge cannot travel out of the sets 
 of facts exhibited before him or before his pre- 
 decessors. Accordingly each group of circum- 
 stances which is adjudicated upon receives, to 
 employ a GalUcism, a sort of consecration. It 
 acquires certain qualities which distinguish it 
 from every 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 particular value more than another. 
 When a difficulty came for opinion before the 
 jurisconsult, there was nothing to prevent a person 
 endowed with a nice perception of 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 
 responsum treasured up in the note-books of 
 
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«5HAP"] LATER ROMAN LAW 43 
 
 listening pupils would doubtless contemplate the 
 circumstances as governed by a great principle, or 
 included in a sweeping rule. Nothing like this 
 has ever been possible among ourselves, and it 
 should be acknowledged that in many criticisms 
 passed on the Enghsh law the manner in which 
 it has been enunciated seems to have been lost 
 sight of. The hesitation of our courts in declaring 
 principles may be much more reasonably attributed 
 to the comparative scantiness of our precedents, 
 voluminous as they appear to him who is ac- 
 quainted with no other system, than to the temper 
 of our judges. It is true that in the wealth of 
 legal principle we are considerably poorer than 
 several modern European nations. But they, it 
 must be remembered, took the Roman jurispru- 
 dence for the foundation of their civil institutions. 
 They built the debris of the Roman law into their 
 walls ; but in the materials and workmanship of 
 the residue there is not much which distinguishes 
 it favourably from the structure erected by the 
 Enghsh judicature. 
 
 'The period of Roman freedom was the period 
 during which the stamp of a distinctive character 
 was impressed on the Roman jurisprudence ; and 
 through all the earlier part of it, it was by the 
 Responses of the jurisconsults that the develop- 
 ment of the law was mainly carried on. But as 
 we approach the fall of the republic there are 
 signs that the Responses are assuming a form 
 which must have been fatal to their farther 
 expansion. They are becoming systematised and 
 reduced into compendia. Q. Mucins Scsevola, the 
 Pontifex, is said to have published a manual of 
 
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44 LEGAL FICTIONS [chap, n 
 
 the entire Civil Law, and there are traces in the 
 writings of Cicero of growing disrelish for the old 
 methods, as compared with the more active in- 
 struments of legal innovation. Other agencies had 
 in fact by this time been brought to bear on the 
 law. The Edict, or annual proclamation 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 Cornelice, had shown what rapid 
 and speedy improvements can be effected by 
 direct legislation. The final blow to the Responses 
 was dealt by Augustus, who limited to a few 
 leading jurisconsults the right of giving binding 
 opinions on cases submitted to them, a change 
 which, though it brings us nearer the ideas of 
 the modern world, must obviously have altered 
 fundamentally the characteristics of the legal pro- 
 fession and the nature of its influence on Roman 
 law. At a later period another school of juriscon- 
 sults arose, the great hghts of jurisprudence for all 
 time. But Ulpian and Paulus, Gains and Papinian, 
 were not authors of Responses. Their works were 
 regular treatises on particular departments of the 
 law, more especially on the Praetor's Edict. 
 
 The Equity of the Romans and the Praetorian 
 Edict by which it was worked into their system, 
 wiU be considered in the next chapter. Of the 
 Statute Law it is only necessary to say that it 
 was scanty during the republic, but became very 
 voluminous under the empire. In the youth and 
 infancy of a nation it is a rare thing for the legis- 
 lature to be caUed into action for the general 
 reform of private law. The cry of the people 
 
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CHAP.u] ROMAN STATUTE LAW 45 
 
 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 between classes and 
 dynasties. There seems in the minds of the 
 Romans to have been some association between 
 the enactment of a large body of statutes and the 
 settlement of society after a great civil commotion. 
 Sylla signalised his reconstitution of the republic 
 by the Leges Cornehse ; Juhus Caesar contemplated 
 vast additions to the Statute Law ; Augustus 
 caused to be passed the all-important group of 
 Leges Juhae ; and among later emperors the most 
 active promulgators of constitutions are princes 
 who, like Constantine, 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 emanating undisguisedly from the 
 imperial prerogative, extend in increasing massive- 
 ness from the consolidation 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 approximation 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 expositors 
 have arisen into being ; a permanent court of 
 appeal and a collection of approved commentaries 
 will very shortly be added ; and thus we are 
 brought close on the ideas of our own day. 
 
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46 NOTES [CHA'- 
 
 ; 
 
 NOTE D 
 
 ENGLISH CASE-LAW AND FICTION 
 
 About the middle of the nineteenth century, and somewhat later, 
 the language currently used by text-writers was such as to warrant 
 Maine's selection of the authority of decided cases in England 
 as an example of legal fiction. But the twentieth-century reader, 
 if he has taken to heart Maine's brilliant generalisation in the 
 earlier part of the chapter, will hardly expect the ideas and formulas 
 even of English lawyers to have remained stationary in the midst 
 of a progressive society ; and in fact, though probably no society 
 has ever made progress at a uniform rate all along the line, and 
 there may quite conceivably be stagnation or even falling back in 
 some departments while there is advance in others, criticism of 
 legal ideas has advanced a good deal in the English-speaking 
 world. No intelligent lawyer would at this day pretend that the 
 decisions of the Courts do not add to and alter the law. The 
 Courts themselves, in the course of the reasons given for those 
 decisions, constantly and freely use language admitting that they 
 do. Certainly they do not claim legislative power ; nor, with all 
 respect for Maine, do they exercise it For a legislator is not 
 bound to conform to the known existing rules or principles of law ; 
 statutes may not only amend but reverse the rule, or they may 
 introduce absolutely novel principles and remedies, like the Work- 
 men's Compensation Act. Still less, if possible, is he bound to 
 respect previous legislation. But English judges are bound to give 
 their decisions in conformity with the settled general principles 
 of English law, with any express legislation applicable to the matter 
 in hand, and with the authority of their predecessors and their own 
 former decisions. At the same time they are bound to find a 
 decision for every case, however novel it may be ; and that decision 
 will be authority for other like cases in future ; therefore it is part 
 of their duty to lay down new rules if required. Perhaps this is 
 really the first and greatest rule of our customary law : that, failing 
 a specific rule already ascertained and fitting the case in hand, 
 the King's judges must find and apply the most reasonable rule 
 they can, so that it be not inconsistent with any established principle. 
 They not only may but must develop the law in every direction 
 except that of contradicting rules which authority has once fixed. 
 Whoever denies this must deny that novel combinations of facts 
 are brought before the Courts from time to time, which is a truth 
 vouched by common experience and recognised in the forensic 
 phrase describing such cases as " of the first impression " ; or else 
 he must refuse to accept the principle that the Court is bound to 
 find a decision for every case, however novel It is true that at 
 many times the Courts have been over-anxious to avoid the appear 
 
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CHAP. II] NOTES 47 
 
 ance of novelty; and the shifts to which they resorted to avoid 
 it have encumbered the Common Law with several of the fictions 
 which Maine denounces (p. 32) as almost hopeless obstacles to 
 an orderly distribution of its contents. 
 
 Observe that the process of making case-law cannot properly be 
 called legislation even with any qualifying epithet intended to mark 
 it as an exercise of limited or subordinate power. Many law-making 
 authorities in the world are not sovereign, being merely delegated, 
 or otherwise restrained, but are still sources of enactments which 
 are verbally and literally binding within their competence. But 
 the judicial authority of precedents is not of that kind. Under our 
 system the Court is bound to give judgments consistent with former 
 judgments of higher or equal rank, so far as their effect has not 
 been abrogated by legislation or overruled by still higher authority ; 
 but it is not bound to follow their very words. Only the principle 
 is binding, and it must be collected from the decision as a whole, 
 and not assumed to be completely expressed by this or that sentence 
 in a reported judgment, however carefully framed. 
 
 Perhaps Maine's exposition hardly brings out the prevailing 
 motive for introducing fictions, the desire of obtaining a speedier 
 or more complet,e remedy than the strictly appropriate form ot 
 procedure affords. Among the regular though not invariable 
 marks of fictions in modem English law is the use of the word 
 " constructive " or the word " implied," as any careful student may 
 note for himself. It would be rash to suppose that the age of legal 
 fictions is wholly past. When "Ancient Law" was written, one 
 example was quite recent in our Courts, the rule that a man who 
 professes to contract as an agent is deemed to warrant that he has 
 authority from his alleged principal. This is a fiction, but bene- 
 ficent and elegant, and it is now fully accepted. 
 
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CHAPTER III 
 
 LAW OF NATURE AND EQUITY 
 
 The theory of a Set of legal principles entitled by 
 their intrinsic superiority to supersede the older 
 law, very early obtained currency both in the 
 Roman State and in England. Such a body of 
 principles, existing in any system, has in the 
 foregoing chapters been denominated Equity, a 
 term which, as wiU 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 jurisprudence of the Court 
 of Chancery, which bears the name of Equity in 
 England, could only be adequately discussed in a 
 separate treatise. It is extremely complex in its 
 texture, and derives its materials from several 
 heterogeneous sources. The early ecclesiastical 
 chancellors contributed to it, from the Canon Law, 
 many of the principles which he deepest in its 
 structure. The Roman law, more fertile than 
 the Canon Law in rules appUcable to secular 
 disputes, was not seldom resorted to by a later 
 generation of Chancery judges, amid whose re- 
 corded dicta we often find entire texts from the 
 Corpus Juris Civilis imbedded, with their terms 
 unaltered, though their origin is never acknow- 
 ledged. Still more recently, and particularly at 
 the middle and during the latter half of the 
 
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«**••• "0 ROMAN EQUITY 49 
 
 eighteenth century, the mixed systems of juris- 
 prudence and morals constructed by the pubUcists 
 of the Low Countries appear to have been much 
 studied by English lawyers, and from the chan- 
 cellorship 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 
 ingredients from these various quarters, was 
 greatly controlled 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 claiming to override the older 
 jurisprudence of the country on the strength of 
 an intrinsic ethical superiority. 
 
 The Equity of Rome was a much simpler 
 structure, 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 concep- 
 tions which have exercised profound influence on 
 himian thought, and through human thought have 
 seriously affected the destinies of mankind. 
 
 The Romans described their legal system as 
 consisting of two ingredients. " All nations," 
 says the Institutional Treatise pubUshed under the 
 authority of the Emperor Justinian, " who are 
 ruled by laws and customs, are governed partly 
 by their own particular laws, and partly by those 
 laws which are common to all mankind. The 
 law which a people enacts is called the Civil Law 
 of that people, but that which natural reason 
 appoints for all mankind is called the Law of 
 
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50 LAW OF NATURE AND EQUITY Lchap. in 
 
 Nations, because all nations use it." The part of 
 the law " which natural reason appoints 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 dictated by Natural 
 Equity (naturalis cequitas) as well as by natural 
 reason. I shall attempt to discover the origin of 
 these famous phrases, Law of Nations, Law of 
 Nature, Equity, and to determine how the con- 
 ceptions 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 repubUc 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 understand why men of aU races should 
 flock to the mistress of the world ; but the same 
 phenomenon of a large population of foreigners 
 and denizens meets us in the very earhest records 
 of the Roman State. No doubt, the instabihty 
 of society in ancient Italy, composed as it was in 
 great measure of robber tribes, gave men consider- 
 able inducement to locate themselves in the 
 territory of any community strong enough to 
 protect itself and them from external attack, even 
 though protection should be purchased at the cost 
 of heavy taxation, poUtical disfranchisement, and 
 much social humiUation. It is probable, however, 
 that this explanation is imperfect, and that it 
 could only be completed by taking into account 
 
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CHAP. Ill] LAW OF NATIONS 51 
 
 those active commercial relations which, though 
 they are little reflected in the miUtary traditions 
 of the republic, Rome appears certainly to have 
 had with Carthage and with the interior of Italy 
 in pre-historic times. Whatever were the cir- 
 cumstances to which it was attributable, the 
 foreign element in the commonwealth determined 
 the whole course of its history, which, at all its 
 stages, is Uttle more than a narrative of conflicts 
 between a stubborn nationality and an alien 
 population. Nothing like this has been seen in 
 modem 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 
 modern states, being held together by allegiance 
 to a king or pohtical superior, absorb considerable 
 bodies of immigrant settlers with a quickness 
 unknown to the ancient world, where the original 
 citizens of a commonwealth always believed them- 
 selves to be united by kinship in blood, and re- 
 sented a claim to equality of privilege as a usurpa- 
 tion of their birthright. In the early Roman 
 repubhc the principle of the absolute exclusion of 
 foreigners pervaded the Civil Law no less than the 
 constitution. The aUen or denizen could have no 
 share in any institution supposed to be coeval with 
 the State. He could not have the benefit of 
 Quiritarian law. He could not be a party to the 
 nexum which was at once the conveyance and the 
 contract of the primitive Romans. He could not 
 sue by the Sacramental Action, a mode of litigation 
 of which the origin mounts up to the very infancy 
 
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52 LAW OF NATURE AND EQUITY [chap, iii 
 
 of civilisation. Still, neither the interest nor the 
 security of Rome permitted him to be quite 
 outlawed. All ancient communities ran the risk 
 of being overthrown by a very shght disturbance 
 of equiUbrium, and the mere instinct 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 therefore 
 probably half as a measure of poUce 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 
 assumption of such a jurisdiction brought with 
 it the immediate necessity of discovering some 
 principles on which the questions to be adjudicated 
 upon could be settled, and the principles appUed 
 to this object by the Roman lawyers were emi- 
 nently characteristic 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 degrada- 
 tion, to apply 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 common to Rome and to the different 
 Italian communities m which the immigrants were 
 born. In other words, they set themselves to form 
 a system answering to the primitive and literal 
 meaning of Jus Gentium, that is. Law common to 
 all Nations. Jus Gentium was, in fact, the sum 
 
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<=K*f-'"] LAW OF NATIONS 53 
 
 of the common ingredients 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 different forms in the differ- 
 ent commonwealths surrounding Rome, the actual 
 transfer, tradition, or delivery of the article in- 
 tended to be conveyed was a part of the ceremonial 
 in all of them. It was, for instance, a part, though 
 a subordinate part, in the Mancipation or con- 
 veyance peculiar to Rome. Tradition, 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 Italian tribes. 
 
 The circumstances of the origin of the Jus 
 Gentium are probably a sufficient safeguard 
 against the mistake of supposing that the Roman 
 lawyers had any special respect for it. It was the 
 fruit in part of their disdain for all foreign law, and 
 
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54 LAW OF NATURE AND EQUITY [chap, iii 
 
 in part of their disinclination to give the foreigner 
 the advantage 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 pre- 
 cedence to the element which we had thus dis- 
 cerned underlying and pervading so great a variety 
 of usage. We should have a sort of respect for 
 rules and principles so universal. Perhaps we 
 should speak of the common ingredient as being 
 of the essence of the transaction into which it 
 entered, and should stigmatise the remaining 
 apparatus of ceremony, which varied in different 
 communities, as adventitious and accidental. Or 
 it may be, we should infer that the races which we 
 were comparing once obeyed a great system of 
 common institutions of which the Jus Gentium 
 was the reproduction, and that the comphcated 
 usages of separate commonwealths were only 
 corruptions and depravations of the simpler 
 ordinances which had once regulated their primi- 
 tive state. But the results to which modem 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 consideration 
 as accidental and transitory ; the solemn gestures 
 of the mancipation ; the nicely adjusted questions 
 and answers of the verbal contract ; the endless 
 
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CHAP- 1"] JUS NATURALE 55 
 
 formalities of pleading and procedure. The Jus 
 Gentium was merely a system forced on his 
 attention by a political necessity. He loved it 
 as Uttle 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 before 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 that which has just 
 been described, is that both modern jurisprudence 
 and modern philosophy have inherited the matured 
 views of the later jurisconsults on this subject. 
 There did come a time when, from an ignoble 
 appendage of the Jus Civile, the 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 
 arrived when the Greek theory of a Law of Nature 
 was applied to the practical Roman administration 
 of the Law common to aU 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 at- 
 tempt to discriminate them was made by the 
 jurisconsult Ulpian, with the propensity to dis- 
 tinguish characteristic of a lawyer, but the lan- 
 guage of Gains, a much higher authority, and the 
 passage quoted before 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 established between them. 
 It is almost unnecessary to add that the confusion 
 
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56 LAW OF NATURE AND EQUITY [chap, m 
 
 between Jus Gentium, or Law common to all 
 Nations, and international law is entirely modern. 
 The classical expression for international law is 
 Jus Feciale, or the law of negotiation and diplo- 
 macy. It is, however, unquestionable that indis- 
 tinct impressions as to the meaning of Jus Gentium 
 had considerable share in producing the modern 
 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 
 ^6cri<s which was rendered in the Latin natura 
 and our nature, denoted beyond aU doubt originally 
 the material universe, but it was the material 
 universe contemplated under an aspect which — 
 such is our intellectual distance from those times 
 — ^it is not very easy to delineate in modern lan- 
 guage. Nature signified the physical world re- 
 garded as the result of some primordial element 
 or law. The oldest Greek philosophers had been 
 accustomed to explain the fabric of creation 
 as the manifestation of some single principle 
 which they variously asserted to be movement, 
 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 conception of Nature. They extended 
 the term till it embraced not merely the visible 
 creation, but the thoughts, observances, and 
 aspirations of mankind. Still, as before, it was 
 
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*="*'•"'] THE STOICS 57 
 
 not solely the moral phenomena of human society 
 which they understood by Nature, but these 
 phenomena considered as resolvable into some 
 general and simple laws. 
 
 Now, just as the oldest Greek theorists sup- 
 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 untoward accident the human race would 
 have conformed 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 Uve according to nature 
 was to rise above the disorderly habits and gross 
 indulgences of the vulgar to higher laws of action 
 which nothing but self-denial and self-command 
 would enable the aspirant to observe. It is 
 notorious that this proposition — hve according to 
 nature — was the sum of the tenets of the famous 
 Stoic philosophy. Now on the subjugation of 
 Greece that philosophy made instantaneous pro- 
 gress in Roman society. It possessed natural 
 fascinations for the powerful class who, in theory 
 at least, adhered to the simple habits of the 
 ancient Itahan race, and disdained to surrender 
 themselves to the innovations of foreign fashions. 
 Such persons began immediately to affect the 
 Stoic precepts of hfe according to nature — an 
 affectation all the more grateful, and, I may add, 
 all the more noble, from its contrast with the 
 unbounded profligacy which was being diffused 
 through the imperial city by the pillage of the 
 
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58 LAW OF NATURE AND EQUITY [chap, iii 
 
 world and by the example of its most luxurious 
 races. In the front of the disciples of the new 
 Greek school, we might be sure, even if we did 
 not know it historically, that the Roman lawyers 
 figured. We have abundant proof that, there 
 being substan,tiaUy but two professions in the 
 Roman republic, the military men were generally 
 identified with the party of movement, but the 
 lawyers were universally at the head of the party 
 of resistance. 
 
 The alliance of the lawyers with the Stoic 
 philosophers lasted through many centuries. Some 
 of the earliest names in the series of renowned 
 jurisconsults are associated with Stoicism, and 
 ultimately we have the golden age of Roman 
 jurisprudence fixed by general consent as the 
 era of the Antonine Caesars, the most famous 
 disciples to whom that philosophy has given a 
 rule of Ufe. 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 jurisconsults 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 afiihated on Stoical dogmas. It has 
 often been observed that the strength of Stoicism 
 resided not in its canons of conduct, which were 
 often repulsive or ridiculous, but in the great 
 though vague principle which it inculcated of 
 resistance to passion. Just in the same way 
 
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™A^'"] THE pr^tor's edict 59 
 
 the influence on jurisprudence of the Greek 
 theories, which had their most distinct expression 
 in Stoicism, consisted not in the number of 
 specific positions which they contributed to Roman 
 law, but in the single fundamental assumption 
 which they lent to it. After Nature had become 
 a household word in the mouths of the Romans, 
 the behef gradually prevailed among the Roman 
 lawyers that the old Jus Gentium was in fact 
 the lost code of Nature, and that the Praetor in 
 framing an Edictal jurisprudence on the principles 
 of the Jus Gentium was gradually restoring a type 
 from which law had only departed to deteriorate. 
 The inference from this belief was immediate 
 that it was the Praetor's duty to supersede the 
 Civil Law as much as possible by the Edict, 
 to revive 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 Roman habits were 
 far too tenacious to give way at once to mere 
 philosophical theory. The indirect methods by 
 which the Edict combated certain technical' 
 anomahes, show the caution 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 resisted its influence. 
 But on the whole, the progress of the Romans 
 in legal improvement was astonishingly rapid as 
 soon as stimulus was applied to it by the theory 
 of Natural Law. The ideas of simplification and 
 generalisation had always been associated with 
 
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6o LAW OF NATURE AND EQUITY [chap, iii 
 
 the conception of Nature ; simplicity, S3minietry, 
 and intelligibility came therefore to be regarded 
 as the characteristics of a good legal system, and 
 the taste for involved language, multipUed cere- 
 monials, and useless difi&culties disappeared alto- 
 gether. The strong will and unusual opportunities 
 of Justinian were needed to bring the Roman 
 law to its existing shape, but the ground-plan of 
 the system had been sketched long before the 
 imperial 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 ^quitas, 
 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 con- 
 ception. It has generally been supposed that 
 ^quitas is the equivalent of the Greek icrdnjs, 
 i.e., the principle of equal or proportionate dis- 
 tribution. The equal division of numbers or 
 physical magnitudes is doubtless closely entwined 
 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 tracing 
 the history of this association, it certainly does 
 not seem to have suggested itself to very early 
 thought, but is rather the offspring of a com- 
 paratively late philosophy. It is remarkable too 
 that the " equality " of laws on which the Greek 
 
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CHAP.iu] ORIGIN OF EQUITY 6l 
 
 democracies prided themselves — that equality 
 which, in the beautiful drinking song of Callis- 
 tratus, Harmodius and Aristogiton are said to 
 have given to Athens — had little in common with 
 the " equity " of the Romans. The first was an 
 equal administration of civil laws among the 
 citizens, however limited the class of citizens 
 might be ; the last impUed 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 included 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 " aequus " carries with it more dis- 
 tinctly than the Greek " lo-os " the sense of 
 levelling. Now its levelUng tendency was exactly 
 the characteristic of the Jus Gentium, which 
 would be most striking to a primitive Roman. 
 The pure Quiritarian law recognised a multitude 
 of arbitrary distinctions between classes of men 
 and kinds of property : the J us Gentium, generalised 
 from a comparison of various customs, neglected 
 the Quiritarian divisions. The old Roman law 
 estabUshed, for example, a fundamental difference 
 between " Agnatic " and " Cognatic " relation- 
 ship, that is, between the Family considered as 
 based upon common subjection to patriarchal 
 authority and the Family considered (in con- 
 formity with modern ideas) as united through 
 the mere fact of a common descent. This dis- 
 tinction disappears in the " law common to all 
 nations," as also does the difference between the 
 archaic forms of property. Things " Mancipi " 
 
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62 LAW OF NATURE AND EQUITY [chap, m 
 
 and Things " nee Mancipi." The neglect of 
 demarcations and boundaries seems to me, there- 
 fore, the feature of the Jus Gentium which was 
 depicted in ^Equitas. I imagine that the word 
 was at first a mere description of that constant 
 levelling or removal of irregularities which went on 
 wherever the praetorian system was appHed to 
 the cases of foreign htigants. Probably no colour 
 of ethical meaning belonged at first to the ex- 
 pression ; nor is there any reason to beUeve 
 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 
 Gentium which was presented to the apprehension 
 of a Roman by the word Equity, was exactly the 
 first and most vividly realised characteristic of 
 the hypothetical state of nature. Nature implied 
 symmetrical order, first in the physical world, 
 and next in the moral, and the earUest notion 
 of order doubtless involved straight lines, even 
 surfaces, and measured distances. The same sort 
 of picture or figure would be unconsciously before 
 the mind's eye, whether it strove to form the 
 outlines of the supposed natural state, or whether 
 it took in at a glance the actual administration 
 of the " law common to all nations " ; and all 
 we know of primitive thought would lead us to 
 conclude that this ideal similarity would do 
 much to encourage the belief in an 'identity of 
 the two conceptions. But then, while the Jus 
 Gentium had httle or no antecedent credit at 
 Rome, the theory of a Law of Nature came in 
 surrounded with all the prestige of philosophical 
 
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CHAP.iiiJ EQUITY AND EQUALITY 63 
 
 authority, and invested with the charms of 
 association with an elder and more bUssful con- 
 dition of the race. It is easy to understand how 
 the difference in the point of view would affect 
 the dignity of the term which at once described 
 the operation of the old principles and the results 
 of the new theory. Even to modern ears it is 
 not at all the same thing to describe a process as 
 one of " levelHng " and to call it the " correction 
 of anomalies," though the metaphor is precisely 
 the same. Nor do I doubt that, when once 
 iEquitas was understood to convey an allusion 
 to the Greek theory, associations which grew 
 out of the Greek notion of io-otijs began to cluster 
 round it. The language of Cicero renders it more 
 than likely that this was so, and it was the first 
 stage of a transmutation of the conception of 
 Equity, which almost every ethical system which 
 has appeared since those days has more or less 
 helped to carry on. 
 
 Something must be said of the formal instru- 
 mentality by which the principles and distinctions 
 associated, first with the Law common to all 
 nations, and afterwards with the Law of Nature, 
 were gradually incorporated with the Roman law. 
 At the crisis of primitive Roman history which is 
 marked by the expulsion of the Tarquins, a change 
 occurred which has its parallel in the early annals 
 of many ancient states, but which had Uttle in 
 common with those passages of poUtical affairs 
 which we now term revolutions. It may best be 
 described by saying that the monarchy was put 
 into commission. The powers heretofore accu- 
 mulated in the hands of a single person were 
 
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64 LAW OF NATURE AND EQUITY [CHAP.ni 
 
 parcelled out among a number of elective function- 
 aries, the very name of the kingly of&ce being 
 retained and imposed on a personage known 
 subsequently as the Rex Sacrorum or Rex Sacri- 
 ficulus. As part of the change, the settled duties 
 of the supreme judicial office devolved on the 
 Praetor, at the time the first functionary 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 related 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 repubhc began that series of recurrent 
 trials which overtook the state, in the difficulty 
 of dealing with a multitude of persons who, not 
 coming within the technical description of in- 
 digenous Romans, were nevertheless permanently 
 located within Roman jurisdiction. Controversies 
 between such persons, or between such persons and 
 native-born citizens, would have remained without 
 the pale of the remedies provided by Roman law, 
 if the Praetor had not undertaken to decide them, 
 and he must soon have addressed himself to the 
 more critical disputes which in the extension of 
 commerce arose between Roman subjects and 
 avowed foreigners. 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 Praetor, known subsequently as the 
 Praetor Peregrinus, who gave them his undivided 
 attention. Meantime, one precaution of the 
 
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CHAP, in] THE PERPETUAL EDICT 65 
 
 Roman people against the revival of oppression, 
 had consisted in obliging every magistrate whose 
 duties had any tendency to expand their sphere, 
 to publish, on commencing his year of office, an 
 Edict or proclamation in which he declared the 
 manner in which he intended to administer his 
 department. The Praetor fell under the rule with 
 other magistrates ; but as it was necessarily 
 impossible 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 own views of the law compelled him 
 to introduce. The Praetor's proclamation, thus 
 lengthened by a new portion every year, obtained 
 the name of the Edictum Perpetuum, that is the 
 continuous or unbroken edict. The immense length 
 to which it extended, together perhaps with some 
 distaste for its necessarily disorderly texture, 
 caused the practice of increasing 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 jurisprudence, which it 
 probably disposed in new and symmetrical order, 
 and the perpetual edict is therefore often cited in 
 Roman law merely as the Edict of Julianus. 
 
 Perhaps the first inquiry which occurs to an 
 Englishman who considers the pecuHar mechanism 
 of the Edict is, what were the Umitations by which 
 these extensive powers of the Praetor were re- 
 strained ? How was authority so little definite 
 to be reconciled with a settled condition of society 
 and of law ? The answer can^only be supplied by 
 
 5 
 
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66 LAW OF NATURE AND EQUITY [chap, iii 
 
 careful observation of the conditions under which 
 our own Enghsh law is administered. The Praetor, 
 it should be recollected, was a jurisconsult himself, 
 or a person 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 enUghtenment were 
 inevitably those of his own order, and the qualifi- 
 cations which he ultimately brought to office were 
 those which he had acquired in the practice and 
 study of his profession. An Enghsh Chancellor 
 goes through precisely the same training, and 
 carries to the woolsack the 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 Reports hais been 
 completed, we cannot discover how far he has 
 elucidated or added to the principles which his 
 predecessors bequeathed to him. The influence 
 of the Praetor on Roman jurisprudence differed 
 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 rendered 
 during his year, though of course irreversible as 
 regarded the htigants, were of no ulterior value. 
 The most natural moment for declaring the changes 
 he proposed to effect, occurred therefore at his 
 entrance on the praetorship ; and hence, when 
 commencing his duties, he did openly and 
 avowedly that which in the end his English 
 representative does insensibly and sometimes 
 
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CHAP. Ill] LATER ROMAN EQUITY 67 
 
 unconsciously. The checks on his apparent Hberty 
 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 Chan- 
 cellor, was kept within the narrowest bounds by 
 the prepossessions imbibed from early training, 
 and by the strong restraints of professional opinion, 
 restraints of which the stringency can only be 
 appreciated by those who have personally experi- 
 enced 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 case as in the 
 other. In England the judge follows the analogies 
 of reported decisions on insulated groups of facts. 
 At Rome, 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 appUcation to those fundamental principles 
 which he and the other practising jurisconsults, 
 his contemporaries, believed themselves to have 
 detected underlying the law. Latterly 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 progress. 
 The nature of the measures attributed to 
 Salvius Julianus has been much disputed. What- 
 ever they were, their effects on the Edict are 
 sufficiently plain. It ceased to be extended by 
 
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68 LAW OF NATURE AND EQUITY [chap, in 
 
 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 interval between the 
 reign of Hadrian and the reign of Alexander 
 Severus. A fragment of the wonderful system 
 which they built up survives in the Pandects of 
 Justinian, and supplies evidence that their works 
 took the form of treatises on all parts of Roman 
 law, but chiefly that of commentaries on the 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 jurisprudence. 
 The Equity of Rome, it should be understood, 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 Praetor's court 
 began to apply it in place of or by the side of 
 the old rule of the Civil Law, which was thus 
 directly or indirectly repealed without any express 
 enactment of the legislature. The result, of course, 
 feU considerably short of a complete fusion of law 
 and equity, which was not carried out tiU 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 ex- 
 positors of the Edict had ventured to interfere. 
 But at the same time there was no corner of the 
 
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CHAP. II,] ENGLISH AND ROMAN EQUITY 69 
 
 field of jurisprudence which was not more or less 
 swept over by the influence of Equity. It sup- 
 plied the jurist with all his materials for generalisa- 
 tion, with all his methods of interpretation, with 
 his elucidations of first principles, and with that 
 great mass of limiting rules which are rarely 
 interfered with by. the legislator, but which 
 seriously control the application of every legis- 
 lative act. 
 
 The period of jurists ends with Alexander 
 Severus. From Hadrian to that emperor the im- 
 provement of law was carried on, as it is at the 
 present moment in most continental countries, 
 partly by approved commentaries and partly by 
 direct legislation. But in the reign of Alexander 
 Severus the power of growth in Roman Equity 
 seems to be exhausted, 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 become 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 wearisome 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 common. 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 comes at which the moral principles 
 originally adopted have been ceirried out to all 
 
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70 LAW OF NATURE AND EQUITY [chap, ui 
 
 their legitimate consequences, and then the system 
 founded on them becomes as rigid, as unexpansive, 
 and as liable to fall behind moral progress as 
 the sternest code of rules avowedly legal. Such 
 an epoch was reached at Rome in the reign of 
 Alexander Severus ; after which, though the whole 
 Roman world was undergoing a moral revolution, 
 the Equity of Rome ceased to expand. The same 
 point of legal history was attained in England 
 under the chancellorship of Lord Eldon, the first 
 of our equity judges who, instead of enlarging the 
 jurisprudence of his court by indirect legislation, 
 devoted himself through life to explaining 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 
 practical fruit, would perhaps be avoided. It is 
 easily seen by EngUsh lawyers that EngUsh Equity 
 is a system founded on moral rules ; but it is 
 forgotten that these rules are the moraUty of past 
 centuries — not of the present — that they have 
 received nearly as much apphcation 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 theories of the subject which 
 are commonly adopted have generated errors of 
 opposite sorts. Many writers of treatises on 
 Equity, struck with the completeness of the system 
 in its present state, commit themselves expressly 
 or implicitly to the paradoxical assertion that the 
 
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CHAP. Ill] ENGLISH AND ROMAN EQUITY 71 
 
 founders of the chancery jurisprudence contem- 
 plated its present fixity of form when they were 
 settling its first basis. Others, again, complain — 
 and this is a grievance frequently observed upon 
 in forensic arguments — that the moral rules en- 
 forced 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 oflfi.ce 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 agencies by 
 which the improvement of the law is carried on. 
 Eqviity has its place and its time ; but I have 
 pointed out that another instrumentaUty is ready 
 to succeed it when its energies are spent. 
 
 Another remarkable characteristic of both 
 English and Roman Equity is the falsehood of the 
 assumptions upon which the claim of the equitable 
 to superiority over the legal rule is originally 
 defended. Nothing is more distasteful to men, 
 either as individuals or as masses, than the ad- 
 mission of their moral progress as a substantive 
 reality. This unwillingness shows itself, as regards 
 individuals, in the exaggerated respect which is 
 ordinarily paid to the doubtful virtue of consis- 
 tency. The movement of the collective opinion 
 of a whole society is too palpable to be ignored, 
 and is generally too visibly for the better to be 
 decried ; but there is the greatest disinclination 
 to accept it as a primary phenomenon, and it 
 is commonly explained as the recovery of a lost 
 perfection — the gradual return to a state from 
 which the race has lapsed. This tendency to 
 
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72 LAW OF NATURE AND EQUITY [chap, in 
 
 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 permanent. The Roman juriscon- 
 sults, in order to account for the improvement 
 of their jurisprudence by the Praetor, borrowed 
 from Greece the doctrine of a Natural state of 
 man — a Natural society — anterior to the organi- 
 sation of commonwealths governed by positive 
 laws. In England, on the other hand, a range 
 of ideas especially congenial to Englishmen of 
 that day, explained the claim of Equity to over- 
 ride the common law by supposing a general right 
 to superintend the administration of justice which 
 was assumed to be vested in the king as a natural 
 result of his paternal authority. The same view 
 appears in a different and a 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 com- 
 munity being thus referred to an inherent elevation 
 in the moral sense of the sovereign. The growth 
 of the English constitution rendered such a theory 
 unpalatable after a time ; but as the jurisdiction 
 of the Chancery was then firmly established, it 
 was not worth while to devise any formal sub- 
 stitute for it. The theories found in modern 
 manuals of Equity are very various, but all are 
 alike in their untenabiUty. Most of them are 
 modifications of the Roman doctrine of a natural 
 law, which is indeed adopted in terms by those 
 writers who begin a discussion of the jurisdiction 
 of the Court of Chancery by la5dng down a dis- 
 tinction between natural justice and civil. 
 
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CHAP. HI] NOTES 73 
 
 NOTE E 
 
 THE LAW OF NATURE AND " lUS GENTIUM" 
 
 Maine's third and fourth chapters need more supplemental 
 criticism than any other part of " Ancient Law." The medieval 
 doctrine of the Law of Nature, and its continuity with the classical 
 Roman doctrine, had been forgotten or misunderstood in England 
 for quite two centuries at the time when these chapters were 
 written ; and even many years later there was no obvious way 
 for an English scholar to get back to the right historical lines. 
 I owe my own guidance mainly to a somewhat belated acquaintance 
 with Dr. Gierke's exhaustive treatment of the controversies which 
 occupied the publicists of the Middle Ages and " the Renaissance " 
 (" Johannes Althusius und die Entwicklung der naturrechtlichen 
 Staatstheorien," Breslau, 1880; "Political Theories of the Middle 
 Age," transl. with introduction by F. W. Maitland, Cambridge, igoo, 
 from "Die Staats- und Korporationslehre," etc., Berlin, i88i ; 
 Pollock,. " The History of the Law of Nature," Journ. Soc. Comp. 
 Legisl., 1900, p. 418). Mr. Bryce's recent essay on the Law of 
 Nature (" Studies in History and Jurisprudence," Oxford, 1501, ii. 
 112) should be read and considered by all students of legal history. 
 The latest considerable publication touching the subject in this 
 country is A. J. Carlyle's "History of Mediaeval Political Theory 
 in the West," 1903 (only vol. i yet published): and see 
 Dr. H. Rashdall thereon, L.Q.R. xx. 322. 
 
 Maine was not a medievalist or a canonist, and shared the 
 general ignorance of English lawyers and scholars of his time. 
 Accordingly his statement practically neglects the Middle Ages, 
 and suggests, though it does not assert in terms, that the law of 
 nature as understood by the publicists of the seventeenth and 
 eighteenth centuries was derived exclusively from the classical 
 Roman lawyers ; that the influence of Greek philosophy was only 
 indirect and through Roman law; and that the conception of 
 a primeval and innocent " state of nature " was an integral part 
 of the doctrine. Not one of these inferences would be correct. 
 The theory of Grotius is continuous with that of the canonists 
 and schoolmen ; the medieval doctrine is founded on Aristotle and 
 Cicero, no less than on the Corpus luris ; and the " state of nature " 
 of eighteenth-century writers is an exaggerated perversion of what, 
 in the traditional system, is a quite subordinate point. 
 
 Political iustice is divided, according to Aristotle (" Eth. Nic." 
 V, vii. ; this is one of the books not written by Aristotle himself, 
 but the substance is admitted to represent his teaching) into 
 natural (to niv (I>v<tik6v, naturale) and conventional (to Sc vo/ukov, 
 legale). The Latin equivalents are from the current medieval 
 translation directed by St. Thomas Aquinas. The rules of natural 
 
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74 NOTES [CHAP, in 
 
 justice are those which all civilized men recognise. Those of 
 conventional justice deal with matters indifferent in themselves 
 or otherwise capable of being settled only by positive authority. 
 Natural justice may tell me not to drive recklessly, but cannot tell 
 me which is the right side of the road, a question which con- 
 ventional justice answers one way in these kingdoms and the 
 other in America and most, though not all, European Continental 
 countries Rules involving number and measure, again, cannot be 
 fixed by natural justice alone. It is to be observed that Aristotle's 
 conception of Nature implies rational design, and this was more 
 fully worked out by the later Greek schools, and especially the 
 Stoics Maine, though he was an excellent classical scholar, omits 
 all mention of Aristotle ; but Aristotle is not prominent in the 
 later literature of the subject which he almost exclusively made 
 use of. 
 
 The Greek philosophical doctrine acquired an elegant Latin 
 form in Cicero's hands at the very time when thoughtful Roman 
 lawyers were in need of a theoretical foundation for the addition 
 of the iui gentium to the old strict and archaic rules. Now tus 
 gentium, in its original meaning, has nothing to do with distinct 
 nations or tribes (which is not the meaning of gentes), but signifies 
 the rules accepted as binding by all people (Nettleship, " Contribu- 
 tions to Latin Lexicography," s. v. ; cp. E. C. Clark, " Practical 
 Jurisprudence," p. 354). Towards the end of the republican period, 
 it would seem not before Cicero's time, it became the special name 
 of the rules administered by Roman magistrates in causes where 
 Roman law proper was inapplicable, by reason of the parties not 
 being both Roman citizens or allies, or otherwise. The personal 
 and religious laws of one community are incapable, in archaic 
 society, of b6ing used by members of another ; and such is still 
 the universal custom of India, broken only, so far as it is broken, 
 by the introduction of cosmopolitan ideas and habits from Europe. 
 Many Roman legal formulas involved a religious element, and 
 for that reason, we may be pretty sure, were available for Romans 
 only : we know that in one case, that of the words Dari spondes ? 
 spondeo, such a restriction was still in force under the Empire. 
 Similarly two strangers living under different laws of their own 
 could not both be judged by either of those laws any more than 
 by Roman law. There is no necessary question of one law being 
 thought better in itself than another, or of " disdain for all 
 foreign law"; still less of the Romans having refused requests 
 for the application of Roman law which are most unlikely to 
 have ever been made (above, pp. 53, 54). What we find, at any 
 rate, in the conflict of personal laws in the early Middle Ages 
 is that every man wants to be judged by his own law. This being 
 out of the question, the needs of business called for some practical 
 solution in a jurisdiction into which the growing power of Rome 
 
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CHAP, m] NOTES 75 
 
 brought merchants and traders from all parts of the Mediterranean. 
 It is hard to believe that there was not already some kind of 
 general custom among those merchants for matters of Common 
 occurrence, or that the Roman Praetor did not find it easier to 
 adopt any such custom, if satisfied of its existence, than to frame 
 a new rule by deliberate selection from the elements common 
 to the domestic law of Rome and other Italian States. The 
 recognition of the Law Merchant in England by the Common 
 Law seems a nearer modern parallel than the development of the 
 rules of Equity. Maine himself pointed out, in a later work, that 
 the tus gentium was in part originally a market law, and grew 
 out of commercial exigencies (" Village Communities," pp. 193-4). 
 It is significant in this connexion that in the later Middle Ages 
 and down to the seventeenth century English books regularly treat 
 the Law Merchant of Western Christendom as equivalent to the 
 law of nature, or a branch of it (Pollock, Journ. Soc. Comp. 
 Legisl., igoo, p. 431; "The Expansion of the Common Law," 
 p. 117). 
 
 However this may be, the actual tus gentium agreed well enough 
 with the rules of natural justice or natural law in the sense of 
 the Greek philosophers, so far as these could be observed in 
 practice. Accordingly the Roman lawyers, probably working on 
 Greek materials now lost, identified ius gentium for most practical 
 purposes with ius naturale : they regarded it as the sum of rules 
 which were evident to natural reason, and received by all men 
 because they were reasonable; "quod vero naturalis ratio inter 
 omnes homines constituit, id apud omnes populos peraeque 
 custoditur vocaturque ius gentium, quasi quo iure omnes gentes 
 utuntur" (Gai. i. § i). But this or any similar statement leaves 
 it an open question whether ius gentium, really coincides with 
 ius naturale. There may possibly be rules that deserve to be 
 recognised by all mankind, but in fact are not; and there may 
 be universal or very widely prevailing usages which natural reason 
 will not justify. Slavery was a recognised institution, part of the 
 general customs of the Roman Empire if anything was ; but the 
 enlightened age of the Antonines could find no warrant for it 
 in philosophy, and the incongruity pressed on at least one or two 
 of the classical Roman jurists. Modem specialists in Roman law 
 have not been able to agree what was exactly their doctrine as 
 to the relation of the ideal to the actual usage of mankind, or 
 whether there was any one accepted doctrine at all in the law 
 schools of the empire. There is no apparent reason why there 
 should have been any oflScial or settled opinion on such a specula- 
 tive point. Perhaps we should not be far firom the truth if we 
 said in the language familiar to our own system, that ius gentium 
 was 'presumed to follow ius naturale if the contrary did not 
 appear. At the outset of Justinian's Institutes (I. ii. § 2) we read 
 
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76 NOTES [chap. Ill 
 
 that by the law of nature all men were bom free, but capture and 
 slavery, things contrary to the law of nature, were introduced by 
 necessity as consequences of war, and are therefore part of the 
 tus gentium. This imperial dictum, though it can hardly be said 
 to solve the ethical or social problem, settled the terminology for 
 the medieval publicists of whom we shall have to say a word later 
 (Note G below). Similarly in tit. 5 pr. it is said that slavery was 
 unknown in the law of nature, and whereas by nature there was 
 only one name of man, the law of nations has distinguished free 
 men, slaves, and freed men who have ceased to be slaves. 
 
 As for the celebrated passage of Ulpian which defines the law 
 of nature as common to man and other animals, " quod natura 
 omnia animalia docuit," and distinguishes it on this ground from 
 ius gentium, the rule confined to men, " solis hominibus inter 
 se commune," we are not bound to believe that it was current 
 among Roman lawyers in Ulpian's own time, or anything but 
 a conceit borrowed from some forgotten Greek rhetorician. It 
 stands alone in the classical texts, but its conspicuous adoption 
 at the beginning of both the Digest and the Institutes of Justinian 
 was the cause of endless trouble to the medieval commentators, 
 for whom every word in the Corpus luris was of equal authority. 
 Maine assumes the invention to have been Ulpian's own, and 
 ascribes it to "the propensity to distinguish characteristic of a 
 lawyer " ; I can only say that it does not look to me like a working 
 lawyer's point.' A modem Italian scholar has proposed to under- 
 stand "ius quod natura omnia animalia docuit" as meaning the 
 instincts common to man and other animals which both morality 
 and law postulate as existing in fact (Del Rosso, Ann. 1st. di storia 
 di diritto Romano, Catania 1905-6). This appears as plausible an 
 explanation as, failing the discovery of Ulpian's ultimate authority, 
 we are likely to obtain. 
 
 Maine's suggestions, beginning at p. 60, as to "the exact point 
 of contact between the old ius gentium, and the law of nature " 
 being given by a conjectured special sense of aequitas are 
 ingenious, but hardly seem required. The general coincidence 
 between ius gentium and the (pva-tKov SiKafoy of Greek philosophy 
 was obvious enough to jurists in search of a theory without being 
 emphasized by any one special point of contact. Aequitas appears, 
 in classical Latin usage, to come very near " reasonableness " ; and 
 in fact the word reason and its derivatives are the proper terms 
 
 ' The suggestion that it is the nature of lawyers to distinguish where there 
 is no difference may possibly have been inspired by Hobbes's censure of Coke 
 in his Dialogue of the Common Laws of England : — "Sir Edw. Coke does 
 seldom well distinguisb when there are two divers Names for one and the same 
 thing; though one contain the other, he makes them always different, as if 
 it could not be that one and the same Man should be both an Enemy, and a 
 Traytor." 
 
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CHAP, in] NOTES ']^ 
 
 m the Common Law for conveying the ideas, or some of them, 
 which are at the bottom of the law of nature, as St. German 
 pointed out nearly four centuries ago in " Doctor and Student.' 
 Maine appears to have assumed that the Roman doctrine included 
 the historical acceptance of a golden age: "the belief gradually 
 prevailed among the Roman lawyers that the old jus gentium 
 was in fact the lost code of nature," p. 59. I am bound to say 
 that I do not know of any evidence that such was the belief 
 of either lawyers or philosophers. Certainly no Greek philosopher 
 would have admitted that the law of nature was lost, nor would 
 Cicero ; and as to the supposition that ius gentium, was the law 
 of the golden age in the opinion of the philosophic lawyers, " so 
 far were they from such a delusion," says Mr. Bryce, ' that they 
 ascribe to ius gentium, war, captivity, slavery, and all the con- 
 sequences of these facts, while in the golden age, the Saturnia 
 regna of the poets, all men were free and war was unknown." Ius 
 gentium, is the common law or custom of mankind, actual not ideal 
 custom. Just as little is there any traceable connection between 
 the fables of a golden age and the fundamental conception of 
 natural law, namely, that general rules of human conduct are at 
 all times discoverable by human reason as being reasonable. The 
 doctrine of the Roman jurists does not involve any historical assump- 
 tion at all, neither, in itself, does that of the medieval doctors and 
 commentators, although these, as good Catholics, accepted the 
 Fall of Man and could give theological reasons for the law of 
 nature not being sufficient in practice. Moreover, it is not probable 
 that ius gentium, as a term of art, is much or at all older than 
 ius naturale or naturae. The hypothesis of a "state of nature" 
 antecedent to positive law, much more the suggestion that it was 
 a golden age of ideal natural law, does not seem to occur before 
 the sixteenth century. Where such a state is mentioned, down 
 to the latter part of the fifteenth century, it is treated as barbarous ; 
 before they founded commonwealths, it is said, men lived like 
 beasts (Aen. Silv. de ortu imp. Rom.). 
 
 NOTE F 
 
 EQUITY 
 
 A peculiar historical development has given this word a technical 
 meaning among English-speaking lawyers. " Reasonableness," as 
 mentioned in the last note, appears to be the primary and general 
 idea. This conception, when embodied for practical use as an 
 appeal to the common sense of right-minded men, is closely akin 
 to that of natural justice, and further resembles it in being traceable 
 to Aristotle. It is of the utmost importance in many branches of 
 our modem law ; but we have specialised the name of Equity for 
 one application of it, namely that administration of extraordinary 
 
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yS NOTES [CHAP, ni 
 
 justice by the king with the advice of his Chancellor and Council, 
 and afterwards through the Chancellor alone, which produced the 
 Court of Chancery. Maine, when he wrote "Ancient Law," seems 
 to have doubted the historical truth of " the king's general right 
 to superintend the administration of justice " (p. 71) i but in " Early 
 Law and Custom" (ch. vi., "The King and Early Civil Justice," 
 p. 164), it is fully recognised. The king was held to retain a 
 " pre-eminence of jurisdiction ... as well for amendment as for 
 supply of the Common Law," though he could not alter a regular 
 jurisdiction once established ; this " supplementary or residuary 
 jurisdiction," as Maine aptly calls it, was exercised to form the 
 Court of Chancery, and in due time it was held, as was inevitable, 
 that this also had become an established Court, that the king's 
 power to do equity as well as strict legal justice had been com- 
 pletely delegated, and that accordingly he could not create any 
 new equitable jurisdiction. It was no less inevitable that after 
 this Equity should become a technical system (cp. Pollock, "The 
 Expansion of the Common Law," pp. 67-73). 
 
 Maine pointed out (E. L. and C, p. 166) that the early Roman 
 law, " a stiff system of technical and ceremonious law," " underwent 
 a transformation through this very residuary or supplementary royal 
 authority," which under the Roman Republic was vested in the 
 Praetor. " What has descended to so large a part of the modem 
 world is not the coarse Roman law, but the Roman law distilled 
 through the jurisdiction of the Praetor, and by him gradually bent 
 into supposed accordance with the law of nature." 
 
 As to the relation of our Court of Chancery to the law of nature, 
 I endeavoured to sum it up in a course of lectures given in 
 America in 1903 : " The early Chancellors did not disclose the 
 sources of their inspiration ; probably they had as good grounds 
 of expediency for not talking about the law of nature as the 
 common lawyers." The law of nature was intimately associated 
 with the canon law, and for English lay people in the Middle Ages 
 canon law signified obnoxious meddling of foreign ecclesiastics with 
 English benefices and revenues, besides the vexatious and inquisi- 
 torial jurisdiction of bishops' and archdeacons' courts. " Certainly 
 [the Chancellors] intended and endeavoured to follow the dictate 
 of natural reason ; and if their version of natural justice was some- 
 what artificial in its details, and bore a decided civilian or canonical 
 stamp, this was only to be expected. Some centuries later, when 
 British judicial officers in India were instructed to decide, in the 
 absence of any native law applicable to both parties, according to 
 "justice, equity, and good conscience," the results bore, even more 
 manifestly, the stamp of the Common Law " (" The Expansion of the 
 Common Law," p. 114). 
 
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CHAPTER IV 
 
 THE MODERN HISTORY OF THE LAW OF NATURE 
 
 It will be inferred from what has been said that 
 the theory which transformed the Roman juris- 
 prudence had no claim to philosophical precision. 
 It involved, in fact, one of those " mixed modes 
 of thought " which are now acknowledged to have 
 characterised aU but the highest minds during 
 the infancy of speculation, and which are far 
 from undiscoverable even in the mental efforts of 
 our own day. The Law of Nature confused the 
 Past and the Present. Logically, it implied a 
 state of Nature which 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 where it finds a poetical expression in the 
 fancy of a golden age. Natural law, for all prac- 
 tical purposes, was something belonging to the 
 present, something entwined with existing insti- 
 tutions, something which could be distinguished 
 from them by a competent observer. The test 
 which separated the ordinances of Nature from 
 the gross 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 
 
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8o MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 reign of Nature. This confusion has not been 
 successfully explained away by the modem dis- 
 ciples of the jurisconsults, and in truth modern 
 speculations 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 perfection was brought into the world 
 by Christianity. Ancient hterature gives few or 
 no hints of a behef 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 would lead us to expect. Indeed, it 
 is not easy to say what turn the history of thought, 
 and therefore of the human race, would have 
 taken, if the belief in a law natural had not become 
 universal in the ancient world. 
 
 There are two special dangers to which 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 occurred 
 with the codes of the more progressive Greek 
 communities, which disembarrassed themselves 
 with astonishing facility from cumbrous forms of 
 procedure and needless terms of art, and soon 
 
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<=«*''• 'V] LAW OF NATURE 8l 
 
 ceased to attach any superstitious value to rigid 
 rules and prescriptions. It was not for the ulti- 
 mate advantage of mankind that they did so, 
 though the immediate 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 constant 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 mobiUty 
 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 confound law and fact. 
 The remains of the Orators and the forensic com- 
 monplaces preserved by Aristotle in his Treatise 
 on Rhetoric, show that questions of pure law 
 were constantly argued on every consideration 
 which could possibly influence the mind of the 
 judges. No durable system of jurisprudence could 
 be produced in this way. A community 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 consisting 
 of the ideas of right and wrong which happened 
 to be prevalent at the time. Such a jurisprudence 
 would contain no framework to which the more 
 advanced conceptions of subsequent ages could be 
 fitted. It would amount at best to a philosophy, 
 
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82 MODERN HISTORY OF LAW OF NATURE [chap.it 
 
 marked with the imperfections of the civilisation 
 under which it grew up. 
 
 Few national societies have had their juris- 
 prudence menaced by this peculiar danger of 
 precocious maturity and untimely disintegration. 
 It is certainly doubtful whether the Romans 
 were ever seriously threatened by it, but at any 
 rate they had adequate protection in their theory 
 of Natural Law. For the Natural Law of the 
 jurisconsults was distinctly 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 im- 
 pression of its sanctity abroad, that an appeal 
 to it would be likely to overpower the mind of a 
 judge who was charged with the superintendence 
 of a particular htigation. The value and service- 
 ableness of the conception arose from its keeping 
 before the mental vision a type of perfect law, 
 and from its inspiring the hope of an indefinite 
 approximation to it, at the same time that it 
 never tempted the practitioner or the citizen 
 to deny the obligation of existing laws which had 
 not yet been adjusted to the theory. It is im- 
 portant too to observe that this model system, 
 unlike many of those which have mocked men's 
 hopes in later days, was not entirely the pro- 
 duct of imagination. It was never thought of 
 as founded on quite untested principles. The 
 notion was that it underlay existing law and 
 must be looked for through it. Its functions 
 were in short remedial, not revolutionary or 
 anarchical. And this, unfortunately, is the 
 exact point at which the modern view of a 
 
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««*'• '▼] BENTHAMISM 83 
 
 Law of Nature has often ceased to resemble the 
 ancient. 
 
 The other Uability to which the infancy of 
 society 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 association 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 always 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 
 uniformly prided itself on the subtle perversity 
 of the conclusions it could build on ancient 
 texts, without discoverable departure frbm their 
 literal tenor. 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 excellence different from 
 the usual one. In this one exceptional 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 an ideal and absolutely 
 perfect law. It is impossible to overrate the 
 importance to a nation or profession of having a 
 
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84 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 distinct object to aim at in the pursuit of improve- 
 ment. The secret of Bentham's immense influence 
 in England during the past thirty years is his 
 success in placing such an object before the 
 country. He gave us a clear rule of reform. 
 EngUsh lawyers of the last century were probably 
 too acute to be blinded by the paradoxical com- 
 monplace that English law was the perfection of 
 human reason, but they acted as if they beUeved 
 it for want of any other principle to proceed upon. 
 Bentham made the good of the community take 
 precedence of every other object, and thus gave 
 escape to a current which had long been trying 
 to find its way outwards. 
 
 It is not an altogether fanciful comparison if 
 we 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 main- 
 tained a steady pursuit of the general good of 
 the community. It would be a mistake, however, 
 to suppose it a conscious anticipation of Bentham's 
 principles. The happiness of mankind is, no 
 doubt, sometimes assigned, both in the populair 
 and in the legal literature of the Romans, as the 
 proper object of remedial legislation, but it is 
 very remarkable how few and faint are the 
 testimonies to this principle compared with the 
 tributes which are constantly offered to the over- 
 shadowing claims of the Law of Nature. It was 
 not to anything resembhng philanthropy but to 
 
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CHAP, ivj THE FRENCH LAWYERS 85 
 
 their sense of simplicity and harmony — of what 
 they significantly termed " elegance " — that the 
 Roman jurisconsults freely surrendered them- 
 selves. 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 
 nature, we find it easier to convince ourselves 
 of the vastness of its influence than to pronounce 
 confidently whether that influence has been 
 exerted for good or for evil. The doctrines and 
 institutions which may be attributed to it are 
 the material of some of the most violent con- 
 troversies debated in our time, as wiU be seen 
 when it is stated that the theory of Natural Law 
 is the source of almost all the special ideas as to 
 law, politics, and society which France during 
 the last hundred years has been the instrument 
 of diffusing over the western world. The part 
 played by jurists in French history, and the 
 sphere of jural conceptions in French thought, 
 have always been remarkably large. It was not 
 indeed 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 fortunes of the country. 
 The lawyers of France immediately 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 
 
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86 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 their interpretations of the rules of feudal succes- 
 sion, as by the power of the sword that the French 
 monarchy at last grew together out of the agglo- 
 meration 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 
 feudatories, the aristocracy and the Church, can 
 only be appreciated if we take into account the 
 ideas which prevailed in Europe far down into 
 the middle ages. There was, in the first place, a 
 great enthusiasm for generalisation and a curious 
 admiration for all general propositions, and con- 
 sequently, in the field of law, 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 formulas it was, of 
 course, not difficult for practitioners familiar 
 with the Corpus Juris or the Glosses to supply 
 in almost any quantity. There was, however, 
 another cause which added yet more considerably 
 to the lawyers' power. At the period of which 
 we are speaking, there was universal vagueness of 
 ideas as to the degree and nature of the authority 
 residing in written texts of law. For the most 
 part the peremptory preface, Ita scriptum est, 
 seems to have been sufficient to silence all objec- 
 tions. 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 
 
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CHAP. IV] THE FRENCH LAWYERS 87 
 
 have ventured to do more than question the 
 appHcability 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 the light which it sheds 
 on several curious historical problems. The 
 motives of the author of the Forged Decretals and 
 his extraordinary success are rendered more in- 
 telligible by it. And to take a phenomenon of 
 smaller interest, it assists us, though only partially, 
 to understand the plagiarisms oUBiaGJ ojp^ That 
 an English writer of tSe'timToT Henry III. should 
 have been able to put off on his countrymen as 
 a compendium 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 experi- 
 ment in a country where the systematic study j 
 of the Roman Law was formally proscribed, will 
 always be among the most hopeless enigmas 
 in the history of jurisprudence ; but stiU it is 
 something to lessen our surprise when we com- 
 prehend the state of opinion at the period as to 
 the obligatory force of written texts, apart from 
 all consideration of the source whence they were 
 derived. 
 
 When the kings of France had brought their 
 long struggle for supremacy to a successful close, 
 an epoch which may be placed roughly at the 
 accession of the branch of Valois-AngoulSme to 
 
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88 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 the throne, the situation of the French jurists 
 was pecuUar, and continued to be so down to the 
 outbreak of the Revolution. On the one hand, 
 they formed the best instructed and nearly the 
 most powerful class in the nation. They had 
 made good their footing as a privileged order by 
 the side of the feudal aristocracy, and they had 
 assured their influence by an organisation which 
 distributed 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 judicial tact, their ease of 
 expression, 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 
 opposite poles of Cujas and Montesquieu, of 
 D'Aguesseau 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 jurisprudence beyond 
 every other country in Europe. One great division 
 ran through the country and separated it into 
 Pays de Droit Ecrit and Pays de Droit Coutumier, 
 the first acknowledging the written Roman law 
 as the basis of their jurisprudence, the last ad- 
 mitting it only so far as it suppUed general forms 
 
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CHAP. IV] XHE FRENCH LAWYERS 89 
 
 of expression, and courses of juridical reasoning, 
 which were reconcilable with the local usages. 
 The sections thus formed were again variously 
 subdivided. In the Pays de Droit Coutumier 
 province differed froih province, county from 
 county, municipality from municipality, in the 
 nature of its customs. In the Pays de Droit Ecrit 
 the stratum of feudal rules which overlay the 
 Roman law was of the most miscellaneous com- 
 position. 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 rehgious divisions of the country to be 
 lamented or even felt. It was the special pecu- 
 harity of France that an extraordinary diversity 
 of laws continued without sensible alteration 
 while the central authority of the monarchy 
 was constantly strengthening itself, while rapid 
 approaches were being made to complete adminis- 
 trative unity, and while a fervid national spirit 
 had been developed among the people. The 
 contrast was one which fructified in many serious 
 results, and among them we must rank the effect 
 which it produced on the minds of the French 
 lawyers. Their speculative opinions and their 
 intellectual bias were in the strongest opposition 
 to their interests and professional habits. With 
 the keenest sense and the fullest recognition of 
 those perfections of jurisprudence which consist 
 in simplicity and uniformity, they beUeved, or 
 seemed to believe, that the vices which actually 
 invested French law were ineradicable ; and in 
 practice they often resisted the reformation of 
 abuses with an obstinacy which was not shown 
 
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go MODERN HISTORY OF LAW OF NATURE [chap.it 
 
 by many among their less enlightened countrymen. 
 But there was a way to reconcile these contra- 
 dictions. 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, simphcity, 
 and system ; but it committed its devotees to no 
 specific improvement, and did not directly threaten 
 any venerable or lucrative technicality. Natural 
 law may be said to have become the common 
 law of France, or, at aU events, the admission 
 of its dignity and claims was the one tenet which 
 all French practitioners alike subscribed to. The 
 language of the prae-revolutionary jurists in its 
 eulogy is singularly unquahfied, and it is remark- 
 able that the writers on the Customs, who often 
 made it their duty to speak disparagingly of the 
 pure Roman law, speak even more fervidly of 
 Nature and her rules than the civilians who pro- 
 fessed an exclusive respect for the Digest and the 
 Code. Dumoulin, the highest of all authorities 
 on old French Customary Law, has some extrava- 
 gant passages on the Law of Nature ; and his 
 panegyrics have a peculiar rhetorical turn which 
 indicates a considerable departure from the caution 
 of the Roman 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 trans- 
 formation which it more recently underwent, its 
 weakest parts rose to the level of its strongest 
 in the esteem of its supporters. 
 
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<="*P- '▼] ROUSSEAU 91 
 
 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 exaggerations the marks of the excessive 
 violence with which its author's mind had recoiled 
 from assumptions usually suffered to pass without 
 scrutiny, yet showing 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 instant. 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 destroy 
 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 learning, with few virtues, and with no 
 strength of character, has nevertheless stamped 
 himself ineffaceably on history by the force of a 
 vivid imagination, and by the help of a genuine 
 and burning love for his fellow-men, for which 
 much will always have to be forgiven him. We 
 have never seen in our own generation — indeed 
 the world has not seen more than once or twice 
 
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92 MODERN HISTORY OF LAW OF NATURE [cha». iv 
 
 in all the course of history — a literature which 
 has exercised such prodigious influence over the 
 minds of men, over every cast and shade of 
 intellect, as that which emanated from Rousseau 
 between 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 destructive, it possessed the 
 immense advantage of appearing amid an all 
 but universal scepticism as to the soundness of 
 all foregone knowledge in matters speculative. 
 Now, in all the speculations of Rousseau, the 
 central figure, whether arrayed in an English 
 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 circum- 
 stances 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 admirable and worthy to be effected 
 at any apparent cost. The theory is still that of 
 the Roman lawyers, for in the phantasmagoria 
 with which the Natural Condition is peopled, 
 every feature and characteristic eludes the mind 
 except the simpUcity and harmony which possessed 
 such charms for the jurisconsult ; but the theory 
 is, as it were, turned upside down. It is not 
 the Law of Nature, but the State of Nature, which 
 
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CHAP.i^J THEORIES OF ROUSSEAU 93 
 
 is now the primary subject of contemplation. 
 The Roman had conceived that by careful obser- 
 vation 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 
 reaUty 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 
 condition of the world and wholly unlike it. 
 The great difference between the views is that 
 one bitterly and broadly condemns the present 
 for its unUkeness 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 relations which was 
 constructed on the basis of a state of nature. 
 It still possesses singular fascination for the 
 looser thinkers of every country, and is no doubt 
 the parent, more or less remote, of almost all the 
 prepossessions which impede the employment of 
 the Historical Method of inquiry, but its discredit 
 with the higher minds of our day is deep enough 
 to astonish those who are familiar with the 
 extraordinary vitaUty of speculative error. Per- 
 haps the question most frequently asked nowadays 
 is not what is the value of these opinions, but 
 what were the causes which gave them such 
 overshadowing prominence a hundred years ago. 
 The answer is, I conceive, a simple one. The 
 study which in the last century would best have 
 
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94 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 corrected the misapprehensions into which an 
 exclusive attention to legal antiquities is apt to 
 betray was the study of religion. But Greek 
 religion, as then understood, was dissipated in 
 imaginative myths. The Oriental religions, if 
 noticed at all, appeared to be lost in vain co§mQ- 
 gonies. 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 
 Rousseau had in common with the school of 
 Voltaire was an utter disdain of aU 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 dictated, 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, executed 
 after the return from the Captivity. Debarred, 
 therefore, from one chief security against specu- 
 lative delusion, the philosophers of France, in 
 their eagerness to escape from what they deemed 
 a superstition of the priests, flung themselves 
 headlong into a superstition of the lawyers. 
 
 But though the philosophy founded on the 
 hypothesis 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, popularity, or power. I believe, as 
 I have said, that it is still the great antagonist 
 
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"'*•■■ •'] EQUALITY OF MEN 95 
 
 of the Historical Method ; and whenever (religious 
 objections apart) any mind is seen to resist or 
 contemn that mode of investigation, 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 
 civihsed world, and thus become part of the 
 general body of thought by which its civilisation 
 is modified. The value of the influence which 
 they thus exercise over the fortunes of the race 
 is of course one of the points which our age debates 
 most warmly, and it is beside the purpose of this 
 treatise 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 will deny that it 
 helped most powerfully to bring about the grosser 
 disappointments of which the first French Re- 
 volution was fertile. It gave birth, or intense 
 stimulus, to the vices of mental habit all but 
 universal at the time, disdain of positive law, 
 impatience of experience, and the preference of 
 a priori to all other reasoning. In proportion 
 too as this philosophy fixes its grasp on minds 
 which have thought less than others and fortified 
 
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96 MODERN HISTORY OF LAW OF NATURE [chap, iy 
 
 themselves with smaller observation, its tendency 
 it to become distinctly anarchical. It is surprising 
 to note how many of the Sophismes AnarcMques 
 which Dumont published for Bentham, and which 
 embody Bentham's exposure of errors distinctively 
 French, are derived from the Roman hypothesis 
 in its French transformation, and are unintelligible 
 unless referred to it. On this point too it is a 
 curious exercise to consult the Moniteur during 
 the principal eras of the Revolution. The appeals 
 to the Law and State of Nature become thicker 
 as the times grow darker. 
 
 There is a single example which very strikingly 
 illustrates the effects of the theory of natural law 
 on modern society, and indicates how very far are 
 those effects from being exhausted. There cannot, 
 I conceive, be any question that to the assumption 
 of a Law Natural we owe the doctrine of the 
 fundamental equaUty of human beings. That " aU 
 men are equal " is one of a large number of legal 
 propositions which in progress of time have 
 become political. The Roman jurisconsults of 
 the Antonine era lay down that " omnes homines 
 natura asquales sunt," but in their eyes this is a 
 strictly juridical axiom. They intend to af&rm 
 that, under the hypothetical Law of Nature, and 
 in so far as positive law approximates to it, the 
 arbitrary distinctions which the Roman Civil Law 
 maintained between classes of persons cease to 
 have a legal existence. The rule was one of con- 
 siderable importance 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 
 
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chap.it] natural law IN FRANCE 97 
 
 difference in the contemplation of the Roman 
 tribunals between citizen and foreigner, between 
 freeman and slave, between Agnate and Cognate. 1 
 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 appar- 
 ently beUeve that the world would ever see human 
 society completely assimilated to the economy of 
 nature. But when the doctrine of human 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 " aU men are 
 equal " in the sense of " aU men ought to be equal." 
 The pecuhar Roman idea that natural law coexisted 
 with civil law and gradually absorbed it, had 
 evidently been lost sight of, or had become 
 unintelligible, and the words which had at most 
 conveyed a theory concerning the origin, com- 
 position, and development of human institutions, 
 were beginning to express 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 contemporaries, has 
 assumed an altogether different form and meaning. 
 The preamble to the celebrated ordinance of King 
 Louis Hutin, enfranchising the serfs of the royal 
 domains, would have sounded strangely to Roman 
 ears. " Whereas, according to natvural law, every- 
 body ought to be bom free ; and by some usages 
 
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q8 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 and customs which, from long antiquity, 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 faUen into servitude, therefore. We," 
 etc. This rs the enunciation not of a legal rule but 
 of a political dogma ; and from this time the 
 equality of men is spoken of by the French lawyers 
 just as if it were a political truth which happened 
 to have been preserved among the archives of 
 their science. Like all other deductions from the 
 hypothesis of a Law Natural, and hke the beUef 
 itself in a Law of Nature, it was languidly assented 
 to and suffered to have Uttle influence on opinion 
 and practice until it passed out of the possession 
 of the lawyers into that of the hterary men of the 
 eighteenth century and of the public which sat 
 at their feet. With them it became the most 
 distinct tenet of their creed, and was even regarded 
 as a summary of all the others. It is probable, 
 however, that the power which it ultimately ac- 
 quired over the events of 1789 was not entirely 
 owing to its popularity in France, for in the middle 
 of the century it passed over to America. The 
 American lawyers of the time, and particularly 
 those of Virginia, appear to have possessed a stock 
 of knowledge which differed chiefly from that of 
 their EngUsh 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-juri- 
 dical, semi-popvilar opinions which were fashionable 
 in France, and we cannot doubt that it was 
 
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CHAF. IV] INTERNATIONAL LAW 99 
 
 S5mipathy 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 prominently 
 and emphatically affirming the fundamental equal- 
 ity of human beings, gave an impulse to political 
 movements in their own country, and in a less 
 degree in Great Britain, which is far from having 
 yet spent itself ; but besides this they returned 
 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 
 thoroughly leavened modern opinion, and which 
 promises to modify most deeply the constitution 
 of societies and the politics of states. 
 
 The greatest function of the Law of Nature was 
 discharged in giving birth to modern International 
 Law and to the modern Law of War, but this part 
 of its effects must here be dismissed with considera- 
 tion very unequal to its importance. 
 
 Among the postulates which form the founda- 
 tion of International Law, or of so much of it 
 
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100 MODERN HISTORY OF LAW OF NATURE [cmap. iv 
 
 as retains the figure which it received from its 
 original architects, there are two or three of pre- 
 eminent importance. The first of all is expressed 
 in the position that there is a determinable Law 
 of Nature. Grotius and his successors took the 
 assumption directly from the Romans, but they 
 differed widely from the Roman jurisconsults and 
 from each other in their ideas as to the mode of 
 determination. The ambition of almost every 
 Publicist who has flourished since the revival of 
 letters has been to provide new and more manage- 
 able definitions of Nature and of her law, and it 
 is indisputable that the conception in passing 
 through the long series of writers on Pubhc Law 
 has gathered round it a large accretion, consisting 
 of fragments of ideas derived from nearly every 
 theory of ethics which has in its turn taken 
 possession of the schools. Yet it is a remarkable 
 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 
 
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chap.it] international LAW lOI 
 
 with the weakness of the primary notion. In the 
 majority of the Pubhcists, the mode of thought 
 is still " mixed." In stud5ring these writers, the 
 great difficulty is always to discover whether they 
 are discussing law or morality — whether the state 
 of international relations they describe is actual 
 or ideal — whether they lay down that which is, 
 or that which, in their opinion, ought to be. 
 
 The assumption that Natural Law is binding 
 on states inter se is the next in rank of those which 
 underlie International Law. A series of assertions 
 or admissions of this principle may be traced up 
 to the very infancy of modern juridical science, 
 and at first sight it seems a direct inference from 
 the teaching 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 units were acknow- 
 ledged 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 hypothesis of their independence 
 excludes the notion of a common lawgiver, and 
 draws with it, therefore, according to a certain 
 range of ideas, the notion of subjection to the 
 primeval order of nature. The alternative is to 
 consider independent communities as not related 
 to each other by any law, but this condition of 
 lawlessness is exactly the vacuum which the 
 Nature of the jurisconsults abhorred. 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 
 
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102 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 instantly fill the void with the ordinances of 
 Nature. It is never safe, however, to assume that 
 conclusions, however certain and immediate in our 
 own eyes, were actually 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 civili- 
 sation, the equal subjection of states to the Law 
 of Nature, if contemplated at aU, must have 
 seemed at most an extreme result of curious 
 speculation. The truth appears to be that modern 
 International Law, undoubted as is its descent 
 from Roman law, is only connected with it by an 
 irregular filiation. The early modern interpreters 
 of the jurisprudence of Rome, misconceiving the 
 meaning of Jus Gentium, assumed without hesita- 
 tion 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. 
 Gradually, 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 
 felicitous conjuncture, Ayala and Grotius were 
 able to obtain for it the enthusiastic assent of 
 Europe, an assent which has been over and over 
 again renewed in every variety of solemn engage- 
 
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CHAP. IV] INTERNATIONAL LAW 103 
 
 ment. The great men to whom its triumph is 
 chiefly owing attempted, it need scarcely be said, 
 to place it on an entirely new basis, and it is 
 unquestionable that in the course of this displace- 
 ment 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 prede- 
 cessors and his immediate successors, attributed 
 to the Law of Nature an authority 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 continued almost 
 down to our own day, the process of engrafting 
 on the international system rules which are 
 supposed to have been evolved from the unassisted 
 contemplation of the conception of Nature. There 
 is, too, one consequence of immense practical 
 importance to mankind which, though not un- 
 known 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 abso- 
 lutely equal. Men under the sceptre of Nature 
 are all equal, and accordingly commonwealths are 
 equal if the international state be one of nature. 
 The proposition that independent communities, 
 however different in size and power, are all equal 
 in the ^^ew of the law of nations, has largely 
 contributed to the happiness of mankind, though 
 
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104 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 it is constantly threatened by the political ten- 
 dencies of each successive age. It is a doctrine 
 which probably would never have obtained a 
 secure footing at aU if International Law had not 
 been entirely derived from the majestic claims of 
 Nature by the Pubhcists who wrote after the 
 revival of letters. 
 
 On the whole, however, it is astonishing, as I 
 have observed before, how smaU a proportion the 
 additions made to International Law since Gro- 
 tius'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 am- 
 bition, 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 jurisconsults, as I have 
 attempted to explain, by abstracting 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 were 
 thought by the later lawyers to fit in, on the score 
 of their simplicity, with the more recent conception 
 of a Law Natural. They thus made their way 
 into the modern Law of Nations, and the result 
 is that those parts of the international system 
 which refer to dominion, its nature, its Umitations, 
 the modes of acquiring and securing it, are pure 
 Roman Property Law — so much, that is to say, 
 
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CHAP. IV] INTERNATIONAL LAW I05 
 
 of the Roman Law of Property as the Antonine 
 jurisconsults imagined to exhibit a certain con- 
 gruity with the natural state. In order that these 
 chapters of International Law may be capable of 
 apphcation, it is necessary that sovereigns should 
 be related to each other like the members of a 
 group of Roman proprietors. This is another of 
 the postulates which he 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 into the double proposition that " sove- 
 reignty is territorial," i.e., that it is always associ- 
 ated with the proprietorship of a limited portion 
 of the earth's surface, and that " sovereigns inter 
 se are to be deemed not paramount, but absolute, 
 owners of the state's territory." 
 
 Many contemporary writers on International 
 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 civiUsation. 
 But this assumption, while it conceals some real 
 defects of the international theory, is altogether 
 untenable so far as regards a large part of modern 
 history. It is not true that the authority of the 
 Jus Gentium in the concerns of nations was 
 always uncontradicted ; on the contrary, it had 
 to struggle long against 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 irreconcilable with such a 
 
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I06 MODERN HISTORY OF LAW OF NATURE [chap, iy 
 
 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 
 entertained as that of " territorial sovereignty." 
 Sovereignty 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 
 distribution 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 pre- 
 tending to equality of national rights. After the 
 subsidence of the barbarian(irruptions, the notion 
 of sovereignty that prevailed seems to have been 
 twofold. On the one hand it assumed the form 
 of what may be called " ^nie-sovereignty." The 
 Franks, the Burgundians, the Vandals, the Lom- 
 bards, and Visigoths were masters, of course, of 
 the territories which they occupied, and to which 
 some of them have given a geographical appella- 
 tion ; 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 encamped for the 
 
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CHAP. IV] TERRITORIAL SOVEREIGNTY I07 
 
 time upon the soil which afforded them sustenance. 
 Part of Transalpine Gaul, with part of Germany, 
 had now become the country de facto occupied by 
 the Franks — it was France ; but the Merovingian 
 Une of chieftains, the descendants of Clovis, were 
 not Kings of France, they were Kings of the 
 Franks. Territorial titles were not unknown, but 
 they seem at first to have come into use only as a 
 convenient mode of designating the ruler of a 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 purposes of his own, to invest himself with a 
 novel form of sovereignty, the precedent which 
 suggested itself for his adoption was the domina- 
 tion of the Emperors of Rome. To parody a 
 common quotation, he became " aut CcBsar aut 
 nullus." Either he pretended to the full pre- 
 rogative 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 territory. 
 Thus we have Emperors and Kings of the French, 
 and a King of the Belgians. At the period 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 
 
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I08 MODERN HISTORY OF LAW OF NATURE lmjap. it 
 
 of the Palace had ceased to compromise with the 
 monarchs 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 de- 
 signation, though apparently not unknown, was 
 not a title of dignity. Accordingly they came 
 forwaj"d as aspirants to universal empire. Their 
 motive has been greatly misapprehended. It has 
 been taken for granted by recent French writers 
 that Charlemagne was far before his age, quite as 
 much in the character of his designs as in the 
 energy with which he prosecuted them. Whether 
 it be true or not that anybody is at any time before 
 his age, it is certainly true that Charlemagne, in 
 aiming at an unlimited dominion, was emphatically 
 taking the only course which the characteristic 
 ideas of his age permitted him to follow. Of his 
 intellectual eminence there cannot be a question, 
 but it is proved by his acts and not by his 
 theory. 
 
 The speculative universaUty 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 
 limited portion of tlie earth's surface — was dis- 
 tinctly an offshoot, though a tardy one, of feudal- 
 ism. 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 
 
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CHAP. IV] TERRITORIAL SOVEREIGNTY ICQ 
 
 the proper view of its origin and legal nature, the 
 best mode of vividly picturing to ourselves the 
 feudal organisation 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 concep- 
 tion of tribe sovereignty had really decayed, the 
 topmost point was always assigned to the supposed 
 successor of the Caesars of the West. But before 
 long, when the actual sphere of Imperial authority 
 had immensely contracted, and when the emperors 
 had concentrated the scanty remains of their 
 power upon Germany and North Italy, the highest 
 feudal superiors in all the outlying portions of 
 the former Carlovingian empire found themselves 
 practically without a supreme head. Gradually 
 they habituated themselves to the new situation, 
 and the fact of immunity put at last out of sight 
 the theory of dependence ; but there are many 
 sjonptoms 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 superiority 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 
 territorial fiefs into which the Carlovingian empire 
 
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no MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 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 surrounding Paris, usurped 
 from the earlier house their dynastic title of Kings 
 of the French. Hugues Capet and his descendants 
 were kings in quite a new sense, sovereigns standing 
 in the same relation to the soil of France as the 
 baron to his estate, the tenant to his freehold ; 
 and the old tribal appellation, 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 hastening changes which 
 were elsewhere proceeding in the same direction. 
 The kingship of our Anglo-Saxon regal houses was 
 midway between the chieftainship of a tribe and 
 a territorial supremacy ; but the superiority of 
 the Norman monarchs, imitated from that of the 
 King of France, was distinctly a territorial sove- 
 reignty. Every subsequent dominion which was 
 established or consolidated was formed on the 
 later model. Spain, Naples, and the principahties 
 founded on the ruins of municipal freedom in 
 Italy, were all under rulers whose sovereignty 
 was territorial. Few things, I may add, are 
 more curious than the gradual lapse of the 
 Venetians from one view to the other. At the 
 commencement of its foreign conquests, the re- 
 pubUc 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 
 
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CHAP. IV] INTERNATIONAL LAW III 
 
 a feudal suzerain over its possessions in Italy and 
 the Mgean. 
 
 During the period through which the popular 
 ideas on the subject of sovereignty were undergoing 
 this remarkable change, the system which stood 
 in the place of what we now call International 
 Law was heterogeneous in form and inconsistent 
 in the principles to which it appealed. Over so 
 much of Europe as was comprised in the Romano- 
 German empire, the connection of the confederate 
 states was regulated by the complex and as yet 
 incomplete mechanism of the Imperial constitu- 
 tion ; and, surprising as it may seem to us, it was 
 a favourite notion of German lawyers that the 
 relations of commonwealths, whether inside or 
 outside the empire, ought to be regulated not by 
 the Jus Gentium, but by the pure Roman jurispru- 
 dence of which Caesar was still the centre. This 
 doctrine was less confidently repudiated in the 
 outlying countries than we might have supposed 
 antecedently ; but substantially, through the rest 
 of Europe feudal subordinations furnished a sub- 
 stitute for a public law ; and when those were 
 undetermined or ambiguous, there lay behind, in 
 theory at least, a supreme regulating force in the 
 authority of the head of the Church. It is certain, 
 however, that both feudal and ecclesiastical influ- 
 ences were rapidly decaying during the fifteenth 
 and even the fourteenth century ; and if we 
 closely examine the current pretexts of wars, and 
 the avowed motives of alliances, it will be seen 
 that, step by step with the displacement of the 
 old principles, the views afterwards harmonised 
 and consolidated by Ayala and Grotius were 
 
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112 MODERN HISTORY OF LAW OF NATURE [chap, iv 
 
 making considerable 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 would have exhibited material differ- 
 ences 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 by a gulf too broad to be bridged over 
 by the Imperial supremacy, even if the Imperial 
 superior had stood neutral. He, however, was 
 forced to take colour with the Church against the 
 reformers ; the Pope was, as a matter of course, 
 in the same predicament ; and thus the two 
 authorities to whom belonged the office of media- 
 tion between combatants became themselves the 
 chiefs of one great faction in the schism of the 
 nations. Feudalism, already enfeebled and dis- 
 credited as a principle of public relations, furnished 
 no bond whatever which was stable enough to 
 countervail the alliances of religion. In a condi- 
 tion, therefore, of pubUc law which was little less 
 than chaotic, those views of a state system to 
 which the Roman jurisconsults were supposed to 
 have given their sanction alone remained standing. 
 The shape, the symmetry, 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 BeUi et Pacis," 
 was its rapid, complete, and universal success. 
 The horrors of the Thirty Years' War, the bound- 
 less terror and pity which the unbridled licence 
 of the soldiery was exciting, must, no doubt, be 
 
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CHAP. IV] THE GROTIAN SYSTEM II3 
 
 taken to explain that success in some measure, 
 but they do not wholly account for it. 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 
 discarded by jurists and neglected by statesmen 
 and soldiers. 
 
 It is obvious that the speculative perfection of 
 the Grotian system is intimately connected with 
 that conception of territorial sovereignty which we 
 have been discussing. The theory of International 
 La.w assumes that commonwealths are, relatively 
 to each other, in a state of nature ; but the com- 
 ponent atoms of a natural society must, by the 
 fundamental assumption, be insulated and inde- 
 pendent of each other. If there be a higher power 
 connecting them, however sUghtly and occasion- 
 ally, by the claim of common supremacy, the very 
 conception of a common superior introduces the 
 notion of positive Law, and excludes the idea of 
 a law natural. It foUows, 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 
 endeavoured to describe the development. I 
 have said that there are entire departments of 
 international jurisprudence which consist of the 
 Roman Law of Property. What then is the 
 inference ? It is, that if there had been no such 
 change as I have described in the estimate of 
 
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1 14 NOTES [CHAP. IV 
 
 sovereignty — if sovereignty had not been asso- 
 ciated with the proprietorship of a Umited portion 
 of the earth, had not, in other words, become 
 territorial— three parts of the Grotian theory 
 would have been incapable of appUcation. 
 
 NOTE G 
 
 MEDIEVAL AND MODERN TREATMENT OF THE LAW OF NATURE : 
 BRACTON : FRENCH PUBLICISTS 
 
 Much that has been written about the law of nature in modem 
 times is, as Maine says, extremely confused. This may be due to 
 several causes, but one cause which would alone be suflScient is the 
 neglect of the scholastic tradition, amounting to practical oblivion, 
 which followed on the Reformation controversies. Hooker was the 
 latest English writer who possessed the tradition, and accordingly 
 stated a consistent and intelligible doctrine. What the canonists 
 and schoolmen added to the classical Roman theory was the 
 identification of the law of nature with the law of God revealed in 
 human reason : in this way they reconciled the temporal authority 
 of the Corpus luris and the moral authority of the philosophers (for 
 Aristotle and Cicero, though heathens, had become almost sacred by 
 orthodox commendations) with the spiritual authority of the Church. 
 The natural revelation through reason and the supernatural revela- 
 tion committed to the Church are equally divine, and cannot con- 
 tradict one another ; and the law of nature is no less paramount to 
 any positive rule or custom of human origin than express revelation 
 itself. The risk of this doctrine being turned against the Church or 
 the Pope was, no doubt, serious, as later events proved ; but it had 
 to be taken. Hence the scholastic theory of the law of nature, 
 though attempts were made to use it for the most opposite purposes, 
 was on the whole rationalist and progressive. Indeed, it had several 
 points of affinity with the utilitarian doctrine of our own times, 
 although the founders of that school, who may be said to have 
 neglected history on principle, were unaware of the fact. Natural 
 justice had been identified by Epicurus with an agreement among 
 men for their common advantage to abstain from harming one 
 another (see Bryce, " Studies," ii. 127). In the fourteenth century 
 we actually find communis utilitas a current term with William of 
 Ockham and others, and it is used to denote a criterion for 
 ascertaining what the law of nature prescribes ; and this was 
 only the development of a tendency already visible in St. Thomas 
 
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CHAP. IV) NOTES 115 
 
 Aquinas. Maine perceived the analogy, and suggested that it 
 might not be too fanciful to call natural law the ancient counter- 
 part of Benthamism (p. 84). 
 
 Beyond the fundamental principles of natural justice, we may 
 deduce by natural reason various rules which may or might be 
 convenient in the absence of competent jurisdiction, but, as they 
 are in matter of convenience and not of absolute right, may be 
 modified by the law of the land. Rules of this kind were said to 
 be secondary ; and the so-called " state of nature " is, from the 
 point of view of the schoolmen, merely human society conceived as 
 go-«erned by the " secondary law of nature" in default of positive 
 ordinance, or any human society so far as it is actually found in 
 that condition. Thus during a great part of the Middle Ages most 
 of what we know as the law of contract was left to the law of 
 nature, which was supposed to be the ultimate authority for the 
 custom of merchants. Nothing can more strongly illustrate the con- 
 fusion which resulted from neglecting this distinction than the modern 
 belief that natural law as a whole depends on the " state of nature," 
 or assumes it to (be better than civilization. The scholastic habit 
 of mind was alien from ours in many ways ; but at any rate the 
 schoolmen took some pains to know what they were talking 
 about. 
 
 Hooker's statement of the first principles, as understood down to 
 the sixteenth century, is quite accurate, and perhaps the most 
 profitable for English readers. The law of nature is a law of 
 reason. Its rules "are investigable by Reason, without the help of 
 Revelation supernatural and divine . . . the knowledge of them is 
 general, the world hath always been acquainted with them. . . . 
 It is not agreed upon by one, or two, or few, but by all. Which 
 we may not so understand, as if every particular man in the whole 
 world did know and confess whatsoever the law of reason doth 
 contain ; but this law is such that being proposed no man can 
 reject it as unreasonable and unjust. Again, there is nothing in it 
 but any man (having natural perfection of wit and ripeness of 
 judgment) may by labour and travail find out." But the law of 
 nature does not include all binding laws : " we restrain it to those 
 only duties, which all men by force of natural wit either do or might 
 understand to be such duties as concern all men" ("Eccl. Pol." I. 
 viii. 10). A strange contrast to Hooker's clear apprehension and 
 intelligent use of the medieval tradition is presented by the loose 
 talk about the law of nature and the law of reason (apparently 
 supposed to be different things) in Sir Henry Finch's " Discourse 
 of Law," published in 1613. Before the middle of the eighteenth 
 century the conception of "the aboriginal reign of nature" had 
 gained a footing, and the confusion was complete. No less a man 
 than Montesquieu thought natural law could be defined merely as 
 the rules that would have been appropriate for men living before the 
 
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Il6 NOTES [CHAP. :v 
 
 formation of civil society (" Esprit des Lois," I. ii.)- The vitality of 
 the old doctrine had in truth passed into the new science built on 
 its foundations by Grotius and his successors ; and such ornamental 
 references to the law of nature as occur in Blackstone and other 
 English writers of his time are echoes of contemporary or recent 
 Continental publicists whose real subject-matter was the law of 
 nations in its modern sense. In later Continental and especially 
 German usage natural law is taken, by a considerable but legiti- 
 mate extension, to denote all speculative construction in juris- 
 prudence and politics as contrasted with the purely historical or 
 comparative study of institutions ; in the terms most familiar to 
 English readers, it covers the whole ground of general jurisprudence 
 and the theory of legislation. Herbert Spencer's volume on Justice 
 and the essays of the Fabian Spciety would alike be classed as 
 books of Naturrecht. Writers of the historical school who con- 
 sider the law of nature obsolete include British utilitarian doctrine 
 in their condemnation as a matter of course, as being a mere 
 branch of it. 
 
 There are some incidental statements of Maine's in this con- 
 nexion which need comment. What is said about the unquestion- 
 ing respect paid in the Middle Ages to written texts is undoubtedly 
 true, and is indeed rather understated. Reverence for any plausible 
 show of authority was not confined to theology or law, and it was 
 not necessary that the text quoted should purport to have any 
 obligatory force, or that the sense in which it was quoted should be 
 the natural one. Aristotle was nearly as good authority as the 
 Bible, though not quite ; Cicero was only second to Aristotle ; and 
 the Corpus Juris was " written reason " even in jurisdictions where 
 it was not binding. But in default of the Vulgate or the Philosopher, 
 learned writers were glad enough to quote Virgil or Ovid or Lucan, 
 though without any intention of putting them on a level with 
 Scripture. Maine's particular illustration from " the plagiarisms 
 of Bracton" is unfortunate. I do not know on what book or man 
 having a pretended knowledge of Bracton he relied ; certainly there 
 were very few men living forty-five years ago who had studied 
 Bracton to such purpose as to be qualified to inform him, and 
 certainly he had not then made any critical examination of his own ; 
 but the solution of the historical enigma which Maine, with great 
 reason, found in Bracton' s alleged wholesale borrowing from Roman 
 law is simply that the fact is not so. Not one-thirtieth of Bracton's 
 matter, instead of a third as affirmed by Maine's unknown authority, 
 is taken from the Corpus luris (Maitland, " Bracton and Azo," 
 Selden Soc. 1895, p. xiv, which see on the whole matter). Bracton 
 used Roman law, chiefly through Azo's famous gloss, partly as a 
 systematic framework and partly as a store of written reason to 
 fill up gaps in English learning. He had no thought of putting 
 it off on his countrymen as "pure English law," any more than 
 
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CHAP. IV] NOTES 117 
 
 a lawyer at Paris would have sought to put it off as pure Parisian 
 custom ; there is no concealment of its origin. When actual 
 English custom was contrary to Roman law, Henry of Bratton (foi 
 such, it is now known, was his real name) did not hesitate to deny 
 the Roman propositions. 
 
 Further, it is at least misleading to say that "the systematic 
 study of the Roman law was formerly proscribed" in England. 
 The only prohibition of which there is any evidence was confined 
 to London ; it is doubtful whether its purpose was to hold clerks 
 in orders to their proper study of the canon as distinguished from 
 the civil law, or to prevent London teachers from competing with 
 the civilians of Oxford (Pollock and Maitland, "H.E.L.," i. 102). 
 The earlier stoiy of Stephen prohibiting Vacarius is ambiguous; 
 it does not show whether he objected to the doctrines of Roman law 
 or to the person of Vacarius, or whether his objection was founded 
 on any permanent reason. All we know is that John of Salisbury 
 thought Stephen's action, whatever it was, unreasonable ; as indeed 
 it is quite likely to have been. It may have been a mere caprice. 
 Roman law was not only taught at Oxford and Cambridge without 
 interruption, but sometimes, though not often, cited, at least in 
 a general way, in the King's Courts (Selden ad Fletam, pp. 528- 
 530).' There is no reason whatever to suppose that any one 
 thought it needful or expedient to protect the Common Law against 
 a Roman invasion. Blackstone (" Comm.," i. 20-22) contrived, by 
 accumulating mistakes, to draw an imaginary picture of English 
 aversion and contempt for the civil law. In the case cited by 
 him, Y. B. 22 Ed. III. 14 (not 24), what really happened was 
 this. Counsel said, by way of preliminary objection, that the 
 Court had no judicial knowledge of what the civilian — or rather, 
 in the case in hand, canonist — process of inhibitio novi ojieris 
 was : to which Justice Shardelowe replied in effect : " That is only 
 what they call restitution in their law, so we think nothing of your 
 point; you must answer to the merits" ; and the argument pro- 
 ceeded accordingly. Nothing here shows very gross ignorance, 
 although the language might not satisfy a learned civilian; the 
 Court, so far from treating Roman words of art as nonsense, 
 professed to understand them quite enough for the purpose in 
 hand; and the only contempt in question was that of an abbot 
 who was charged with having cited a prior to the Pope's Court 
 at Avignon and persisted in disregard of the king's prohibition. 
 But in the nineteenth century an over-zealous Romanizing lawyer 
 
 > Selden speaks of two cases in a certain Inner Temple MS. of Year Books 
 ot Ed. II., where Roman texts are even cited with precise reference in the 
 accustomed form of civilians. But this MS. is not now to be found, and, such 
 references being otherwise unknown in other extant Year Books, it is safer to 
 think that they were added by a specially learned scribe. See Maitland's Intro- 
 duction to Y.a 3 Ed. II., Seld. Soc. 1905, p. xx. 
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Il8 NOTES [CHAP. IV 
 
 called Shardelowe an old savage on the strength of Blackstone's 
 misunderstanding. What is really curious in the matter is that 
 Blackstone appears to have been misled by Selden (ad Fletam, 
 P- S33)> ■who cites this to prove that Roman law had become 
 unknown in the King's Courts in the reign of Edward III., though 
 he does not use anything like Blackstone's rhetorical language 
 about contempt and aversion. With all respect for Selden, I see 
 no room for doubt that he did misunderstand the case ; perhaps 
 he was nodding a little, for he calls Shardelowe J. " Shardus." 
 His general thesis that knowledge of Roman law in England, 
 except among professed canonists, declined rapidly after the reign 
 of Edward II., is doubtless correct. But there was no question 
 of hostility. Not the fourteenth or thirteenth, but the sixteenth 
 century was the time of recrimination between common lawyers 
 and civilians, and perhaps of some real danger to the Common 
 Law (Maitland, "English Law and the Renaissance" ; Pollock, 
 "The Expansion of the Common Law," p. 88). 
 
 Maine's remarks on the enthusiasm of French lawyers for 
 natural law (p. 88 sqq.) seems rather to ignore its general reception 
 by Continental publicists ; though the centralization of the French 
 monarchy no doubt made it easier for them to have something 
 like uniform official doctrine. The enfranchising ordinance of 
 Louis Hutin cited at p. 97, which asserts that all men ought to 
 be free by natural law, repeats an earlier one issued by Philip 
 the Fair in 1311 (" Journ. Soc. Comp. Legisl.," 1900, pp. 426-7). 
 It is not very clear that the framers of this ordinance were 
 thinking of the Roman maxim, " omnes homines natura aequales 
 sunt" (or rather "quod ad ius naturale attinet omnes homines 
 aequales sunt " : Ulpian in D. de div. reg. 50, 17, 32) ; for the 
 general tone is decidedly more religious than secular, and the 
 Church had always favoured manumission as a pious work. If 
 they had wanted to vouch the authority of the Digest or the Insti- 
 tutes that slavery was not recognised by the law of nature, they 
 might easily have made the reference more pointed. That Ulpian 
 did not mean to preach an ethical or political creed of equality is, 
 as Maine says, plain enough ; his assertion is that slavery (like 
 other inequalities of condition) is justified only by positive law. 
 At the same time no medieval publicist who desired to use the 
 passage for his own purposes would have troubled himself about 
 the author's original intention. In Justinian's authoritative declara- 
 tion on the subject, already referred to in Note E, there is an ethical 
 element which Maine seems to me to have underrated ; and this is 
 the passage of the Corpus luris, if any, which was present to the 
 mind of King Philip's counsellors. 
 
 At p. 90 there is a statement about Dumoulin's opinions which 
 I have not been able to verify. Charles Dumoulin (properly Du 
 Molin, latinized as Molinaeus, 1500- 1566) was a profound jurist 
 
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CHAP. IV] NOTES 119 
 
 and a famous champion of Gallican liberties against the Papal 
 claims. He was for some time a Calvinist, and afterwards a 
 Lutheran, but his biographer Julian Brodeau, whose book' seems 
 to be the ultimate authority, was anxious to make it clear that he 
 died a Catholic ; which from the Gallican point of view was only 
 natural. His life was wandering and troubled, and is a striking 
 example of the general disturbance into which the world of letters 
 as well as of action was thrown by the Reformation contro- 
 versies ; twice he fled from Paris, and twice his house was sacked 
 under colour of zeal for Roman orthodoxy. The standard edition 
 of his works was printed at Paris in 1681 in five volumes, folio, 
 and is copiously indexed, I have not found in them anything 
 about the law of nature except one depreciatory remark in a note 
 on the Decretum of Gratian (Annotationes ad ius canonicum, in 
 vol. 4): "politia externa regitur iure naturali et politico, sed 
 utrumque subest divino quod altius est naturali." This directly 
 contradicts the received theory, which put the law of nature 
 (principles of right revealed in human reason) before the Law 
 of God (interpretation of specific precepts communicated by 
 external revelation). I suspect that Du Molin, writing at that 
 time as a Protestant, took the Law of God to be the text of 
 Scripture, and meant that the text was to be preferred to the 
 reasonings of the schools : compare the so-called Protestant 
 declaration formerly in use on the admission of Fellows at Trinity 
 College, Cambridge, " verbum Dei iudiciis hominum praepositurum." 
 Whatever the exact significance may be, Du Molin's observation is 
 the reverse of a panegyric on the law of nature. One can only 
 suppose that the rhetorical passages of which Maine appears to 
 have had a pretty distinct recollection occur in some other French 
 jurist of the time, and that the introduction of Du Molin's name 
 was due to a slip of memory or to some accidental dislocation or 
 misreading of manuscript notes 
 
 It has already been pointed out that Maine greatly exaggerated 
 the place of the " state of nature " in the doctrines of natural law. 
 This comes out again in a startling manner in his remarks on 
 Rousseau (p. 92).' Whatever Rousseau may have said elsewhere, 
 we shall not find anything about the original perfection of man- 
 kind in the " Contrat Social," to which Maine apparently meant to 
 refer. Rousseau believed, certainly, in natural law, and to some 
 extent in the virtues of the " natural man " as an individual; but 
 his " state of nature " is not much better than Hobbes's ; it is 
 
 ' La vie de Maistre Charles Du Molin, advocat au Parlement de Paris . , . et 
 sa mort chrestienne et catholique. Par M" Julien Brodeau, advocat au mesme 
 Parlement. Paris 1654, 4°. 
 
 ' "Nothing that Rousseau had to say about the state of nature was seriously 
 meant for scientific exposition, any more than the Sermon on the Mount was 
 meant for political economy " (John Morley, " Rousseau," i. 183). 
 
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120 NOTES [CHAP. IV 
 
 unstable and becomes intolerable, and the social contract is dictated 
 by the need of self-preservation (liv. i. ch. vi.) ; justice, which did 
 not exist in the state of nature, is due to the establishment of 
 political society (ch. viii.). This is not the place to speak at large 
 of Rousseau's influence on the founders of American independence 
 and the leaders of the French Revolution, ; but the careful research 
 of American scholars has lately shown that the Principles of 1789 
 owed more to the American Declaration of Independence and the 
 earlier Bills of Rights of several States than we used to suppose, 
 and less to Rousseau, and that the language of the American 
 constitutional instruments proceeded firom the school not of 
 Rousseau but of Locke (Scherger, " The Evolution of Modem 
 Liberty," New York, 1904). 
 
 NOTE H 
 
 THE ORIGINS OF THE MODERN LAW OF NATIONS 
 
 Maine's statement (p. 100) seems to ignore the continuity of 
 Grotius and his immediate precursors with the scholastic doctrine. 
 It is true that the spread of the New Learning, and still more the 
 Reformation, did largely increase the weight of the classical and 
 diminish that of the medieval elements ; but it is also true that 
 Grotius did not rely exclusively on Roman or on legal authorities. 
 That Grotius and his contemporaries misunderstood the classical 
 ius gentium, or supposed the modem rules of conduct between 
 sovereign states to be contained in it, I am unable, with great 
 respect for any suggestion of Maine's, to believe. The term had 
 become less common than its practical synonym ius naturale in the 
 Middle Ages, but came into fashion again with the Renaissance. 
 Grotius, like Alberico Gentili, takes ius gentium as the rule of 
 natural reason attested by general agreement, and makes it the 
 starting-point of a new development. He may or may not have 
 known that in its classical meaning it could, and sometimes did, 
 include, among other rules of conduct sanctioned by general usage, 
 whatever rules are reasonable and customary as between sovereign 
 states. But as a scholar he must have known that genies is not the 
 plural of civitas ox fo^ulus, which are the only apt words in classical 
 Latin for a state or nation in its political capacity. At the same 
 time Suarez had spoken of iura gentium, with an approach to the 
 modem "law of nations," and Hooker had used the English term 
 in a fully international sense (" Eccl. Pol." I. x. § 12). There was 
 no reason for Grotius to refuse the assistance of a verbal ambiguity, 
 so far as it existed and could further his purposes (cp. L.Q.R. 
 xviii. 425-8). The modem law of nations embodies certain 
 distinctly legal conceptions. These are Roman and purely Roman. 
 Inasmuch as, from the sixteenth century onwards, Roman law was 
 generally received throughout Western Christendom, with the one 
 
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CHAP. IV] NOTES 121 
 
 material exception of England, as a kind of universal law, there is 
 nothing surprising in this fact, and indeed nothing else could have 
 happened. Maine's following observations (p. 105 sqq.) as to the 
 application of Roman ideas in the modern law of nations, and 
 especially the treatment of every independent State, with regard 
 to its territory, as if it were an owner or claimant of ownership 
 under Roman law, and the relatively modem character of purely 
 territorial dominion, show the author at his best. The theoretical 
 equality of independent States naturally follows from their recog- 
 nition as analogous to free persons, who must have full and equal 
 rights in the absence of any definite reason for inequality. This 
 indeed is all that the maxim of men's equality before the law of 
 nature declares or involves according to its classical meaning 
 (p. 118 above). 
 
 It is interesting in connexion with Maine's thesis to observe how 
 in our time the usual rules of international law cease to be 
 applicable, or fail to give an adequate solution of difiBculties, just 
 in proportion as the fact of territorial sovereignty is not complete 
 and definite. This is now of frequent occurrence in cases of 
 "spheres of influence" in unsettled parts of the world, of pro- 
 tectorates, and of what are called semi-sovereign States dependent 
 in various degrees on other and more powerful ones. In the last- 
 named class we may notice a certain reversion to feudal con- 
 ceptions. It would have been much easier to express the relations 
 of Great Britain to the late South African Republic in medieval 
 than in classical Latin. As to the Anglo-Saxon kingship, it should 
 be remembered that the English kings never owed or rendered any 
 temporal allegiance to the Empire or any other power, and that 
 the assumption of the imperial title " Basileus " involved a pretty 
 strong claim to temporal supremacy within approximately certain 
 territorial limits. In this respect the situation of England was 
 peculiar. Modem national sovereignty may be regarded, in a 
 general way, as a reaction against both the feudal and the imperial 
 conceptions. Rulers of the Middle Ages, as and when they felt 
 strong enough, expressly or tacitly renounced both homage to any 
 overlord and submission to the Emperor. A German electoral 
 prince or grand duke in the decadence of the Holy Roman Empire, 
 say the Elector of Brandenburg, is firom the strictly feudal point of 
 view an overgrown tenant of the Emperor who has added one 
 " immunity " to another till he has strained the tie of fealty to the 
 breaking point. From the strictly imperial point of view, if it had 
 been maintamed to any practical purpose, he would or might be 
 a rebel. Feudal tenure, however, probably led to the notion of 
 the territory ruled by a sovereign prince being really — not by mere 
 analogy to ownership in private law — his property. For, so long 
 as overlordship was a reality, every principality, short of the 
 Empire and the few monarchies which did not acknowledge the 
 
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122 NOTES [CHAP- »* 
 
 Emperor as superior, tifas in theory a "tenement"; and in the 
 feudal system a tenement is indistinguishable from property; for 
 absolute property is not recognised save in the supreme overlord, 
 as is the strict theory of English and Scottish law to this day. 
 This ultimate and now shadowy feudal superiority has nothing 
 to do with the modem and purely political conception of Eminent 
 Domain, though more than once they have been confused by able 
 writers. 
 
 It must not be supposed, however, that medieval lawyers were 
 incapable of distinguishing between territorial sovereignty and 
 feudal overlordship. The distinction was clearly made in 1284 by 
 the framers of Edward I.'s Statute of Wales. In its preamble the 
 king is made to acknowledge the bounty of Providence whereby 
 the land of Wales, formerly subject to him as a fief, has been wholly 
 reduced into his lordship in possession and annexed to his crown 
 as part of the body of the kingdom. 
 
 " Divina Providentia . . inter alia dispensacionis sue munera quibus 
 nos et regnum nostrum Anglie decorare dignata est terrain Wallie cum 
 incolis suis prius nobis iure feodali subiectam iam sui [sic] gratia in 
 proprietatis nostra dominium . , . totaliter et cum integritate convertit 
 et corone Regni predict! tanquam partem corporis eiusdem anneiuit et univit " 
 (" Statutes of the Realm," i. 55). 
 
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CHAPTER V 
 
 PRIMITIVE SOCIETY AND ANCIENT LAW 
 
 The necessity of submitting the subject of juris- 
 prudence 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 proceeded 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 science 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, recog- 
 nising and adopting these conjectural theories of 
 a natural state, and of a system 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 annotations of the 
 Glossators who founded modern jurisprudence, v 
 and in the writings of the scholastic jurists who 
 succeeded them. They are visible in the dogmas 
 of the canonists. They are thrust into prominence 
 by those civilians of marvellous erudition, who 
 flourished at the revival of ancient letters. Grotius 
 and his successors invested them not more with 
 brilliancy and plausibility than with practical 
 importance. They may be read in the intro- 
 ductory chapters of our own Blackstone, who has 
 
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124 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, t 
 
 transcribed them textually from Burlamaqui, and 
 wherever the manuals published in the present day 
 for the guidance of the student or the practitioner 
 begin with any discussion of the first principles of 
 law, it always resolves itself into a restatement of 
 the Roman hypothesis. It is however from the 
 disguises with which these conjectures sometimes 
 clothe themselves, 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 were rendered 
 more attractive to a particular generation of the 
 moderns ; but on the other hand the theory of 
 Hobbes on the same subject was purposely devised 
 to repudiate the reality of a law of nature as 
 conceived by the Romans and their disciples. 
 Yet these two theories, which long divided the 
 reflecting politicians of England into hostile camps, 
 resemble each other strictly in their fundamental 
 assumption of a non-historic, unverifiable condi- 
 tion of the race. Their authors differed as to the 
 characteristics of the prae-social state, and as to 
 the nature of the abnormal action by which men 
 lifted themselves out of it into that social organi- 
 sation with which alone we are acquainted, but 
 they agreed in thinking that a great chasm separ- 
 ated 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 
 
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CHAP- V] MONTESQUIEU 125 
 
 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 systematisation. 
 
 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 popular, the general drift of the book is 
 certainly to indicate a very different conception of 
 its subject from any which had been entertained 
 before. It has often been noticed that, amidst the 
 vast variety of examples which, in its immense 
 width of survey, it sweeps together from supposed 
 systems of jurisprudence, there is an evident 
 anxiety to thrust into especial prominence those 
 manners and institutions which astonish the 
 civilised reader by their uncouthness, strangeness, 
 or indecency. The inference constantly 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 impressions, 
 and submitting implicitly to the impulses, which 
 it receives from without. And here no doubt lies 
 
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126 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, t 
 
 the error which vitiates his system as a system. 
 He greatly underrates the stabiUty of human 
 nature. He pays Httle or no regard to the in- 
 herited qualities of the race, those qualities which 
 each generation receives from its predecessors, and 
 transmits but sUghtly altered to the generation 
 which foUows it. It is quite true, indeed, that 
 no complete account can be given of social phe- 
 nomena, and consequently of laws, tiU due allow- 
 ance has been made for those modifying causes 
 which are noticed in the Esprit des Lois ; but 
 their number and their force appear to have been 
 over-estimated by Montesquieu. Many of the 
 anomaUes which he parades have since been 
 shown to rest on false report or erroneous con- 
 struction, and of those which remain not a few 
 prove the permanence rather than the variableness 
 of man's nature, since they are reUcs of older 
 stages of the race which have obstinately defied 
 the influences that have elsewhere had 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. An approximation to truth 
 may be all that is attainable with our present 
 knowledge, but there is no reason for thinking 
 that it is so remote, 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 
 
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CHAP. V] BENTHAM 127 
 
 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 
 conception of law which he commenced in the 
 " Fragment on Government," and which was more 
 recently completed by Mr. John Austin. The 
 resolution of a law into a command of a particular 
 nature, imposed under special conditions, does not 
 affect to do more than protect us against a diffi- 
 culty — a most formidable one certainly — of lan- 
 guage. The whole question remains open as to 
 the motives of societies in imposing these com- 
 mands on themselves, as to the connection of these 
 commands with each other, and the nature of 
 their dependence on those which preceded them, 
 and which they have superseded. Bentham sug- 
 gests the answer that societies modify, and have 
 always modified, their laws according to modifica- 
 tions 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 substitution of an express term for a term 
 which is necessarily implied when we say that a 
 change takes place. 
 
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128 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, t 
 
 There is such wide-spread dissatisfaction with 
 existing theories of jurisprudence, and so general 
 a conviction that they do not really solve the 
 questions they pretend to dispose of, as to justify 
 the suspicion that some Hne of inquiry, necessary 
 to a perfect result, has been incompletely followed 
 or altogether omitted by their authors. And 
 indeed there is one remarkable omission with 
 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 their appearance. Their originators care- 
 fully observed the institutions of their own age 
 and civihsation, and those 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 ex- 
 hibited much superficial difference from their own, 
 they uniformly ceased to observe and began 
 guessing. The mistake which they committed is 
 therefore analogous to the error of one who, in 
 investigating the laws of the material universe, 
 should commence by contemplating the existing 
 physical world as a whole, instead of beginning 
 with the particles which are its simplest ingre- 
 dients. 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 
 commence 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 
 
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CHAP. V] XHE GERMANY OF TACITUS I29 
 
 we could in the history of primitive societies. 
 The phenomena which early societies present us 
 with are not easy at first to understand, but the 
 difficulty of grappling with them bears no pro- 
 portion to the perplexities which beset us in con- 
 sidering the baffling entanglement of modern 
 social organisation. It is a difficulty arising from 
 their strangeness and uncouthhess, not from their 
 number and complexity. One does not readily 
 get over the surprise which they occasion whpn 
 looked at from a modern point of view ; but when 
 that 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 ascer- 
 taining 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 civilisations less advanced than their 
 own, the records which particular races have 
 preserved concerning their primitive history, and 
 ancient law. The first kind of evidence is the 
 best we could have expected. As societies do not 
 advance concurrently, but at different rates of 
 progress, there have been epochs at which men 
 trained to habits of methodical observation have 
 really been in a position to watch and describe 
 the infancy of mankind. Tacitus made the most 
 of such an opportunity ; but the Germany, unlike 
 most celebrated classical books, has not induced 
 others to follow the excellent example set by its 
 
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130 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 author, and the amount of this sort of testimony 
 which we possess 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 aggravated at times by fear, by rehgious 
 prejudice, and even by the use of these very terms 
 — civilisation and barbarism — which convey to 
 most persons the impression of a difference not 
 merely in degree but in kind. Even the Germany 
 has been suspected by some critics of sacrificing 
 fidelity to poignancy of contrast and picturesque- 
 ness of narrative. Other histories, too, which 
 have been handed down to us among the archives 
 of the people to whose infancy 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 preserved merely 
 because it was old. Those who practised and 
 obeyed it did not pretend to understand 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 ancestors. If we 
 confine our attention, then, to those fragments of 
 ancient institutions which cannot reasonably be 
 supposed to have been tampered with, we are able 
 to gain a clear conception of certain great cha- 
 racteristics 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 Manu, are as a whole of suspicious 
 
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CHAP, y] PATRIARCHAL THEORY I3I 
 
 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 ignorance of the compiler. It will at least be 
 acknowledged that, if the materials for this process 
 are sufficient, and if the comparisons be accurately 
 executed, the methods followed are as Uttle objec- 
 tionable as those which have led to such surprising 
 results in comparative philology. 
 
 The effect of the evidence derived from com- 
 parative jurisprudence is to estabUsh that view of 
 the primaeval 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 connection with Scripture 
 rather miUtated than otherwise against its recep- 
 tion as a complete theory, since the majority of 
 the inquirers who till recently addressed themselves 
 with most earnestness to the coUigation of social 
 phenomena, were either influenced by the strongest 
 prejudice against Hebrew antiquities or by the 
 strongest desire to construct their system without 
 the assistance of religious records. Even now 
 there is perhaps 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 insti- 
 tutions of societies belonging to the Indo-European 
 stock, the Romans, Hindoos, and Sclavonians 
 supplying the greater part of it ; and indeed the 
 
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132 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 difficulty, at the present stage of the inquiry, is to 
 know where to stop, to say 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 hneaments 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 earhest childhood, and because, 
 from the interest once attaching to the contro- 
 versy which takes its name from the debate be- 
 tween Locke and Filmer, they fill a whole chapter, 
 though not a very profitable one, in English litera- 
 ture. 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 re- 
 lations of sonship and serfdom appear to differ in 
 little beyond 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 possessions of the parent, which he holds 
 in a representative rather than in a proprietary 
 character, are equally divided at his death among 
 his descendants in the first degree, the eldest sor. 
 sometimes receiving a double share under the name 
 of birthright, but more generally endowed with 
 no hereditary advantage beyond an honorary 
 precedence. A less obvious inference from the 
 Scriptural accounts is that they seem to plant us 
 on the traces of the breach which is first effected 
 
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CHAP.v] CYCLOPEAN FAMILY I33 
 
 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 
 become a people. This looks like the immature 
 germ of a state or commonwealth, 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 
 Odyssey of Homer • 
 
 Toio-iv 8" out' ayopaX jSovXrjtjiopoi oSre Oi/JLiOTK, 
 iraiSoJC ^8' aXo^ayv, oiS" dAA^Xcuv aXiyovcriv. 
 
 " 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 civilisation ; for the almost physical 
 loathing which a primitive community feels for 
 men of widely different manners from its own 
 usually expresses itself by describing them as 
 monsters, such as giants, or even (which is almost 
 always the case in Oriental mythology) as demons. 
 However that mayi be, the verses condense in 
 themselves the sum of the hints which are given 
 us by legal antiquities. Men are first seen dis- 
 tributed in perfectly insulated groups, held to- 
 gether by obedience to the parent. Law is the 
 
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134 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, t 
 
 parent's word, but it is not yet in the condition of 
 those themistes which were analysed in the first 
 chapter of this work. When we go forward to 
 the state of society in which these early legal 
 conceptions show themselves as formed, we find 
 that they still partake of the mystery and spon- 
 taneity which must have seemed to characterise 
 a despotic father's commands, but that at the 
 same time, inasmuch as they proceed from a 
 sovereign, they presuppose a union of family 
 groups in some wider organisation. The next 
 question is, what is the nature of this union and 
 the degree of intimacy which it involves ? It is 
 just here that archaic law renders us one of the 
 greatest of its services, and fills up a gap which 
 otherwise could only have been bridged by 
 conjecture. It is full, in all its provinces, of the 
 clearest indications that society in primitive times 
 was not what it is assumed to be at present, a 
 collection of individuals. In fact, and in the view 
 of the men who composed it, it was an aggregation 
 of families. The contrast may be most forcibly 
 expressed by saying that the unit of an ancient 
 society was the Family, of a modern society the 
 individual. We must be prepared to find in 
 ancient law all the consequences of this difference. 
 It is so framed as to be adjusted to a system of 
 small independent corporations. It is therefore 
 scanty, because it is supplemented by the despotic 
 commands of the heads of households. It is 
 ceremonious, because the transactions to which it 
 pays regard resemble international concerns much 
 more than the quick play of intercourse between 
 individuals. Above all, it has a peculiarity 
 
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c»^r-y] THE FAMILY GROUP 135 
 
 of which the full importance cannot be shown 
 at present. It takes a view of life wholly 
 unHke any which appears in developed juris- 
 prudence. Corporations never die, and accordingly 
 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 
 themselves. The moral elevation and moral de- 
 basement of the individual appear to be con- 
 founded with, or postponed to, the merits and 
 offences of the group to which the individual 
 belongs. If the community sins, its guilt is much 
 more than the sum of the offences committed by 
 its members ; the crime is a corporate act, and 
 extends in its consequences to many more persons 
 than have shared in its actual perpetration. If, 
 on the other hand, the individual is conspicuously 
 guilty, it is his children, his kinsfolk, his tribesmen, 
 or his fellow-citizens who suffer with him, and 
 sometimes for him. It thus happens that the 
 ideas of moral responsibility and retribution 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 punishment 
 indefinite, the primitive mind is not perplexed 
 by the questions which become troublesome as 
 soon as the individual is conceived as altogether 
 separate from the group. One step in the tran- 
 sition from the ancient and simple view of the 
 matter to the theological or metaphysical ex- 
 planations of later days is marked by the early 
 Greek notion of an inherited curse. The bequest 
 
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136 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 received by his posterity 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 con- 
 clusion on the hint furnished us by the Scriptural 
 example 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 scarcely help conceiving them 
 as a system of concentric circles which have 
 gradually expanded from the same point. The 
 elementary group is the Family, connected by 
 common subjection to the highest male descendant. 
 The aggregation of Families forms the Gens or 
 House. The aggregation of Houses makes the 
 Tribe. The aggregation of Tribes constitutes the 
 commonwealth. Are we at Uberty to follow these 
 indications, and to lay down that the common- 
 wealth 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 aU ancient 
 societies regarded themselves as having proceeded 
 
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<=»*'•■'] FICTION OF KINSHIP I37 
 
 from one original stock, and even laboured under 
 an incapacity for comprehending any reason 
 except this for their holding together in poUtical 
 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 instance, 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 
 cMmed 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 
 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 fundamental 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 organisation of the Sclavonic Russians and 
 Poles which has only lately attracted notice, 
 everywhere we discover traces of passages in their 
 history when men of alien descent were admitted 
 to, and amedgamated with, the original brother- 
 hood. Adverting to Rome singly, we perceive 
 that the primary group, the Family, was being 
 
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138 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, t 
 
 constantly adulterated by the practice of adoption, 
 while stories seem to have been always current 
 respecting the exotic extraction of one of the 
 original Tribes, and concerning a large addition to 
 the Houses made by one of the early kings. The 
 composition of the state uniformly assumed to be 
 natural was nevertheless known to be in great 
 measure artificial. This conflict between behef 
 or theory and notorious fact is at first sight 
 extremely perplexing ; but what it really illus- 
 trates is the efficiency with which Legal Fictions 
 do their work in the infancy of society. The 
 earliest and most extensively employed of legal 
 fictions was that which permitted family relations 
 to be created artificially, and there is none to which 
 I conceive mankind to be more deeply indebted. 
 If it had never existed, I do not see how any one 
 of the primitive groups, whatever were their 
 nature, could have absorbed another, or on what 
 terms any two of them could have combined, 
 except those of absolute superiority on one side 
 and absolute subjection on the other. No doubt, 
 when with our modern ideas we contemplate the 
 union of independent communities, we can suggest 
 a hundred modes of carr5ang it out, the simplest 
 of all being that the individuals comprised in the 
 coalescing groups shall vote or act together accord- 
 ing to local propinquity ; but the idea that a num- 
 ber of persons should exercise political rights in 
 common simply because they happened to live 
 within the same topographical limits was utterly 
 strange and monstrous to primitive antiquity. 
 The expedient which in those times commanded 
 favour was that the incoming population should 
 
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CHAP.T] CLAN AND COMMONWEALTH I39 
 
 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 closeness with which it seemed to imitate 
 reality, that we cannot now hope to understand. 
 One circumstance, however, which it is important 
 to recollect, is that the men who formed the various 
 poUtical groups were certainly in the habit of 
 meeting together periodically for the purpose of 
 acknowledging and consecrating their association 
 by common sacrifices. Strangers amalgamated 
 with the brotherhood were doubtless admitted to 
 these sacrifices ] and when that was once done, 
 we can believe that it seemed equally easy, or not 
 more difficult, to conceive them as sharing in the 
 common lineage. The conclusion, then, which 
 is suggested by the evidence is, not that all early 
 societies were formed by descent from the same 
 ancestor, but that aU of them which had any 
 permanence and solidity either were so descended 
 or assumed that they were. An indefinite 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 facts, 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 re- 
 mainder 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 
 
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140 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 resist extrinsic pressure — all these states ceased 
 to recruit themselves by factitious extensions 
 of consanguinity. They necessarily, therefore, 
 became Aristocracies, in aU cases where a fresh 
 population from any cause collected around them 
 I which could put in no claim to community of 
 [origin. Their sternness in maintaining the central 
 principle of a system under which political rights 
 were attainable on no terms whatever except 
 connection in blood, real or artificial, taught their 
 inferiors another principle, which proved to be 
 endowed with a far higher measure of vitaUty. 
 This was the principle of local contiguity, now 
 recognised everywhere as the condition of com- 
 munity in poUtical 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 dethroned. 
 
 The family, then, is the type of an archaic 
 society in aU the modifications which it was 
 capable of assuming ; but the family here spoken 
 of is not exactly the family as understood 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 strangers within its circle, and we 
 must try to regard the fiction of adoption as so 
 closely simulating the reality of kinship that 
 neither law nor opinion makes the slightest differ- 
 ence between a real and an adoptive connection. 
 On the other hand, the persons theoretically 
 
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CHAP, y] PATRIARCHAL AUTHORITY I4I 
 
 amalgamated into a family by their common 
 descent are practically held together by common 
 obedience 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 assumed fact) of its having sprung 
 from his loins ; and hence we must understand 
 that if there be any persons who, however truly 
 included in the brotherhood by virtue of their 
 blood-relationship, have nevertheless de facto with- 
 drawn themselves from the empire of its ruler, 
 they are always, in the beginnings of law, con- 
 sidered 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 private 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 wiU be found to have stamped itself on aU the 
 great departments of jurisprudence, and may be 
 detected, I think, as the true source of many of 
 their most important and most durable character- 
 istics. At the outset, the pecuUarities of law in 
 its most ancient state lead us irresistibly to the 
 conclusion 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 
 
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142 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 are supposed never to have emerged from this 
 primitive condition ; but in communities more for- 
 tunately circumstanced the fabric of jurisprudence 
 fell gradually to pieces, and if we carefully observe 
 the disintegration we shall perceive that it took 
 place principally 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 fol- 
 lowed, and can even give some idea of the ultimate 
 result to which it was tending. And in pursuing 
 this last inquiry we need not suffer ourselves to be 
 stopped by the imaginary barrier which separates 
 the modern from the ancient world. For one 
 effect of that mixture of refined Roman law with 
 primitive barbaric usage, which is known to us by 
 the deceptive name of feudalism, was to revive 
 many features of archaic jurisprudence which had 
 died out of the Roman world, so that the decom- 
 position which had seemed to be over commenced 
 again, and to some extent is still proceeding. 
 
 On a few systems of law the family organisation 
 of the earliest society has left a plain and broad 
 mark in the Ufe-long authority of the Father or 
 other ancestor over the person and property of 
 his descendants, an authority which we may con- 
 veniently call by its later Roman name of Patria 
 Potestas. No feature of the rudimentary associa- 
 tions of mankind is deposed to by a greater amount 
 of evidence than this, and yet none seems to have 
 disappeared so generally and so rapidly from the 
 usages of advancing communities. Gaius, writing 
 
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<»*'•▼] PATRIA POTESTAS I43 
 
 under the Antonines, describes the institution as 
 distinctively Roman. It is true that, had he 
 glanced across the Rhine or the Danube to those 
 tribes of barbarians which were exciting the 
 curiosity of some among his contemporaries, he 
 would have seen examples 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 resembUng the Roman 
 " Power of the Father," except only the Asiatic 
 Galatae. There are reasons, indeed, as it seems 
 to me, why the direct authority of the ancestor 
 should, in the greater number of progressive 
 societies, very shortly assume humbler proportions 
 than belonged to it in their earUest state. The 
 implicit 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 natursil 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 Hellenic society, it seems as if super- 
 eminent wisdom would keep alive the father's 
 
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144 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 power in persons whose bodily strength had de- 
 cayed ; but the relations of Ulysses and Laertes 
 in the Odyssey appear to show that, where extra- 
 ordinary valour and sagacity were united in the 
 son, the father in the decrepitude of age was 
 deposed from the headship of the family. In the 
 mature Greek jurisprudence, the rule advances a 
 few steps on the practice hinted at in the Homeric 
 literature ; and though very many traces of 
 stringent family obligation remain, the direct 
 authority of the parent is limited, as in European 
 codes, to the nonage or minority of the children, 
 or, in other words, to the period during 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 common- 
 wealth may require, preserves both the primeval 
 institution and the natural hmitation to which I 
 conceive it to have been subject. In every relation 
 of Ufe in which the collective community might 
 have occasion to avail itself of his wisdom and 
 strength, for aU purposes of counsel or of war, 
 the Filius FamiUas, or Son under Power, was as 
 free as his father. It was a maxim of Roman 
 jurisprudence that the Patria Potestas did not 
 extend to the Jus PubUcum. Father and son 
 voted together in the city, and fought side by side 
 in the field ; indeed, the son, as general, might 
 happen to command the father, or, as magistrate, 
 decide on his contracts and punish his delinquen- 
 cies. But in all the relations created by Private 
 Law, the son lived under a domestic despotism 
 which, considering the severity it retained to the 
 
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CHAP. V] PATRIA POTESTAS I45 
 
 last, and the number of centuries through which it 
 endured, constitutes one of the strangest problems 
 in legal history. 
 
 The Patria Potestas of the Romans, which is 
 necessarily our type of the primeval paternal 
 authority, is equally difficult to understand as an 
 institution of civiUsed Ufe, 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 
 information commences, has over his children the 
 jus vitcB necisque, the power of life and death, and 
 d 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 
 daughter 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 chas- 
 tisement has become a right of bringing domestic 
 offences under the cognisance of the civil magis- 
 trate ; the privilege of dictating marriage has 
 decUned into a conditional veto ; the hberty of 
 selling has been virtually abolished, and adoption 
 itself, destined to lose almost all its ancient im- 
 portance in the reformed system of Justinian, can 
 no longer be effected without the assent of the 
 child transferred to the adoptive parentage. In 
 short, we are brought very close to the verge of 
 the ideas which have at length prevailed in the 
 modern world. But between these widely distant 
 
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146 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 epochs there is an interval of obscurity, 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 tem- 
 pered the authority of his parent, if they did not 
 annul it. We can readily persuade ourselves that 
 the paternal despotism could not be brought into 
 play, without great scandal, against a man of full 
 age occupying a high civil office. During the 
 earUer history, however, such cases of practical 
 emancipation would be rare compared with those 
 which must have been created by the constant 
 wars of the Roman repubUc. The miUtary tribune 
 and the private soldier, who were in the field 
 three-quarters of a year during the earher 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 them- 
 selves as the slaves of a despotic master ; and 
 aU these avenues of escape tended constantly to 
 multiply themselves. Victories led to conquests, 
 conquests to occupations ; 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 world 
 commenced on the establishment of the Empire. 
 The first serious blows at the ancient institution 
 
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<^*''] P ATRIA POTESTAS I47 
 
 are attributed to the eariier Caesars, and some 
 isolated interferences of Trajan and Hadrian seem 
 to have prepared the ground for a series of express 
 enactments which, though we cannot always de- 
 termine their dates, we know to have limited the 
 father's powers on the one hand, and on the other 
 to have multipUed 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 evidence, I may remark, of a very early 
 feeUng against the unnecessary prolongation of 
 the powers. The rule which declared that the 
 son should be free after having been three times 
 sold by his father seems to have been originally 
 meant to entail penal consequences on a practice 
 which revolted even the imperfect morality of the 
 primitive Roman. But even before the pubUca- 
 tion of the Twelve Tables, it had been turned, by 
 the ingenuity of the jurisconsults, into an expedient 
 for destroying the parental authority wherever the 
 father desired that it should cease. 
 
 Many of the causes which helped to mitigate 
 the stringency of the father's power over the 
 persons of his children are doubtless among those 
 which do not lie upon the face of history. We 
 cannot tell how far public opinion may have 
 paralysed an authority which the law conferred ; 
 or how far natural affection may have rendered 
 it endurable. But though, the powers over the 
 person may have been latterly nominal, the whole 
 tenour of the extant Roman jurisprudence suggests 
 that the father's rights over the son's property 
 were always exercised without scruple to the full 
 extent to which they were sanctioned by law. 
 
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148 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 There is nothing to astonish 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 contem- 
 plated the possibility of their claiming a separate 
 ownership. The father was entitled to take the 
 whole of the son's acquisitions, and to enjoy the 
 benefit of his contracts, without being entangled 
 in any compensating liability. So much as this 
 we should expect from the constitution of the 
 earliest Roman society ; for we can hardly form 
 a notion of the primitive family group unless we 
 suppose that its members brought their earnings 
 of all kinds into the common stock, while they 
 were unable to bind it by improvident individual 
 engagements. The true enigma of the Patria 
 Potestas does not reside here, but in the slowness 
 with which these proprietary privileges of the 
 parent were curtailed, 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 acquisi- 
 tions of soldiers on service were withdrawn from 
 the operation of the Patria Potestas, doubtless 
 as part of the reward of the armies which had 
 overthrown the free commonwealth. Three cen- 
 turies afterwards the same immunity 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 
 
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CKAPv] PATRIA POTESTAS I49 
 
 Potestas. A certain qualified and dependent 
 ownership had always been recognised by the 
 Roman law in the perquisites and savings which 
 slaves and sons under power were not compelled 
 to include in the household accounts, and the 
 special name of this permissive property, Peculium, 
 was applied 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 principle. Shortly after the introduc- 
 tion of the Quasi-castrense Pecuhum, Constantine 
 the Great took away the father's absolute control 
 over property which his children had inherited 
 from their mother, and redticed 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 right over them should not 
 extend beyond enjoying their produce for the 
 period of his fife. Even this, the utmost relaxation 
 of the Roman Patria Potestas, left it far ampler 
 and severer than any analogous institution of the 
 modern world. The earliest modern writers on 
 jurisprudence remark that it was only the fiercer 
 and ruder of the conquerors of the Empire, 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 
 
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150 PRIMITIVE SOCIETY AND ANCIENT LAW [chap- ▼ 
 
 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 decayed Patria Potestas, and fell far short of 
 those enjoyed by the Roman father. The Franks 
 are particularly mentioned as not having the 
 Roman Institution, and accordingly the old French 
 lawyers, even when most busily engaged in filling 
 the interstices of barbarous customs with rules of 
 Roman law, were obliged to protect themselves 
 against the intrusion of the Potestas by the express 
 maxim, Puyssance de fere en France n'a lieu. The 
 tenacity of the Romans in maintaining this reUc 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 
 PecuUum constituted as yet the sole exception to 
 the father's power over property, and while his 
 power over his children's persons was still exten- 
 sive, the Roman citizenship, and with it the Patria 
 Potestas, were spreading into every corner of the 
 Empire. Every African or Spaniard, every Gaul, 
 Briton, or Jew, who received this honour by gift, 
 purchase, or inheritance, placed himself under 
 the Roman Law of Persons, and, though our 
 authorities intimate that children born before the 
 acquisition of citizenship could not be brought 
 under Power against their will, children born after 
 it and aU ulterior descendants were on the ordinary 
 footing of a Roman filius 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 remark that there is Uttle 
 
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•^*'-^] PATRIA POTESTAS I51 
 
 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 importance. However we 
 may interpret it, it must have enormously enlarged 
 the sphere of the Patria Potestas, and it seems to 
 me that the tightening of family relations which 
 it effected is an agency which ought to be 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 
 answerable 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 
 dehnquent's person in full satisfaction of the 
 damage. The responsibihty thus incurred oiT 
 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 assumption of a " unity of 
 person " between the Paterfamilias and the Filius- 
 familias. 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, appear to me to 
 point at certain duties of the primitive Patriarchal 
 chieftain which balanced his rights. I conceive 
 that, if he disposed absolutely of the persons 
 and fortunes of his clansmen, this representative 
 
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152 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 ownership was coextensive with a habiUty to pro- 
 vide for all members of the brotherhood out of 
 the common fund. The difficulty is to throw our- 
 selves out of our habitual associations sufficiently 
 for conceiving the nature of his obligation. It was 
 not a legal duty, for law had not yet penetrated 
 into the precinct of the Family. To call it moral 
 is perhaps to anticipate the ideas belonging to a 
 later stage of mental development ; but the ex- 
 pression " moral obhgation " 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 former universahty is therefore incomplete 
 so long as we consider it by itself ; but the demon- 
 stration may be carried much further by examining 
 other departments of ancient law which depend 
 on it ultimately, but not by a thread of coimection 
 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 wiU be convenient to employ the Roman 
 terms. Agnatic and Cognatic relationship. Cog- 
 natic relationship is simply the conception of 
 kinship familiar to modern ideas : it is the relation- 
 ship arising through common descent from the 
 same pair of married persons, whether the descent 
 be traced through males or females. Agnatic 
 relationship is something very different : it ex- 
 cludes a number of persons whom we in our day 
 
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oiAP-T] AGNATION AND COGNATION 153 
 
 should certainly consider of kin to ourselves, and 
 it includes many more whom we should never 
 reckon among our kindred. It is in truth the 
 connection existing between the mernbers of the 
 Family, conceived as it was in the most ancient 
 times. The limits of this connection are far 
 from conterminous with those of modern relation- 
 ship. 
 
 Cognates then are all those persons who can 
 trace their blood to a single ancestor and ances- 
 tress ; or if we take the strict technical meaning 
 of the word in Roman law, they are all who trace 
 their blood to the legitimate marriage of a common 
 pair. " Cognation " is therefore a relative term, 
 and the degree of connection in blood which it 
 indicates depends on the particular marriage 
 which is selected as the commencement of the 
 calculation. If we begin with the marriage of 
 father and mother, Cognation wiU only express 
 the relationship of brothers and sisters ; if we 
 take that of the grandfather and grandmother, 
 then uncles, aunts, and their descendants wiU 
 also be included in the notion of Cognation, and 
 following the same process a larger number of 
 Cognates may be continually obtained by choosing 
 the starting point higher and higher up in the Une 
 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 
 connection exclusively through males. A table 
 of Cognates is, of course, formed by taking each 
 hneal ancestor in turn and including all his de- 
 scendants of both sexes in the tabular view ; if 
 then, in tracing the various branches of such a 
 
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154 PRIMITIVE SOCIETY AND ANCIENT LAW [chap- ' 
 
 genealogical table or tree, we stop whenever we 
 come to the name of a female and pursue that 
 particular branch or ramification no further, all 
 who remain after the descendants of women have 
 been excluded are Agnates, and their connection 
 together is Agnatic Relationship. I dwell a httle 
 on the process which is practically followed in 
 separating them from the Cognates, because it 
 explains a memorable legal maxim, " Mulier est 
 finis famiUae " — 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 female 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 
 Agnates, if they satisfy the conditions which have 
 just been described. 
 
 What then is the reason of this arbitrary in- 
 clusion and exclusion ? Why should a conception 
 of Kinship so elastic as to include strangers brought 
 into the family by adoption, be nevertheless so 
 narrow as to shut out the descendants of a female 
 member ? To solve these questions we must recur 
 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 
 Agnatically 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 
 
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CHA'- ▼] AGNATION 155 
 
 ancestor had lived long enough to exercise his 
 empire. In truth, in the primitive view, Relation- 
 ship is exactly Umited by Patria Potestas. Where 
 the Potestas begins. Kinship begins ; and there- 
 fore adoptive relatives are among the kindred. 
 Where the Potestas ends. Kinship ends ; so that 
 a son emancipated by his father loses all rights 
 of Agnation. And here we have the reason why 
 the descendants of females are outside the hmits 
 of archaic kinship. If a woman died unmarried, 
 she could have no legitimate 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 primitive societies would have 
 been confounded, if men had called themselves 
 relatives of their mother's relatives. The in- 
 ference would have been that a person might be 
 subject to two distinct Patriae Potestates ; but 
 distinct Patriae Potestates imphed distinct juris- 
 dictions, 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 
 institutions of which the parent was the source, 
 the Umitation of relationship to the Agnates was 
 a necessary security against a conflict of laws in 
 the domestic forum. 
 
 The Paternsil 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 Agnation for the inquirer into the history of 
 
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156 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 jurisprudence. The powers themselves are dis- 
 cernible 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 communities of the 
 Indo-European stock, which do not exhibit pecu- 
 Harities in the most ancient part of their structure 
 which are clearly referable to Agnation. In 
 Hindoo law, for example, which is saturated with 
 the primitive notions of family dependency, kin- 
 ship is entirely Agnatic, and I am informed 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 appears 
 to have really formed part of their primitive usage, 
 and we may suspect that it would have per- 
 petuated itself even more than it has in modem 
 European jurisprudence, if it had not been for 
 the vast influence of the later Roman law on 
 modern thought. The Praetors early laid hold 
 on Cognation as the natural form of kinship, and 
 spared no pains in purifying their system from 
 the older conception. Their ideas have descended 
 to us, but still traces of Agnation are to be seen 
 in many of the modern rules of succession after 
 death. The exclusion of females and their children 
 from governmental functions, commonly attri- 
 buted to the usage of the Salian Franks, has 
 certainly an agnatic origin, being descended from 
 the ancient German rule of succession to allodial 
 property. In Agnation too is to be sought the 
 explanation of that extraordinary rule of EngUsh 
 
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CHAP.v] GUARDIANSHIP OF WOMEN I57 
 
 Law, only recently repealed, which prohibited 
 brothers of the half-blood from succeeding to one 
 another's lands. In the Customs of Normandy, 
 the rule applies to uterine brothers only, that is, 
 to brothers by the same mother but not by the 
 same father ; and, Umited in this way, it is a strict 
 deduction from the system of Agnation, under 
 which uterine brothers are no relations at all to 
 one another. When it was transplanted to Eng- 
 land, the Enghsh judges, who had no clue to its 
 principle, interpreted it as a general prohibition 
 against the succession of the half-blood, and 
 extended it to consanguineous brothers, that is 
 to sons of the same father by different wives. In 
 all the literature whch 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 
 exclusion of the half-blood. 
 
 It may be shown, I think, that the Family, as 
 held together by the Patria Potestas, is the nidus 
 out of which the entire Law of Persons has ger- 
 minated. 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 J this is the same thing as saying that it only 
 
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158 PRIMITIVE SOCIETY AND ANCIENT LAW [chap. ▼ 
 
 takes notice of persons exercising Patria Potestas, 
 and accordingly the only principle on which it 
 enfranchises 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 contrivance of archaic juris- 
 prudence for retaining her in the bondage of the 
 Family for Ufe. This is the institution known to 
 the oldest Roman law as the Perpetual Tutelage 
 of Women, under which a Female, though reheved 
 from her Parent's authority by his decease, con- 
 tinues subject through life to her nearest male 
 relations, or to her father's nominees, as her 
 Guardians. Perpetual Guardianship is obviously 
 neither more nor less than an artificial prolongation 
 of the Patria Potestas, when for other purposes 
 it has been dissolved. In India, the system 
 survives in absolute completeness, and its opera- 
 tion is so strict that a Hindoo Mother frequently 
 becomes the ward of her own sons. Even in 
 Europe, the laws of the Scandinavian nations 
 respecting 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 com- 
 
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CHAP.v] ANCIENT ROMAN MARRIAGE IgQ 
 
 pilations of Justinian to consult ; but the discovery 
 of the manuscript of Gains discloses it to us at a 
 most interesting epoch, just when it had fallen 
 into complete discredit and was verging on 
 extinction. The great jurisconsult himself scouts 
 the popular apology 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 expedients, some of them dis- 
 playing extraordinary ingenuity, which the Roman 
 lawyers had devised for enabling Women to defeat 
 the ancient rules. Led by their theory of Natural 
 Law, the jurisconsults had evidently at this time 
 assumed the equality of the sexes as a principle 
 of their code of equity. The restrictions which 
 they attacked were, it is to be observed, restrictions 
 on the disposition of property, for which the 
 assent of the woman's guardians was still formally 
 required. Control of her person was apparently 
 quite obsolete. 
 
 Ancient law subordinates the woman to her 
 blood-relations, while a prime phenomenon of 
 modern jurisprudence has been her subordination 
 to her husband. The history of the change 
 is remarkable. It begins far back in the annals 
 of Rome. Anciently, there were three modes in 
 which marriage might be contracted according 
 to Roman usage, one involving a religious solem- 
 nity, the other two the observance of certain 
 secular formaUties. By the reUgious marriage 
 or Confaneation ; by the higher form of civil 
 marriage, which was called Coemption ; and by 
 the lower form, which was termed Usus, the 
 Husband acquired a number of rights, over the 
 
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l6o PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 person and property of his wife, which were on 
 the whole in excess of such as are conferred on 
 him in any system of modern jurisprudence. But 
 in what capacity did he acquire them ? Not as 
 Husband, but as Father. By the Confarreation, 
 Coemption, and Usus, the woman passed in 
 manum viri, that is, in law she became the Daughter 
 of her husband. She was included in his Patria 
 Potestas. She incurred all the liabilities springing 
 out of it while it subsisted, and surviving it when 
 it had expired. All her property became abso- 
 lutely 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, gradually into disuse, so that at the 
 most splendid period of Roman greatness, they 
 had almost entirely given place to a fashion of 
 wedlock — old apparently, but not hitherto con- 
 sidered reputable — which was founded on a modi- 
 fication of the lower form of civil marriage. With- 
 out explaining the technical mechanism of the 
 institution now generally popular, I may describe 
 it as amounting in law to a little more than a 
 temporary deposit of the woman by her family. 
 The rights of the family remained unimpaired, and 
 the lady continued in the tutelage of guardians 
 whom her parents had appointed and whose 
 privileges of control overrode, in many material 
 respects, the inferior authority of her husband. 
 The consequence was that the situation of the 
 Roman female, whether married or unmarried, 
 became one of great personal and proprietary 
 independence, for the tendency of the later law, 
 as I have already hinted, was to reduce the power 
 
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CHAJ. vl CONDITION OF WOMEN l6l 
 
 of the guardian to a nullity, while the form of 
 marriage in fashion conferred on the husband 
 no compensating superiority. But Christianity 
 tended somewhat from the very first to narrow 
 this remarkable liberty. Led at first by justifiable 
 disrehsh for the loose practices of the decaying 
 heathen world, but afterwards hurried on by a 
 passion of asceticism, the professors of the new 
 faith looked with disfavour on a marital tie which 
 was in fact the laxest the Western world has seen. 
 The latest Roman law, so far as it is touched by 
 the Constitutions of the Christian Emperors, bears 
 some marks of a reaction against the liberal 
 doctrines of the great Antonine jurisconsults. 
 And the prevalent state of religious sentiment may 
 explain why it is that modern jurisprudence, forged 
 in the furnace of barbarian conquest, and formed 
 by the fusion of Roman jurisprudence with 
 patriarchal usage, has absorbed, among its rudi- 
 ments, 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 German and Sclavonic 
 immigrants remained superposed like a separate 
 layer above the Roman jurisprudence of their 
 provincial subjects, the women of the dominant 
 races are seen everywhere under various forms of 
 archaic guardianship, and the husband 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 systems, the law 
 
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1 62 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 relating to women carries the stamp of its double 
 origin. The principle of the Roman jurisprudence 
 is so far triumphant that unmarried females are 
 generally (though there are local exceptions to the 
 rule) relieved from the bondage of the family ; but 
 the archaic principle of the barbarians has fixed 
 the position of married women, and the husband 
 has drawn to himself in his marital character the 
 powers which had once belonged to his wife's male 
 kindred, the only difference being that he no longer 
 purchases his privileges. At this point therefore 
 the modern law of Southern and Western Europe 
 begins to be distinguished by one of its chief 
 characteristics, the comparative freedom it allows 
 to unmarried women and widows, the heavy 
 disabihties it imposes on wives. It was very long 
 before the subordination entailed on the other sex 
 by marriage was sensibly diminished. The prin- 
 cipal and most powerful solvent of the revived 
 barbarism of Europe was always the codified 
 jurisprudence of Justinian, wherever it was studied 
 with that passionate enthusiasm which it seldom 
 failed to awaken. It covertly but most effica- 
 ciously undermined the customs which it pre- 
 tended merely to interpret. But the Chapter of 
 law relating to married women was for the most 
 part read by the light, not of Roman, but of Canon 
 Law, which in no one particular departs so widely 
 from the spirit of the secular jurisprudence as in 
 the view it takes of the relations created by 
 marriage. This was in part inevitable, since no 
 society which preserves any tincture of Christian 
 institution is likely to restore to married women 
 the personal liberty conferred on them by the 
 
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CHAP. V] CONDITION OF WOMEN 163 
 
 middle Roman law, but the proprietary disabilities 
 of married females stand on quite a different basis 
 from their personal incapacities, and it is by the 
 tendency of their doctrines to keep aUve and 
 consolidate the former, that the expositors of 
 the Canon Law have deeply injured civiUsation. 
 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 aU 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 alw^ays 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 civilisation, have never had their 
 archaisms weeded out. The Danish and Swedish 
 laws, harsh for many centuries to all females, are 
 still much less favourable to wives than the 
 generality of Continental codes. And yet more 
 stringent in the proprietary incapacities it imposes 
 is the English Common Law, which borrows far 
 the greatest number of its fundamental principles 
 from the jurisprudence of the Canonists. Indeed, 
 the part of the Common Law which prescribes the 
 legal situation of married women may serve to 
 give an Englishman clear notions of the great 
 institution which has been the principal subject 
 
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164 PRIMITIVE SOCIETY AND ANCIENT LAW [chap. ▼ 
 
 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 EngUsh 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 Roman law on the subject of 
 Children under Power may be considered as 
 equivalent to the difference between the Common 
 Law and the jurisprudence of the Court of Chan- 
 cery 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 
 archaic law push to an extravagant length the 
 fiction of suspended rights, the rules which they 
 lay down for the Guardianship of Male Orphans 
 are an excimple 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 son who was delivered from Patria 
 Potestas by the death of his Father or Grandfather 
 remained under guardianship till an epoch which 
 for general purposes may be described as arriving 
 with his fifteenth year ; but the arrival of that 
 epoch placed him at once in the fuU enjoyment 
 
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CH*»- ▼] GUARDIANSHIP 165 
 
 of personal and proprietary independence. The 
 period of minority appears 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 
 pubUc or private convenience. The guardianship 
 of male orphans was no more designed 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 from 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. Accord- 
 ingly the Guardianship of Male Orphans was a 
 contrivance for keeping aUve the semblance of 
 subordination to the family of the Parent, up to 
 the time when the child was supposed capable of 
 becoming a parent himself. It was a prolonga- 
 tion of the Patria Potestas up to the period of 
 bare physical manhood. It ended with puberty, 
 for the rigour of the theory demanded that it 
 should do so. Inasmuch, however, as it did not 
 profess to conduct the orphan ward to the age of 
 intellectual maturity or fitness for affairs, it was 
 quite unequal to the purposes of general con- 
 venience ; and this the Romans seem to have 
 discovered at a very early .stage of their social 
 
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l66 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 progress. One of the very oldest monuments of 
 Roman legislation is the Lex LcBtoria 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 
 jvas required to validate their acts or contracts. 
 The twenty-sixth year of the young men's age 
 was the hmit 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. Pupil- 
 age, or wardship, in modern jurisprudence has 
 adjusted itself with tolerable regularity to the 
 simple principle of protection to the immaturity 
 of youth both bodily and mental. It has its 
 natural termination with years of discretion. But 
 for protection against physical weakness, and 
 for protection against intellectual incapacity, the 
 Romans looked to two different institutions, 
 distinct both in theory and design. The ideas 
 attendant on both are combined in the modem 
 idea of guardianship. 
 
 The Law of Persons contains but one other 
 chapter which can be usefully cited for our present 
 purpose. The legal rules by which systems of 
 mature jurisprudence regulate the connection of 
 Master and Slave, present no very distinct traces 
 of the original condition common to ancient 
 societies. But there are reasons for this exception. 
 There seems to be something in the institution of 
 Slavery which has at all times either shocked or 
 perplexed mankind, however little habituated to 
 reflection, and however sUghtly advanced in the 
 cultivation of its moral instincts. The compunc- 
 
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CHAP. T] SLAVERY 167 
 
 tion which ancient communities almost uncon- 
 sciously experienced appears 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 intellectual 
 inferiority of certain races, and their consequent 
 natural aptitude for the servile condition. The 
 Romans, in a spirit equally characteristic, derived 
 it from a supposed agreement between the victor 
 and the vanquished, in which the first stipulated 
 for the perpetual services of his foe, and the other 
 gained in consideration the Hfe 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 exer- 
 cised powerful influence in many ways. They 
 satisfied the conscience of the Master. They 
 perpetuated and probably increased the debase- 
 ment of the Slave. And they naturally tended to 
 put out of sight the relation in which servitude 
 had originally stood to the rest of the domestic 
 system. This relation, though not clearly ex- 
 hibited, is casually indicated in many parts of 
 primitive law, and more particularly in the 
 typical system — that of ancient Rome. 
 
 Much industry and some learning have been 
 bestowed 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 afiSrmative answer 
 must certainly be given. It is clear, from the 
 testimony both of ancient law and of many 
 
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r68 PRIMITIVE SOCIETY AND ANCIENT LAW [chap. » 
 
 primeval histories, that the Slave might under 
 certain conditions be made the Heir, or Universal 
 Successor, of the Master, and this significant 
 faculty, as I shall explain in the Chapter on Suc- 
 cession, impUes that the Government and repre- 
 sentation of the Family might, in a particular 
 state of circumstances, devolve 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 defensibihty of Negro-servitude at 
 the present moment. What then is meant by 
 saying that the Slave was originally included in 
 the Family ? Not that his situation 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 means of 
 ministering to one's own ease or pleasure is doubt- 
 less the foundation of Slavery, and as old as human 
 nature. When we speak of the Slave as anciently 
 included in the Family, we intend to assert nothing 
 as to the motives of those who brought him into 
 it or kept him there ; we merely imply that the 
 tie which bound him to his master was regarded 
 as one of the same general character with that 
 which united every other member of the group to 
 its 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 connection inter se of 
 individuals, apart from the relations of family. 
 The Family consisted primarily of those who be- 
 longed to it by consanguinity, and next of those 
 
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•="*'■ *J SLAVERY 169 
 
 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 subjects 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 inferiority of the Slave was 
 not such as to place him outside the pale of the 
 Family, or such as to degrade 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 highest degree to 
 hazard conjectures how far the lot of the Slave was 
 mitigated, in the beginnings of society, by having 
 a definite place reserved to him in the empire of 
 the Father. It is, perhaps, more probable that 
 the son was practically assimilated to the Slave, 
 than that the Slave shared any of the tenderness 
 which in later times was shown to the son. But 
 it may be asserted with some confidence of ad- 
 vanced and matured codes that, wherever servitude 
 is sanctioned, the Slave has uniformly greater 
 advantages under systems which preserve some 
 memento of his earUer condition than under those 
 which have adopted some other theory of his civil 
 degradation. The point of view from which juris- 
 prudence regards the Slave is always of great 
 importance to him. The Roman law was arrested 
 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. 
 
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170 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 wherever servitude is sanctioned by institutions 
 which have been deeply affected by Roman juris- 
 prudence, the servile condition is never intolerably 
 wretched. There is a great deal of evidence that 
 in those American States which have taken the 
 highly Romanised code of Louisiana as the basis 
 of their jurisprudence, the lot and prospects of 
 the Negro-population were better in many material 
 respects, until the letter of the fundamental law 
 was overlaid by recent statutory enactments 
 passed under the influence of panic, than under 
 institutions founded on the Enghsh Common 
 Law, which, as recently interpreted, 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 
 treatise, and the result of the inquiry is I trust, to 
 give additional definiteness and precision to our 
 view of the infancy of jurisprudence. The Civil 
 laws of States first make their appearance as the 
 Themistes of a patriarchal sovereign, and we can 
 now see that these Themistes are probably only 
 a developed form of the irresponsible commands 
 which, in a still earlier condition of the race, the 
 head of each isolated household may have ad- 
 dressed to his wives, his children, and his slaves, 
 But, even after the State has been organised, the 
 laws have still an extremely Umited apphcation. 
 Whether they retain their primitive character 
 as Themistes, or whether they advance to the 
 condition of Customs or Codified Texts, they are 
 binding not on individuals, but on FamiUes. 
 Ancient jurisprudence, if a perhaps deceptive 
 
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CHAP. V] DISINTEGRATION OF THE FAMILY I71 
 
 comparison may be employed, may be likened to 
 International Law, filling nothing, as it were, 
 excepting the interstices between the great groups 
 which are the atoms of society. In a community 
 so situated, the legislation of assemblies and the 
 jurisdiction of Courts reach only to the heads of 
 families, and to every other individual the rule 
 of conduct is the law of his home, of which his 
 Parent is the legislator. But the sphere 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 cognisance of the public 
 tribunals. The ordinances of the government 
 obtain 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 despot 
 enthroned by each hearthstone. We have in the 
 annals of Roman law a nearly complete history 
 of the crumbling away of an archaic system, and 
 of the formation of new institutions from the re- 
 combined materials, institutions some of which 
 descended unimpaired to the modern world, while 
 others, destroyed or corrupted by contact with 
 barbarism in the dark ages, had again to be re- 
 covered by mankind. When we leave this juris- 
 prudence at the epoch of its final reconstruction 
 by Justinian, few traces of archaism can be dis- 
 covered in any part of it except in the single 
 article of the extensive powers still reserved to 
 the living Parent. Everywhere else principles 
 
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172 PRIMITIVE SOCIETY AND ANCIENT LAW [chap, v 
 
 of convenience, or of sjnnmetry, or of simplifica- 
 tion — new principles at any rate — ^have usurped 
 the authority of the jejune considerations which 
 satisfied the conscience of ancient times. Every- 
 where a new morality has displaced the canons of 
 conduct and the reasons of acquiescence which 
 were in unison with the ancient usages, because 
 in fact they were bom of them. 
 
 The movement of the progressive societies has 
 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 Indi- 
 vidual is steadily substituted for the Family, as 
 the unit of which civil laws take account. The 
 advance has been accomplished at varying rates 
 of celerity, and there are societies not absolutely 
 stationary in which the collapse of the ancient 
 organisation can only be perceived by careful 
 study of the phenomena they present. But, 
 whatever its pace, the change has not been subject 
 to reaction or recoil, and apparent retardations 
 win 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 history, from a condition of society 
 in which aU the relations of Persons are summed 
 up in the relations of Family, we seem to have 
 steadily moved towards a phase of social order 
 in which aU these relations arise from the free 
 
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CHAP. V] FROM STATUS TO CONTRACT 1 73 
 
 agreement of Individuals^ In Western Europe 
 the progress achieved in this direction has been 
 considerable. Thus the status of the Slave has 
 disappeared — ^it has been superseded by the con- 
 tractual relation of the servant to his master. 
 The status of the Female under Tutelage, if the 
 tutelage be understood of persons other than 
 her husband, has also ceased to exist ; from her 
 coming of age to her marriage all the relations she 
 may form are relations of contract. So too the 
 status of the Son under Power has no true place 
 in the law of modem European societies. If any 
 civU obligation binds together the Parent and the 
 child of fuU age, it is one to which only contract 
 gives its legal vaHdity. 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 aU their capacities and incapacities regulated 
 by the Law of Persons. But why ? The reason 
 is differently expressed in the conventional lan- 
 guage of different systems, but in substance it 
 is stated to the same effect by aU. The great 
 majority 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 I 
 of an engagement 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 
 
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174 NOTES [CHAP.* 
 
 of Status taken notice of in the Law of Persons 
 were 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 
 appljdng the term to such conditions as are the 
 immediate or remote result of agreement, we may 
 say that 'the movement of the progressive societies 
 has hitherto been a movement from Status to 
 Contract. , 
 
 NOTE I 
 
 MONTESQUIEU, BENTHAM, AND HISTORICAL METHOD 
 
 Maine's judgment of Montesquieu is, in effect, that, notwith 
 standing inevitable defects of method and some individual faults, 
 he came nearer than any other man to founding the historical and 
 comparative study of institutions. It is true, as Sir Courtenay 
 Ilbert has said in a fuller criticism (" The Romanes Lecture : 
 'Montesquieu,'" Oxford, 1904), that "his appreciation of the 
 historical method was imperfect, and his application of it defective " : 
 at the same time his work " prepared for and gave an enormous 
 stimulus to those methods of study which are now recognized as 
 indispensable to any scientific treatment either of Law or of Politics " 
 {oj>. cit. pp. 35-6). 
 
 In 1903, on quitting the chair which I had the honour of holding 
 in succession to Maine at Oxford, I thus endeavoured to sum up 
 Montesquieu's relation to these studies : — 
 
 " If we hesitate to call him the founder, it is only because neither 
 his materials nor his methods of execution were adequate to do 
 iustice to his ideas. He aimed (if I may repeat my own words, 
 first written many years ago) at constructing a comparative theory 
 of legislation and institutions adapted to the political needs of 
 different forms of government, and a comparative theory of politics 
 and law based on wide observation of the actual systems of 
 different lands and ages. Hobbes was before him in realising that 
 history is not a series of accidents, but Montesquieu was the first 
 of the modems to proclaim that a nation's institutions are part of 
 its history, and must be considered as such if we are to understand 
 them rightly. Much of his history is sound, and many of his 
 judgments are admirable. Yet he failed to construct a durable 
 
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CHAP. V] NOTES 175 
 
 system, and 'L'Esprit des Lois' cannot even be called a systematic 
 book. The materials were still too scattered and uncertain to be 
 safely handled on Montesquieu's grand scale. Perhaps he would 
 have done better to confine himself to Western Europe. The main 
 defects of his method may be reduced, I think, to two. First, he 
 overrated the influence of climate and other external conditions, 
 and underrated, if he did not wholly neglect, the effects of race and 
 tradition. Next, he had not even an inkling of what is now a 
 fundamental rule of this kind of enquiry: namely, that there is 
 a normal course of development for communities as well as for 
 individuals, and that institutions which belong to different stages 
 are not commensurable terms in any scientific comparison. This is 
 as much as to say that even Montesquieu could not wholly escape 
 from the unhistorical dogmatism of his time. It is perhaps a minor 
 drawback that he constantly seeks for reasons of deliberate policy 
 to account for seemingly eccentric features of outlandish customs, 
 rightly or wrongly reported by missionaries or others, instead of 
 endeavouring to connect them with their historic and racial sur- 
 roundings. But the result is that many chapters of his great work 
 amount, taken by themselves, to little more than collections of 
 anecdotes and conjectures in which the most incongruous elements, 
 such as the customs of China and the laws of Spain, are brought 
 together at random. Also Montesquieu is not free from the very 
 common error, especially prevalent in the eighteenth century, of 
 attributing a constant and infallible efficacy to forms of govern- 
 ment. In short, Montesquieu saw the promised land afar off, but 
 was not equipped for entering it. I do not wish to be understood 
 as affecting to find any fault with him. The greatness of 
 Montesquieu's conception was his own, and the shortcomings in 
 execution were at the time necessary, or at least natural " ("The 
 History of Comparative Jurisprudence, a farewell Public Lecture " : 
 Joum. Soc. Comp. Legisl., 1903, at pp. 83-4). 
 
 The " historical theory " ascribed to Bentham (p. 127) seems 
 to be not quite so unfruitful as Maine's criticism supposes. If 
 it is said that societies modify their laws according to modifica- 
 tions of their views of general expediency, this must mean views 
 formed by actual observation and experience, as opposed to the 
 application of dogmatic or traditional rules ; and it must be implied 
 that such views have a greater part in the changes of legal 
 institutions than is avowed, or perhaps realised, by the actors and 
 promoters. Doubtless Bentham underrated the power of tradition 
 and custom. Probably he underrated it very much in the case of 
 archaic societies. But his proposition, understood as above 
 explained, is a substantial one and capable of discussion. It is not 
 reducible to the truism that people make changes because they 
 think change expedient, or in other words because they desire 
 change ; it signifies that the reasons professed or admitted for 
 making particular changes are often not the real or the most 
 operative reasons. Apparently the passages to which Maine alludes 
 are scattered about various works of Bentham's and not expressed 
 in clear or positive terms ; it therefore does not seem practicable, 
 
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176 
 
 NOTES [CHAP. T 
 
 in the absence of any specific reference, to identify them. But it 
 was obviously natural for Bentham, with his thoroughgoing- con- 
 viction that all ethical problems can be solved by the utilitarian 
 calculus, to maintain that in fact the greater part of mankind are 
 utilitarians without knowing it. 
 
 Maine's claim of scientific validity for the historical treatment of 
 jurisprudence (p. 128) is now disputed by no one; indeed, if we 
 now find any difficulty, it is in remembering that in 1861 it was 
 still novel, and that its champion at that time had need of much 
 insight and some boldness. His precepts as to the need of observing 
 the caution approved by experience in other kinds of scientific 
 enquiry, beginning with the best evidence and working gradually 
 firom what is known to what is obscure or unknown, are still in 
 full force, and might easily be illustrated by the failure of ambitious 
 reconstructions of later date whose authors have neglected them. 
 
 NOTE K 
 
 THE PATRIARCHAL THEORY 
 
 In the preface to the tenth edition, reprinted in all subsequent 
 issues, Maine himself referred to the chapter on Theories of 
 Primitive Society in "Early Law and Custom." The note on the 
 Gens in the same volume (p. 286 sqq.) should also be consulted. 
 In 1886 Maine replied in the Quarterly Review to the criticisms 
 of the McLennan brothers (Q.R., vol. 162, p. 181) ; no secret was 
 made of the authorship, though the practice of the Review, as it 
 then stood, did not allow signature or public acknowledgment. It 
 should be noted that the supposed ancient Slavonic poem cited at 
 p. 196 of this article is a modem forgery : see Kovalevsky, 
 "Modem Customs and Ancient Laws of Russia," p. 5. The last- 
 named learned author made fuller contributions to the subject in 
 his lectures delivered and published in French at Stockholm 
 (" Tableau des origines et de revolution de la famille et de la 
 propriety," 1890: some account of this book, which may not be 
 easily accessible in England, was given in the Saturday Review of 
 October 18 and 25, 1890). Still later Dr. Kohler of Berlin has 
 dealt systematically with the whole topic of archaic marriage and 
 kinship, following and applying Morgan's doctrine with less reserve 
 than Lord Avebury and Dr. Tylor, who do not accept Morgan's 
 inferences ("Zur Urgeschichte der Ehe: Totemismus, Gruppenehe, 
 Mutterrecht," reprinted from " Ztschr. fur vergleichende Rechts- 
 wissenschaft," Stuttgart, 1897 • ^.nd see a more summary statement 
 by the same learned author in the " Encyklopadie der Rechtswissen- 
 schaft," re-edited by him in 1904, vol. i, pp. 27 sqq.). Most English 
 readers, however, will find in the latest edition (1902) of Lord 
 Avebury's " Origin of Civilisation," and in Dr. E. B. Tylor'f article 
 on the Matriarchal Family System, Nineteenth Centurj i. 81 
 
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CHAP. V] NOTES 177 
 
 (1896), and in Mr. Andrew Lang's "The Secret of the Totem" 
 (1905), the easiest and certainly not the least profitable guides, 
 among writings published since Maine's death, to what is now 
 known or conjectured in this extremely difScult inquiry. 
 
 Much trouble and confusion might have been saved if Maine had 
 in the first place expressly confined his thesis, as for all practical 
 purposes it was confined, to the Indo-European family of nations. 
 Herbert Spencer, whose courteous treatment of "Ancient Law" 
 set a good example not always followed, gave a hint of this long 
 ago. When Maine wrote " Ancient Law " there were no trustworthy 
 materials for dealing with the social history of other races on a 
 large scale. It is certain that from the earliest times at which we 
 have any distinct knowledge of Indo-European society we find 
 families — or communities which may be considered as expanded 
 families — tracing descent through males, and living under the 
 authority, more or less tempered by custom, of the eldest male 
 ascendant. The worship of ancestors in the male line is of extreme 
 antiquity in every branch of the stock; it is in full force at this 
 day among the Hindus, and there are quite recent traces of it 
 elsewhere. This is enough for the historian of Indo-European 
 institutions ; for the remaining evidences of a different earlier 
 system are mere survivals at best, and of no importance for any 
 subsequent development, however interesting they may be for 
 prehistoric anthropology. My own judgment, so far as I have 
 been able to form one, is that many of them are no better than 
 ambiguous. Further, it is to be observed that local survivals of 
 " matriarchal " institutions, where their existence is made out, may 
 quite possibly not be Indo-European at all, but belong to the 
 customs of the non-Aryan tribes who were subdued by Aryan 
 invaders in India, or in Eastern Europe, or in the Mediterranean 
 countries. We have been asked to regard the Erinyes prosecuting 
 Orestes for matricide as the champions of a more ancient " mother- 
 right " against the paternal system : as if the natural tendency of 
 that system were to treat matricide as venial. Surely the question 
 whether the son is bound to take up the father's blood-feud even 
 against his own mother is hard enough to make a dramatic problem 
 under any system which admits private vengeance at all. But in 
 any case the Erinyes were autochthonous deities, looking on the 
 gods of Olympus as intruders (roiavra Spacrw oi vei>T€poi Oeoi). If 
 their failure in the suit against Orestes is a symbol of anything, 
 it may well symbolise the triumph of Hellenic over aboriginal 
 customs. The existence of non-Aryan elements in the Mycenaean 
 and even the later historical civilisation of Greece is accepted for 
 independent reasons by some of our best archaeologists (P. Gardner 
 in Eng. Hist. Rev. xvi. 744). Again (to take a Semitic example) 
 we are told that Gideon avenged the sons of his mother upon the 
 kings of Midian (Judges viii. 19). But there was no one else 
 
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178 NOTES [CHAP. T 
 
 to do it, asd the men of Israel who, as we read only a few verses 
 below, said unto Gideon : " Rule thou over us, both thou and 
 thy son, and thy son's son also," were certainly familiar with 
 succession through males. The German, Scandinavian, and Celtic 
 tribal customs as disclosed in the earliest known history of those 
 branches appear to be thoroughly paternal, though not without 
 traces of preference for relatives on the mother's side.' Summing up 
 the results, Dr. Tylor says (Nineteenth Century, xl. 04) : " There 
 is no proof that at any period the maternal system held exclusive 
 possession of the human race, but the strength with which it kept 
 its ground may be measured by its having encompassed the globe 
 in space, and lasted on from remote antiquity in time." For 
 different views as to the significance of some archaic Indo-European 
 customs, see J. D. Mayne in L.Q.R. i. 485, 494, and Kovalevsky, 
 " Droit coutumier Ossetien,'' Paris, 1893, p. 181. It is no doubt 
 possible, as suggested by Mr. Kovalevsky, that survivals from an 
 earlier system may be maintained under a later one for reasons 
 different from the original ones. But if patriarchal reasons are 
 enough to account for the custom as we find it, we can hardly 
 assume that in a given case it was formerly matriarchal, merely 
 because for all we know it might have been. This would be to 
 assume the very thing to be proved, namely that the society in 
 question was in fact maternal at some earlier time. 
 
 On the whole the safest opinion appears at present to be that 
 the Indo-European race may have gone through a stage of " matri- 
 archy" at some remote time, but at any rate before the great 
 migration which dispersed the several branches. This was Ihering's 
 conclusion in his brilliant posthumous work, " Vorgeschichte der 
 Indo-Europaer " (p. 40 of Eng. tr., 62 of original). It would seem, 
 again, that the transformation, if such a transformation there was, 
 must not only have taken place very early, but must have been 
 singularly rapid and complete. Thus we are brought face to face 
 with Maine's original problem : How and why did the Indo-Euro- 
 peans become progressive ? In this connexion I cannot forbear 
 from citing some profitable words of my lamented friend Professor 
 F. W. Maitland, though their immediate subject-matter is the history 
 not of the family but of property. 
 
 " Even had our anthropologists at their command material that 
 would justify them in prescribing a normal programme for the 
 human race and in decreeing that every independent portion of 
 mankind must, if it is to move at all, move through one fated series 
 of stages which may be designated as Stage A, Stage B, Stage C, 
 
 1 It is now admitted that marriage by capture was part of the earUest Germanic 
 law, but it is very doubtful whether it survived the introduction of Christianity in 
 England. The Anglo-Saxon bride-price appears to have been paid not for the 
 wife's person but for the rights of wardship (Hazehine, " Zur Geschichte der 
 Eheschliessung nach angelsachsischem Recht," Berlin, 1905). 
 
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CHAP. ▼] NOTES 179 
 
 and so forth, we still should have to face the fact that the rapidly 
 progressive groups have been just those which have not been 
 independent, which have not worked out their own salvation, but 
 have appropriated alien ideas and have thus been enabled, for 
 an)rthing that we can tell, to leap from Stage A to Stage X witli- 
 out passing through any intermediate stages. Our Anglo-Saxon 
 ancestors did not arrive at the alphabet, or at the Nicene Creed, 
 by traversing a long series of ' stages ' ; they leapt to the one and 
 to the other (" Domesday Book and Beyond," p. 345). 
 
 The accident of borrowing one alphabet rather than another, or 
 in one stage rather than another, may determine the affinities of 
 a literature and a civilization for many generations. All the 
 tendency of modem research is to show that deliberate imitation 
 was earlier, easier, and commoner than scholars formerly supposed ; 
 and that people will imitate pretty odd things is amply shown by 
 modem experience. 
 
 Maine was not the first to discover that the ancient Indo-European 
 tribe or city, as the case may be, is an expanded family with the 
 tie of actual kindred supplemented, so far as needful to keep the 
 community together, by adoption or even by bolder fictions ; indeed, 
 the conception is in its essential points as old as Aristotle. But he 
 was, I think, the first to call attention in an adequate manner to the 
 general existence and importance of this feature in archaic society. 
 His view has been strikingly confirmed by the researches in the 
 history of Slavonic institutions which are mentioned in " Early 
 Law and Custom" under the head of East European House 
 Communities. The family element in the Indo-European com- 
 munity has now and then been unduly suffered to drop out of sight. 
 Thus the exclusiveness of the archaic village or township is simply 
 and adequately explained as the exclusiveness of a community 
 which had been or pretended to be a clan, and no deeper mystery 
 need be sought in the much discussed Salic rule De Migrantibus. 
 
 Maine's original thesis was further developed by himself in the 
 lecture on Kinship as the Basis of Society in " The Early History 
 of Institutions," pp. 64 sqq. 
 
 It is impossible here, and I hardly think it would be relevant if 
 possible, to enter at large on discussion of the " matriarchal " 01, 
 as Dr. Tylor prefers to call it, maternal family system. But it may 
 be pointed out that, whatever else it is or has been, primitive it is 
 not. It goes along with an elaborate and complex nomenclature 
 of kindred and affinity, of which the interpretation is much dis- 
 puted,' and often though not always with other usages of the 
 
 ' J. F. McLennan's opinion, whicli he intended to develop farther and prove in 
 detail, was that this classification had nothing to do with consanguinity, but was 
 a system of modes of salutation ; and this is also maintained by Dr. Westermarck. 
 Morgan, on the other hand, would allow no merit to McLennan's work and 
 thought the term " exogamy," now generally adopted, useless. Professor Kohler, 
 
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t8o notes [chap. V 
 
 most artificial kind, of which the explanation is no less con- 
 jectural, and as obscure to the modem historian as the facts to be 
 explained are repugnant to modem civilized manners. Dr. Tylor 
 has observed that its real characteristic point is the continuance of 
 the wife in her own family, who do not lose her property or the 
 value of her work, and gain the husband's alliance. If these or 
 such-like politic motives were the true determining causes of 
 " matriarchy" — and Dr. Tylor makes out a case which is none the 
 less strong for being simple and using the general known materials 
 of human nature instead of hypothetical superstitions — we are a 
 long way off from primitive man, and the problem of what came 
 before all this remains open. Here Maine's appeal to the Homeric 
 description of the savage (not merely barbarous) Cyclopes is 
 probably nearer to the truth than the state of promiscuity — surely 
 the least likely state of nature ever heard of — which some anthro- 
 pologists have postulated. At any rate it has, in substance, Dr. 
 Tylor's support. "The claim of the patriarchal system to have 
 belonged to primitive human life has not merely long acceptance 
 in its favour, but I venture to think that those who uphold it have 
 the weight of evidence on their side, provided that they do not 
 insist on its fully developed form having at first appeared, but are 
 content to argfue that already in the earliest ages the man took his 
 wife to himself, and that the family was under his power and 
 protection, the law of male descent and all that belongs to it 
 gradually growing up afterwards on this basis. . . . Among the 
 great ancient and modem nations within the range of history, the 
 paternal system becomes so dominant as to be taken for granted, 
 and the existence of any other rule seems extraordinary" 
 ( Nineteenth Century, xl. 84, 85). So far as the evidence has gone, 
 the maternal system appears to be unstable when people who live 
 under it come into contact with paternal families : in such cases 
 the husband's predominance pretty soon begins to assert or re- 
 assert itself. It is also remarkable that a received custom so lax 
 as not to seem to civilized administrators fit to rank as any kind 
 of marriage law has been found compatible with fairly strict 
 monogamy in practice (on both these points see H. H. Shephard, 
 " Marriage Law in Malabar," L.Q.R. viii. 314). It seems fairly 
 certain that both the frequency and the importance of polyandry 
 have been exaggerated, and that, where it occurs, it can be 
 explained, by those who regard "group-marriage" as proved, 
 as a limiting case of group-marriage determined by special 
 
 and less decidedly Mr. Kovalevsky, are, I believe, the only recent authors pre- 
 pared to accept as a whole the consequences drawn by Morgan himself from the 
 " classificatory " system. Subject to what McLennan might have added if he had 
 lived, his particular line of objection just mentioned does not seem sufficient. Mr. 
 Andrew Lang's conclusions are about equally remote from both schools . 
 
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CHAP. V] NOTES l8l 
 
 conditions. Thus we are rather led to regard the maternal system 
 as a product of social necessities, not yet very well understood, 
 which, although they have prevailed at some time in many or 
 most inhabited parts of the world, may be fairly called abnormal 
 with respect to the most original and persistent instincts of 
 mankind as a species. When the maternal is supplanted by 
 the paternal society, those instincts come to their own again in 
 surroundings that no longer demand the highly artificial discipline 
 of matriarchy. Much more evidence is needed both as to the 
 origins of the maternal family, and as to the causes and manner 
 of its transformation into the paternal type, before anything like 
 a comprehensive statement can be made. We should remember that, 
 as Professor Maitland says, continuing the passage already quoted, 
 "we are learning that the attempt to construct a normal pro- 
 gramme for all portions of mankind is idle and unscientific." 
 Probably no one would now maintain that either marriage by capture 
 or matriarchy is primitive. Any such position is formally disclaimed, 
 for example, by a recent learned and ingenious author. Dr. Richard 
 Hildebrand, " Recht und Sitte auf den verschiedenen Kulturstufen," 
 i'" Teil, Jena, 1896. It is perhaps needless at this day to refute 
 the formerly current opinion that the customs of savages are the 
 result of degradation from a more ancient state of innocence or 
 civilization. Partial backsliding into barbarism over a considerable 
 range of both time and space is of course possible, as shown in the 
 decline of the Roman and the Mogul empires. But tiying to 
 account for the systems of kinship (if it is kinship) investigated 
 by Morgan as fallings off from monogamy or patriarchal polygamy 
 is, if I may repeat an illustration I have already used in an earlier 
 note, like expecting to find chalk under granite. 
 
 Finally Mr. Lang, in "The Secret of the Totem," agreeing in 
 the main with Darwin on this point, wholly rejects the hypothesis 
 of a promiscuous horde having been the earliest state of human 
 life, and holds that "men, whatever their brutal ancestors may 
 have done, when they became men indeed, lived originally in small 
 anonymous local groups, and had, for a reason to be given " — the 
 jealous despotism of the eldest male, as is explained in a later 
 chapter— "the habit of selecting female mates from groups not 
 their own." McLennan' s explanation of exogamy is dismissed 
 as wholly inadequate, and the facts supposed by Morgan and his 
 school to establish a general epoch of "group-marriage" are 
 treated as exceptional and belonging to a relatively advanced stage. 
 I do not presume to appreciate Mr. Lang's theory, or make any 
 critical comparison of it with those of other anthropologists who 
 differ widely from Mr. Lang and from one another. But it is 
 legitimate to observe that Mr. Lang, as well as Dr. Tylor, appears 
 to justify Maine's opinion as to the primitive character of the 
 Cyclopean family, and that it is less plausible now than it wp.s 
 
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l82 NOTES [CHAP. V 
 
 twenty years ago to regard Maine as an old-fashioned literary 
 scholar standing out against the lights of modem research. No 
 doubt Maine, when he wrote "Ancient Law," conceived the tran- 
 sition from the savagery of the Cyclops to the archaic civilisation 
 of a Roman paterfamilias under the Kings o'r the early Republic 
 as having been a far more direct and simple process than we can 
 at this day think probable. This is so common an incident of 
 historical speculation, in the absence of full and trustworthy 
 material, that there is nothing in it to derogate from Maine's 
 credit. 
 
 With regard to the extreme form of paternal power which, as 
 Maine says (p. 142), we may conveniently call by its later Roman 
 name of Patria Potestas, it is not clear that it is a mere incident of 
 family headship. Some competent persons, such as Mr. Kovalevsky, 
 hold it to be derived from the notion that the wife is the husband's 
 property, and therefore her offspring must be in his power too. If 
 this be so, the right, being proprietary and not merely social, would 
 belong exclusively to Private Law, and the " maxim of Roman 
 jurisprudence that the Patria Potestas did not extend to the Jus 
 Publicum" would be strictly logical as well as politic. But some, 
 again, think that the paternal family itself was developed through 
 marriage by capture or purchase, causing the wife so acquired to 
 be regarded as the husband's chattel (Kohler, " Encykl. der Rechts- 
 wissenschaft," i. 30, 33 ; " Das Vaterrecht entwickelt sich . . . 
 zunachst als Herrschaftsrecht : der Ehemann ist Herr der Frau 
 und damit Herr ihref Frucht "). Not that lordship in a rudimentary 
 society can safely be identified with our modem legal ownership. 
 Dominus is an ambiguous word except in strict Roman law. At all 
 events we cannot disregard the testimony of Gains that the Patria 
 Potestas of the Roman family law was, in the time of Hadrian, 
 singular among the Mediterranean nations ; and, so far as we know 
 anything of the provincial customs of the empire, they seem to 
 have been not less but more archaic than the law of Rome. The 
 responsibilities of the Roman paterfamilias, on the other hand, are 
 not distinguishable in character or extent from those of the patriarch 
 in other Indo-European family systems. 
 
 Another reason against regarding the Roman Patria Potestas as 
 of the highest antiquity is that at an earlier time the paterfamilias 
 was regarded not as owner, but as an administrator of the 
 family property which in some sense already belonged to the heirs 
 as well as himself. Indeed, this idea survived as late as the 
 classical ages of Roman law in the untranslatable term of art sui 
 heredes, of which " necessary heirs " is perhaps the most tolerable 
 rendering, and the comments of the jurists upon it (Paulus in D. 28, 
 2, de liberis eiposiumis, 11, cited by Holmes, " The Common Law," 
 p. 342). We are fully confitmed in this by the history of the Hindu 
 Joint Family. In Bengal the change from the position of an 
 
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CHAP. V] NOTES 183 
 
 administrator with large powers to that of an owner is known to 
 have taken place in relatively modem times. 
 
 Finally, I venture to ifecord, for what it may be worth, my 
 impression that recent inquirers, with the notable exception of 
 Mr. J. G. Frazer, have somewhat neglected the part of superstitions 
 and magical or pseudo-scientific beliefs in the formation of social 
 customs. There is no presumption whatever that the true ex- 
 planation of any savage practice is that which to us appears most 
 reasonable or natural. The fundamental difiference between 
 religion and magic has been explained by Lord Avebury and Sir 
 Alfred Lyall. Religious offerings and ceremonies, apart from the 
 higher ethical and philosophical developments of advanced theology, 
 seek to propitiate supernatural powers, magical ritual to control 
 both natural and supernatural agencies. The priest is, in the 
 current phrase, a minister, that is to say a servant of whatever 
 gods he worships ; he begs their peace and alliance with tribute 
 in his hand. The magician or wizard acts as a master ; he aims 
 at using the secrets of nature, or commanding for his own use 
 or that of his clients, and at his own will, the " armies of angels 
 that soar, legions of demons that lurk." Solomon's seal is 
 magical, his dedication of the temple is religious. The facts that 
 magic and religion are often intermixed, and that the priest is 
 very apt to revert to the position of a mere thaumaturgist, do not 
 appear to alter the importance of the distinction. But this has 
 little, if anything, to do with the present subject 
 
 NOTE L 
 
 STATUS AND CONTRACT 
 
 Maine's now celebrated dictum as to the movement from Status 
 to Contract in progressive societies is perhaps to be understood as 
 limited to the law of Property, taking that term in its widest 
 sense as inclusive of whatever has a value measurable in ex- 
 change. With that limitation the statement is certainly just, and 
 has not ceased to be significant. The movement is not yet com- 
 plete, for example, in England, where the emancipation of married 
 women's property has been proceeding in a piecemeal fashion for 
 more than a generation, and is at present in a transitional state 
 capable not only of raising hard questions but of producing, within 
 a few years, decisions not easy to reconcile. As regards the actual 
 definition of different personal conditions, and the more personal 
 relations incidental to them, it does not seem that a movement 
 from Status to Contract can be asserted with any generality. For 
 example, the tendency of modern legislation has been to make the 
 dissolution of marriage less difiScult, and in some jurisdictions this 
 has gone very far. But it has nowhere been enacted, and I do not 
 think any legislator has yet seriously proposed, that the parties 
 
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i84 
 
 NOTES [CHAP. 
 
 shall be free to settle for themselves, by the terms of the marriage 
 contract, whether the marriage shall be dissoluble or not, and if so, 
 on what grounds. Assimilation of marriage, as a personal relation, 
 to partnership is not within the scope of practical jurisprudence. 
 Again, a minor who has attained years of discretion cannot 
 advance or postpone the date of his full age by contract with his 
 parent or guardian, and we do not hear of any one proposing to 
 confer such a power. The test which Maine suggests as alone 
 justifying the preservation of disabilities — that the persons con- 
 cerned do not possess the faculty of forming a judgment on their 
 own interests — will hardly be received as adequate for either of the 
 cases just put. In fact, the interests which these rules of law 
 regard are not those of the parties alone. Paramount considera- 
 tions of the stability of society, or the general convenience of third 
 persons, override the freedom usually left to parties in their own 
 affairs. The law of persons may be and has been cut short ; 
 but, so long as we recognise any differences at all among persons, 
 we cannot allow their existence and nature to be treated merely as 
 matter of bargain. Status may yield ground to Contract, but 
 cannot itself be reduced to Contract. On the other hand Contract 
 has made attacks on Property which have been repulsed. There 
 was a time in the thirteenth century during which it seemed as if 
 there was no rule of tenure that could not be modified by the agree- 
 ment of parties. Our settled rules that only certain defined forms of 
 interest in property can be created by private acts, our rule against 
 perpetuities, are the answer of the Common Law to attempts to 
 bring everything under private bargain and control. The import- 
 ance of Contract in the feudal scheme of society is pointed out 
 by Maine himself in this book, ch. ix ad fin. (cp. Pollock and 
 Maitland, "H.E.L." ii. 230). 
 
 One department of the law of Persons is increasing, not diminish- 
 ing, in importance, namely the law of corporations or " moral persons." 
 We are beginning to find that the law cannot afford to ignore col- 
 lective personality — that of a trade union, for example — where fact 
 and usage have conferred a substantially corporate character on a 
 more or less permanent social group. Modern company law is 
 largely, no doubt, a law of contract ; but of contract whose action is 
 regulated and modified at every turn by the fact that one of the 
 chief parts is bom by a corporate and not an individual person. 
 
 Maine guarded his position, however, to a considerable extent in 
 the final words of this chapter, for he seems not to include 
 Marriage — at all events marriage among Western nations, which 
 is preceded by and results from agreement of the parties — under 
 the head of Status. And, if the term is thus restricted, the gravest 
 apparent exception to Maine's dictum is removed. This, of course, 
 involves a sensible narrowing of the term Status, a much discussed 
 term which, according to the best modem expositions, includes the 
 sum total of a man's personal rights and duties (Salmond, " Juris- 
 
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<=HAP- ^] NOTES 185 
 
 prudence," 1902, pp. 253-j'), or, to be verbally accurate, of his 
 capacity for rights and duties (Holland, "Jurisprudence," 9th ed. 
 p. 88). It is curious that the word " estate," which is nothing but 
 the French form of " status," should have come to stand over against 
 it in an almost opposite category. A man's estate is his measurable 
 property ; what we call his status is his position as a lawful man, 
 a voter, and so forth. The liability of every citizen to pay rates 
 and taxes is a matter of status; what a given citizen has to pay 
 depends on his estate, or portions of it assigned as the measures of 
 particular imposts. We have, too, an " estate " in land, which so 
 far preserves the original associations of " status " that, as we have 
 just noted, contract may not alter its incidents or nature. Again, 
 as Professor Maitland has pointed out (Introduction to Gierke's 
 "Political Theories of the Middle Age," Camb. 1900, p. xxv), the 
 Roman Status has also become the State of modern public law, and 
 in that form has refused to be reduced to a species of contract by the 
 ingenious efforts of individualist philosophers, notwithstanding the 
 widespread acceptance of the Social Contract for a century or more. 
 It is not clear how far Maine regarded the movement of which 
 he spoke as a phase of the larger political individualism which pre- 
 vailed in the eighteenth century and great part of the nineteenth, 
 or what he would have thought of the reaction against this doctrine 
 which we are now witnessing. At all events the questions at issue 
 between publicists of various schools as to the proper limits of State 
 interference with trade, or of State and municipal enterprise, do not 
 seem to have much to do with simplifying the tenure and transfer of 
 property, nor with removing obsolete personal disabilities. 
 
 ProfessorDiceysaysindeed("Lawand Public Opinion in England," 
 p. 283) that " the rights of workmen in regard to compensation for 
 accidents have become a matter not of contract, but of status." 
 But many other kinds -of contracts have long had incidents 
 attached to them by law, and those incidents are not always subject 
 to be varied at the will of the parties. A mortgagor cannot enter 
 into an agreement with the mortgagee which has the effect of 
 making the mortgage irredeemable, or even tends that way by 
 " clogging the equity of redemption." It would be a strong thing 
 to say that this peculiar doctrine of English courts of equity has 
 created a status of mortgagors. 
 
 The Trade Disputes Act, 1906, passed since this note was first 
 published, may certainly be said to have conferred a new and 
 unexampled status on combinations of both employers and workmen 
 by exempting them in several respects from the operation of the 
 general law ; but the obligation of contracts is not directly affected, 
 and it remains to be seen whether the Act represents any general 
 movement of legislative ideas, or anything else than the pressure of 
 very powerfiil interests astutely applied at a critical moment. On 
 one or two points it only confirms what was already the better 
 supported opinion. 
 
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CHAPTER VI 
 
 THE EARLY HISTORY OF TESTAMENTARY 
 SUCCESSION 
 
 If an attempt were made to demonstrate in 
 England the superiority of the historical method 
 of investigation to the modes of inquiry concerning 
 Jurisprudence which are in fashion among us, 
 no department of Law would better serve as an 
 example than Testaments or Wills. Its capabili- 
 ties it owes to its great length and great continuity. 
 At the beginning of its history we find ourselves 
 in the very infancy of the social state, surrounded 
 by conceptions which it requires some effort of 
 mind to realise in their ancient form ; while here, 
 at the other extremity of its line of progress, we 
 are in the midst of legal notions which are nothing 
 more than those same conceptions 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 
 everyday mental stock can really stand in need 
 of analysis and examination. The growth of the 
 Law of WUls between these extreme points can 
 be traced with remarkable distinctness. It was 
 much less interrupted at the epoch of the birth of 
 feudaUsm, than the history of most other branches 
 of law. It is, indeed, true that as regards all 
 
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CHAP. VI] INFLUENCE OF THE CHURCH 187 
 
 provinces of jurisprudence, the break caused by 
 the division between ancient and modern history, 
 or in other words by the dissolution of the Roman 
 Eitipire, has been very greatly exaggerated. In- 
 dolence has disinclined many writers to be at the 
 pains of looking for threads of connection entangled 
 and obscured by the confusions of six troubled 
 centuries, while other inquirers, not naturally 
 deficient in patience and industry, have been misled 
 by idle pride in the legal system of their country, 
 and by consequent unwillingness to confess its 
 obligations to the jurisprudence of Rome. But 
 these unfavourable influences have had compara- 
 tively httle 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 settlements on the 
 edge of the Roman Empire. But soon after they 
 became mixed with the population of the Roman 
 provinces they appropriated from the Imperial 
 jurisprudence the conception of a Will, at first in 
 part, and afterwards in all its integrity. The 
 influence of the Church had much to do with this 
 rapid assimilation. The ecclesiastical power had 
 very early succeeded to those privileges of custody 
 and registration of Testaments which several of 
 the heathen temples had enjoyed ; and even thus 
 early it was almost exclusively to private bequests 
 that the religious foundations owed their temporal 
 possessions. Hence it is that the decrees of the 
 earliest Provincial Councils perpetually contain 
 
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l88 HISTORY OF TESTAMENTARY SUCCESSION [chap- ^' 
 
 anathemas against those who deny the sanctity 
 of Wills. Here, in England, Church influence 
 was certainly chief among the causes which by 
 universal acknowledgment have prevented that 
 discontinuity in the history of Testamentary Law 
 which is sometimes beUeved to exist in the history 
 of other provinces of Jurisprudence. The juris- 
 diction over one class of WiU was delegated to 
 the Ecclesiastical Courts, which applied to them, 
 though not always intelligently, the principles of 
 Roman jurisprudence ; and, though neither the 
 Courts of Common Law nor the Court of Chan- 
 cery owned any positive obligation to foUow 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 personality 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 
 difference of the conclusions forced on us by the 
 historical treatment of the subject, from those to 
 which we are conducted when, without the help 
 of history, we merely strive to analyse our primd- 
 facie impressions. I suppose there is nobody 
 who, starting from the popular or even the legal 
 conception of a Will, would not imagine that 
 certain qualities are necessarily attached to it. 
 He would say, for example, that a WiU necessarily 
 takes effect at death only — that it is secret, not 
 known as a matter of course to persons taking 
 interests under its provisions — that it is revocable, 
 i e. always capable of being superseded by a new 
 
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CHAP. VI] NATURAL EIGHT OF TESTATION 189 
 
 act of testation. Yet I shall be able to show that 
 there was a time when none of these characteristics 
 belonged to a Will. The Testaments from which 
 our Wills are directly descended at first took effect 
 immediately on their execution ; they were not 
 secret ; they were not revocable. Few legal 
 agencies are, in fact, the fruit of more complex 
 historical agencies than that by which a man's 
 written intentions control the posthumous dis- 
 position of his goods. Testaments very slowly 
 and gradually gathered round them the quaUties 
 I have mentioned ; and they did this from causes 
 and under pressure of events which may be called 
 casual, or which at any rate have no interest for 
 us at present, except so far as they have effected 
 the history of law. 
 
 At a time when legal theories were more 
 abundant than at present — theories which, it is 
 true, were for the most part gratuitous and 
 premature enough, but which nevertheless rescued 
 jurisprudence from that worse and more ignoble 
 condition, not unknown to ourselves, in which 
 nothing like a generalisation is aspired to, and law 
 is regarded as a mere empirical pursuit — it was 
 the fashion to explain the ready and apparently 
 intuitive perception which we have of certain 
 quaUties 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 characteristics 
 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 expression 
 
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igo HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 which we all of us use, and perhaps scarcely know 
 how to dispense with. I may illustrate this by 
 mentioning a position common in the legal Utera- 
 ture of the seventeenth century. The jurists of 
 that period very commonly assert that the power 
 of Testation itself is of Natural Law, that it is a 
 right conferred by the Law of Nature. Their 
 teaching, though all persons may not at once see 
 the connection, is in substance 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 juris- 
 prudence 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 as the mode 
 of devolution which the property of deceaised 
 persons ought primarily to foUow, and then pro- 
 ceeds to account for succession ab inlestato as 
 the incidental provision of the lawgiver for the 
 discharge of a function which was only left un- 
 performed through the neglect or misfortune of 
 the deceased proprietor. These opinions are only 
 expanded forms of the more compendious doctrine 
 that Testamentary disposition is an institution 
 of the Law of Nature. 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 beUeve that 
 most persons, who affirm 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 
 
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CHAP. VI] NATURE OF A WILL IQI 
 
 original instinct and impulse. With respect to 
 the first of these positions, I think that, when 
 expUcitly set forth, it can never be seriously con- 
 tended for in an age which has seen the severe 
 restraints imposed on the Testamentary Power by 
 the Code NapoUon, and has witnessed the steady 
 multipUcation of systems for which the French 
 codes have served as a model. To the second 
 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 aU 
 indigenous 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 
 wiU of the proprietor is permitted under more or 
 less of 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 
 discussion, there are several prehminary points to 
 be examined — 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 control the posthumous disposition of 
 their property ? Thrown into technical language, 
 the dependence of the various conceptions which 
 contribute to the notion of a Will is thus expressed. 
 A Will or 'Testament is an instniment by which 
 
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192 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 the devolution of an inheritance is prescribed. 
 Inheritance is a form of universal succession. A 
 universal succession is a succession to a universitas 
 juris, 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, independent 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 inheritance to be con- 
 trolled in any case by the testator's volition, and 
 what is the nature of the instrument by which it 
 came to be controlled ? 
 
 The first question relates to the universitas 
 juris ; that is a university (or bundle) of rights 
 and duties. A universitas juris is a collection of 
 rights and duties 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 aU the rights 
 and all the duties of a particular person. The tie 
 which so connects a number of rights of property, 
 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 univer- 
 sitas juris, is the fact of their having attached 
 to some individual capable of exercising them. 
 Without this fact there is no university of rights 
 and duties. The expression universitas juris is 
 
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CHAP. VI] UNIVERSAL SUCCESSION I93 
 
 not classical, but for the notion jurisprudence 
 is exclusively indebted to Roman law ; nor is it 
 at aU difficult to seize. We must endeavour to 
 coUect under one conception 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 overbalance 
 our rights. A man may owe more than he is 
 worth, and therefore if a money value is set on 
 his collective legal relations he may be what is 
 called insolvent. But for all that the entire group 
 of rights and duties which centres in him is not 
 the less a " juris universitas." 
 
 We come next to a " universal succession." A 
 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 ' 
 moment subject to all his liabihties and entitled to 
 all his rights. In order that the universal suc- 
 cession 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 different periods, as for example by 
 successive purchases ; or he might acquire them 
 in different capacities, part as heir, part as pur- 
 chaser, 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 par- 
 ticular individual, the acquisition would not be a 
 
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194 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 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, hke that of a 
 " juris universitas," is permanent in jurisprudence, 
 though in the English legal system it is obscured 
 by the great variety of capacities in which rights 
 are acquired, and, above all, by the distinction 
 between the two great provinces of English 
 property, " realty " and " personalty." The suc- 
 cession 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 common 
 among us for persons to take assignments of all 
 a man's property on condition of pa5nng all his 
 debts, such transfers would exactly resemble the 
 universal 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 adoptive child, he succeeded universally 
 to the adoptive child's estate, i.e., he took all the 
 property and became 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 Inheritance. Inherit- 
 ance was a universal succession, occurring at a 
 death. The universal successor was Haeres or 
 Heir. He stepped at once into all the rights and 
 
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CHAP, vil UNIVERSAL SUCCESSORS I95 
 
 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 
 Haeres remained the same, whether he was named 
 by a Will or whether he took on an intestacy. 
 The term Haeres is no more emphatically used of 
 the Intestate than of the Testamentary Heir, for 
 the manner in which a man became Haeres had 
 nothing to do with the legal character he sus- 
 tained. The dead man's universal successor, how- 
 ever he became so, whether by Will or by In- 
 testacy, was his Heir. But the Heir was not 
 necessarily a single person. A group of persons, 
 considered in law as a single unit, might succeed 
 as co-heirs to the Inheritance. 
 
 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 universum jus quod 
 de functus habuit ("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 concerned) was continued. Our own law, in 
 constituting the Executor or Administrator the 
 representative 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 Roman Law required a closeness 
 of correspondence between the position of the 
 deceased and of his Heir which is no feature of 
 
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196 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 an English representation ; and, in the primitive 
 jurisprudence everything turned on the continuity 
 of succession. Unless provision was made in the 
 will for the instant devolution of the testator's 
 rights and duties on the Heir or Co-heirs, the 
 testament lost all its effect. 
 
 In modern Testamentary jurisprudence, as in 
 the later Roman Law, the object of first importance 
 is the execution of the testator's intentions. In 
 the ancient law of Rome the subject of correspond- 
 ing carefulness was the bestowal of the Universal 
 Succession. 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 
 proposition 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 borrow the results of the inquiry which was 
 attempted in the earUer portion of the preceding 
 chapter. We saw one pecuUarity invariably 
 distinguishing the infancy of society. Men are 
 regarded and treated, not as individuals, but 
 always as members of a particular group. Every- 
 body 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 perversion in their course 
 of development, of a caste. Next, he is a member 
 of a gens, house, or clan ; and lastly, he is a mem- 
 ber of his family. This last was the narrowest 
 
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CHAP. VI] ARCHAIC SUCCESSION I97 
 
 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 per- 
 fectly distinct from the rest, each absolutely con- 
 trolled by the prerogative of a single monarch. 
 But though the Patriarch, for we must not yet 
 call him the Pater-familias, had rights thus ex- 
 tensive, it is impossible to doubt that he lay 
 under an equal amplitude of obligations. If he 
 governed the family, it was for its behoof. If he 
 was lord of its possessions, he held them as trustee 
 for his children and kindred. He had no privilege 
 or position distinct from that conferred on him by 
 his relation to the petty commonwealth which he 
 governed. The Family, in fact, was a Corporation ; 
 and he was its representative or, we might almost 
 say, its Public officer. He enjoyed rights and 
 stood under duties, but the rights and duties 
 were, in the contemplation of his fellow-citizens 
 and in the eye of the law, quite as much those of 
 the collective body as his own. Let us consider 
 for a moment, the effect which would be produced 
 by the death of such a representative. In the eye 
 
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igS HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 of the law, in the view of the civil magistrate, the 
 demise of the domestic authority would be a per- 
 fectly immaterial event. The person representing 
 the collective body of the family and primarily 
 responsible to municipal jurisdiction 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, without 
 breach of continuity, to his successor ; for, in 
 point of fact, they would be the rights and ob- 
 ligations of the family, and the family had the 
 distinctive characteristic of a corporation — that 
 it never died. Creditors would have the same 
 remedies against the new chieftain as against the 
 old, for the liabiUty being that of the stiU existing 
 family would be absolutely unchanged. AU 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 
 language so precise and technical can be properly 
 used of these early times — would be obUged 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 to man substituted itself for the relation 
 of the individual to his family, and of famihes to 
 each other. The point now to be attended to is 
 that even when the revolution had apparently 
 quite accomplished itself, even when the magistrate 
 had in great measure assumed the place of the 
 Pater-familias, and the civil tribunal substituted 
 
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CHAP, VI] THE FAMILY A CORPORATION I99 
 
 itself for the domestic fonim, nevertheless the 
 whole scheme of rights and duties administered by 
 the judicial authorities remained shaped by the 
 influence of the obsolete privileges and coloured in 
 every part by their reflection. There seems little 
 question that the devolution of the Universitas 
 Juris, so strenuously insisted upon by the Roman 
 Law as the first condition of a testamentary or 
 intestate succession, was a feature of the older 
 form of society which men's minds have been 
 unable to dissociate from the new, though with 
 that newer phase it had no true or proper con- 
 nection. It seems, in truth, that the prolongation 
 of a man's legal existence in his heir, or in a group 
 of co-heirs, is neither more nor less than a charac- 
 teristic of the family transferred by a fiction to the 
 individual. Succession in corporations is neces- 
 sarily universal, and the family was a corporation. 
 Corporations never die. The decease of individual 
 members makes no difference to the collective 
 existence of the aggregate body, and does not in 
 any way affect its legal incidents, its faculties or 
 liabilities. Now in the idea of a Roman universal 
 succession all these qualities of a corporation seem 
 to have been transferred to the 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 
 
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200 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 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 Enghsh law ought 
 to be in no danger of stumbUng 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 famiUar. EngUsh lawyers 
 classify corporations as Corporations aggregate and 
 Corporations sole. A Corporation aggregate is a 
 true Corporation, but a Corporation sole is an in- 
 dividual, being a member of a series of individuals, 
 who is invested by a fiction with the quahties of 
 a Corporation. I need hardly cite the King or the 
 Parson 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 iill it are 
 clothed with the leading attribute of Corporations 
 — Perpetuity. Now in the older theory of Roman 
 Law the individual bore to the family precisely 
 the same relation which in the rationale of EngUsh 
 jurisprudence a Corporation sole bears to a Cor- 
 poration aggregate. The derivation and associa- 
 tion of ideas are exactly the same. In fact, if we 
 say to ourselves that for purposes of Roman Testa- 
 mentary Jurisprudence each individual citizen was 
 a Corporation sole, we shall not only realise the fuU 
 conception of an inheritance, 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 
 
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CHAP. VI] INTESTATE SUCCESSION 201 
 
 the continuity of dominion 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 devolution of rights 
 and obligations. The testator lived on in his heir 
 or in the group of his co-heirs. He was in law 
 the same person with them, and if any one in his 
 testamentary dispositions had even constructively 
 violated the principle which united his actual and 
 his posthumous existence, the law rejected the 
 defective instrument, and gave the inheritance 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 vaUd Will, his descendants or kindred became 
 his heirs according to a scale which will be pre- 
 sently described. The person or class of persons 
 who succeeded did not simply represent the 
 deceased, but, in conformity with the theory just 
 delineated, they continued his civil life, his legal 
 existence. The same results followed when the 
 order of succession 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 Testament or phase of Testamentary 
 jurisprudence. This indeed is the proper moment 
 for suggesting a doubt which wiU 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 re- 
 markable ideas connected with universal succes- 
 sion. Testamentary law is the apphcation of a 
 
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202 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 principle which may be explained on a variety 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 jurisprudence is 
 the impression that those reasons which actuate 
 us at the present moment, in the maintenance of 
 an existing institution, have necessarily anything 
 in common with the sentiment in which the in- 
 stitution 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 
 almost say confounded, with the theory of a man's 
 posthumous existence in the person of his heir. 
 
 The conception of a universal succession, firmly 
 as it has taken root in jurisprudence, has not 
 occurred spontaneously to the framers of every 
 body of laws. 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 pure Roman jurisprudence, the prin- 
 ciple that a man lives on in his Heir — the elimina- 
 tion, if we may so speak, of the fact of death — is 
 too obviously for mistake the centre round which 
 the whole Law of Testamentary and Intestate 
 succession is circling. The unflinching sternness 
 of the Roman law in enforcing compliance with 
 the governing theory would in itself suggest that 
 the theory grew out of something in the primitive 
 
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CHAP. VI] EARLY ROMAN WILLS 203 
 
 constitution of Roman society ; but we may push 
 the proof a good way beyond the presumption. 
 It happens that several technical expressions, 
 dating from the earliest institution of wills at 
 Rome, have been accidentally preserved to us. 
 We have in Gains the formula of investiture by 
 which the universal successor was created. We 
 have the ancient name by which the person after- 
 wards caUed Heir was at first designated. We 
 have further the text of the celebrated clause in 
 the Twelve Tables by which the Testamentary 
 power was expressly recognised, and the clauses 
 regulating Intestate Succession have also been 
 preserved. AU 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 material 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 proceeding, 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 Roman form of an institution 
 which shows itself wherever society has not 
 wholly shaken itself free from its primitive clothing. 
 
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204 HISTORY OF TESTAMENTARY SUCCESSION [cha*. vi 
 
 They are the sacrifices and ceremonies by which 
 the brotherhood of the family is commemorated, 
 the pledge and the witness of its perpetuity. 
 Whatever be their nature — whether it be true or 
 not that in all cases they are the worship of some 
 mythical ancestor — they are everywhere employed 
 to attest the sacredness of the family relation ; 
 and therefore they acquire prominent significance 
 and importance, whenever the continuous existence 
 of the Family is endangered by a change in the 
 person of its chief. Accordingly, we hear most 
 about them in connection with demises of domestic 
 sovereignty. Among the Hindoos, the right to 
 inherit a dead man's property is exactly co-exten- 
 sive 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 between the deceased 
 and anybody surviving him ; the Law of Succes- 
 sion does not apply, and nobody can inherit the 
 property. Every great event in the Ufe of a 
 Hindoo seems to be regarded as leading up to and 
 bearing upon these solemnities. If he marries, it 
 is to have children who may celebrate them after 
 his death ; if he has no children, he lies under the 
 strongest obligation to adopt them from another 
 family, " with a view," writes the Hindoo doctor, 
 " to the funeral cake, the water, and the solemn 
 sacrifice." The sphere preserved to the Roman 
 sacra in the time of Cicero, was not less in extent. 
 It embraced Inheritances and Adoptions. No 
 adoption was allowed to take place without due 
 provision for the sacra of the family from which 
 the adoptive son was transferred, and no Testa- 
 
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CHAP. VI] ROMAN AND HINDOO SACRA 205 
 
 ment was allowed to distribute an Inheritance 
 without a strict apportionment of the expenses of 
 these ceremonies among the different co-heirs. 
 The differences between the Roman law at this 
 epoch, when we obtain our last ghmpse of the 
 sacra, and the existing Hindoo system, are most 
 instructive. Among the Hindoos, the religious 
 element in law has acquired a complete pre- 
 dominance. Family sacrifices have become the 
 keystone of all the Law of Persons and much of 
 the Law of Things. They have even received a 
 monstrous extension, for it is a plausible opinion 
 that the self-immolation of the widow at her hus- 
 band's funeral, a practice continued to historical 
 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 reUgious duty have ceased to be blended. 
 The necessity of solemnising the sacra forms no 
 part of the theory of civil law, but they are under 
 the separate jurisdiction of the College of Pontiffs. 
 The letters of Cicero to Atticus, which are full of 
 allusions to them, leave no doubt that they con- 
 stituted an intolerable burden on Inheritances ; 
 but the point of development at which law breaks 
 away from religion has been passed, and we are 
 prepared for their entire disappearance from the 
 later jurisprudence. 
 
 In Hindoo law there is no such thing as a true 
 Will. The place filled by Wills is occupied by 
 
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206 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 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 
 could call up a peculiar solicitude for the perform- 
 ance of the sacra. Both a Will and an Adoption 
 threaten a distortion of the ordinary course of 
 Family descent, but they are obviously contriv- 
 ances for preventing the descent being wholly 
 interrupted, when 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 Testamentary powers. But to the 
 Romans belongs pre-eminently the credit of in- 
 venting the Willj the institution which, next to 
 the Contract, has exercised the greatest influence 
 in transforming human society. 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 descend 
 no doubt to the Heir, but that is only because the 
 government of the family carries with it in its 
 devolution the power of disposing of the common 
 stock. We are very far as yet from that stage in 
 the history of Wills in which they become powerful 
 instruments in modifying society through the 
 
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CHAP. Til ROMAN IDEAS OF SUCCESSION 207 
 
 stimulus they give to the circulation of property 
 and 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 miscellaneous 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 associations of a Roman with the 
 practice of will-making 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 inheritance of sovereignty. It 
 is impossible not to see that the succession of the 
 early Roman Emperors to each other was con- 
 sidered reasonably regular, and that, in spite of 
 all that had occurred, no absurdity attached to 
 the pretension of such Princes as Theodosius 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 
 century considered doubtful, that Intestate In- 
 heritance is a more ancient institution than 
 Testamentary Succession. As soon as this is 
 settled, a question of much interest suggests 
 itself, how and under what conditions were the 
 directions of a will first allowed to regulate the 
 
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208 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 devolution of authority over the household, and 
 consequently the posthumous distribution of pro- 
 perty. The difficulty of deciding the point arises 
 from the rarity of Testamentary power in archaic 
 communities. It is doubtful whether a true 
 power of testation was known to any original 
 society except the Roman. Rudimentary 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 
 certainly Roman. The most penetrating German 
 criticism has recently been directed to these 
 leges Barbarorum, 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 from the laws of the Romans. 
 In the course of this process, 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 rudimen- 
 tary Testament which (as I am informed) the 
 Rabbinical Jewish law provides for, has been 
 attributed to contact with the Romans. The only 
 form of Testament, not belonging to a Roman 
 or Hellenic society, which can with any reason 
 be supposed indigenous, is that recognised by 
 the usages of the province of Bengal ; and the 
 
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CHAP. VI] PRIMITIVE OPERATION OF WILLS 209 
 
 Testament of Bengal, which some have even 
 supposed to be an invention of Anglo-Indian 
 lawyers, is at most 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 citizens were empowered for the first 
 time by the Laws of Solon to execute Testaments, 
 they were forbidden to disinherit their direct 
 male descendants. So, too, the Will of Bengal 
 is only permitted to govern the succession so far 
 as it is consistent with certain overriding claims 
 of the family. Again, the original institutions 
 of the Jews having provided nowhere for the 
 privileges of Testatorship, the latter Rabbinical 
 jurisprudence, which pretends to supply 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 testamen- 
 tary jurisprudence which has been incorporated 
 with them are also significant, and point in the 
 same direction. It is the peculiarity of most of 
 these German laws, in the only shape in which 
 we know them, that, besides the allod or domain 
 of each household, they recognise several sub- 
 ordinate kinds or orders of property, each of 
 which probably represents a separate transfusion 
 of Roman principles into the primitive body of 
 Teutonic usage. The primitive German or allodial 
 property is strictly reserved to the kindred. Not 
 
 14 
 
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2IO HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 only is it incapable of being disposed of by testa- 
 ment, but it is scarcely capable of being alienated 
 by conveyance inter vivos. The ancient German 
 law, like the Hindoo jurisprudence, makes the 
 male children co-proprietors wdth their father, 
 and the endowment of the family cannot be 
 parted with except 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 aUenated 
 than they, and follow much more lenient rules 
 of devolution. Women and the descendants of 
 women succeed to them, obviously on the principle 
 that they lie outside the sacred precinct of the 
 Agnatic brotherhood. Now, it is on these last 
 descriptions of property, and on these only, that 
 the Testaments borrowed from Rome were at 
 first allowed to operate. 
 
 These few indications may serve to lend 
 additional plausibility to that which in itself 
 appears to be the most probable explanation of 
 an ascertained fact in the early history of Roman 
 Wills. We have it stated on abundant authority 
 that Testaments, during the primitive period 
 of the Roman State, were executed in the Comitia 
 Calata, that is, in the Comitia Curiata, or Parlia- 
 ment of the Patrician Burghers of Rome, when 
 assembled for Private Business. This mode of 
 execution has been the source of the assertion, 
 handed down by one generation 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 
 
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CHAP. VI] XHE PATRICIAN WILL 211 
 
 far too much precision to the proceedings of the 
 ancient assembly. The proper key to the story 
 concerning the execution of Wills in the Comitia 
 Calata must no doubt be sought in the oldest 
 Roman law of intestate succession. The canons 
 of primitive Roman jurisprudence regulating the 
 inheritance of relations from each other were, 
 so long as they remained unmodified by the 
 Edictal Law of the Praetor, to the following 
 effect : — First, the sui or direct descendants who 
 had never been emancipated succeeded. On the 
 failure of the sui, the Nearest Agnate came into 
 their place, that is, the nearest person or class 
 of the kindred who was or might have been under 
 the same Patria Potestas with the deceased. The 
 third and last degree came next, in which the 
 inheritance devolved on the Gentiles, 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 the 
 same name, were supposed to be descended from 
 a common ancestor. Now the Patrician Assembly 
 called the Comitia Curiata was a Legislature in 
 which Gentes or Houses were exclusively repre- 
 sented. It was a representative 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 
 connected with the rights of the Gentiles, and 
 was intended to secure them in their privilege 
 of ultimate inheritance. The whole apparent 
 
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212 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 anomaly is removed, if we suppose that a Testa- 
 ment could only be made when the Testator had 
 no gentiles discoverable, or when they waived their 
 claims, and that every Testament was submitted 
 to the General Assembly 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 pass might be presumed to 
 have renounced their reversion. It is possible 
 that on the eve of the publication 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 jurisdiction confided 
 to the Comitia Calata, than to trace its gradual 
 development or progressive decay. 
 
 The Testament to which the pedigree of all 
 modern Wills may be traced is not, however, the 
 Testament executed in the Calata Comitia, but 
 another Testament designed to compete with it 
 and destined to supersede it. The historical 
 importance of this early Roman WiU, and the 
 light it casts on much of ancient thought, wiU 
 excuse me for describing 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 
 
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CHAP. VI] PLEBEIAN WILLS 2I3 
 
 recited to the Patrician Assembly, and was thus 
 deprived of Testamentary privileges altogether. 
 Others have been satisfied to point out the hard- 
 ships 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 obligation. 
 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 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 extin- 
 guished, with many other sources of heartburning, 
 by the great Decemviral compromise. The text 
 of the Twelve Tables is still extant which says, 
 " Pater familias uti de pecunid tuteldve rei sucb 
 legdssit, ita jus esto " — a law which can hardly 
 have had any other object than the legitimation 
 of the Plebeian Will. 
 
 It is well known to scholars that, centuries 
 after the Patrician Assembly had ceased to be the 
 legislature of the Roman State, it still continued 
 to hold formal sittings for the convenience of 
 private business. Consequently, at a period long 
 subsequent to the publication of the Decemviral 
 
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214 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 Law, there is reason to believe that the Comitia 
 Calata still assembled for the validation of Tes- 
 taments. Its probable functions may be best 
 indicated by saying that it was a Court of Regis- 
 tration, with the understanding, 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 writing at all, 
 but at all events if the Will had been originally 
 written, the office of the Comitia was certainly 
 confined to hearing it read aloud, the document 
 being retained afterwards in the custody of the 
 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 popular 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 
 remote effects has deeply modified the civihsation 
 of the modern world. It acquired at Rome 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 mancipiutn, or ancient Roman convey- 
 ance, a proceeding to which we may unhesitatingly 
 assign the parentage of two great institutions 
 without which modern society can scarcely be 
 
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'="*^- »•] MANCIPATION 215 
 
 supposed capable of holding together, the Contract 
 and the Will. The Mancipium, or, as the word 
 would exhibit itself in later Latinity, the Manci- 
 pation, carries us back by its incidents to the 
 infancy of civil society. As it sprang from times 
 long anterior, if not to the invention, at all events 
 to the popularisation, of the art of writing, 
 gestures, symbolical acts, and solemn phrases take 
 the place of docurnentary forms, and a lengthy 
 and intricate ceremonial is intended to call the 
 attention of the parties to the importance of the 
 transaction, and to impress it on the memory 
 of the witnesses. The imperfection, too, of oral, 
 as compared with writteil testimony necessitates 
 the multiplication of the witnesses and assistants 
 beyond what in later times would be reasonable 
 or intelligible limits. 
 
 The Roman Mancipation required the presence 
 first of all of 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 five witnesses ; and 
 an anomalous personage, the Libripens, who 
 brought with him a pair of scales to weigh the 
 uncoined copper money of ancient Rome. The 
 Testament we are considering — the Testament 
 per CBS et libram, " with the copper and the scales," 
 as it long continued to be technically called — was 
 an ordinary Mancipation 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 
 familicB emptor, the Purchaser of the Family, 
 
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2l6 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 The ordinary ceremony of a Mancipation was 
 then proceeded with. Certain formal gestures 
 were made and sentences pronounced. The 
 Emptor familicB 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 " Nuncupatio " 
 or publication of the transaction, a phrase which, 
 I need scarcely remind the lawyer, has had a 
 long history in Testamentary jurisprudence. It is 
 necessary to attend particularly to the character 
 of the person called familicB emptor. There is 
 no doubt that at first he was the Heir himself. 
 The Testator conveyed to him outright his whole 
 " familia," that is, aU the rights he enjoyed over 
 and through the family ; his property, his slaves, 
 and aU his ancestral 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 Manci- 
 patory Testament, as it may be called, differed 
 in its primitive form from a modern WiU. 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 Familiae 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 perhaps the most surprising consequences 
 of this relation of Testaments to Conveyances 
 
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CHAP. VI] WILL AS CONVEYANCE ZT'J 
 
 was the immediate vesting of the Inheritance 
 in the Heir. This has seemed so incredible to 
 not a few civiUans, 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 grantor. 
 But down to the latest period of Roman juris- 
 prudence there was a certain class of transactions 
 which never admitted of being directly modified 
 by a condition, or of being limited to or from a 
 point of time. In technical language they did 
 not admit conditio or di&s. Mancipation was one 
 of them, and therefore, strange as it may seem, 
 we are forced to conclude that the primitive 
 Roman Will took effect at once, even though 
 the Testator survived 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 flower 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 continue 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 in later times, the instrument 
 declaratory of the bequests was only incidentally 
 connected with the Will and formed no essential 
 
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2l8 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 part of it. It bore in fact exactly the same 
 relation to the Testament which the deed leading 
 the uses bore to the Fines and Recoveries of old 
 English law, or which the charter of feoffment 
 bore to the feoffment itself. Previously, indeed, 
 to the Twelve Tables, no writing 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 generaUty 
 of the clause in the Twelve Tables soon produced 
 the doctrine that the heir must take the inheritance 
 burdened by any directions which the Testator 
 might give him, or, in other words, take it subject 
 to legacies. 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 com- 
 missioned to pay. 
 
 The terms of the expression Emptor familice 
 demand notice. " Emptor " indicates that the 
 WiU was Uterally a sale, and the word " familiae," 
 when compared with the phraseology in the Testa- 
 mentary clause in the Twelve Tables, leads us 
 to some instructive conclusions. " Familia," in 
 classical Latinity, means always a man's slaves. 
 Here, however, and generally in the language of 
 ancient Roman law, it includes all persons under 
 his Potestas, and the Testator's material property 
 or substance is understood to pass as an adjunct 
 or appendage of his household. Turning to the 
 
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cHA!-. ri] PRETORIAN WILLS 2ig 
 
 law of the Twelve Tables, it will be seen that it 
 speaks of tutela rei suce, " the guardianship of his 
 cubstance," a form of expression which is the 
 exact reverse of the phrase just examined. There 
 does not therefore appear to be any mode of 
 escaping from the conclusion, that even at an era 
 so comparatively recent as that of the Decemviral 
 compromise, terms denoting " household " and 
 " property " were blended in the current phrase- 
 ology. 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 interchange is reciprocal, we 
 must allow that the form of speech carries us back 
 to the primeval period in which property is owned 
 by the family, and the family 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 through their family. 
 
 At an epoch not easy to settle with precision, 
 the Roman Praetors fell into the habit of acting 
 upon Testaments solemnised in closer conformity 
 with the spirit than the letter of the law. Casual 
 dispensations became insensibly the established 
 practice, till at length a wholly new form of Will 
 was matured and regularly engrafted on the 
 Edictal Jurisprudence. The new or Prcetorian 
 Testament derived the whole of its impregnability 
 from the Jus Honorarium 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 aU Testa- 
 ments which should have been executed with such 
 and such solemnities ; and, the reform having 
 
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220 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 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 
 successive incorporations was styled the Per- 
 petual or Continuous Edict. On examining the 
 conditions of a vaUd Praetorian Will they will 
 be plainly seen to have been determined by the 
 requirements of the Mancipatory Testament, the 
 innovating Praetor having 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 persons had been 
 present besides the Testator. Seven witnesses 
 were accordingly essential to the Praetorian WiU ; 
 two of them corresponding to the libripens and 
 familicB emptor, who were now stripped of their 
 symbolical character, and were merely present for 
 the purpose of supplying their testimony. No 
 emblematic 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 evi- 
 dence of the Testator's dispositions. At aU events, 
 whenever a writing 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 the outside. This 
 is the first appearance of sealing in the history of 
 jurisprudence, considered as a mode of authen- 
 tication. The use of seals, however, as mere 
 
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CHAP. VI] XHE BONORUM POSSESSIO 221 
 
 fastenings, is doubtless of much higher antiquity ; 
 and it appears to have been known to the Hebrews. 
 We may observe, that the seals of the Roman 
 Wills, and other documents of importance, did 
 not only serve as the index of the present or assent 
 of the signatary, but were also literally fastenings 
 which had to be broken before the writing could 
 be inspected. 
 
 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 
 witnesses. But it may be laid down as a general 
 proposition, that the principal qualities of Roman 
 property were incommunicable except through 
 processes which were supposed to be coeval with 
 the 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 
 relation 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 practical enjoyment of the property be- 
 queathed, and to give the force of legal acquit- 
 tances 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 Heir specially inducted 
 under these circumstances, or Bonorum Possessor, 
 had every proprietary privilege 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 
 
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222 HISTORY OF TESTAMENTARY SUCCESSION [chap, vi 
 
 side of the Praetorian Court. No great chance of 
 error would be incurred by describing him as 
 having an equitable estate in the inheritance ; but 
 then, to secure ourselves against being deluded by 
 the analogy, we must always recollect that in one 
 year the Bonorum Possessio was operated upon by 
 a principle of Roman Law known as Usucapion, 
 and the Possessor became Quiritarian owner of all 
 the property comprised in the inheritance. 
 
 We know too httle of the older law of Civil 
 Process to be able to strike the balance of advan- 
 tage and disadvantage between the different classes 
 of remedies supphed by the Praetorian Tribunal. 
 It is certain, however, that, in spite of its many 
 defects, the Mancipatory Testament by which the 
 universitas juris devolved at once and unimpaired 
 was never entirely superseded by the new WiU ; 
 and at a period 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 instrument. At the era of Gains, which 
 is that of the Antonine Caesars, the great blemishes 
 of the Mancipatory 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 in- 
 stantly acquired a vested interest in the Testator's 
 Property but was formally made aware of his 
 rights. But the age of Gains permitted some un- 
 concerned person to officiate as Purchaser of the 
 Family. The Heir, therefore, was not necessarily 
 informed of the succession to which he was 
 
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CHAP. VI] IMPROVEMENTS IN THE ROMAN WILL 223 
 
 destined ; and Wills thenceforward acquired the 
 property of secrecy. The substitution of a stranger 
 for the actual Heir in the functions of " Familiae 
 Emptor " had other ulterior consequences. As 
 soon as it was legalised, a Roman Testament came 
 to consist of two parts or stages, — a Conveyance, 
 which was a pure form, and a Nuncupatio, or 
 Publication. In this latter passage of the pro- 
 ceeding, the Testator either orally declared to the 
 assistants the wishes which were to be executed 
 after his death, or produced a written document 
 in which his wishes were embodied. It was not 
 probably till attention had been quite drawn off 
 from the imaginary Conveyance, and concentrated 
 on the Nuncupatio as the essential part of the 
 transaction, that Wills were allowed to become 
 revocable. 
 
 I have thus carried 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 
 ancient Will has, however, manifold defects, which 
 are remedied, though only indirectly, by the 
 Praetorian law. Meantime the ingenuity of the 
 Jurisconsults effects, in the Common-Law Will or 
 Mancipatory Testament, the very improvements 
 which the Praetor may have concurrently carried 
 out in Equity. These last ameliorations depend, 
 however, on mere legal dexterity, and we see 
 accordingly that the Testamentary Law of the 
 day of Gains or Ulpian is only transitional. What 
 changes next ensued we know not ; but at length 
 just before the reconstruction of the jurisprudence 
 by Justinian, we find the subjects of the Eastern 
 
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224 NOTES [CHAP. VI 
 
 Roman Empire employing a form of Will of which 
 the pedigree is traceable to the Praetorian Testa- 
 ment on one side, and to the Testament " with 
 the copper and the scales," on the other. Like 
 the Testament of the Praetor, it required no 
 Mancipation, and was invalid unless sealed by 
 seven witnesses. Like the Mancipatory Will, it 
 passed the Inheritance and not merely a Bonorum 
 Possessio. Several, however, of its most important 
 features 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 day as Jus Triper- 
 titum. The new Testament thus described is the 
 one generally known as the Roman Will. But it 
 was the Will of the Eastern Empire only ; and 
 the researches of Savigny have shown 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. 
 
 NOTE M 
 
 TESTAMENTARY SUCCESSION 
 
 The burden of this chapter is that the Will or Testament of 
 modern law, with its specific characters of being secret, revocable, 
 and posthumous in operation, is unknown to archaic law, and is 
 of comparatively recent introduction wherever we find it. Maine's 
 position is amply confirmed by later historical research, and one 
 or two seeming exceptions which he felt bound to notice have 
 been removed. 
 
 Jurists of the seventeenth century, we read in Maine's text, 
 resorted to the law of nature to explain and justify testamentary 
 power. This is almost enough of itself to show that no such power 
 
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CHAP, vil NOTES 225 
 
 was commonly found in customary law. For the doctrine of natural 
 law was, as we have already seen, a progressive and rationalist 
 doctrine. Its use was to override the commonplace objections 
 founded on lack of authority or even on the existence of contrary 
 custom ; and at the time of the Renaissance and even earlier 
 it served speculative publicists in much the same way as the 
 principle of utility (with which it has considerable affinities) has 
 served modem reformers. In fact, the whole conception of individual 
 succession to property, even without a will, is relatively modem. 
 The archaic Indo-European family was, Maine tells us, a corporation, 
 of which the patriarch for the time being was the representative 
 or public officer — or at most, we may add, managing director. 
 Evidently we are not meant to take this statement as if a definite 
 legal doctrine of persons, much less artificial persons, was to be 
 ascribed to the patriarchal stage of society. For in that stage, 
 as Maine also says, a man was not yet regarded as an individual, 
 but only as a member of his family and class ; and this is still 
 true to a great extent in Hindu law. Now the modern doctrine of 
 corporations assumes that the "natural person" or individual, 
 considered as a subject of rights and duties, or "lawful man," 
 as our English books say, is the normal unit of legal institutions, 
 and that the collective personality of a group of men acting in 
 a common interest or duty and behaving like an individual is 
 something which needs to be explained. But for archaic society 
 the collective body and not the individual is the natural person. 
 
 We find the same conditions existing in full force among the 
 German tribes in a much later period of time than that which 
 Maine is directly considering in this chapter. A recent learned 
 writer in France, dealing with precisely the same subject as it 
 occurs in the medieval history of French law, has forcibly contrasted 
 the Roman conception, as it was established in the classical law of 
 the empire, with the German. 
 
 " Le droit romain consacre le triomphe de I'individualisme ; 
 la volont6 personnelle du chef de famille, voil4 le facteur juridique 
 essentiel, I'agent de toutes les transactions, la force cr6atrice de 
 tous les droits. Cette volont6 est si respect6e et si puissante, 
 qu'elle continue d'agir apres la disparition de celui qui I'a exprim6e. 
 Le pere regie le sort de sa fortune et de sa famille pour le temps 
 oii il ne sera plus, et cela par un acte souverainement libre, 
 qu'il est toujours k m^me de modifier. . . . L'individu sut juris 
 est, dans le monde romain, I'unitfe juridique et social. 
 
 "Chez les Germains, c'est bien plutdt la famille. II serait 
 sans doute excessif, surtout pour le temps des Leges [the custumals 
 collectively known as ' Leges Barbarorum '], de declarer en termes 
 absolus que la famille est tout et que l'individu n'est rien; la 
 v6rit6 sous cette forme serait exag6r6e et d6natur6e. Mais il est 
 certain cependant que I'exaltation de l'individu est beaucoup moins 
 
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226 NOTES [CHAP. VI 
 
 complete qu'i Rome, et que d'autre part la famille forme une 
 association, une sorte d'fitre coUectif arm6 de droits inconnus des 
 jurisconsultes de I'Empire. L'6nergie individuelle est limit^e dans 
 le temps, et les Germains ne peuvent pas concevoir qu'elle s'exerce 
 au deli de la tombe ; sitdt I'homme mort, toutes ses volont^s 
 s'6vanouissent. Au m6me moment ses prerogatives juridiques sont 
 recouvertes et absorb^es par celles de ses parents, car de son 
 vivant mfime sa famille jouissait de droits autonomes qu'il ne 
 d6pendait pas de lui de supprimer : sa mort les d6veloppe, mais eUe 
 ne les cr6e pas" (AufEroy, "Evolution du testament en France," 
 Paris, 1899, pp. 1 73-4. Cf. Brunner, " Grundzuge der deutschen 
 Rechtsgeschichte," § 56 ; " Das germanische Erbrecht war ein 
 Familienrecht." For examples of analogous customs among 
 various uncivilized tribes, see Lord Avebury, "Origin of Civilisation," 
 6th ed. pp. 489-91. 
 
 The suggestion in Maine's text of regarding the Roman ancestor 
 in his representative character as a kind of corporation sole may 
 be helpful to English students, but we can hardly trust it to throw 
 light on the actual formation of Roman legal ideas. For our 
 English category of corporations sole is not only, as Maine calls 
 it, a fiction, but modem, anomalous, and of no practical use. When 
 a parson or other solely corporate office-holder dies, there is no 
 one to act for the corporation until a successor is appointed, and, 
 when appointed, that successor can do nothing which he could 
 not do without being called a corporation sole. In the case of 
 the parson even the continuity of the freehold is not saved, and 
 it is said to be in abeyance in the interval. As for the king, or 
 " the Crown," being a corporation sole, the language of our books 
 appears to be nothing but a clumsy and, after all, ineffective device to 
 avoid openly personifying the State. The problems of federal politics 
 in Canada and Australia threaten to make the fiction complex. Is 
 "the Crown" a trustee for Dominion and Province, for Common- 
 wealth and State, with possibly conflicting interests ? or is there 
 one indivisible Crown being or having several persons for different 
 purposes? (F. W. Maitland, L.Q.R. xvi. 335, xvii. 131; W. 
 Harrison Moore, L.Q.R. xx. 351 ; Markby, " Elements of Law," 
 §145). The whole thing seems to have arisen from the technical 
 difficulty of making grants to a parson and his successors after the 
 practice of making them to God and the patron saint had been dis- 
 continued, as tending to bring the saints into the unseemly position 
 of litigants before secular courts. All this we may now think makes 
 for historical curiosity rather than philosophical edification. 
 
 But in any case the chief part of Maine's argument, his insistence 
 on " the theory of a man's posthumous existence in the person 
 of his heir," and the intimate connection of that theory with the 
 ancestor's representative character as head of the family, goes 
 to the root of the matter. Mr. Justice Holmes, now of the Supreme 
 
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CHAP. VI] NOTES 227 
 
 Court of the United States, writing twenty years after Maine, 
 summed this up with concise elegance (" The Common Law," p. 
 343): 
 
 " If the family was the owner of the property administered by 
 a paterfamilias, its rights remained unaffected by the death of 
 its temporary head. The family continued, although the head died. 
 And when, probably by a gradual change, the paterfamilias came 
 to be regarded as owner, instead of a simple manager of the family 
 rights, the nature and continuity of those rights did not change 
 with the title to them. The familia continued to the heirs as 
 it was left by the ancestor. . . . 
 
 " The aggregate of the ancestor's rights and duties, or, to use the 
 technical phrase, the total persona sustained by him, was early 
 separated from his natural personality. For this persona was but 
 the aggregate of what had formerly been family rights and duties, 
 and was originally sustained by any individual only as the family 
 head. Hence it was said to be continued by the inheritance ; and 
 when the heir assumed it, he had his action in respect of injuries 
 previously committed." 
 
 Maine proceeds to trace the development of the Roman testament 
 from a distribution of property, taking effect at once, made in 
 contemplation of impending death or great peril, and requiring, 
 in its earliest form, something like legislative sanction (cp. Girard, 
 " Manuel," pp. 792-5), through the intermediate stage of a 
 conveyance reserving a life interest, which may be seen in the 
 provincial customs of the Roman Empire, and much later in medieval 
 and even modem systems. Muirhead (" Historical Introduction to 
 the Pirvate Law of Rome," pp. 66, 168) pointed out a remedy for 
 the difficulty suggested at p. 217, that a will by mancipation must 
 have left the testator penniless. Usufruct might very well be 
 reserved on a mancipation, Gai. ii. 2>i< " ^''^^ ^ reservation of a 
 life interest in one's own familia would possibly be construed even 
 more liberally than an ordinary usufruct." Still, usufruct is not 
 among the earliest institutions, and it would be rash to say that 
 the difficulty may not have been real at one time. But men have 
 been driven all over the world, by an imperfect state of proparty 
 law or by special reasons for avoiding publicity, to put very 
 large trust in the honour of chosen friends and assistants ; and 
 there is nothing about the Roman familiae emtor in his most 
 archaic stage to surprise an English student who has made acquaint- 
 ance with our medieval feoffee to uses. Indian practice will furnish 
 a parallel in the bendmi (liteiaily, "anonymous") conveyances to 
 a nominal purchaser, to hold on a secret trust for the real one, 
 which appear to have survived the original reasons for them. Sohm, 
 however, holds ("Institutes," § 112, pp. 543, 544, in Ledlie's trans- 
 lation, 3rd ed.) that the testament per aes et libram was coupled 
 with a mandate to the familiae em.tor, which was binding under the 
 
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228 NOTES 
 
 [CHAP, n 
 
 well-known provision of the Twelve Tables, " nti lingua nuncupassit 
 ita ius esto." This would of course simplify the matter. The same 
 learned author's suggestion that the institution of an heir was a 
 modified form of adoption — that is, an adoption deferred to the 
 testator's death — does not seem to be generally accepted (Girard, 
 "Manuel," p. 793). 
 
 What is said in this chapter about Hindu law would no doubt 
 have been fuller if a convenient and trustworthy text-book like 
 Mr. Mayne's had existed at the time when it was written. I am 
 not aware, however, that any modification is needed except on one 
 point, namely that the strict determination of the order of successiou 
 among an ancestor's next of kin according to the spiritual efficacy 
 of their sacrifices is found only in the school of Bengal. This has 
 been thought to be a deliberate Brahmanical innovation ; but lately 
 two learned Indian scholars, Mr. Justice Mitra of the High Court 
 of Calcutta and Mr. S. S. Setlur, have rejected that view ; the former 
 of them asserts, but the latter denies, that the peculiar doctrines 
 in question are of Buddhistic origin (see L.Q.R. xxi. 380, xxii. 50, 
 xxiii. 202). As Maine himself said in 1883, " we now can discern 
 something of the real relation which the sacerdotal Hindu law 
 bears to the true ancient law of the race " (" Early Law and 
 Custom," p. 194; see also the chapter on Ancestor Worship 
 and Inheritance). The general importance of keeping up the 
 family ritual both in Hindu and in other archaic law remains 
 undoubted. Some addition has to be made as regards the Hindu 
 will. Quite unknown to early Hindu law, will-making came into 
 use in modem times, though not in imitation of European practice 
 according to the best authorities, and was not recognised in 
 any of the Presidency Courts before 1832, when it was allowed 
 in Bengal. When "Ancient Law" was published the law was 
 not yet quite settled in Madras and Bombay ; but the courts of those 
 Presidencies followed the same course within a few years. 
 Apparently the first form of the Bengal will was a gift mortis causa 
 to religious uses. The reader will perceive the resemblance to the 
 development of the testament of chattels, under ecclesiastical 
 influence, in medieval English law. The English history, however, 
 is for the most part too complex and peculiar to throw much light 
 on the normal tjrpe of evolution. As for the Anglo-Saxon will, 
 even if it can be assimilated to modem wills, which is doubtful, 
 it was a special and anomalous kind of document, and disappeared 
 after the Norman Conquest. Probably language is still to be found 
 in popular books asserting or implying that before the Conquest 
 there was general freedom of alienation ; but this is due to pure 
 misunderstanding, the privileged class of transactions which are 
 recorded in the Anglo-Saxon charters having been taken as typical 
 and indigenous. Early English "post obit gifts" (Pollock and 
 Maitland, " H.E.L." ii. 317. sqq., and see Note Q below) do present 
 
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CHAP. VI] NOTES 229 
 
 some analogy to the Roman will by mancipation ; and this appears 
 m a strengthened form in the conveyance to feoffees to uses to 
 be declared by the feoffee's will which was common in the later 
 Middle Ages. In the thirteenth century divers learned clerks 
 made an ingenious and, it seems, almost a successful attempt 
 to create posthumous disposing power by grants inter vivos, 
 containing in what we now call the "habendum" such words as 
 " cuicunque dare vel etiam legare voluerit." A clause so framed 
 is quite common in deeds of the third and even fourth quarters 
 of that century, and inconsistent utterances in Bracton show 
 that learned opinion fluctuated (i83, 412*, pro, 49a, fuller and 
 seemingly more deliberate, contra, cp. Pollock and Maitland, ii. 
 37). We may believe' that for some time and to some extent 
 the power such clauses purported to confer was exercised without 
 objection. But this was a transitory experiment, and has nothing 
 to do with any real testamentary distribution or succession. Local 
 customs to devise land or, at any rate, purchased land existed, but 
 their origin and early history are still obscure. 
 
 In Scotland we find the most remarkable illustration of the 
 prae-testamentary stage, as we may call it, of property law 
 Properly there is no such term as Will in Scots law, and there 
 was no true will of lands before 1868. "Heritage could only be 
 transmitted by a deed containing words of de ^raesenti ^\%'^oAWon, 
 and the use of the word 'dispone' was essential" (Green's 
 "Encycl. of the Law of Scotland," s.v. Will.). The accustomed 
 form was (and apparently still is, notwithstanding that it is no 
 longer necessary) a "trust disposition and settlement," a present 
 conveyance reserving a life interest to the grantor. Scotland, in 
 fact, is the last home of the old Germanic Vergabung von Todes 
 viegen (Goffin, " The Testamentary Executor," 1901, pp. 19, 99). It 
 may survive many generations yet, for aught we know, as in the 
 customs of Egypt and other parts of the Roman Empire essentially 
 similar forms continued in use long after true wills had become 
 familiar in the law of Rome. Original examples of the second 
 century A.D. found at Naucratis might be seen in London some 
 years ago. Notwithstanding the marks of Roman influence which 
 the modem English will bears, its practical scope and effect remain 
 as different as possible from those of the Roman testament. As 
 a rule the wills of Englishmen having any considerable property 
 to dispose of aim not at investing any one person with the whole 
 of the testator's control over his estate, subject to payment of 
 debts and legacies, but rather at postponing absolute control 
 and preserving the estate under the sanction of a trust which w|ll 
 
 ' Extant wills of the period which purport to devise parcels of land (Madox, 
 Form. Anglic. DCCLXVIII., DCCLXIX., DCCLXXI.) are not conclusive as to 
 the practice in the absence of a known previous grant with which they can be 
 connected, as other explanations are possible. 
 
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230 NOTES [CHAP. VI 
 
 Eot be finally determined while any child of the testator is a minor 
 or his widow living. The capital is to be intact as long as possible, 
 while the income is enjoyed or applied according to the testator's 
 directions. If any one is at all like a Roman heir, it is the 
 executor, who does not necessarily take any beneficial interest, 
 and whose origin is quite different (Goffin, oj). cit. p. 7,^ ; O. W. 
 Holmes, L.Q. R. i. 165-6; Gierke, " Grundzuge des deutschen 
 Privatrechts," § 126, in " Encykl. d. Rechtswiss." i. 555). The Roman 
 horror of intestacy mentioned in the early part of the following 
 chapter was equalled or surpassed among medieval Englishmen 
 (Pollock and Maitland, ii. 356) ; but the reason was not one that 
 would have occurred to any Roman from the time of Labeo to 
 that of Justinian, being the danger to the intestate's soul if he 
 died without having assigned a fitting part of his estate to pious 
 uses (Du Cange s.v. intestatio). 
 
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CHAPTER VII 
 
 ANCIENT AND MODERN IDEAS RESPECTING WILLS 
 AND SUCCESSIONS 
 
 Although there is much in the modem 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 
 modem ideas on the subject of WiUs and Succes- 
 sions. Some of the points of difference I shall 
 endeavour 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 Umiting 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 Testamenti, " the 
 Plaint of an Unduteous Will," directed to the 
 reinstatement of the issue in inheritances from 
 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 writers have been tempted to 
 interweave a good deal of dramatic incident into 
 
 331 
 
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232 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 their history of the Law Testamentary. They 
 tell us of the boundless license of disinherison 
 in which the heads of families instantly began to 
 indulge, of the scandal and injury to pubHc 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 principal fact it relates, 
 is often so told as to disclose very serious mis- 
 conceptions 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 
 possibihty of its existence. There is no hkehhood 
 that Roman citizens began immediately to avail 
 themselves freely of the power to disinherit. It 
 is against aU reason and sound appreciation of 
 history to suppose that the yoke of family bondage, 
 still patiently submitted to, as we know, where 
 its pressure gaUed most cruelly, would be cast off 
 in the very particular in which its incidence in 
 our own day is not otherwise than welcome. 
 The Law of the Twelve Tables permitted the 
 execution of Testaments in the only case in which 
 it was thought possible that they could be exe- 
 cuted, 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 contemplated. No doubt, 
 
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CHAP. VII] FEELING RESPECTING INTESTACY 233 
 
 as the offices of family affection progressively 
 lost the aspect of primary personal duties, the 
 disinherison of children was occasionally at- 
 tempted. But the interference of the Praetor, 
 so far from being called for by the universaUty 
 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 morahty. 
 
 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 means 
 of disinheriting a Family, or of affecting 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 feeUng in individuals. It would 
 rather seem as if the Testamentary Power were 
 chiefly valued for the assistance it gave in making 
 provision for a Family, and in dividing the in- 
 heritance 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 the point, it explains to some extent the singular 
 horror of Intestacy which always characterised 
 the Roman. No evil seems to have been con- 
 sidered a heavier visitation than the forfeiture 
 of Testamentary privileges ; no curse appears 
 to have been bitterer than that which imprecated 
 on an enemy that he might die without a Will. 
 
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234 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 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 aU times 
 will doubtless prefer chalking out the destination 
 of their substance to having their office performed 
 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 course, nothing whatever in common with 
 that pride of family, exclusively the creation of 
 feudahsm, which accumulates one description of 
 property in the hands of a single representative. 
 It is probable, ct 'priori, that it was something 
 in the rules of Intestate Succession 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 
 adopted by modem lawgivers, it by no means 
 strikes one as remarkably unreasonable or in- 
 equitable. On the contrary, the distribution it 
 prescribes is so fair and rational, and differs so 
 little from that with which modem society has 
 been generally contented, that no reason suggests 
 itself why it should have been regarded with 
 extraordinary distaste, especially under a juris- 
 prudence which pared down to a narrow 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 famihes would generally save themselves 
 
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CHAP, viij ROMAN INTESTATE SUCCESSION 235 
 
 the trouble of executing a Will, and allow the 
 Law to do as it pleased with their assets. I 
 think, however, if we look a httle closely at the 
 pre-Justinianean scale of Intestate Succession, 
 we shaU 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 Rome ; 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 
 children, the nearest class of Agnatic kindred, 
 and the Gentiles. Between these three orders, 
 the Praetor interpolates various classes of rela- 
 tives, 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 from that 
 which has descended to the generaUty of 
 modem 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 Intes- 
 tate Succession exclusively, and at which the 
 arrangements of the Edict were non-existent, 
 or not consistently carried out. We cannot 
 doubt that, in its infancy, the Praetorian juris- 
 prudence had to contend with formidable obstruc- 
 tions, and it is more than probable that, 
 long after popular sentiment and legal opinion 
 had acquiesced in it, the modifications which it 
 periodically introduced were governed by no 
 certain principles, and fluctuated with the varjdng 
 
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236 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 bias of successive magistrates. The rules of 
 Intestate Succession, which the Romans must 
 at this period have practised, account, I think — 
 and more than account — for that vehement distaste 
 for an Intestacy to which Roman society during 
 so many ages remained constant. The order of 
 succession was this : on the death of a citizen, 
 having no will or no vaUd wiU, his Unemancipated 
 children became his Heirs. His emancipated sons 
 had no share in the inheritance. If he left no 
 direct descendants hving 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. AU the other branches 
 of the family were excluded, and the inheritance 
 escheated to the Gentiles, or entire body of Roman 
 citizens bearing the same name with the deceased. 
 So that on failing to execute an operative Testa- 
 ment, a Roman of the era under examination 
 left his emancipated children absolutely without 
 provision, while, on the assumption that he died 
 childless, there was imminent risk that his posses- 
 sions would escape from the family altogether, 
 and devolve on a number 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 sufficient 
 explanation of the popular sentiment ; but, in 
 point of fact, we shall only half understand 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 
 
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CHAi.. VII] TESTATION AND NATURAL AFFECTION 237 
 
 stage of its transition from its primitive organisa- 
 tion in detached families. The empire of the 
 father had indeed received one of the earhest 
 blows directed at it through the recognition of 
 Emancipation as a legitimate 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 ahens from the blood. We 
 cannot, however, for a moment suppose 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 
 Patriarchal system ; and so httle are they likely 
 to have been extinguished by the act of emanci- 
 pation, that the probabiUties are altogether the 
 other way. It may be unhesitatingly taken for 
 granted that enfranchisement from the father's 
 power was a demonstration, rather than a sever- 
 ance, 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 
 a priori that the passion for Testacy was generated 
 by some moral injustice entailed by the rules, of 
 Intestate succession ; and here we find them at 
 variance with the very instinct by which early 
 society was cemented together. It is possible to 
 put ail that has been urged in a very succinct 
 form. Every dominant sentiment of the primitive 
 
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238 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 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 object. 
 
 I regard, therefore, the Roman horror of 
 Intestacy 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 which hmited the capacity 
 for inheritance possessed by women, must have 
 contributed to keep alive the feehng ; and it is 
 the general belief that the system of creating 
 Fidei-Commissa, or bequests in trust, was devised 
 to evade the disabiUties imposed by those statutes. 
 But the feeling itself, in its remarkable intensity, 
 seems to point back to some deeper antagonism 
 between law and opinion ; nor is it at all wonderful 
 that the improvements of jurisprudence by the 
 Praetor should not have extinguished it. Every- 
 body conversant with the philosophy of opinion 
 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 cUmax of intensity which it never attained 
 during their actual continuance. 
 
 The view of a WiU which regards it as con- 
 ferring the power of diverting property from the 
 Family, or of distributing it in such uneven 
 
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CHAP. Tin MEDIEVAL WILLS 239 
 
 proportions as the fancy or good sense of the 
 Testator may dictate, is not older than that later 
 portion of the Middle Ages in which Feudalism 
 had completely consolidated itself. When modern 
 jurisprudence first shows itself in the rough, 
 WiUs 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 
 movable or personal property was the subject 
 of Testamentary disposition — the exercise of the 
 Testamentary power was seldom allowed to 
 interfere with the right of the widow to a definite 
 share, and of the children to certain fixed propor- 
 tions, of the devolving inheritance. The shares 
 of the children, as their amount shows, were 
 determined by the authority of Roman law. The 
 provision for the widow was attributable to the 
 exertions of the Church, which never relaxed its 
 soUcitude for the interest of wives surviving their 
 husbands — winning, perhaps, one of the most 
 arduous of its triumphs when, after exacting 
 for two or three centuries an express promise 
 from the husband at marriage to endow his wife, 
 it at length succeeded 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 analo- 
 gous and more ancient reservation of certain 
 shares of the personal property to the widow and 
 children. A few local customs in France main- 
 tained the right down to the Revolution, and 
 there are traces of similar usages in England ; 
 but on the whole the doctrine prevailed that 
 
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240 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 movables might be freely disposed of by Will, 
 and, even when the claims of the widow continued 
 to be respected, the privileges of the children 
 were obliterated from jurisprudence. We need 
 not hesitate to attribute the change to the in- 
 fluence of Primogeniture. As the Feudal law 
 of land practically disinherited all the children 
 in favour of one, the equal distribution even of 
 those sorts of property which might have been 
 equally divided ceased to be viewed as a duty. 
 Testaments were the principal instruments em- 
 ployed in producing inequaUty, and in this 
 condition of things originated the shade of differ- 
 ence which shows itself between the ancient and 
 the modern conception of a Will. But, though 
 thehberty 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 system, Uke that of the Feudal land-law, 
 under which property descends compulsorily in 
 prescribed hues 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, therefore, to make 
 sure of their work, they not only rendered it 
 impossible to prefer the eldest son to the rest in 
 marriage-arrangements, but they almost expelled 
 Testamentary successionfrom the law,lest it should 
 
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CHAP, viil PRIMOGENITURE 24I 
 
 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 perfect liberty of bequest. The land-law of 
 England, " the Herculaneum of Feudahsm," 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 
 nevertheless feehng 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 society, on the subject of the conserva- 
 tion of property in famihes, is much liker that 
 which prevailed throughout Europe two or three 
 centuries ago than are the current opinions of 
 Enghshmen. 
 
 The mention of Primogeniture introduces one 
 of the most difficult problems of historical juris- 
 prudence. 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 
 
 16 
 
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242 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 assets were afterwards divided among them in a 
 separate legal proceeding. When the Succession 
 was ah intestato, and the group consisted of the 
 children of the deceased, they each took an equal 
 share of the 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 
 jurisprudence. It certainly seems that, when civil 
 society begins and families cease to hold together 
 through a series of generations, the idea which 
 spontaneously suggests itself is to divide the 
 domain equally among the members of each 
 successive generation, and to reserve no privilege 
 to the eldest son or stock. Some peculiarly 
 significant hints as to the close relation of this 
 phenomenon to primitive thought are furnished 
 by systems yet more archaic than the Roman. 
 Among the Hindoos, the instant a son is bom, 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 fuU age^ 
 he can sometimes compel a partition of the estate, 
 even against the consent of the parent ; and, 
 should the parent acquiesce, 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 tribes was exceedingly similar. 
 The allod 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 
 
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CHAP. VII] PRIMOGENITURE 243 
 
 way the possessions of a Hindoo, however divisible 
 theoretically, are so rarely distributed in fact, that 
 many generations constantly succeed each other 
 without a partition taking place, and thus the 
 Family in India has a perpetual tendency to expand 
 into the Village Community, under conditions 
 which I shall hereafter attempt to elucidate. All 
 this points very clearly to the absolutely equal divi- 
 sion 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 
 difl&culty 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 practised on their first 
 establishment within the Roman Empire. It is 
 known to have had its origin in the benefices or 
 beneficiary gifts of the invading chieftains. These 
 benefices, which were occasionally conferred by 
 the earlier immigrant kings, but were distributed 
 on a great scale by Charlemagne, were grants of 
 Roman provincial land to be holden by the 
 beneficiary on condition of miUtary service. The 
 allodial proprietors do not seem to have followed 
 
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244 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 their sovereign on distant or difficult enterprises, 
 and all the grander expeditions of the Prankish 
 chiefs and of Charlemagne were accomplished with 
 forces composed of soldiers either personally de- 
 pendent on the royal house or compelled 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 fife of the grantee ; but still, from 
 the very outset, no effort seems to have been 
 spared by the beneficiaries to enlarge the tenure, 
 and to continue their lands in their family after 
 death. Through the feebleness of Charlemagne's 
 successors, these attempts were universally suc- 
 cessful, and the Benefice gradually transformed 
 itself into the hereditary Fief. But, though the 
 fiefs were hereditary, they did not necessarily 
 descend to the eldest son. The rules of succession 
 which they followed 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 extremely various ; not indeed so 
 capriciously various as is sometimes asserted, for 
 all which have hitherto been described present 
 some combination of the modes of succession 
 familiar to Romans and to barbarians, but stiU 
 exceedingly miscellaneous. In some of them the 
 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 
 have been general. Precisely the same phenomena 
 recur during that more recent transmutation of 
 European society which entirely substituted the 
 
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CHAP. VII] ALLODS AND FIEFS 245 
 
 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 proprietors transformed themselves into 
 feudal lords by conditional ahenations 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 receiving it back at his 
 hands on condition of service in his wars. Mean- 
 time, that vast mass of the population of Western 
 Europe whose condition was servile or semi- 
 servile — the Roman 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 lands on terms 
 which in those centuries were considered degrading. 
 The tenures 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 the benefices, the succession to some, but by 
 no means all, of the estates followed the rule 
 of Primogeniture. No sooner, however, has the 
 feudal system prevailed throughout the West, 
 than it becomes evident that Primogeniture has 
 some great advantage over every other mode of 
 succession. It spread over Europe with remark- 
 able rapidity, the principal instrument of diffusion 
 being Family Settlements, the Pactes de Famille 
 of France and Haus-Gesetze of Germany, which 
 universally stipulated that lands held by knightly 
 service should descend to the eldest son. Ulti- 
 
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246 IDEAS AS TO WILLS AND SUCCESSIONS [chap, tii 
 
 mately 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 suc- 
 cession to estates of which the tenure is free and 
 miUtary. As to lands held by servile tenures 
 (and originally aU teniures were servile which 
 bound the tenant to pay money or bestow manual 
 labour), the system of succession prescribed by 
 custom differed greatly in different countries and 
 different provinces. The more general 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 inherit- 
 ance of that class of estates, in some respects the 
 most important of aU, which were held by tenures 
 that, Uke the English Socage, were of later origin 
 than the rest, and were neither altogether free nor 
 altogether servile. 
 
 The diffusion of Primogeniture is usually ac- 
 counted for by assigning what are called Feudal 
 reasons for it. It is asserted that the feudal 
 superior had a better security for the military 
 service he required when the fief descended to a 
 single person, instead of being distributed among 
 a number on the decease of the last holder. With- 
 out den5ring that this consideration may partially 
 explain the favour gradually acquired by Primo- 
 geniture, 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 
 
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CHAP.viij POLITICAL PRIMOGENITURE 247 
 
 at all. Nothing in law springs entirely from a 
 sense of convenience. There are always certain 
 ideas existing antecedently on which the sense of 
 convenience works, 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, 
 ajnong all his male children in equal shares, and 
 though this principle of the equal distribution of 
 property extends to every part of the Hindoo in- 
 stitutions, yet wherever public office or political 
 power devolves at the decease of the last Incum- 
 bent, the succession is nearly universally according 
 to the rules of Primogeniture. Sovereignties 
 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 parent's death. AH 
 ofl&ces, indeed, in India, tend to become hereditary, 
 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 political, 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 example, followed the order 
 
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248 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vn 
 
 of Primogeniture. There seems, p 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 Une. 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 
 imferia in imperio. But the position of some of 
 them, of the Celtic clans in particular, was suffi- 
 ciently near independence within historical times 
 to force on us the conviction that they were once 
 separate imperia, and that Primogeniture regulated 
 the succession to the chief taiinship. It is, however, 
 necessary to be on our guard against modern 
 associations with the term of law. We are 
 speaking of a family-connection stiU closer and 
 more stringent than any with which we are made 
 acquainted by Hindoo society or ancient Roman 
 law. If the Roman PaterfamiUas was visible 
 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 administrator 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- 
 
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CHAP. VII] CARLOVINGIAN DECADENCE 249 
 
 government known to the invading races, though 
 not in general use. Some ruder tribes may have 
 still practised 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 spontaneously 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 super- 
 sede every other principle of succession ? The 
 answer, I think, is, that European society de- 
 cidedly retrogaded during the dissolution of the 
 Carlovingian empire. It sank a point or two back 
 even from the miserably low degree which it had 
 marked during the earlier barbarian monarchies. 
 The great characteristic of the period was the 
 feebleness, or rather the abeyance, of kingly and 
 therefore of civil authority ; and hence it seems 
 as if, civil society no longer cohering, men univer- 
 sally flung themselves back on a social organisa- 
 tion older than the beginnings of civil communities. 
 The lord with his vassals, during the ninth and 
 tenth centuries, may be considered as a patriarchal 
 household, recruited, not as in the primitive times 
 by Adoption, but by Infeudation ; and to such a 
 confederacy, succession by Primogeniture was a 
 source of strength and durabihty. 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 invite aggression 
 in an era of universal violence. We may be 
 perfectly certain that into this preference for 
 Primogeniture there entered no idea of disin- 
 
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250 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 heriting 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 hkely that the lord who was invested with the 
 inheritance had any advantage over his brethren 
 and kinsfolk in occupations, interests, or indul- 
 gences. 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 EngUsh strict settlement. 
 
 I have said that I regard the early feudal con- 
 federacies as descended from an archaic form of 
 the Family, and as weeiring a strong resemblance 
 to it. But then in the ancient world, and in the 
 societies which have not passed through the cru- 
 cible of feudalism, the Primogeniture which seems 
 to have prevailed never transformed itself into 
 the Primogeniture of the later feudal Europe. 
 When the group of kinsmen ceased to be governed 
 through a series 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 not occur in the feudal world ? If 
 during the confusions 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 consoUdated itself, and regular communities 
 were again estabUshed, the whole family did not 
 resume that capacity for equal inheritance which 
 had belonged to Roman and German alike ? The 
 key which unlocks this difi&culty has rarely been 
 seized by the writers who occupy themselves in 
 
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CHAP, viil PATRIARCH BECOMES OWNER 25I 
 
 tracing the genealogy of Feudalism. They per- 
 ceive the materials of the feudal institutions, but 
 they miss the cement. The ideas and social forms 
 which contributed to the formation of the system 
 were unquestionably barbarian and archaic, but 
 as soon as Courts and lawyers were called in to 
 interpret and define it, the principles of interpre- 
 tation which they applied to it were those of the 
 latest Roman jurisprudence, and were therefore 
 excessively refined and matured. In a patriarch- 
 ally governed society, the eldest son may succeed 
 to. the government of the Agnatic group, and to 
 the absolute disposal of its property. But he is 
 not therefore a true proprietor.. He has correla- 
 tive duties not involved in the conception of 
 proprietorship, but quite undefined and quite 
 incapable of definition. The later Roman juris- 
 prudence, 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 belonged to a period 
 anterior to regular law. The contact of the re- 
 fined 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 participating on 
 equal terms in all the dangers and enjo37ments of 
 his kinsman, sank into the priest, the soldier of 
 fortune, or the hanger-on of the mansion. The 
 legal revolution was identical with that which 
 occurred on a smaller scale, and in quite recent 
 
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252 IDEAS AS TO WILLS AND SUCCESSIONS [chap, vii 
 
 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 juris- 
 prudence had long since passed the point at which 
 it could take notice of the vague hmitations on 
 completeness of dominion imposed by the claims 
 of the clansmen, and it was inevitable therefore 
 that it should convert the patrimony of many into 
 the estate of one. 
 
 For the sake of simplicity, I have called the 
 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 Hne 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 difficulty may present itself which wiU 
 appear of greater magnitude according as the 
 cohesion of society is less perfect. The chieftain 
 who last exercised authority may have outlived 
 his eldest son, and the grandson who is primarily 
 entitled to succeed may be too young and imma- 
 
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CHAP. VII] FORMS OF PRIMOGENITURE 253 
 
 ture to undertake the actual guidance of the 
 community, and the administration of its affairs. 
 In such an event, the expedient which suggests 
 itself to the more settled societies is to place the 
 ififant heir under guardianship tiU he reaches 
 the age of fitness for government. The guardian- 
 ship is generally that of the male Agnates ; but 
 it is remarkable that the contingency supposed 
 is one of the rare cases in which ancient societies 
 have consented to the exercise of power by women, 
 doubtless out of respect to the overshadowing 
 claims of the mother. In India, the widow of a 
 Hindoo sovereign governs in the name of her 
 infant son, and we cannot but remember that the 
 custom regulating succession to the throne of 
 France — which, whatever be its origin, is doubtless 
 of the highest antiquity — preferred the queen- 
 mother to aU other claimants for the Regency, 
 at the same time that it rigorously excluded all 
 females from the throne. There is, however, 
 another mode of obviating the inconvenience 
 attending the devolution of sovereignty on an 
 infant heir, and it is one which would doubtless 
 occur spontaneously to rudely organised com- 
 munities. 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 pheno- 
 mena which they preserved of an age in which 
 civil and pohtical 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, faiUng the eldest son, his next brother 
 
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254 IDEAS AS TO WILLS AND SUCCESSIONS [chap, yii 
 
 succeeds in priority to all grandsons, whatever 
 be their age at the moment when the sovereignty 
 devolves. Some writers have explained the prin- 
 ciple by assuming that the Celtic customs took 
 the last chieftain as a sort of root or stock, and 
 then gave the succession to the descendant who 
 should be least remote from him ; the uncle 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 
 description of the system of succession ; but it 
 would be a serious error to conceive the men 
 who first adopted the rule as applpng 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 hkely to have come 
 to maturity than any of the eldest son's descen- 
 dants. At the same time, we have some evidence 
 that the form of Primogeniture with which we 
 are best acquainted 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 authenti- 
 cated instance of this ceremony in the annals 
 of the Scottish Macdonalds ; and Irish Celtic 
 antiquities, as interpreted by recent inquirers, 
 are said to disclose many traces of similar prac- 
 tices. The substitution by means of election, 
 of a " worthier " Agnatic relative for an elder 
 
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CHAP. VII] MAHOMETAN RULE 255 
 
 is not unknown, too, in the system of the Indian 
 Village Communities. 
 
 Under Mahometan law, which has probably- 
 preserved an ancient Arabian custom, inheritances 
 of property are divided equally among sons, the 
 daughters taking a half share ; but if any of the 
 children die before the division of the inheritance, 
 leaving issue behind, these grandchildren are 
 entirely excluded by their uncles and aunts. 
 Consistently with this principle, the succession, 
 when poUtical authority devolves, is according 
 to the form of Primogeniture which appears to 
 have obtained among the Celtic societies. In the 
 two great Mahometan famiUes 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 
 governing the devolution of the Turkish sove- 
 reignty. The policy of the Sultans has in fact 
 generally prevented cases for its application from 
 occurring, and it is possible 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 
 
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256 NOTES [CHAP. VII 
 
 Mahometan sovereigns, without pretending to 
 any distinct testamentary power, claim the right 
 of nominating the son who is to succeed. The 
 blessing mentioned in the Scriptural history of 
 Isaac and his sons has sometimes been spoken 
 of as a wiU, but it seems rather to have been a 
 mode of naming an eldest son. 
 
 NOTE N 
 
 PRIMOGENITURE 
 
 Much has been written in recent years about the origins oi 
 medieval jurisdiction and land tenure, and the peculiar complication 
 of tenure with personal lordship and jurisdiction which we call 
 feudalism ; we mention, almost at random, the names of Brunner, 
 Waitz, Fustel de Coulanges, Flach, Luchaire ; but there is nothing 
 to throw doubt on the general soundness of the luminous sketch 
 given in this chapter. Maine returns to the subject in the latter 
 part of ch. viii. At the end of that chapter an opinion is adopted, 
 it seems from Kemble, that " some shade of servile debasement " 
 attached to a Germanic king's or chieftain's personal companions. 
 I have never been able to discover Kemble' s authority for this 
 supposition, or to meet with any other acceptance of it. See, 
 contra, Konrad Maurer in " Kritische tjberschau," ii. 391. 
 
 Further observations on Primogeniture by Maine himself will 
 be found in "The Early History of Institutions," pp. 124, 198-205. 
 We may add to the brief mention of " parage " at p. 205 that 
 the " paragium " of the Norman custumals has an important part 
 in the Anglo-Norman nomenclature of Domesday Book. Groups 
 of co-heirs holding " in paragio," and represented, for the purposes 
 of the service due to their lord, by one of them who is sometimes 
 called the senior, are common in several counties (Maitland, 
 "Domesday Book and Beyond," p. 145; Pollock and Maitland, 
 '■ H.E.L." ii. 263-4, 276 ; Pollock in Eng. Hist. Rev. 1896, xi. 228, 
 note 65). This arrangement is a strong illustration of the practical 
 convenience of primogeniture for the lord when feudal service was 
 really military service. Maine's view that primogeniture originally 
 had an official character seems to be thoroughly accepted; it 
 would probably be found, if we had all the facts, that the occasional 
 examples of primogeniture in servile or inferior tenures are to be 
 explained by the tenement having been attached to some manorial 
 or communal office. It would seem that, whether for reasons of 
 
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CHAP. VII] NOTES 257 
 
 convenience or because men liked to imitate the fashion of their 
 lords, the general introduction of primogeniture in England was 
 to some extent a popular movement. In 1255 the burgesses of 
 Leicester alleged that they were being ruined by partible tenures, 
 and procured a charter from their lord, Simon de Montfort, which 
 Henry III. shortly afterwards confirmed, to change the course 
 of descent to primogeniture (" Records of the Borough of Leicester," 
 ed. Bateson, Nos. xxiii. xxiv., the latter indorsed "carta quod 
 hereditas sit ad communem legem "). On the whole subject Mr. 
 Evelyn Cecil's book " Primogeniture : A Short History of its 
 Development in Various Countries, audits Practical EfEects," Lond. 
 1895, may be studied with advantage. 
 
 17 
 
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CHAPTER VIII 
 
 THE EARLY HISTORY OF PROPERTY 
 
 The Roman Institutional Treatises, after giving 
 their definition of the various forms and modifi- 
 cations of ownership, proceed to discuss the 
 Natural Modes of Acquiring Property. Those 
 who are unfamiliar with the history of juris- 
 prudence are not hkely to look upon these " natural 
 modes " of acquisition as possessing, at first sight, 
 either much speculative or much practical interest. 
 The wild animal which is snared or kiUed 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 our ground, are each said 
 by the Roman lawyers to be acquired by us 
 naturally. The older jurisconsults had doubtless 
 observed that such acquisitions were universally 
 sanctioned by the usages of the little societies 
 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 de- 
 scription, allotted them a place among the ordi- 
 nances of Nature. The dignity with which they 
 were 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. 
 
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<=«*'■• »'"] OCCUPANCY 259 
 
 It will be necessary for us to attend to one 
 only among these " natural modes of acquisition," 
 Occupatio or Occupancy. Occupancy is the ad- 
 visedly taking possession of that which at the 
 moment is the property of no man^ with the view 
 (adds the technical definition) of acquiring pro- 
 perty in it for yourself. The objects which the 
 Roman lawyers called res nullius — things which 
 have not or have never had an owner — can only 
 be ascertained by enumerating them. Among 
 things which never had an owner are wild animals, 
 fishes, wild fowl, jewels disinterred for the first 
 time, and lands newly discovered or never before 
 cultivated. Among things which have not an 
 owner are movables which have been abandoned, 
 lands which have been deserted, and (an anoma- 
 lous 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 universaHty which caused the practice of 
 Occupancy to be placed by one generation of 
 Roman lawyers in the Law common to all Nations, 
 and the simpUcity which occasioned its being 
 attributed by another to the Law of Nature. 
 But for its fortunes in modern legal history we 
 are less prepared by dt priori considerations. The 
 Roman principle of Occupancy, and the rules 
 into which the jurisconsults expanded it, are the 
 source of all modem International Law on the 
 subject of Capture in War and of the acquisition 
 
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260 EARLY HISTORY OF PROPERTY [chap, viii 
 
 of sovereign rights in newly discovered countries. 
 They have also supphed a theory of the Origin 
 of Property, which is at once the popular theory, 
 and the theory which, in one form or another, 
 is acquiesced in by the great majority of specula- 
 tive jurists. 
 
 I have said that the Roman principle of 
 Occupancy has determined the tenor of that 
 chapter of International Law which is concerned 
 with Capture in War. The Law of Warhke 
 Capture derives its rules from the assumption 
 that communities are remitted to a state of nature 
 by the outbreak of hostiUties, and that, in the 
 artificial natural condition thus produced, the 
 institution of private property falls into abeyance 
 so far as concerns the belligerents. As the later 
 writers on the Law of Nature have always been 
 anxious to maintain that private property was 
 in some sense sanctioned by the system which 
 they were expounding, the hypothesis that an 
 enemy's property is res nullius has seemed to 
 them perverse and shocking, and they are careful 
 to stigmatise it as a mere fiction of jurisprudence. 
 But, as soon as the Law of Nature is traced to 
 its source 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 spontaneously to persons prac- 
 tising 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 movable property which was thus 
 
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CHAP. VIII] enemy's property 261 
 
 pennitted 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 Gentium was becoming 
 the Code of Nature, and that it is the result of 
 a generalisation effected by the jurisconsults 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 
 property of every sort is res nullius to the other 
 belligerent, 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 stigmatised as needlessly indulgent 
 to the ferocity and cupidity of combatants, but 
 the charge has been made, I think, by persons 
 who are unacquainted with the history of wars, 
 and who are consequently ignorant how great 
 an exploit it is to command obedience for a rule 
 of any kind. The Roman principle of Occupancy, 
 when it was admitted into the modern law of 
 Capture in War, drew with it a number of sub- 
 ordinate canons, limiting and giving precision 
 to its operation, 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 received. Warfare instantly 
 assumed a more tolerable complexion. If the 
 
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262 EARLY HISTORY OF PROPERTY [chap, viii 
 
 Roman law of Occupancy is to be taxed with 
 having had pernicious influence on any part 
 of the modern Law of Nations, there is another 
 chapter in it which may be said, with some reason, 
 to have been injuriously affected. In applying 
 to the discovery of new countries the same prin- 
 ciples which the Romans had applied to the 
 finding of a jewel, the Pubhcists forced into their 
 service a doctrine altogether unequal to the task 
 expected from it. Elevated into extreme import- 
 ance by the discoveries of the great navigators of 
 the fifteenth and sixteenth centuries, it raised more 
 disputes than it solved. The greatest uncertainty 
 w£is very shortly found to 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 adprehensio or assumption of sovereign pos- 
 session. Moreover, the principle itself, conferring 
 as it did such enormous advantages as the 
 consequence of a piece of good luck, was instinc- 
 tively mutinied against by some of the most 
 adventurous nations in Europe, the Dutch, the 
 Enghsh, and the Portuguese. Our own country- 
 men, without expressly den5n.ng the rule of Inter- 
 national Law, never did, in practice, admit the 
 claim of the Spaniards 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 Ehzabeth to the accession of Charles 
 the Second, it cannot be said that there was at 
 any time thorough peace in the American waters. 
 
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CHAP, vni] NATURAL OCCUPANCY 263 
 
 and the encroachments of the New England 
 Colonists on the territory of the French King 
 continued for almost a century longer. Bentham 
 was so struck with the confusion attending the 
 application of the legal principle, that he went 
 out of his way to eulogise the famous Bull of 
 Pope Alexander the Sixth, dividing the undis- 
 covered countries of the world between the 
 Spaniards and Portuguese by a line drawn one 
 himdred leagues West of the Azores ; and, 
 grotesque as his praises may appear at first 
 sight, it may be doubted whether the arrangement 
 of Pope Alexander is absurder in principle than 
 the rule of PubUc Law which gave half a continent 
 to the monarch whose servants had fulfilled the 
 conditions required by Roman jurisprudence for 
 the acquisition of property in a valuable object 
 which could be covered by the hand. 
 
 To all who pursue the inquiries which are the 
 subject of this volume. Occupancy is pre-eminently 
 interesting on the score of the service it has been 
 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 identical 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 difference which separates the ancient from 
 the modern conception of Natural Law. The 
 Roman lawyers had laid down that Occupancy 
 was one of the Natural modes of acquiring pro- 
 
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264 EARLY HISTORY OF PROPERTY [chap, vwi 
 
 perty, and they undoubtedly believed that, were 
 mankind Uving under the institutions of Nature, 
 Occupancy would be one of their practices. How 
 far they persuaded themselves that such a con- 
 dition 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 aU times possessed much plausibihty, that 
 the institution of property was not so old as 
 the existence of mankind. Modern jurisprudence, 
 accepting all their dogmas without reservation, 
 went far beyond them in the eager curiosity with 
 which it dwelt on the supposed state of Nature. 
 Since then it had received the position that the 
 earth and its fruits were once res nullius, and 
 since its pecuhar view of Nature led it to assume 
 without hesitation that the human race had 
 actually practised the Occupancy of res nullius 
 long before the organisation of civil societies, 
 the inference immediately suggested itself that 
 Occupancy 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 another, and it is the less necessary 
 to attempt it because Blackstone, who is always 
 a faithful index of the average opinions of his 
 day, has summed them up in his 2nd 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 
 
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cHAp.viH] blackstone's theory 265 
 
 communion 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 pos- 
 session lasted. Thus the ground was in common, 
 and no part was the permanent property of 
 any man in particular ; yet whoever 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 been 
 unjust and contrary to the law of nature to have 
 driven him by force, but the instant that he quitted 
 the use or 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 in- 
 dividuals 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 
 which 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 misappre- 
 hension he has imposed on the theory brings it 
 into a form which it has not infrequently assumed. 
 Many writers more famous than Blackstone for 
 
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266 EARLY HISTORY OF PROPERTY [chap, viii 
 
 precision of language have laid down that, in the 
 beginning of things, Occupancy hrst gave a right 
 against the worid to an exclusive but temporary 
 enjoyment, and that afterwards 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 nullius 
 became property through Occupancy, with the 
 inference which they drew from the Scriptural 
 history that the Patriarchs did not at first per- 
 manently appropriate the soil which had been 
 grazed over by their flocks and herds. 
 
 The only criticism which could be directly 
 applied 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 imagined with equal readiness. Pur- 
 suing this method of examination, we might fairly 
 ask whether the man who had occupied (Blackstone 
 evidently uses this word with its ordinary Enghsh 
 meaning) a particular 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 co-extensive with 
 his power to keep it, and that he would be con- 
 stantly 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 aU 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 
 inquiry, but of their motives for doing it it is 
 
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CHAP. Till] APHORISM OF SAVIGNY 267 
 
 impossible to know anything. These sketches of 
 the phght of human beings in the first ages of the 
 world are effected by first supposing mankind to 
 be divested 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 preserve the same sentiments and 
 prejudices by which they are now actuated, — 
 although, in fact, these sentiments may have been 
 created and engendered by those very circum- 
 stances of which, by the hypothesis, 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 jurist has laid down that all property is 
 founded on Adverse Possession ripened by Pre- 
 scription. It is only with respect to Roman law 
 that Savigny makes this statement, and before 
 it can fully be appreciated much labour must be 
 expended in explaining and defining the expres- 
 sions employed. His meaning wiU, 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 
 farther than a conception of ownership involving 
 the three elements in the canon — Possession, Ad- 
 verseness 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 unin- 
 
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268 EARLY HISTORY OF PROPERTY [chap, viii 
 
 terruptedly 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 conclusion can be looked 
 for from investigations into any system of laws 
 which are pushed farther back than the point at 
 which these combined ideas constitute the notion 
 of proprietary right. Meantime, 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 senti- 
 ment 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 inquiries. 
 
 Before pointing out the quarter in which we 
 may hope to glean some information, scanty and 
 uncertain at best, concerning the early history of 
 proprietary right, I venture to state my opinion 
 that the popular impression in reference to the 
 part played by Occupancy in the first stages of 
 civiUsation directly reverses the truth. Occupancy 
 is the advised assumption of physical possession ; 
 
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CHAP. Till] PRESUMPTION OF OWNERSHIP 269 
 
 and the notion that an act of this description 
 confers a title to " res nuUius," 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 the laws. It is only 
 when the rights of property have gained a sanction 
 from long practical inviolabiUty, and when the 
 vast majority of the objects of enjoyment have 
 been subjected to private ownership, that mere 
 possession is allowed to invest the first possessor 
 with dominion over commodities in which no prior 
 proprietorship has been asserted. The sentiment 
 in which this doctrine originated is absolutely 
 irreconcilable with that infrequency and uncer- 
 tainty of proprietary rights which distinguish the 
 beginnings of civilisation. Its true basis seems to 
 be, not an instinctive bias towards the institution 
 of Property, but a presumption, arising out of the 
 long continuance 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 aU 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, becomes the owner, because 
 aU 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 
 descriptions of mankind in their natural state 
 
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270 EARLY HISTORY OF PROPERTY [chap, viii 
 
 which we have been discussing, there is one par- 
 ticular in which they are fatally at variance with 
 the authentic evidence possessed by us. It will 
 be observed, that the 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 Indi- 
 vidual men, that according to the theory of Hobbes 
 is hardened into the social rock by the wholesome 
 discipline of force. It is an Individual who, in 
 the picture drawn by Blackstone, " is in the occu- 
 pation of a determined spot of ground for rest, 
 for shade, or the Uke." The vice is one which 
 necessarily afflicts all the theories descended from 
 the Natural Law of the Romans, 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 civiUsation 
 in enfranchising the individual from the authority 
 of archaic society. But Ancient Law, it must 
 again be repeated, knows next to nothing of Indi- 
 viduals. It is concerned not with Individuals, but 
 with FamiUes, not with single human beings, but 
 groups. Even when the law of the State has suc- 
 ceeded in penetrating the small circles of kindred 
 into which it had originally no means of penetrat- 
 ing, 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 existence of his 
 descendants. 
 
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CHAP. VIII] LAW OF PERSONS AND THINGS 27 1 
 
 The Roman distinction between the Law of 
 Persons 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 DeUct, have 
 been considered as if no hints concerning their 
 original nature were to be gained from the facts 
 ascertained respecting the original condition of 
 Persons. The futiUty 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 the law, that the rules belonging 
 to the two departments are inextricably mingled 
 together, and that the distinctions of the later 
 jurists are appropriate only to the later jurispru- 
 dence. 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 notice to the proprietary rights 
 of individuals. It is more than hkely that joint- 
 ownership, and not separate ownership, is the 
 really archaic institution, and that the forms of 
 property which will afford us instruction wiU 
 be those which are associated with the rights of 
 families and of groups of kindred. The Roman 
 jurisprudence will not here assist in enhghtening 
 us, for it is exactly the Roman jurisprudence which. 
 
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272 EARLY HISTORY OF PROPERTY [chap, tiii 
 
 transformed by the theory of Natural Law, has 
 bequeathed to the moderns the impression that 
 individual ownership is the normal state of pro- 
 prietary 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 undergone 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 sheU in which it was origin- 
 ally reared. It happens that, among the Hindoos, 
 we do find a form of ownership which ought at 
 once to rivet our attention 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 property. The Village Com- 
 munity 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 indistinguishably confounded with 
 their proprietary rights, and to the attempts of 
 English functionaries to separate the two may be 
 assigned some of the most formidable miscarriages 
 of Anglo-Indian administration. The Village 
 Community is known to be of immense antiquity. 
 In whatever direction research has been 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 sort to support concerning its nature and 
 
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CHAP, vni] COMMUNITY AND PARTITION 273 
 
 origin, agree in considering it the least destructible 
 institution of a society which never willingly sur- 
 renders any one of its usages to innovation. 
 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 recog- 
 nised 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 wiU "). But in India this order of ideas 
 is reversed, and it may be said that separate 
 proprietorship is always on its way to become 
 proprietorship in common. The process has been 
 adverted to already. 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 contingencies, 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 death of the father, and the property 
 constantly remains undivided for several genera- 
 tions, though every member 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 re- 
 presentative of the eldest line of the stock. Such 
 
 18 
 
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274 EARLY HISTORY OF PROPERTY [cmap. viii 
 
 an assemblage of joint proprietors, a body of 
 kindred holding 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 function- 
 aries, for internal government, for police, for the 
 administration of justice, and for the apportion- 
 ment of taxes and pubUc duties. 
 
 The process which I have described as that 
 under which a Village Community is formed, may 
 be regarded as typical. Yet it is not to be sup- 
 posed 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 invariably show that the Community was 
 founded by a single assemblage of blood-relations, 
 they also supply information that men of alien 
 extraction have always, from time to time, been 
 engrafted on it, and a mere purchaser of a share 
 may generally, under certain conditions, be ad- 
 mitted to the brotherhood. In the South of the 
 Peninsula there are often Communities which 
 appear to have sprung not from one but from two 
 or more families : and there are some whose com- 
 position is known to be entirely artificial ; indeed, 
 the occasional aggregation of men of different 
 castes in the same society is fatal to the hypothesis 
 of a common descent. Yet in aU these brother- 
 hoods either the tradition is preserved, or the 
 assumption made, of an original common parent- 
 age. Mountstuart Elphinstone, who writes more 
 
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'=«*''• ^"3 INDIAN VILLAGES 275 
 
 particularly of the Southern Village Communities, 
 observes of them (History of India,p.7i, 1905 edn.): 
 "The popular notion is that the Village landholders 
 are a;ll descended 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 is confirmed 
 by the fact that, to this day, there are only single 
 famihes 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, without 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 consent 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 Elphinstone'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 vivify- 
 ing legal fiction. The Village Community then is 
 not necessarily an assemblage of blood-relations, 
 but it is either such an assemblage or a body of 
 co-proprietors formed on the model of an asso- 
 
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276 EARLY HISTORY OF PROPERTY [chap, vin 
 
 elation 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 antiquity. 
 In historical times, its leading characteristics 
 were the very two which Elphinstone remarks 
 in the Village Community. There was always 
 the assumption of a common origin, an assumption 
 sometimes notoriously at variance with fact : 
 and, to repeat the historian's words, " if a family 
 became extinct, its share returned to the common 
 stock." In old Roman law, unclaimed inherit- 
 ances escheated to the Gentiles. It is further 
 suspected by all who have examined their history 
 that the Communities, hke the Gentes, have 
 been very generally adulterated by the admission 
 of strangers, but the exact mode of absorption 
 cannot now be ascertained. 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 
 member is, however, of the nature of a universal 
 succession ; together with the share he has 
 bought, he succeeds to the liabihties which the 
 vendor had incurred towards the aggregate group. 
 He is an Emptor Familias, and inherits the legal 
 clothing of the person whose place he begins to 
 fiU. The consent of the whole brotherhood re- 
 quired for his admission may remind us of the 
 consent which the Comitia Curiata, the Parliament 
 of that larger brotherhood of self-styled kinsmen, 
 the ancient Roman commonwealth, so strenuously 
 
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CHAP, viii] RUSSIAN VILLAGBS 277 
 
 insisted on as essential to the legalisation of an 
 Adoption or the confirmation of a Will. 
 
 The tokens of an extreme antiquity are dis- 
 coverable in almost every single feature of the 
 Indian Village Communities. We have so many 
 independent reasons for suspecting that the in- 
 fancy of law is distinguished by the prevalence 
 of co-ownership, by the intermixture of personal 
 with proprietary rights, and by the confusion 
 of pubUc with private duties, that we should be 
 justified in deducing many important conclusions 
 from our observation of these proprietary brother- 
 hoods, even if no similarly compounded societies 
 could be detected in any other 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 
 important particulars have as close an affinity 
 with the Eastern as with the Western world. 
 The researches of M. de Haxthausen, M. Tengo- 
 borski, and others, have shown us that the Russian 
 villages are not fortuitous assemblages of men, 
 nor are they unions founded on contract ; they 
 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 historical 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 
 
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278 EARLY HISTORY OF PROPERTY [chap, viii 
 
 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 social 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 spontaneous pro- 
 visions for internal administration, the Russian 
 village appears to be a nearly exact repetition of 
 the Indian Community ; but there is one im- 
 portant difference which we note with the greatest 
 interest. The co-owners of an Indian village, 
 though their property is blended, have their 
 rights distinct, and this separation of rights is 
 complete and continues indefinitely. The sever- 
 ance 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, separate ownerships 
 are extinguished, the land of the village is thrown 
 into a mass, and then it is redistributed among 
 the families composing the community, 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 foUow 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 debatable 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 
 
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CHAP. VIII] VARIETIES OF THE COMMUNITY 279 
 
 persons who are at once co-owners and kinsmen ; 
 but there the internal arrangements of the com- 
 munity 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 the produce is annually 
 distributed among the households, sometimes 
 according to their supposed wants, sometimes 
 according to rules 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 is asserted to be found in 
 the earhest Sclavonian laws, the principle that 
 the property of famiUes cannot be divided for a 
 perpetuity. 
 
 The great interest of these phenomena in an 
 inquiry like the present arises from the Ught 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 reason for thinking that property once 
 belonged not to individuals nor even to isolated 
 famihes, 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 infinitely obscurer if 
 several distinguishable forms of Village Com- 
 munities had not been discovered and examined. 
 It is worth while to attend to the varieties of 
 internal arrangement within the patriarched groups 
 which are, or were till recently, observable among 
 races of Indo-European blood. The chiefs of the 
 
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28o EARLY HISTORY OF PROPERTY [chap, viii 
 
 ruder Highland clans used, it is said, to dole out 
 food to the heads of the households under their 
 jurisdiction at the very shortest intervals, and 
 sometimes 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 aU of the total produce of the year. In the 
 Russian villages, however, the substance of the 
 property ceases to be looked 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 
 proprietorship in parts of it may be indefinitely 
 prolonged 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 repre- 
 sent distinct stages in a process of transmutation 
 which has been everywhere accomplished in the 
 same manner. But, though the evidence does not 
 warrant our going so far as this, it renders less 
 presumptuous the conjecture that private pro- 
 perty, in the shape in which we know it, was 
 chiefly formed by the gradual disentanglement 
 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 
 
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CHAP. VIII] ANCIENT DIFFICULTIES OF ALIENATION 281 . 
 
 then the Agnatic group dissolving into separate 
 households ; lastly, the household supplanted by 
 the individual ; 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 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 possessions ? 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 separa- 
 tion from the co-ownership of kinsmen, then the 
 great point of inquiry is identical with that which 
 lies on the threshold of aU historical law — what 
 were the motives which originally prompted 
 men to hold together in the family union ? To 
 such a question, Jurisprudence, unassisted by other 
 sciences, is not competent to give a reply. The 
 fact can only be noted. 
 
 The undivided state of property in ancient 
 societies is consistent with a pecuhar sharpness 
 of division, 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 deaUng with it, in 
 
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282 EARLY HISTORY OF PROPERTY [chap, viii 
 
 its divided state, is a transaction between two 
 highly complex bodies. I have already compared 
 Ancient Law to Modern International Law, in 
 respect of the size and complexity of the corporate 
 associations, whose rights and duties it settles. 
 As the contracts and conveyances known to 
 ancient law are contracts and conveyances to 
 which not single individuals, but organised com- 
 panies of men, are parties, they are in the highest 
 degree ceremonious ; they require a variety of 
 symbohcal acts and words intended to impress 
 the business on the memory of aU who take 
 part in it ; and they demand the presence of 
 an inordinate number of witnesses. From these 
 peculiarities, and others aUied to them, springs 
 the universally unmalleable character of the 
 ancient forms of property. Sometimes the patri- 
 mony of the family is absolutely inalienable, as 
 was the case with the Sclavonians, and still oftener, 
 though alienations may not be entirely illegiti- 
 mate, they are virtually impracticable, 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 impediments do 
 not exist, or can be surmounted, the act of con- 
 veyance itself is generally burdened with a perfect 
 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, how- 
 ever superfluous may be his testimony. The 
 entire solemnities must be scrupulously completed 
 by persons legally entitled to take part in it, 
 
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CHAP. VIII] CLASSIFICATIONS OF PROPERTY 283 
 
 or else the conveyance is null, and the seller is 
 re-established in the rights of which he had vainly 
 attempted to divest 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 overcome them form the staple of 
 the history of Property. Of such expedients there 
 is one which takes precedence of the rest from 
 its antiquity and universaUty. The idea seems 
 to have, spontaneously suggested itself 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. Subsequently, 
 the superior convenience of the rules governing 
 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 communi- 
 cated 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 subver- 
 sion of the feudalised law of land by the Romanised 
 law of movables ; and though the history of 
 ownership in England is not nearly completed, it 
 is visibly the law of personalty which threatens 
 to absorb and annihilate the law of realty. 
 
 The only natural classification of the objects 
 
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284 EARLY HISTORY OF PROPERTY [chap, nii 
 
 of enjoyment, the only classification which corre- 
 sponds with an essential difference in the subject- 
 matter, is that which divides them into Movables 
 and Immovables. FamiUar as is this classifica- 
 tion to jurisprudence, it was very slowly developed 
 by Roman law, from which we inherit it, and was 
 only finally adopted by it in its latest stage. The 
 classifications of Ancient Law have sometimes a 
 superficial resemblance to this. They occasionally 
 divide property into categories, and place im- 
 movables in one of them ; but then it is found 
 that they either class along with immovables 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 affinity. Thus, 
 the Res Mancipi of Roman Law included not only 
 land but slaves, horses, and oxen. Scottish law 
 ranks with land a certain class of securities, and 
 Hindoo law associates it with slaves. English 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. 
 Moreover, the classifications of Ancient Law are 
 classifications implying superiority and inferiority ; 
 while the distinction between movables and im- 
 movables, so long at least as it was confined to 
 Roman jurisprudence, carried with it no suggestion 
 whatever of a difference in dignity. The Res 
 Mancipi, however, did certainly at first 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 classifications to 
 
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CHAR viii] SUPERIOR AND INFERIOR PROPERTY 285 
 
 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 philo- 
 sophy, but to its history. The explanation which 
 appears to cover the greatest number of instances 
 is, that the objects of enjoyment honoured above 
 the rest were the forms of property known first 
 and earliest to each particular community, and 
 dignified therefore emphatically with the designa- 
 tion 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 catalogue of superior property 
 was settled. They were at first unknown, rare, 
 limited in their uses, or else regarded as mere 
 appendages to the privileged objects. Thus, 
 though the Roman Res Mancipi included a num- 
 ber of movable articles of great value, still the 
 most costly jewels were never allowed to take rank 
 as Res Mancipi, because they were unknown to 
 the early Romans. In the same way chattels 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 
 continued degradation of these commodities when 
 their importance had increased and their number 
 had multiplied. Why were they not successively 
 included among the favoured objects of enjoy- 
 ment ? One reason is found in the stubbornness 
 with which Ancient Law adheres to its classifica- 
 tions. It is a characteristic both of uneducated 
 minds and of early societies, that they are little 
 
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286 EARLY HISTORY OF PROPERTY [chap, viii 
 
 able to conceive a general rule apart from the 
 particular applications of it with which they are 
 practically familiar. They cannot dissociate a 
 general term or maxim from the special 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 
 consistent with progress in enlightenment and in 
 the conceptions of general expediency. Courts and 
 lawyers become at last ahve to the inconvenience 
 of the embarrassing formalities required for the 
 transfer, recovery, or devolution of the favoured 
 commodities, and grow unwiUing to fetter the 
 newer descriptions of property with the technical 
 trammels which characterised the infancy of law. 
 Hence arises a disposition 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 archaic conveyances, serve 
 as stumbling-blocks to good faith and stepping- 
 stones to fraud. We are perhaps in some danger 
 of under-rating the inconveniences of the ancient 
 modes of transfer. Our instruments of conveyance 
 are written, so that their language, well pondered 
 by the professional draftsman, is rarely defective 
 in accuracy. But an ancient conveyance was not 
 written, but acted. Gestures and words took the 
 place of written technical phraseology, and any 
 formula mispronounced, or symbolical act omitted, 
 would have vitiated the proceeding as fatally as a 
 
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CHAP-V'"] RES MANCIPI 287 
 
 material mistake in stating the uses or setting 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, 
 written or acted, are required for 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 comprised not only land but 
 several of the commonest and several of the most 
 valuable movables. When once the wheels of 
 society had begun to move quickly, 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 constancy and even ordinarily conveyed 
 with incomplete forms, and held, therefore, under 
 imperfect titles. 
 
 The Res Mancipi of old Roman law were, 
 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 make up the class are the instruments of 
 agricultural labour, the commodities of first con- 
 sequence 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 received the distinctive appellation 
 of Res Mancipi, " Things which require a Mancioa- 
 
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288 EARLY HISTORY OF PROPERTY [chap, viii 
 
 tion." 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. If would be enough if, in trans- 
 ferring these last from owner to owner, a part only 
 of the ordinary formalities were proceeded with, 
 namely, that actual deUvery, physical transfer, or 
 tradition, which is the most obvious index of a 
 change of proprietorship. Such commodities were 
 the Res Nee Mancipi of the ancient 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 Mancipi was irrevoc- 
 ably closed, that of the Res Nee Mancipi admitted 
 of indefinite expansion ; and hence every fresh 
 conquest of man over material nature added an 
 item to the Res Nee Mancipi, or effected an im- 
 provement in those already recognised. Insen- 
 sibly, therefore, they mounted to an equaUty with 
 the Res Mancipi, and the impression of an intrinsic 
 inferiority being thus dissipated, men began to 
 observe the manifold advantages of the simple 
 formality which accompanied their transfer over 
 the more intricate and more venerable ceremonial. 
 Two of the agents of legal amehoration, Fictions 
 and Equity, were assiduously employed by the 
 Roman lawyers to give the practical effects of a 
 Mancipation 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 dehvery of the 
 article, yet even this step was at last ventured 
 upon by Justinian, in whose jurisprudence the 
 
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CHAP. VIII] RES NEC MANCIPl 289 
 
 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 Roman 
 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 practised 
 among the Itahan 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 
 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 relegating the others to a lower category. 
 The inferior kinds of property are first, from dis- 
 dain and disregard, released from the perplexed 
 ceremonies in which primitive law deUghts, and 
 then afterwards, in another state of intellectual 
 progress, the simple methods of transfer and re- 
 covery which have been allowed to come into 
 use serve as a model which condemns by its con- 
 venience and simplicity the cumbrous solemnities 
 inherited from ancient days. But in some societies, 
 the trammels in which Property is tied up are 
 much too comphcated and stringent to be relaxed 
 
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ago EARLY HISTORY OF PROPERTY [chap, viii 
 
 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, and 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 have been an exception — forbade alienations 
 without the consent of the male children ; and 
 the primitive law of the Sclavonians even pro- 
 hibited them altogether. It is evident that such 
 impediments as these cannot be overcome by a 
 distinction between kinds of property, inasmuch 
 as the difficulty extends to commodities of all 
 sorts ; and accordingly. Ancient Law, when once 
 launched on a course of improvement, encounters 
 them with a distinction of another character, a 
 distinction classifying property, not according to 
 its nature but according to its origin. In India, 
 where there are traces of both systems of classi- 
 fication, the one which we are considering is 
 exemplified in the difference which Hindoo law 
 estabhshes between Inheritances and Acquisitions. 
 The inherited property of the father is shared by 
 the children as soon as they are born ; but accord- 
 ing to the custom of most provinces, the acquisi- 
 tions made by him during his hfetime are wholly 
 his own, and can be transferred by him at pleasure. 
 A similar distinction was not unknown to Roman 
 Law, in which the earhest 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 mihtary service. But the 
 most extensive use ever made of this mode of 
 
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CHAP. VIII] INHERITANCES AND ACQUISITIONS ZQI 
 
 classification appears to have been among the 
 Germans. I have repeatedly stated that the allod, 
 though not inalienable^ was commonly transferable 
 with the greatest difficulty ; and moreover, it 
 descended exclusively to the agnatic kindred. 
 Hence an extraordinary variety of distinctions 
 came to be recognised, all intended to diminish the 
 inconveniences inseparable from allodial property. 
 The wehrgeld, for example, or composition for the 
 homicide of a relative, which occupies so large a 
 space in German jurisprudence, formed no part of 
 the family domain, and descended according to 
 rules of succession altogether different. Similarly, 
 the reipus, or fine leviable on the re-marriage of a 
 widow, did not enter into the allod of the person 
 to whom it was paid, and followed a Une of devo- 
 lution in which the privileges of the agnates were 
 neglected. The law, too, as among the Hindoos, 
 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 famiUar distinction 
 drawn between land and movables ; but movable 
 property was divided into several subordinate 
 categories, 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 
 conquerors of the Empire, is doubtless to be ex- 
 plained by the presence in their systems of a 
 considerable element of Roman Law, absorbed by 
 them during their long sojourn on the confines of 
 the Roman dominion. It is not difficult to trace 
 a great number of the rules governing the transfer 
 
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292 EARLY HISTORY OF PROPERTY [chap, viii 
 
 and devolution of the commodities which lay out- 
 side the allod, to their source in Roman jurispru- 
 dence, from which they were probably borrowed 
 at widely distant epochs, and in fragmentary 
 importations. How far the obstacles to the free 
 circulation of property were surmounted by such 
 contrivances, we have not the means even of 
 conjecturing, for the distinctions adverted to have 
 no modern history. As I before explained, the 
 aUodial form of property was entirely lost in the 
 feudal, and when the consolidation of feudahsm 
 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, immovables and mov- 
 ables. 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 considering immovable 
 property to be more dignified than movable. 
 Yet this one sample is enough to show the im- 
 portance 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 movables, 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 
 movables from immovables has been somewhat 
 disturbed by the same influences which caused 
 
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CHAP, viii] PRESCRIPTION 293 
 
 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 certain 
 description of interests in land have from historical 
 causes been ranked with personalty. This^is not 
 the only instance in which English jurisprudence, 
 standing apart from the main current of legal 
 modification, has reproduced phenomena of archaic 
 law. 
 
 I proceed to notice one or two more con- 
 trivances 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 modem jurisprudence has 
 very slowly and with the greatest difficulty 
 obtained the recognition, was really familiar to 
 the very infancy of legal science. There is no 
 principle in aU law which the moderns, in spite 
 of its beneficial character, have been so loath to 
 adopt and to carry to its legitimate consequences 
 as that which was known to the Romans as 
 Usucapion, and which has descended to modern 
 jurisprudence under the name of Prescription. 
 It was a positive rule of the oldest Roman law, 
 a rule older than the Twelve Tables, that com- 
 modities which had been uninterruptedly pos- 
 sessed for a certain period became the property of 
 
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294 EARLY HISTORY OF PROPERTY [chap, viii 
 
 the possessor. The period of possession was 
 exceedingly short — one or two years, according to 
 the nature of the commodities — and in historical 
 times Usucapion was only allowed to operate 
 when possession had commenced in a particular 
 way ; but I think it likely that at a less advanced 
 epoch possession was converted into ownership 
 under conditions even less severe than we read 
 of in our authorities. As I have said before, 
 I am far from asserting that the respect of men 
 for de facto possession is a phenomenon which 
 jurisprudence can account for by itself, but it is 
 very necessary to remark that primitive societies, 
 in adopting the principle of Usucapion, were not 
 beset with any of the speculative doubts and 
 hesitations which have impeded its reception 
 among the moderns. Prescriptions were viewed 
 by the modern lawyers, first with repugnance, 
 afterwards with reluctant approval. In several 
 countries, including our own, legislation long 
 declined to advance beyond the rude device of 
 barring all actions based on a wrong whch 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 limitation of a very imperfect 
 kind. This tardiness in coppng one of the most 
 famous chapters of Roman law, which was no 
 doubt constantly read by the majority of European 
 lawyers, the modern world owes to the influence 
 of the Canon Law. The ecclesiastical customs 
 out of which the Canon Law grew, concerneci as 
 
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CHAP. VIII] THEORIES OF PRESCRIPTION 295 
 
 they were with sacred or quasi-sacred interests, 
 very naturally regarded the privileges which they 
 conferred as incapable of being lost through disuse 
 however prolonged ; and in accordance 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 produced 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 pre- 
 judice would have operated as powerfully 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 feehng still exist. Wherever the 
 philosophy of law is earnestly discussed, questions 
 respecting 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 neglect, or loses it through the 
 summary interposition of the law in its desire 
 
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296 EARLY HISTORY OF PROPERTY [chap, viii 
 
 to have a finis litium. But no such scruples 
 troubled the mind of early Roman society. Their 
 ancient usages directly took away the ownership 
 of everybody who had been out of possession, 
 under certain circumstances, during one or two 
 years. What was the exact tenor of the rule of 
 Usucapion in its earliest shape, it is not easy to 
 say ; but, taken with the hmitations 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 possession should have begun in good 
 faith, that is, with belief on the part of the possessor 
 that he was lawfully acquiring the property, 
 and it was further required that the commodity 
 should have been transferred to him by some 
 mode of aUenation 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 as to involve a Tradition or DeUvery, 
 the vice of the title would be cured by Usucapion 
 in two years at most. I know nothing in the 
 practice of the Romans which testifies so strongly 
 to their legal genius as the use which they made 
 of Usucapion. The difficulties which beset them 
 were nearly the same with those which embarrassed 
 and still embarrass the lawyers of 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 
 
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cHAP.vin] JUDICIAL CONVEYANCES 297 
 
 ownership from the legal. But Usucapion, as 
 manipulated by the jurisconsults, suppUed a 
 self-acting machinery, by which the defects oi 
 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. Usu- 
 capion did not lose its advantages tiU 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 contrivance, 
 and Usucapion, with its periods of time consider- 
 ably 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 English legal history, was of immemorial 
 antiquity in Roman law ; such indeed is its 
 apparent age that some German civilians, not 
 sufficiently aware of the Kght 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 collusive recovery, 
 in a Court of Law, of property sought to be 
 conveyed. The plaintiff claimed the subject of 
 this proceeding with the ordinary forms of a 
 Utigation ; the defendant made default ; and the 
 commodity was of course adjudged to the plaintiff. 
 I need scarcely remind the English lawyer that 
 this expedient suggested itself to our forefathers, 
 and produced those famous Fines and Recoveries 
 
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298 EARLY HISTORY OF PROPERTY [chap, viii 
 
 which did so much to undo the harshest trammels 
 of the feudal land-law. The Roman and English 
 contrivances have very much in common and 
 illustrate each other most instructively, but there 
 is this difference between them, that the object 
 of the English lawyers was to remove compHcations 
 already introduced into the title, while the Roman 
 jurisconsults sought to prevent them by sub- 
 stituting a mode of transfer necessarily unim- 
 peachable 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 stiU under the empire of 
 primitive notions. In an advanced state of legal 
 opinion, tribunals regard collusive Utigation 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 carry us further down 
 the course of legal history than is consistent with 
 its scheme. It is desirable, however, to mention, 
 that to this influence we must attribute the im- 
 portance 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 distinction has obtained 
 in the philosophy of law. Few educated persons 
 
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CHAP, viii] PROPERTY AND POSSESSION 299 
 
 are so little versed in legal literature as not to 
 have heard that the language of the Roman juris- 
 consults on the subject of Possession long occa- 
 sioned the greatest possible perplexity, and that 
 the genius of Savigny is supposed to have chiefly 
 proved itself by the solution which he discovered 
 for the enigma. Possession, in fact, when em- 
 ployed 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 physical contact resumable at pleasure ; but 
 as actually used, without any qualifying epithet, 
 it signifies not simply physical detention, but 
 physical detention coupled with the intention to 
 hold the thing detained as one's own. Savigny, 
 following Niebuhr, perceived that for this anomaly 
 there could only be a historical 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 possessors, 
 but then they were possessors intending to keep 
 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 lessees of Church lands. Admitting that 
 in theory they were the tenants-at-will of the 
 State, they contended that time and undisturbed 
 enjoyment had ripened their holding into a species 
 of ownership, and that it would be unjust to eject 
 them for the purpose of redistributing the domain. 
 The association of this claim with the Patrician 
 tenancies, permanently influenced the sense of 
 
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300 EARLY HISTORY OF PROPERTY [chap, viii 
 
 " possession." Meanwhile the only legal remedies 
 of which the tenants could avail themselves, 
 if ejected or threatened with disturbance, were 
 the Possessory Interdicts, summary processes of 
 Roman law which were either expressly devised 
 by the Praetor for their protection, or else, ac- 
 cording to another theory, had in olden times 
 been employed for the provisional maintenance of 
 possessions pending the settlement of questions of 
 legal right. It came, therefore, to be understood 
 that everybody who possessed property as his 
 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 dis- 
 puted possession. Then cormnenced a movement 
 which, as Mr. John Austin pointed out, exactly 
 reproduced itself in Enghsh law. Proprietors, 
 domini, began to prefer the simpler forms or 
 speedier course of the Interdict to the lagging 
 and intricate formalities of the Real Action, and 
 for the purpose of avaihng themselves of the 
 possessory remedy fell back upon the possession 
 which was supposed to be involved in their 
 proprietorship. The hberty conceded 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 
 Roman 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 appropriated to the recovery of real 
 
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CHAP, viii] EQUITABLE PROPERTY 3OI 
 
 property had fallen into the most hopeless con- 
 fusion, 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 pubUc 
 benefit, but stiU persons sensitive to the harmonies 
 of jurisprudence will lament that, instead of 
 cleansing, improving, and simplifying the true 
 proprietary actions, we sacrificed 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 appear- 
 ance as a distinction between jurisdictions. Equit- 
 able property in England is simply property held 
 under the jurisdiction of the Court of Chancery. 
 At Rome, the Praetor's Edict introduced its novel 
 principles in the guise of a promise that under 
 certain circumstances a particular action or a 
 particular plea would be granted ; and, accord- 
 ingly, the property in bonis, or Equitable Pro- 
 perty, of Roman Law was property exclusively 
 protected by remedies which had their source 
 in the Edict. The mechanism by which equitable 
 rights were saved from being overridden by the 
 claims of the legal owner was somewhat different 
 in the two systems. With us their independence 
 is secured by the Injunction of the Court of 
 Chancery. Since, however. Law and Equity, 
 while not as yet consoUdated, were administered 
 under the Roman system by the same Court, 
 
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302 EARLY HISTORY OF PROPERTY [chap, vm 
 
 nothing like the Injunction was required, and 
 the Magistrate took the simpler 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 
 recognised by the whole law. In this way, the 
 Roman Praetor gave an immediate right of property 
 to the person who had acquired a Res Mancipi 
 by mere delivery, without waiting for the ripening 
 of Usucapion. Similarly he in time recognised 
 an ownership in the Mortgagee, who had at first 
 been a mere " bailee " or depositary, and in the 
 Emphyteuta, or tenant of land which was subject 
 to a fixed perpetual rent. Following a parallel 
 line of progress, the Enghsh 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 complete legal ownership. All 
 these are examples in which forms of proprietary 
 right, distinctly new, were recognised and pre- 
 served. But indirectly Property has been affected 
 in a thousand ways by equity, both in England 
 and at Rome. Into whatever comer of juris- 
 prudence its authors pushed the powerful instru- 
 ment in their command, they were sure to meet, 
 and touch, and more or less matericuUy modify the 
 law of property. When in the preceding pages 
 
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CHAP. VHi] ROMAN AND FEUDAL LAW 303 
 
 I have spoken of certain ancient legal distinctions 
 and expedients as having powerfully affected the 
 history of ownership, I must be understood to 
 mean that the greatest part of their influence has 
 arisen from the hints and suggestions of improve- 
 ment infused by them into the mental atmosphere 
 which was breathed by the fabricators of equitable 
 systems. 
 
 But to describe the influence of Equity on 
 Ownership would be to write its history down 
 to our own days. I have alluded to it principally 
 because several esteemed contemporary writers 
 have thought that in the Roman severance of 
 Equitable from Legal property we have the clue 
 to that difference in the conception of Ownership, 
 which apparently distinguishes 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 co- 
 existing with the inferior property or estate of the 
 tenant. Now, this .duplication of proprietary right 
 looks, it is urged, extremely hke a generalised form 
 of the Roman distribution of rights over property 
 into Quiritarian or legal, and (to use a word of 
 late origin) Bonitarian or equitable. Gains himself 
 observes upon the sphtting of dominion 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. Jus- 
 tinian, it is true, reconsoUdated dominion into 
 one, but then it was the partially reformed system 
 of the Western Empire, and not Justinian's 
 jurisprudence, with which the barbarians were 
 
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304 EARLY HISTORY OF PROPERTY [chap, viii 
 
 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 aU events be 
 admitted that the element of Roman law in the 
 various bodies of barbarian custom has been very 
 imperfectly examined. The erroneous or in- 
 sufficient theories which have served to explain 
 FeudaUsm resemble each other in their tendency 
 to draw off attention from this particular ingre- 
 dient in its texture. The older investigators, 
 who have been mostly followed in this country, 
 attached an exclusive importance to the circum- 
 stances of the turbulent period during which the 
 Feudal system grew to maturity ; and in later 
 times a new source of error has been added to 
 those already existing, in that pride of nationality 
 which has led German writers to exaggerate the 
 completeness of the social fabric which their 
 forefathers had built up before their appearance 
 in the Roman world. One or two English inquirers 
 who looked in the right quarter for the foundations 
 of the feudal system, failed nevertheless to conduct 
 their investigations to any satisfactory result, 
 either from searching too exclusively for analogies 
 in the compilations of Justinian, or from confining 
 their attention to the compendia of Roman law 
 which are found appended to some of the extant 
 barbarian codes. But, if Roman jurisprudence 
 had any influence on the barbarous societies, 
 it had probably produced the greatest part of 
 its effects before the legislation of Justinian, and 
 before the preparation of these compendia. It 
 
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CHAP, vm] LEGES BARBARORUM 305 
 
 was not the reformed and purified jurisprudence 
 of Justinian, but the undigested system which 
 prevailed in the Western Empire, and which the 
 Eastern Corpus Juris never succeeded in dis- 
 placing, 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 dis- 
 tinctly appropriated, as conquerors, any portion 
 of the Roman dominions, and therefore long before 
 Germanic monarchs had ordered breviaries of 
 Roman law to be drawn up for the use of their 
 Roman subjects. The necessity for some such 
 h57pothesis will be felt by everybody who can 
 appreciate the difference between archaic and 
 developed law. Rude as are the Leges Barharorum 
 which remain to us, they are not rude enough 
 to satisfy the theory of their pxirely barbarous 
 origin ; nor have we any reason for believing 
 that we have received, in written records, more 
 than a fraction of the fixed rules which were 
 practised among themselves by the members of 
 the conquering tribes. If we can once persuade 
 ourselves that a considerable element of debased 
 Roman . law already existed in the barbarian 
 systems, we shall have done something to remove 
 a grave difficulty. The German Law of the 
 conquerors and the Roman law of their subjects 
 would not have combined if they had not possessed 
 more af&nity for each other than refined juris- 
 prudence has usually for the customs of savages. 
 It is extremely likely that the codes of the bar- 
 barians, archaic as they seem, are only a compound 
 of true primitive usage with half-understood 
 
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306 EARLY HISTORY OF PROPERTY [chap, vin 
 
 Roman rules, and that it was the foreign ingre- 
 dient which enabled them to coalesce with a 
 Roman jurisprudence that had already receded 
 somewhat from the comparative finish which it 
 had acquired under the Western Emperors. 
 
 But, though aU this must be allowed, there are 
 several considerations which render it unlikely 
 that the feudal form of ownership was directly 
 suggested by the Roman duphcation of domainial 
 rights. The distinction between legal and equit- 
 able property strikes one cis a subtlety Uttle Ukely 
 to be appreciated by barbarians ; and, moreover, 
 it can scarcely be understood unless Courts of Law 
 are contemplated in regulai 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 suppUes a much 
 simpler explanation of the transition 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 bringing 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 current 
 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 
 household of sons and slaves, occurs when we come 
 to the holdings of the Roman patricians. These 
 great proprietors appear to have had no idea of 
 any system of farming by free tenants. Their 
 latifunuia seem to have been universally cultivated 
 by slave-gangs, under baiUffs who were themselves 
 
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CHAP. Till] XHE COLONI 307 
 
 slaves or freedmen ; and the only organisation 
 attempted appears to have consisted in dividing 
 the inferior slaves into small bodies, and making 
 them the peculium of the better and trustier sort, 
 who thus acquired a kind of interest in the effi- 
 ciency of their labour. This system was, however, 
 especially disadvantageous to one class of estated 
 proprietors, the Municipalities. Functionaries in 
 Italy were changed with the rapidity which often 
 surprises us in the administration of Rome herself ; 
 so that the superintendence of a large landed 
 domain by an Italian corporation must have been 
 excessively imperfect. Accordingly, we are told 
 that with the municipalities began the practice of 
 letting out agri vectigales, 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 
 proprietors, and the tenant, whose relation to 
 the owner had originally been determined by his 
 contract, was subsequently recognised by the 
 Praetor as having himself a qualified proprietorship, 
 which in time became known as an Emphyteusis. 
 From this point the history of tenure parts into 
 two branches. In the course of that long period 
 during which our records of the Roman Empire 
 are most incomplete, the slave-gangs of the great 
 Roman families became transformed into the 
 coloni, whose origin and situation constitute one 
 of the obscurest questions in all history. We may 
 suspect that they were formed partly by the 
 elevation of the slaves, and partly by the degrada- 
 tion of the free farmers ; and that they prove 
 the richer classes of the Roman Empire to have 
 
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308 EARLY HISTORY OF PROPERTY [chap, viii 
 
 become aware of the increased value which 
 landed property obtains when the cultivator has 
 an interest in 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 rendering to him a fixed portion of 
 the annual crop. We know further that they 
 survived all the mutations of society in the ancient 
 and modern worlds. Though included in the 
 lower courses of the feudal structure, they con- 
 tinued in many countries to render to the landlord 
 precisely the same dues which they had paid to 
 the Roman dominus, and from a particular class 
 among them, the coloni medietarii, who reserved 
 half the produce for the owner, are descended 
 the metayer tenantry, who stiU conduct the 
 cultivation of the soil in almost aU the South of 
 Europe. On the other hand, the Emphyteusis, 
 if we may so interpret the allusions to it in the 
 Corpus Juris, became a favourite and beneficial 
 modification of property ; and it may be conjec- 
 tured that wherever free farmers existed, it was 
 this tenure which regulated their interest in the 
 land. The Praetor, as has been said, treated the 
 Emphyteuta as a true proprietor. When ejected, 
 he was allowed to reinstate himself by a Real 
 Action, the distinctive badge of proprietary right, 
 and he was protected from disturbance 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 extinct or dormant. 
 It was kept ahve by a power of re-entry on non- 
 
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CHAP.viii] FEUDAL SERVICES 309 
 
 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 Emphy- 
 teusis a striking example of the double ownership 
 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 Une 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 Roman army on the terms of an 
 Emphyteusis. There was a double ownership. 
 The Roman State was landlord of the soil, but 
 the soldiers cultivated it without disturbance so 
 long as they held themselves ready to be called 
 out for military service whenever the state of 
 the border should require it. In fact, a sort of 
 garrison-duty, under a system closely resembling 
 that of the mihtary colonies on the Austro-Turkish 
 border, had taken the place of the quit-rent 
 which was the service of the ordinary Emphyteuta. 
 It seems impossible to doubt that this was the 
 precedent copied by the barbarian monarchs who 
 founded feudaUsm. It had been within their 
 view for some hundred years, and many of the 
 veterans who guarded the border were, it is to be 
 remembered, themselves of barbarian extraction, 
 who probably spoke the Germanic tongues. Not 
 only does the proximity of so easily followed a 
 
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310 EARLY HISTORY OF PROPERTY [chap, thi 
 
 model explain whence the Prankish and Lombard 
 Sovereigns got the idea of securing the miUtary 
 service of their followers by granting away 
 portions of their pubUc 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 miUtary 
 colonist, and were certainly not rendered by the 
 Emphyteuta. The duty of respect and gratitude 
 to the feudal superior, the obligation to assist 
 in endowing his daughter and equipping his son, 
 the liability to his guardianship in minority, and 
 many other similar incidents of tenure, must 
 have been literally borrowed from the relations 
 of Patron and Freedman under Roman law, 
 that is, of quondam-master and quondam-slave. 
 But then it is known that the earhest beneficiaries 
 were the personal companions of the sovereign, 
 and it is indisputable that this position, briUiant 
 as it seems, was at first attended by some shade 
 of servile debasement. The person who minis- 
 tered to the Sovereign in his Court had given 
 up something of that absolute personal freedom 
 which was the proudest privilege of the allodia] 
 proprietor. 
 
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CHAP. Villi NOTES 311 
 
 NOTE O 
 
 CAPTURE, OCCUPATION, POSSESSION 
 
 The statements made in the early part of this chapter about 
 the Roman doctrine of capture in war, its relation to the ordinary 
 rules of occupatto, and the relation of both to the modem law of 
 nations, are not easy to follow. Maine's general results do not 
 depend on the accuracy of these statements, but it is necessary 
 to indicate the points on which a reader unacquainted with Roman 
 and international law might find the text misleading. First, there 
 is really no authority for attributing to the Roman jurists the 
 unqualified opinion that all spoil of war belonged to the individual 
 captor, nor for deducing the rule of war firom the law of occupatio 
 in time of peace. Next, it is by no means clear that the 
 Roman law oioccu-patio was more than one of many elements which 
 went to form the modern rules as to belligerent rights. It is 
 necessary to examine the authorities in some detail. 
 
 Maine seems to have relied on a passage of Gaius in the title 
 of the Digest " de adquirendo rerum dominio " (41, i, 11. S, §7, 7, §1 ; 
 1. 6 is clumsily interpolated by the compilers from another writer, 
 and is not to our purpose). Gaius has spoken of the " occupation " 
 of res nullius, such as wild animals, and goes on to other classes 
 of cases in which occupation or something like it confers owner- 
 ship (and not merely possession) iure gentium. This last term 
 would seem, in relation to hostile capture, to point to the actual 
 usage of war rather than to the ideal law of nature, which at 
 all events would not justify treating captives of free condition as 
 slaves. "Item quae ex hostibus capiuntur iure gentium statim 
 capientium finat . . ,. adeo quidem ut et liberi homines in 
 servitutem deducantur." Then Paulus says, at the head of the 
 next title, " de adquirenda vel amittenda pos^essione " : " Item 
 bello capta et insula in raari enata et gemmae lapilli margaritae 
 in litoribus inventae eius fiunt, qui primus eorum possessionem 
 nanctus est." Obviously no proof or authority was needed to 
 show that a public enemy in arras could have no civil rights. 
 The point is not that spoil of war ceases to belong to the enemy, 
 but that capture, when it occurs, makes the captor an owner 
 and not merely a possessor as between himself and his fellow- 
 citizens. This does not tell us what is lawful spoil of war 
 according to any specially Roman usage, nor does it exclude 
 the restrictions of military discipline. Under the Empire, in fact, 
 the commanding oflBcer might distribute booty if he pleased, but 
 plunder for the individual soldier's benefit or any kind of subsequent 
 private appropriation was distinctly forbidden. " Is, qui praedam 
 ab hostibus captam subripuit, lege peculatus tenetur et in quadruplum 
 damnatur " : Modestinus in D. 48, 13, ad legem luliam peculatus. 
 
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312 NOTES [CHAP, VIII 
 
 15 (ed. Mommsen, vulg 13). Indeed, it may well be that the 
 dicta of Gaius and Paulus contemplate only the case of enemy 
 property found on Roman ground at the outbreak of a war: 
 "quae res hostiles apttd nos sunt non publicae sed occupantium 
 fiunt": Celsus, D. 41, 1, 51, Grotius comments on this dictum 
 of Celsus, understanding it in this sense, and holds the right of 
 private capture to be confined to acts not in the course of service, 
 "extra ministerium publicum" : De lure Belli ac Pacis, III. vi. 
 xii. § I ; and so Girard, " Manuel,'' p. 314. There is no doubt that 
 land seized in war was acquired and distributed by the State : 
 Pomponius in D. 49, 15, de ca;ptivis, 20, §1. In considering these 
 passages it is just as well to remember that problems arising out 
 of a state of war between Rome and a civilized or wealthy enemy 
 must have seemed a mere archaic curiosity to the jurists who 
 flourished under the Antonines. 
 
 Then as to Grotius's use of the Roman law, he certainly quotes 
 the words of Gaius already set out ; but almost in the same breath 
 he quotes the Old Testament, Plato, Xenophon, and Aristotle 
 {of. cit. III. vi. ii. § 4). He denies (iv. § i) that enemy's land can be 
 acquired by mere invasion short of permanent occupation in force. 
 He seems to think private plundering admissible in strict right, 
 but elsewhere, under the head of temperaments — a kind of counsels 
 of perfection to mitigate the rigour of war, most of which have 
 since been adopted as rules— he suggests that captured property 
 should be restored on the conclusion of peace, so far as practicable 
 (III. xiii., " temperamentum circa res captas"). Again, an early 
 trait of Grotius, " De lure Praedae," published only in our own time 
 (ed. Hamaker, Hag. Com. 1868), altogether repudiates the occupa- 
 tion theory of the right to spoil of war. He likens it to the right 
 of judicial execution, and explains away the dictum of Gaius by 
 holding that the captor takes only as the servant and in the 
 name of the State ; and he fortifies his doctrine, after the manner 
 of the time, which he continued to follow in his own later work, 
 with Hebrew, Homeric, and other Greek examples. It is difScult 
 to find here much adoption of the Roman law of Occupancy. 
 Perhaps other publicists of the seventeenth or eighteenth century 
 may have been less discriminating than Grotius. If this is to 
 be verified, it must be by some one more familiar with their 
 writings than myself. No further light is thrown on the point 
 in Maine's Cambridge lectures on international law, which he did 
 not live to revise finally for publication. These questions, however, 
 have long been antiquarian ; modem practice has abrogated the 
 old harsh customs of war, and the seizure of movables or other 
 personal property in its bare form has, except in a very few cases, 
 become illegal (Hall, "Intern. Law," 5th ed. p. 427: the whole 
 chapter should be consulted). 
 
 Maine observes at p. 262 that the Roman law of Occupancy was 
 
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CHAP. Villi NOTES 313 
 
 altogether unequal to the task of settling disputes of title between 
 different nations claiming new territories in right of their respective 
 subjects who had discovered and more or less taken possession 
 of them. Undoubtedly this is true, and it could not be otherwise. 
 The difficulties have arisen in almost every case, down to the recent 
 boundary question between Venezuela and British Guiana, from 
 attempts to treat isolated, slight, and partial acts of dominion as 
 equivalent to effective possession. Roman law knows nothing of 
 any " occupation'' which does not amount to full and actual control. 
 Hence the learning of occupation had to be supplemented by that 
 of possession. Roman law, like the Common Law, recognises the 
 fact that a man cannot physically hold or control at the same time 
 every square foot of a parcel of land, and therefore it allows legal 
 possession to be acquired by entry on a part in the name of the 
 whole and with intent to possess everything included in the 
 boundaries. " Quod autem diximus et corpore et animo adquirere 
 nos debere possessionem, non utique ita accipiendum est, ut qui 
 fundum possidere velit omnes glebas circumambulet : sed sufficit 
 quamlibet partem eius fundi introire, dum mente et cogitatione hac 
 sit, uti totum fundum usque ad terminum velit possidere " (Paulas 
 in D. 41, 2, deadq. velamitt. ^oss. 3, §1)- In order to apply this rule, 
 however, we have to assume that the boundaries are known or 
 ascertainable, and also that there is no effective opposition; and 
 when the facts to which the application is to be made are those 
 alleged to amount to a national occupation of unsettled territory, 
 it is often far from easy to say whether these conditions are satisfied. 
 In case of dispute whether possession has been established, we must 
 resort to the rule of common sense, which is expressly adopted by 
 the authorities of the Common Law, and does not contradict anything 
 in the Roman Law, namely that regard must be had to the kind 
 of use and control of which the subject-matter is capable (authorities 
 collected in Pollock and Wright on Possession, pp. 31-5). On the 
 question what is the "terminus" in the occupation of unsettled 
 territory, certain conventional rules, which must be sought in the 
 regular text-books of international law, have been more or less 
 generally adopted by the custom of nations, and in some cases 
 express agreements have been made (Hall, op. cit. p. 114). The 
 doctrine that occupancy produces ownership is of course not of 
 the highest antiquity. Besides the reasons given by Maine, the 
 conception of individual ownership as a legal right, the dominium 
 of Roman law, is itself relatively modern. How and why Roman 
 law developed that conception as early as it did is a historical 
 problem which, so far as I have learnt, we cannot solve with our 
 materials. We only know that Roman property law, for whatever 
 reason, was already quite individualist at the time of the Twelve 
 Tables. I am not sure that I fully understand Maine's passing 
 remark about the influence of Natural Law in this point (p. 270). 
 
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314 NOTES [CHAP. VIII. 
 
 At all events the transformation of the Hindu Joint Family to its 
 modem type can hardly be set down to any such influence, and, 
 so far as it has gone, the example appears fairly parallel. 
 
 Blackstone's account of the origin of property is loose enough to 
 deserve nearly all of Maine's criticism. He wholly fails to dis- 
 tinguish beti/een physical control or " detention," possession in law, 
 and ownerihip, and he talks as if our refined legal conceptions 
 had come to primeval man ready made, and in exactly the form 
 and language of eighteenth-century publicists. But perhaps it 
 was needless cruelty to suggest that Blackstone either did not 
 understand the technical meaning of Occupation or intended to 
 impose on his readers by playing with a verbal ambiguity. The 
 word occu^are is, after all, not purely technical in Latin ; it 
 certainly has no technical meaning in the passage of Cicero which 
 Blackstone quotes ("Comm.'' ii. 4; Cic. " de Fin." iii. 20, § 67). 
 Cicero was neither an original philosopher nor a great jurist ; but no 
 one would charge him with supposing that the right of a spectator in 
 a theatre to the place he has taken (" eum locum quern quisque 
 occuparit") had anything to do with the permanent acquisition of 
 dominium. It would be more plausible to credit him with an inkling 
 of the historical truth pointed out by Maine in these pages, that the 
 notion of absolute legal ownership, and still more the presumption 
 that everything ought to have an owner, or that, as our own books 
 say, " the law must needs reduce the properties of all goods to some 
 man," are rather modem than primitive. Blackstone's neglect to 
 observe that the detached individual man whom he postulates is 
 a kind of person altogether unknown to archaic institutions is the 
 common and fatal fault, as Maine has in effect said, of all 
 individualist theories of society: of Hobbes's, which Locke's was 
 intended to refute, no less than of Blackstone's, which is a slight 
 modification of Locke's. 
 
 Incidentally, but with provoking brevity, Maine speaks of 
 Savigny's aphorism that property is founded on adverse possession 
 ripened by prescription. This aphorism is certainly true for 
 English law. Property in goods is, in the terms and process of 
 the Common Law, not distinguishable from a right, present or 
 deferred, to possess them ; and it is only under statutory provisions 
 of very recent introduction and partial application that we know any 
 means of proving title to English land other than showing con- 
 tinuous undisturbed possession, under a consistent claim of title, 
 for a time long enough to exclude any reasonable fear of adverse 
 claims. The conventional fixing of that time first by the usage 
 of conveyancers and latterly by positive law makes no difference 
 to the principle, nor do the elaborate rules which have been 
 developed in various matters of detail. Title-deeds, as I have 
 said elsewhere, are nothing but the written history of the possession 
 and of the right in which it has been exercised. This is essentially 
 
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CHAP. Till] NOTES 315 
 
 a Germanic institution, as any one who pursues the subject will 
 find ; and when we consider the ideas of early Germanic law, we 
 shall perhaps be less apt to find any problem in the fact of a 
 possessor's rights being recognised by Roman law than to wonder 
 how Roman law came so early by the full and clear conception 
 of an owner's rights as distinct from possession. As to the 
 historical origin of the Roman doctrine of Possession there are 
 now several theories in the field, and none of them can be said 
 to be generally accepted, certainly not Savigny's, which was 
 dominant when Maine wrote. 
 
 NOTE P 
 
 THE INDIAN VILLAGE COMMUNITY 
 
 After Maine had acquired oflacial knowledge of Indian affairs, 
 he gave a hint in his lecture on "Village Communities" that the 
 local customs of India are neither so simple nor so uniform in type 
 as an ordinary European reader of "Ancient Law" might infer. 
 " I shall have hereafter to explain," he said,' " that, though there 
 are strong general resemblances between the Indian village 
 communities wherever they are found in anything like completeness, 
 they prove on close inspection to be not simple but composite 
 bodies, including a number of classes with very various rights and 
 claims." The publication in more than one form (most con- 
 veniently in "The Indian Village Community," Lond. 1896) of 
 B. H. Baden-Powell's authoritative researches on the Land Systems 
 of British India has since made it common or at least easily 
 accessible' knowledge that Indian villages are divisible into 
 two principal and widely different types, of which the " assemblage 
 of co-proprietors," formerly assumed to be the only normal one, 
 is not the more ancient. Sir Alfred Lyall (L.Q.R. ix. 27) has 
 approved Baden-Powell's '•' conclusion that the oldest form of 
 village was not, as is usually supposed, a group of cultivators 
 having joint or communistic interests, but a disconnected set 
 of families who severally owned their separate holdings." There 
 is a headman and there are village officers ; we may say there is 
 administrative unity for many purposes ; but there is not communal 
 ownership or tenure. There is no evidence that in villages of this 
 kind, usually called ratyatwdri, and prevalent in Central and 
 Southern India, the holdings were ever otherwise than separate 
 and independent; "the so-called joint village followed, and did 
 
 ' I cannot find any fulfilment of this intention in Maine's published work. See 
 the Preface to the first edition of "Village Communities" for the probable 
 explanation. 
 
 ' Baden-Powell's work appears to haVe been wholly unknown to a learned 
 gentleman resident at Madras, who published some notes on " Ancient Law " a 
 few years ago. 
 
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3l6 NOTES [CHAP, vin 
 
 not precede, the village of separate holdings." In the joint or 
 " landlord " villages of Oudh, the United (formerly North-West) 
 Provinces, and the Panjab, we find a dominant family or clan, 
 oligarchs and in fact landlords as regards the inferior majority 
 of inhabitants, and more or less democratic (for the shares are 
 not always equal) among themselves. This type of village, which 
 is in some ways curiously like a smaller reproduction of a Greek 
 city-state, may be due to several causes. Conquest may produce 
 it, or a deliberate new settlement, or joint inheritance among 
 descendants of a single founder. In the case of conquest it may be 
 superimposed on a former ratyaiwdri vi\la.ge. Baden-Powell points 
 out that all writers on the subject down to a time later than the 
 publication not only of "Ancient Law" but of "Village Com- 
 munities" had to generalise on incomplete materials. 
 
 " It can hardly be doubted that the information available when 
 Sir H. S. Maine wrote was very far from being what it has since 
 become. None of the reports on the Panjab frontier tribal-villages 
 were written — or at least were available in print ; and the greater 
 part of the best Settlement Reports of the North-West Provinces, 
 Oudh and the Panjab, are dated in years subsequent to the 
 publication of 'Village Communities.' Further, the Settlement 
 Reports of the Central Provinces, the District Manuals of Southern 
 India, and the Survey Reports and Gazetteers of the Bombay 
 districts were many of them not written, and the others were 
 hardly known beyond the confines of their presidencies. In this 
 fact I find the explanation of the total omission in Sir H. S. Maine's 
 pages of any specific mention of the raiyatwdri form of village, 
 and the little notice he takes of the tribal or clan constitution of 
 Indian races in general, and of the frontier tribal villages in 
 the Panjab" ("The Indian Village Community," p. 4). 
 
 It will be quite a mistake, however, as we may learn at large 
 from Baden-Powell, to assume that the family tenure or property 
 which is the unit of the raiyatwdri village system is equivalent to 
 individual ownership or any kind of ownership as understood in 
 modem Western law. What is certain is that there is no such 
 thing as the village community of Hindu times, any more than 
 there is any such thing as the village community of the Middle 
 Ages in Europe. But there remains much profit to be derived 
 from comparing the effects of more or less similar causes in fixing 
 the customs of land tenure in the East and the West, whether 
 those effects are, as they sometimes are, closely similar, or varied by 
 the presence of other and different conditions. We no longer expect 
 to find complete and parallel survivals of a common prehistoric 
 stock of institutions, but it is not less interesting to find how easily 
 parallel types may be developed at very distant times and places ; 
 and we are free to hold as a pious opinion that the Indian village 
 council still known as the Five (^a«cA<fjya:/)--though that has long 
 
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CHAP, viii] NOTES 317 
 
 ceased to be the usual number in practice, and the institution 
 belongs only to the "landlord" type of village— may go back 
 to the same origin as our own reeve and four men, who flourish in 
 Canada to this day. Robuster faith might be needed to find more 
 than accident in the number of five hearths and five lawful men 
 on Horace's estate (" habitatum quinque focis et Quinque bonos 
 solitum Variam dimittere patres," Ep. i. 14). A system of dividing 
 land so as to give every man a share of every quality, which 
 resembles our medieval common-field system even in mmute detail, 
 is described by Baden-Powell {op. cit. pp. 191, 414). 
 
 With regard to the supposed corporate or quasi-corporate owner- 
 ship of European and especially English village communities. 
 Professor Maitland's section thereon in " Domesday Book and 
 Beyond," pp. 340-56, gives a sound and much needed criticism of 
 the loose language which was current among historical writers a 
 generation ago. 
 
 NOTE Q 
 
 RES MANCIPI; ALIENATION IN EARLY LAW 
 
 Maine's opinion that the res manci-pi of ancient Roman law were 
 the instruments of agricultural labour, the commodities of first 
 consequence to a primitive people " is entirely confirmed by the best 
 recent authors. Professor Girard, agreeing with Ihering, Sohm, 
 and Cuq, considers the soundest explanation (" la doctrine la moins 
 aventureuse ") to be that the category consists of the necessary 
 elements of the original Roman farmer's goods, to which alone, 
 therefore, the early "Roman forms of alienation " were applicable. 
 It is further suggested that at first only res mancipi were the 
 subjects of full ownership, and that, at a time before individual 
 property in land was alienable, the distinction mancipi — nee mancipi 
 coincided with that of familia and pecunia, which had become 
 obsolete at the date of the Twelve Tables (Girard, " Manuel," p. 247). 
 Muirhead's explanation (" Private Law of Rome," p. 63) is similar, 
 adding that the things constituting the ya/wz'/za were those which 
 determined a Roman citizen's political qualification after the 
 Servian reforms. Alienation of such things might affect the owner's 
 political standing, and was therefore of public importance ; but 
 I am not clear that this reason is not superfluous. Muirhead 
 observes, deliberately not following Gains, that the fundamental 
 notion of mancipiuin is manum — not manu—capere, the acquire- 
 ment of manus in the sense of legal dominion [pp. cit. p. 61), 
 which seems highly probable. 
 
 As to the fetters on alienation usually found in early systems of 
 property law, Maine set it down as " remarkable that the Anglo- 
 Saxon customs seem to have been an exception " to the prevaiUng 
 Germanic usage which forbade alienation of land without the 
 
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3l8 NOTES [CHAP. VIII 
 
 consent of the family or at least the sons of the gfrantor. Maine's 
 insight is now justified. The freedom which he thought anomalous, 
 though it was accepted as a fact by the best authorities then 
 accessible on Anglo-Saxon law, was really very partial indeed, 
 being confined to land, or rather lordship over land, held by 
 privileged persons and bodies under the privileged instruments 
 known to contemporaries as " books " and to us as charters. Only 
 after the Norman Conquest did the charter become a " common 
 assurance." As I tried not long ago to sum up in the simplest 
 form practicable what is known and not known about customary 
 land tenure before the Conquest, I may as well repeat my words : — 
 
 " We know next to nothing of the rules under which free men, 
 whether of greater or lesser substance, held ' folk-land,' that is, 
 estates governed by the old customary law. Probably there was 
 not much buying and selling of such land. There is no reason to 
 suppose that alienation was easier than in other archaic societies, 
 and some local customs found surviving long after the Conquest 
 point to the conclusion that often the consent of the village as 
 well as of the family was a necessary condition of a sale. Indeed, 
 it is not certain that folk-land, generally speaking, could be sold 
 at all. There is equally no reason to think that ordinary free 
 landholders could dispose of their land by will, or were in the 
 habit of making wills for any purpose. Anglo-Saxon wills (or 
 rather documents more like a modern will than a modem deed) 
 exist, but they are the wills of great folk, such as were accustomed 
 to witness the king's charters, had their own wills witnessed or 
 confirmed by bishops and kings, and held charters of their own ; 
 and it is by no means clear that the lands dealt with in these wills 
 were held as ordinary folk-land. In some cases it looks as if a 
 special licence or consent had been required ; we also hear of 
 persistent attempts by the heirs to dispute even gifts to great 
 churches " ("The Expansion of the Common Law," pp. 156-7). 
 
 The analogy which Maine points out (p. 297) between the Roman 
 cessio in iure and the Fines and Recoveries of medieval English 
 law is of course genuine ; but much earlier Germanic examples 
 of a like device may be found, though not in England. Auflassung 
 is the modem German term. Methods of this kind, when once 
 ascertained to be efficient, are often used merely by way of abundant 
 caution in spite of the additional trouble and expense involved. 
 But in the classical real property law of the fifteenth century Fine 
 and Recovery were already taking their places as regular specialised 
 parts of a technical machinery. 
 
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CHAPTER IX 
 
 THE EARLY HISTORY OF CONTRACT 
 
 There are few general propositions concerning the 
 age to which we belong which seem at first sight 
 hkely to be received with readier concurrence 
 than the assertion that the society of our day 
 is mainly distinguished from that of preceding 
 generations by the largeness of the sphere which 
 is occupied in it by Contract. Some of the 
 phenomena on which this proposition rests are 
 among those most frequently singled out for 
 notice, for comment, and for eulogy. Not mg.ny 
 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 con- 
 vention ; and indeed several of the few exceptions 
 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 belong to by-gone institutions, and 
 whether the only relation between employer and 
 labourer which commends itself to modern moraUty 
 be not a relation determined exclusively by 
 contract. The recognition of this difference be- 
 tween past ages and the present enters into the 
 
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320 EARLY HISTORY OF CONTRACT [chap, ix 
 
 very essence of the most famous contemporary 
 speculations. It is certain that the science of 
 PoHtical Economy, the only department of moral 
 inquiry which has made any considerable progress 
 in our day, would fail to correspond with the facts 
 of life if it were not true that Imperative Law 
 had abandoned the largest part of the field which 
 it once occupied, and had left men to settle 
 rules of conduct for themselves with a Uberty 
 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 efforts 
 are ordinarily directed to enlarging the province 
 of Contract and to curtailing that of Imperative 
 Law, except so far as law is necessary to enforce 
 the performance of Contracts. The impulse given 
 by thinkers who are under the influence of these 
 ideas is beginning to be very strongly felt in the 
 Western world. Legislation has nearly confessed 
 its inabiUty to keep pace with the activity of man 
 in discovery, in invention, and in the manipulation 
 of accumulated wealth ; and the law even of 
 the least advanced communities tends more and 
 more to become a mere surface-stratum, having 
 under it an ever-changing assemblage of contrac- 
 tual rules with which it rarely interferes except 
 to compel compliance with a few fundamental 
 principles, or unless it be called in to punish the 
 violation of good faith. 
 
 Social inquiries, so far as they depend on the 
 consideration of legal phenomena, are in so back- 
 ward a condition that we need not be surprised 
 
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CHAP. IX] ENFORCEMENT OF CONTRACT 32I 
 
 at not finding these truths recognised in the 
 commonplaces which pass current concerning 
 the progress of society. These commonplaces 
 answer much more to our prejudices than to our 
 convictions. The strong disinclination of most 
 men to regard moraUty as advancing seems to 
 be especially powerful when the virtues on which 
 Contract depends are in question, and many of us 
 have an almost instinctive reluctance to admitting 
 that good faith and trust in our feUows are more 
 widely diffused than of old, or that there is any- 
 thing in contemporary manners which parallels 
 the loyalty of the antique world. From time to 
 time, these prepossessions are greatly strengthened 
 by the spectacle of frauds, unheard of before the 
 period at which they were observed, and aston- 
 ishing from their complication as well as shocking 
 from their criminality. 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 confidence 
 reposed and deserved by the many which affords 
 faciUties for the bad faith of the few, so that, 
 if colossal examples of dishonesty occur, there is 
 no surer conclusion than that scrupulous honesty 
 is displayed in the average of the transactions 
 which, in the particular case, have suppUed the 
 delinquent with his opportunity. If we insist 
 on reading the history of moraUty as reflected 
 in jurisprudence, by turning our eyes not on the 
 law of Contract but on the law of Crime, we must 
 be careful that we read it aright. The only form 
 of dishonesty treated of in the most ancient 
 
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322 EARLY HISTORY OF CONTRACT [chap, ix 
 
 Roman law is Theft. At the moment at which 
 I write, the newest chapter in the English 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 Jays and ours, morality has advanced from 
 a very rude to a highly refined conception — from 
 viewing 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 multitude. To begin with the views of the 
 Roman lawyers, 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 parties was the only material 
 ingredient, they specifically denominated Contracts 
 juris gentium, and though these contracts were 
 undoubtedly the latest born into the Roman 
 system, the expression employed imphes, 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 was as fatal 
 to the obligation as misunderstanding or deceit. 
 But then the antiquity to which they were re- 
 ferred 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 
 
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CHAP. IX] XHE SOCIAL CONTRACT 323 
 
 their mode of thought that a " Contract of the 
 Law of Nations " came to be distinctly looked 
 upon as a contract known to man in a state of 
 Nature. Rousseau adopted both the juridical and 
 the popular error. In the Dissertation on the 
 effects of Art and Science upon Morals, the first 
 of his works which attracted attention and the 
 one in which he states most unreservedly 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 
 traits of primitive innocence whith have been 
 gradually obUterated by civilisation ; and at a 
 later period he found a basis for aU 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 pas- 
 sions, derived all its sap from the speculations of 
 lawyers. True it certainly is that the famous 
 Englishmen, for whom it had first had attraction, 
 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 
 phraseology. Nor were the English authors of 
 the theory bUnd to that speculative amplitude 
 which recommended it so strongly to the French- 
 men who inherited it from them. Their writings 
 show they perceived that it could be made to 
 account for all social, quite as well as for all 
 poUtical phenomena. They had observed the 
 fact, already striking in their day, that of the 
 
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324 EARLY HISTORY OF CONTRACT [chap, ix 
 
 positive rules obeyed by men, the greater part 
 were created by Contract, the lesser by Imperative 
 Law. But they were ignorant or careless of the 
 historical relation of these two constituents of 
 jurisprudence. It was for the purpose, therefore, 
 of gratifying their speculative tastes by attributing 
 all jurisprudence to a uniform source, as much as 
 with the view of eluding the doctrines which 
 claimed a divine parentage for Imperative Law, 
 that they devised the theory that all Law had its 
 origin in Contract. In another stage of thought, 
 they would have been satisfied to leave their 
 theory in the condition of an ingenious hypothesis 
 or a convenient verbal formula. But that age 
 was under the dominion of legal superstitions. 
 The State of Nature had been talked about tiU 
 it had ceased to be regarded as paradoxical, and 
 hence it seemed easy to give a fallacious reaUty 
 and definiteness to the contractual origin of Law 
 by insisting on the Social Compact as a historical 
 fact. 
 
 Our own generation has got rid of these 
 erroneous juridical theories, partly by outgrowing 
 the intellectual state to which they belong, and 
 partly by almost ceasing to theorise on such 
 subjects altogether. The favourite occupation of 
 active minds at the present moment, and the one 
 which answers to the speculations of our fore- 
 fathers 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 especially apt to incapacitate the inquirer for 
 
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CHAP. K] MONTESQUIEU'S TROGLODYTES 325 
 
 comprehending states of society which differ con- 
 siderably from that to which he is accustomed. 
 The mistake of judging the men of other periods 
 by the morahty of our own day has its parallel in 
 the mistake of supposing that every wheel and bolt 
 in the modern social machine had its counterpart 
 in more rudimentary societies. Such impressions 
 ramify very widely, and masque themselves very 
 subtly, in historical works written in the modern 
 fashion ; but I find the trace of "their presence in 
 the domain of jurisprudence in the praise which 
 is frequently bestowed on the little apologue of 
 Montesquieu concerning the Troglodytes, inserted 
 in the " Lettres 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 
 employed to expose an anti-social heresy by which 
 this century and the last have been threatened, it 
 is most unexceptionable ; but if the inference be 
 obtained from it that society could not possibly 
 hold together without attaching a sacredness to 
 promises and agreements which should be on 
 something like a par with the respect that is paid 
 to them by a mature civiUsation, it involves an 
 error so grave as to be fatal to all sound under- 
 standing of legal history. The fact is that the 
 Troglodytes have flourished and founded powerful 
 states with very small attention to the obligations 
 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 
 
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326 EARLY HISTORY OF CONTRACT [chap, ix 
 
 station into which he is born, and next from the 
 imperative commands addressed to him by the 
 chief of the household of which he forms part. 
 .Such a system 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 disregard the engagements 
 by which any one of its subordinate members has 
 attempted to bind it. Family, it is true, may 
 contract with family, chieftain with chieftain, but 
 the transaction is one of the same nature, and 
 encumbered by as many formaUties, as the 
 aUenation of property, and the disregard of one 
 iota of the performance is fatal to the obUgation. 
 The positive duty resulting from one man's 
 reUance on the word of another is among the 
 slowest conquests of advancing civilisation. 
 
 Neither Ancient Law nor any other source of 
 evidence discloses to us society entirely destitute 
 of the conception of Contract. But the concep- 
 tion, when it first shows itself, is obviously rudi- 
 mentary. No trustworthy primitive record can 
 be read without perceiving that the habit of mind 
 which induces us to make good a promise is as yet 
 imperfectly developed, 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 Nestor, the constancy 
 of Hector, and the gallantry of Achilles. Ancient 
 law is still more suggestive of the distance which 
 separates the crude form of Contract from its 
 
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CHAP. IX] EARLY ROMAN CONTRACTS 327 
 
 maturity. At first, nothing is seen like the inter- 
 position of law to compel the performance of 
 a promise. That which the law arms Avith its 
 sanctions is not a promise, but a promise accom- 
 panied with a solemn ceremonial. Not only are 
 the formaUties of equal importance with the 
 promise itself, but they are, if anything, of greater 
 importance ; for that delicate analysis which 
 mature jurisprudence applies to the conditions of 
 .mind under which a particular verbal assent is 
 given appears, in ancient law, to be transferred 
 to the words and gestures of the accompanying 
 performance. No pledge is enforced if a single 
 form be omitted or misplaced, but, on the other 
 hand, if the forms can be shown to have been 
 accurately proceeded with, it is of no avail to 
 plead that the promise was made under duress 
 or deception. The transmutation of this ancient 
 view into the famihar notion of a Contract is 
 plainly seen in the history of jurisprudence. First 
 one or two steps in the ceremonial are dispensed 
 with ; then the others are simplified or permitted 
 to be neglected on certain conditions ; lastly, a 
 few specific contracts are separated from the rest 
 and allowed to be entered into without form, 
 the selected contracts being those on which the 
 activity and energy of social intercourse depend. 
 Slowly, but most distinctly, the mental engage- 
 ment isolates itself amid the technicalities, and 
 gradually becomes the sole ingredient on which 
 the interest of the jurisconsult is concentrated. 
 Such a mental engagement, signified through 
 external acts, the Romans called a Pact or Con- 
 vention ; and when the Convention has once been 
 
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328 EARLY HISTORY OF CONTRACT [chap, ix 
 
 conceived as the nucleus of a Contract, it soon 
 becomes the tendency of advancing jurisprudence 
 to break away the external shell of form and 
 ceremony. Forms are thenceforward only retained 
 so far as they are guarantees of authenticity and 
 securities for caution and deUberation. 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 in Roman 
 law is exceedingly instructive. At the earUest 
 dawn of the jurisprudence, the term in use for a 
 Contract was one which is very famiUar to the 
 students of historical Latinity. It was nexum, 
 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 (Bs 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 accompani- 
 ments of the Mancipation, the ancient solemnity 
 described in a former chapter, by which the right 
 of ownership in the highest form of Roman 
 Property was transferred from one person to 
 another. Mancipation was a conveyance, and 
 
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CHAP. IX] CONVEYANCE AND CONTRACT 329 
 
 hence has arisen the diificulty, for the definition 
 thus cited appears to confound Contracts and 
 Conveyances, which in the philosophy of juris- 
 prudence are not simply kept apart, but are 
 actually opposed to each other. The jus in re, 
 right in rem, right " availing against all the world," 
 or Proprietary Right, is sharply distinguished by 
 the analyst of mature jurisprudence from the jus 
 ad rem, right in personam, right " availing against 
 a single individual or group," or Obligation. Now 
 Conveyances transfer Proprietary Rights, Con- 
 tracts create ObUgations — how then can the two 
 be included under the same name or same general 
 conception ? This, like many similar embarrass- 
 ments, has been occasioned by the error of ascrib- 
 ing to the mental condition of an unformed society 
 a faculty which pre-eminently belongs to an 
 advanced stage of intellectual development, the 
 faculty of distinguishing in speculation ideas 
 which are blended in practice. We have indica- 
 tions not to be mistaken of a state of social affairs 
 in which Conveyances and Contracts were practi- 
 cally confounded ; nor did the discrepance of the 
 conceptions become perceptible till men had begun 
 to adopt a distinct practice in contracting and 
 conveying. 
 
 It may here be observed that we know enough 
 of ancient Roman law to give some idea of the 
 mode of transformation followed by legal con- 
 ceptions and by legal phraseology in the infancy 
 of Jurisprudence. The change which they under- 
 go 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 
 
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330 EARLY HISTORY OF CONTRACT [chap, ix 
 
 to a process of gradual speciaKsation. An ancient 
 legal conception corresponds not to one but to 
 several modern conceptions. An ancient technical 
 expression serves to indicate a variety of things 
 which in modern law have separate names allotted 
 to them. If, however, we take up the history 
 of Jurisprudence at the next stage, we find that 
 the subordinate conceptions have gradually dis- 
 engaged 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. 
 Patriarchal Power of aU sorts appears, for instance, 
 to have been once conceived as identical in cha- 
 racter, 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 material property — over flocks, herds, 
 slaves, children, or wife. We cannot be abso- 
 lutely certain of its old Roman name, but there 
 is very strong reason for beUeving, from the 
 number of expressions indicating shades of the 
 notion of power into which the word manus enters, 
 that the ancient general term was manus. But, 
 when Roman law has advanced a Httle, both the 
 name and the idea have become specialised. 
 Power is discriminated, both in word and in con- 
 ception, according to the object over which it is 
 exerted. Exercised over material commodities 
 or slaves, it has become dominium — over children, 
 
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CHAP. IX] THE NEXUM 331 
 
 it is Potestas — over free persons whose services 
 have been made away to another by their own 
 ancestor, it is mancipium — over a wife, it is still 
 manus. The old 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 Conveyance. 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 property, is 
 known by the new and special name of Mancipa- 
 tion. 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 pre- 
 dominate over and take precedence of them. The 
 reason why one legal conception continues so long 
 to cover several conceptions, and one technical 
 phrase to do instead of several, is doubtless that 
 
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332 EARLY HISTORY OF CONTRACT [chap, ix 
 
 practical changes are accomplished in the law 
 of primitive societies 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 objects over which it was exer- 
 cised, I feel sure that Power over Children was the 
 root of the old conception 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 aUenation 
 of property. It is likely that a very sHght per- 
 version of the Nexum from its original functions 
 first gave rise to its employment in Contracts, and 
 that the very shghtness of the change long pre- 
 vented 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 nobody had 
 seen reason to be at the pains of examining 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 ameUorators of law cleared away the 
 useless encumbrance 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 the same absolute con- 
 fidence as the early history of WiUs, but we are 
 not quite without hints that contracts first showed 
 
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CHAP. IX] TRANSFORMATION 333 
 
 themselves through the nexum being put to a new 
 use and afterwards obtained recognition as dis- 
 tinct transactions through the important practical 
 consequences of the experiment. There is some, 
 but not very violent, conjecture in the following 
 delineation of the process. Let us conceive a sale 
 for ready money as the normal type of the Nexum. 
 The seller brought the property of which he 
 intended to dispose — a slave, for example — the 
 purchaser attended with the rough ingots of copper 
 which served for money — and an indispensable 
 assistant, the libripens, presented himself with 
 a pair of scales. The slave with certain fixed 
 formalities was handed over to the vendee — the 
 copper was weighed by the libripens and passed 
 to the vendor. So long as the business lasted it 
 was a nexum, and the parties were next ; 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 commercizd 
 history. Suppose the slave transferred, but the 
 money not paid. In that case, the nexum is 
 finished, so far as the seller is concerned, and when 
 he has once handed over his property, 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 considered to be 
 nexus. It follows, therefore, that the same term 
 described the conveyance by which the right of 
 property was transmitted, and the personal obliga- 
 tion of the debtor for the unpaid purchase-money. 
 We may stiU go forward, and picture to ourselves 
 a proceeding wholly formal, in which nothing is 
 
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334 EARLY HISTORY OF CONTRACT [chap, ix 
 
 handed over and nothing 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 im- 
 portance for many reasons. The speculations of 
 the last century concerning mankind in a state 
 of nature, are not unfairly summed up in the 
 doctrine that " in the primitive society property 
 was nothing, and obligation everything " ; and it 
 will now be seen that, if the proposition were 
 reversed, it would be nearer the reahty. On the 
 other hand, considered historically, the primitive 
 association of Conveyances and Contracts ex- 
 plains 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 extravagant 
 powers which they lodge with creditors. When 
 once we understand that the nexum was artificially 
 prolonged to give time to the debtor, we can better 
 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 
 in general as an artifice and a distortion of strict 
 rule. The person 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 arm him with stringent 
 faciUties for enforcing the completion of a pro- 
 ceeding which, of strict right, ought never to have 
 been extended or deferred. 
 
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CHAP. IX] ROMAN ANALYSIS OF AGREEMENT 335 
 
 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, Manci- 
 pium or Mancipatio, had to be used for the purpose 
 of designating the true nexum or transaction in 
 which the property was really transferred. Con- 
 tracts are therefore now severed from Convey- 
 ances, and the first stage in their history is accom- 
 plished, 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 attempt- 
 ing to indicate the character of the changes passed 
 through in this interval, it is necessary to trespass 
 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 
 analysis, 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 laid down that the " two main 
 essentials of a contract are these : first, a signifi- 
 cation by the promising party of his intention to 
 do the acts or to observe the forbearances which 
 he promises to do or to observe. Secondly, a 
 signification by the promisee that he expects the 
 promising party will fulfil the proffered promise." 
 This is virtually identical with the doctrine of the 
 Roman lawyers, but then, in their view, the result 
 of these " significations " was not a Contract, but 
 a Convention or Pact. A Pact was the utmost 
 
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336 EARLY HISTORY OF CONTRACT [chap, ix 
 
 product of the engagements of individuals agreeing 
 among themselves, and it distinctly feU short of 
 a Contract. Whether it ultimately became a 
 Contract depended on the question whether the 
 law annexed an Obligation to it. A Contract was 
 a Pact (or Convention) plus an Obligation. So 
 long as the Pact remained unclothed with the 
 Obligation, it was called nude or naked. 
 
 What was an Obligation ? It is defined by 
 the Roman lawyers as " Juris vinculum, quo 
 necessitate adstringimur alicujus solvendae rei." 
 This definition connects the Obhgation with the 
 Nexum through the common metaphor on which 
 they are founded, and shows us with much clear- 
 ness the pedigree of a peculiar conception. The 
 Obhgation is the " bond " or " chain," with which 
 the law joins together persons or groups of persons, 
 in consequence of certain voluntary acts. The 
 acts which have the effect of attracting an Obhga- 
 tion are chiefly those classed under the heads of 
 Contract and Dehct, of Agreement and Wrong ; 
 but a variety of other acts have a similar conse- 
 quence which are not capable of being 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 plenitude 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 
 
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GHAP. IX] ROMAN OBLIGATIONS 337 
 
 bound the parties together, and the chain could 
 only be undone by the process caUed solutio, an 
 expression stiU figurative, to which our word 
 " payment " is only occasionally and incidentally 
 equivalent. The consistency with which the figu- 
 rative image was allowed to present itself, explains 
 an otherwise puzzling pecuUarity of Roman legal 
 phraseology, the fact that " Obligation " signifies 
 rights as weU as duties, the right, for example, to 
 have a debt paid as well as the duty of papng 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-law was surely tending. But 
 for the purpose of this inquiry, we must attend 
 particularly to the intermediate stage — that in 
 which something more than a perfect agreement 
 was required to attract the obUgation. This 
 epoch is synchronous with the period at which the 
 famous Roman classification of Contracts into four 
 sorts-^the Verbal, the Literal, the Real, and the 
 Consensual — had come into use, and during which 
 these four orders of contract constituted the only 
 descriptions of engagement which the law would 
 enforce. The meaning of the fourfold distribution 
 is readily understood as soon as we apprehend the 
 theory which severed the ObUgation from the 
 Convention. Each class of contracts was in fact 
 named from certain formalities which were re- 
 quired over and above the mere agreement of the 
 
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338 EARLY raSTORY OF CONTRACT [chap, ix 
 
 contracting parties. In the Verbal Contract, as 
 soon as the Convention was effected, a form of 
 words had to be gone through before the " vin- 
 culum 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 
 prehminary 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 formahties, and 
 the Contract was immediately complete, taking 
 its name from the particular form which it had 
 suited them to adopt. The exceptions to this 
 practice will be noticed presently. 
 
 I have enumerated the four Contracts in their 
 historical order, which order, however, the Roman 
 Institutional writers did not invariably follow. 
 There can be no doubt that the Verbal Contract 
 was the most ancient of the four, and that it is 
 the eldest known descendant of the primitive 
 Nexum. Several species of Verbal Contract were 
 anciently in use, but the most important of all, 
 and the only one treated of by our authorities, 
 was effected by means of a stipulation, that is, 
 a Question and Answer ; a question addressed 
 by the person who exacted the promise, and an 
 answer given by the person who made it. This 
 question and answer constituted the additional 
 ingredient which, as I have just explained, was 
 
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CHAP. ix:i XHE VERBAL CONTRACT 339 
 
 demanded by the primitive notion over and above 
 the mere agreement of the persons interested. 
 They formed the agency by which the Obligation 
 was annexed. The old Nexum has now be- 
 queathed to maturer jurisprudence first of all 
 the conception of a chain uniting the contracting 
 parties, and this has become the Obligation. It 
 has further transmitted the notion of a ceremonial 
 accompanying and consecrating the engagement, 
 and this ceremonial has been transmuted into the 
 Stipulation. The conversion of the solemn con- 
 veyance, which was the prominent feature of the 
 original Nexum, into a mere question and answer, 
 would be more of a mystery 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 conveyance was 
 first separated from the part of the proceeding 
 which had immediate reference to the business 
 in hand, and how afterwards it was omitted 
 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 
 form. It would be a mistake to consider them 
 as exclusively recommending themselves to the 
 older Roman lawyers through their usefulness 
 in furnishing persons meditating an agreement 
 with an opportunity for consideration and re- 
 flection. It is not to be disputed that they had 
 a value of this kind, which was gradually recog- 
 nised ; but there is proof that their function 
 in respect to Contracts was at first formal and 
 ceremonial in the statement of our authorities^ 
 
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340 EARLY HISTORY OF CONTRACT [chamx 
 
 that not every question and answer was of old 
 sufi&cient to constitute a Stipulation, but only 
 a question and answer couched in technical 
 phraseology specially appropriated to the par- 
 ticular occasion. 
 
 But although it is essential for the proper 
 appreciation of the history of contract-law that 
 the Stipulation 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 Contract, though it had 
 lost much of its ancient importance, survived to 
 the latest period of Roman jurisprudence ; and 
 we may take it for granted that no institution 
 of Roman law had so extended a longevity unless 
 it served some practical advantage. I observe 
 in an English writer some expressions of surprise 
 that the Romans even of the earhest 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 admi^ 
 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 expedient. 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 deUver 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 
 
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CHA'«] THE STIPULATION 34I 
 
 for a moment, we shall see that this obligation 
 to put the promise interrogatively inverts the 
 natural position of the parties, and, by effectually 
 breaking the tenor of the conversation, prevents 
 the attention from gliding over a dangerous 
 pledge. With us, a verbal- promise is, generally 
 speaking, to be gathered exclusively from the 
 words of the promisor. In old Roman law, another 
 step was absolutely required ; it was necessary 
 for the promisee, after the agreement had been 
 made, to sum up all its terms in a solemn interro- 
 gation ; 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 binding. How great a difference this 
 seemingly insignificant pecuUarity may make in 
 the phraseology of contract-law is speedily reaUsed 
 by the beginner in Roman jurisprudence, one of 
 whose first stumbling-blocks is almost universally 
 created by it. When we in English have occasion, 
 in mentioning a contract, to connect it for con- 
 venience' sake with one of the parties, — for ex- 
 ample, if we wished to speak generally of a con- 
 tractor, — ^it is always the promisor at whom otir 
 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 stipu- 
 lation is most vividly illustrated by referring to 
 the actual examples in the pages of the Latin 
 comic dramatists. If the entire scenes are read 
 
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342 EARLY HISTORY OF CONTRACT [chap, ix 
 
 down in which these passages occur (ex. gra. 
 Plautus, Pseudolus, Act I. sc. i ; Act IV. sc. 6 ; 
 Trinummus, Act V. sc. 2), it will be perceived 
 how effectually the attention of the person medi- 
 tating the promise must have been arrested by 
 the question, and how ample was the opportunity 
 for withdrawal from an improvident 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 Roman domestic 
 manners, the systematic character and exceeding 
 regularity of book-keeping in ancient times. There 
 are several minor difficulties of old Roman law, 
 as, for example, the nature of the Slave's Peculium, 
 which are only cleared up when we recollect that 
 a Roman household consisted of a number of 
 persons strictly accountable to its head, and that 
 every single item of domestic receipt and expendi- 
 ture, after being entered in waste books, was 
 transferred at stated periods to a general house- 
 hold ledger. There are some obscurities, 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 different from that 
 originally understood. We are not, therefore, in 
 a position to say, with respect to the primitive 
 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 
 
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CHAP. IX] REAL AND CONSENSUAL CONTRACTS 343 
 
 a correspondent entry in his own books was 
 necessary to give it legal effect. The essential 
 point is however estabhshed, that, in the case 
 of this Contract, all formalities were dispensed 
 with on a condition being compUed with. This 
 is another step downwards in the 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 neglected 
 to clothe his agreement in a stipulation, nothing 
 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 ot 
 
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344 EARLY HISTORY OF CONTRACT [chap, ix 
 
 all. Four specified Contracts were distinguished 
 by this name : Mandatum, i.e. Commission or 
 Agency ; Societas or Partnership ; Emtio Ven- 
 ditio 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 formalities by which the law 
 permitted the ObUgation to b6 attracted to the 
 Pact. I used this language on account of the 
 advantage of a general expression, but it is not 
 strictly correct unless it be understood to include 
 the negative as well as the positive. For, in truth, 
 the peculiarity of these Consensual Contracts is 
 that no formalities are required to create them out 
 of the Pact. Much that is indefensible, and much 
 more that is obsci;re, 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 
 vindicates that the Obhgation is here annexed 
 lat once to the Consensus. The Consensus, or 
 j mutual assent of the parties, is the final and 
 rcrowning ingredient in the Convention, and it 
 is the special characteristic of agreements falhng 
 under one of the four heads of Sale, Partnership, 
 Agency, and Hiring, that, as soon as the assent 
 of the parties has supphed this ingredient, there 
 is at once a Contract. The Consensus draws 
 with it the ObUgation, performing, in transactions 
 of the sort specified, the exact functions which 
 are discharged, in the other contracts, by the 
 Res or Thing, by the Verba stipulationis, and by 
 
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CHAP. IX] THE CONSENSUAL CONTRACTS 345 
 
 the LitercB or written entry in a ledger. Consensual 
 is therefore a term which does not involve the 
 slightest 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 unquestion- 
 ably the four styled Consensual. The larger part 
 of the collective existence of every community 
 is consumed in transactions of buying and selling, 
 of letting and hiring, of aUiances between men 
 for purposes of business, of delegation of business 
 from one man to another ; and this is no doubt the 
 consideration which led the Romans, as it has led 
 most societies, to reUeve these transactions from 
 technical incumbrance, to abstain as much as 
 possible from clogging the most ef&cient springs 
 of social movement. Such motives were not of 
 course confined to Rome, and the commerce of the 
 Romans with their neighbours must have given 
 them abundant opportunities for observing that 
 the contracts before us tended everywhere to 
 become Consensual, obHgatory on the mere signi- 
 fication of mutual assent. Hence, following their 
 usual practice, they distinguished 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 Gentium may have been 
 deposited in the minds of the Roman lawyers 
 long before the appointment of a Praetor Perev 
 grinus, but it would only be through extensive 
 and regular trade that they would be familiarised 
 with the contractual system of other Italian 
 communities, and such a trade would scarcely 
 attain considerable proportions before Italy had 
 
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346 EARLY HISTORY OF CONTRACT [chap, ix 
 
 been thoroughly pacified, and the supremacy of 
 Rome conclusively assured. Although, however, 
 there is strong probabihty that the Consensual 
 Contracts were the latest born into the Roman 
 system, and though it is likely that the quaUfica- 
 tion. Juris Gentium, stamps the recency of their 
 origin, yet this very expression, which attributes 
 them to the " Law of Nations," has in modern 
 times produced the notion of their extreme 
 antiquity. For, when the " Law of Nations " 
 had been converted into the " Law of Nature," 
 it seemed to be imphed that the Consensual 
 Contracts were the type of the agreements most 
 congenial to the natural state ; and hence arose 
 the singular behef that the younger the civilisation, 
 the simpler must be its forms of contract. 
 
 The Consensual Contracts, it will be observed, 
 were extremely hmited in number. But it cannot 
 be doubted that they constituted the stage in 
 the history of Contract-law from which aU modern 
 conceptions of contract took their start. The 
 motion of the will which constitutes agreement 
 was now completely insulated, and became the 
 subject of separate contemplation ; forms were 
 entirely ehminated from the notion of contract, 
 and external acts were only regarded as symbols 
 of the internal act of vohtion. The Consensual 
 Contracts had, moreover, been classed in the 
 Jus Gentium, and it was not long before this 
 classification drew with it the inference 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 
 
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CHAP. IX] NATURAL AND CIVIL OBLIGATION 347 
 
 and distinctions of the Roman lawyers. One of 
 them is the distinction between Natural and 
 Civil ObUgations. When a person of full in- 
 tellectual 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 form£il capacity for making a vaUd contract. 
 The law (and this is what the distinction imphes) 
 would not enforce the obligation, but it did not 
 absolutely refuse to recognise it ; and natural 
 obligations differed in many respects from obliga- 
 tions which were merely nuU and void, more 
 particularly in the circumstance that they could 
 be civilly confirmed, if the capacity for contract 
 were subsequently acquired. Another very pecu- 
 liar doctrine of the jurisconsults could not have 
 had its origin earUer than the period at which the 
 Convention was severed from the technical ingre- 
 dients of Contract. They taught that though 
 nothing but a Contract could be the foundation 
 of an action, a mere Pact or Convention could be 
 the basis of a plea. It followed from this, that 
 though nobody could sue upon an agreement 
 which he had not taken the precaution to mature 
 into a Contract by compljdng with the proper 
 forms, nevertheless a claim arising out of a valid 
 contract could be rebutted by proving a counter- 
 agreement which had never got beyond the state 
 of a simple convention. An action for the re- 
 covery of a debt could be met by showing a mere 
 informal agreement to waive or postpone the 
 payment. 
 
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348 EARLY HISTORY OF CONTRACT [chap, ix 
 
 The doctrine just stated indicates the hesitation 
 of the Praetors in making their advances towards 
 the greatest of their innovations. Their theory 
 of Natural law must have led them to look with 
 especial favour on the Consensual Contracts and 
 on those Pacts or Conventions of which the 
 Consensual Contracts were only particular in- 
 stances ; but they did not at once venture on 
 extending to all Conventions the hberty of the 
 Consensual Contracts. They took advantage of 
 that special superintendence over procedure which 
 had been confided to them since the first beginnings 
 of Roman law, and, while they still declined to 
 permit a suit to be launched which was not based 
 on a formal contract, they gave fuU play to their 
 new theory of agreement in directing the ulterior 
 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 consideration {causa). 
 Pacts of this sort are always enforced under the 
 advanced Roman jurisprudence. The principle 
 is merely the principle of the Consensual Contract 
 carried to its proper consequence ; and, in fact, 
 if the technical language of the Romans had been 
 as plastic as their legal theories, these Pacts 
 enforced by the Praetor would have been styled 
 new Contracts, new Consensual Contracts. Legal 
 phraseology is, however, the part of the law which 
 
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CHAP. IX] PROGRESS OF CONTRACT LAW 349 
 
 is the last to alter, and the Pacts equitably 
 enforced continued to be designated simply Prae- 
 torian Pacts. It win 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 Ivould 
 be necessary to convert it by a stipulation into a 
 Verbal Contract, 
 
 The extreme importance of this history of 
 Contract, as a safeguard against almost innumer- 
 able delusions, must be my justification for dis- 
 cussing it at so considerable a length. It gives 
 a complete account of the march of ideas from 
 one great landmark of jurisprudence to another. 
 We begin with the Nexum, in which a Contract 
 and a Conveyance are blended, and in which the 
 formalities which accompany 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 observances of a 
 Roman household. In 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 forbidden to 
 repudiate it on account of defects in form. Lastly, 
 the Consensual Contracts emerge, in which the 
 mental 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 
 
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350 EARLY HISTORY OF CONTRACT [chap, ix 
 
 refined conception exemplifies the necessary pro- 
 gress of human thought on the subject 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 modem 
 jurisprudence is so thoroughly leavened with the 
 Roman notions that it furnishes us with no 
 contrasts 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 reason- 
 ably beUeved 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 vinculum 
 juris, so far as my knowledge extends, is exclu- 
 sively Roman. The many pecuUarities of the 
 mature Roman Law of Contract and DeUct which 
 are traceable to these two ideas, whether singly 
 or in combination, are therefore among the ex- 
 clusive products of one particular society. These 
 later legal conceptions are important, not because 
 they typify the necessary results of advancing 
 thought under all conditions, but because they 
 have exercised perfectly enormous influence on 
 the intellectual diathesis of the modern world. 
 
 I know nothing more wonderful than the 
 variety of sciences to which Roman law, Roman 
 Contract-law more particularly, has contributed 
 modes of thought, courses of reasoning, and a 
 
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CHAP. IX] LEGAL THOUGHT IN ROMAN EMPIRE 35I 
 
 technical language. Of the subjects which have 
 whetted the intellectual appetite of the moderns, 
 there is scarcely one, except Physics, which has 
 not been filtered through Roman jurisprudence. 
 The science of pure Metaphysics had, indeed, 
 rather a Greek than a Roman parentage, but 
 Politics, Moral Philosophy, and even Theology, 
 found in Roman law not only a vehicle of ex- 
 pression, but a nidus in which some of their pro- 
 foundest inquiries were nourished into maturity. 
 For the purpose of accounting for this phenomenon, 
 it is not absolutely necessary to discuss the mys- 
 terious 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, 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 language of Roman 
 law, which by a singular fortune had preserved 
 nearly all the purity of the Augustan age, while 
 vernacular Latin was degenerating into a dialect 
 of portentous barbarism. And if Roman juris- 
 prudence supplied the only means of exactness 
 in speech, still more emphatically did it furnish 
 the only means of exactness, subtlety, or depth in 
 thought. For at least three centuries philosophy 
 and science were without a home in the West 
 
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352 EARLY HISTORY OF CONTRACT [chap, ix 
 
 and though metaphysics and metaphysical theo- 
 logy were engrossing the mental energies of 
 multitudes of Roman subjects, the phraseology 
 employed in these ardent inquiries was exclusively 
 Greek, and their theatre was the Eastern half of 
 the Empire. Sometimes, indeed, the conclusions 
 of the Eastern disputants 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. Meanwhile, one depart- 
 ment of inquiry, difficult enough for the most 
 laborious, deep enough for the most subtile, 
 deUcate enough for the most refined, had never 
 lost its attractions for the educated classes of the 
 Western provinces. To the cultivated citizen of 
 Africa, of Spain, of Gaul, and of Northern Italy, it 
 was jurisprudence, and jurisprudence only, which 
 stood in the place of poetry and history, of philo- 
 sophy and science. So far then from there being 
 anything mysterious in the palpably legal com- 
 plexion of the earUest efforts of Western thought, 
 it would rather be astonishing if it had assumed 
 any other hue. I can only express my smprise 
 at the scantiness of the attention which has been 
 given to the difference between Western ideas 
 and Eastern, between Western theology and 
 Eastern, caused by the presence of a new ingre- 
 dient. It is precisely because 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 Con- 
 
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CHAP. IX] QUASI-CONTRACT 353 
 
 tinental thinkers are doubtless less capable of 
 appreciating the importance of this crisis by the 
 very intimacy with which notions derived from 
 Roman law are mingled up with their everyday 
 ideas. Englishmen, on the other hand, are blind 
 to it through the monstrous ignorance to which 
 they condemn themselves of the most plentiful 
 source of the stream of modem knowledge, of the 
 one intellectual result of the Roman civilisation. 
 At the same time, an Englishman who will be at 
 the pains to famiUarise himself with the classical 
 Roman law, is perhaps, from the very sUghtness 
 of the interest which his countrymen have hitherto 
 taken in the subject, a better judge than a French- 
 man or a German of the value of the assertions 
 I have ventured to make. Anybody who knows 
 what Roman jurisprudence is, as actually practised 
 by the Romans, and who will observe in what 
 characteristics the earHest Western theology and 
 philosophy differ from the phases of thought 
 which preceded them, may be safely left to pro- 
 nounce what was the new element which had 
 begun to pervade and govern speculation. 
 
 The part of Roman law which has had most 
 extensive 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 belonging to this part of their system 
 might be made to discharge, and this is proved by 
 their employment of the pecuhar adjunct quasi 
 in such expressions as Quasi-Contract and Quasi- 
 Delict. " Quasi," so used, is exclusively a term 
 
 23 
 
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354 EARLY HISTORY OF CONTRACT [chap, ix 
 
 of classification. It has been usual with English 
 critics to identify the Quasi-Contracts with implied 
 contracts, but this is an error, for impUed contracts 
 are true contracts, which quasi-contracts are not. 
 In impHed contracts, acts and circumstances are 
 the symbols of the same ingredients 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 indifference so 
 far as concerns the theory of agreement. But 
 a Quasi-Contract is not a contract at all. The 
 commonest sample of the class is the relation 
 subsisting between two persons, one of whom has 
 paid money to the other through mistake. The 
 law, consulting the interests of morality, imposes 
 an obligation on the receiver to refund, but the 
 very nature of the transaction indicates that it 
 is not a contract, inasmuch as the Convention, the 
 most essential ingredient of Contract, is wanting. 
 This word " quasi," prefixed to a term of Roman 
 law, implies that the conception to which it serves 
 as an index is connected with 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 belong to the same genus. On the 
 contrary, it negatives 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 trans- 
 ferred to the other, and employed without violent 
 straining in the statement of rules which would 
 otherwise be imperfectly expressed. 
 
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CHAP. IX] QUASI-CONTRACT AND SOCIAL COMPACT 355 
 
 It has been shrewdly remarked, that the 
 confusion between ImpUed Contracts, which are 
 true contracts, and Quasi-Contracts, which are not 
 contracts 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 contract-law had been 
 largely drawn upon to describe that reciprocity 
 of rights and duties which men had always con- 
 ceived 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 pretended 
 to have had their origin in the New Testament, 
 but which were really derived from indeUble 
 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 Obligation 
 had not supplied a language capable of shadowing 
 forth an idea which was as yet imperfectly de- 
 veloped. 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 feudaUsm effectually controlled by express 
 customs the exorbitant theoretical pretensions of 
 most European sovereigns. It is notorious, how- 
 ever, that as soon as the decay of the Feudal 
 System had thrown the mediaeval constitutions 
 out of working order, and when the Reformation 
 
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356 EARLY HISTORY OF CONTRACT [chap. « 
 
 had discredited the authority of the Pope, the 
 doctrine of the divine right of Kings rose imme- 
 diately 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 had origin- 
 ally 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 phraseology, 
 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 compre- 
 hensive explanation of all the phenomena of 
 society and law. But the only real connection 
 between poUtical and legal science had consisted 
 in the last giving to the first the benefit of its 
 peculiarly plastic terminology. The Roman juris- 
 prudence 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 obhgation. The doctrine 
 of an Original Compact can never be put higher 
 than it is placed by Dr. Whewell, when he suggests 
 
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CHAP. IX] ETHICS AND ROMAN LAW 357 
 
 that, though unsound, " it may be a convenient 
 form for the expression of moral truths." 
 
 The extensive emplojmient of legal language 
 on political subjects previously to the invention 
 of the Original Compact, and the powerful influence 
 which that assumption has exercised subsequently, 
 amply account for the plentifulness in poUtical 
 science of words and conceptions, which were 
 the exclusive creation of Roman jurisprudence. 
 Of their plentifulness in Moral Philosophy a 
 rather different explanation must be given, 
 inasmuch as ethical writings have laid Roman 
 law under contribution much more directly than 
 political speculations, and their authors have 
 been much more conscious of the extent of their 
 obligation. In speaking of moral philosophy as 
 extraordinarily indebted to Roman jurisprudence, 
 I must be understood to intend moral philosophy 
 as understood previously to the break in its 
 history effected by Kant, that is, as the science 
 of the rules governing human conduct, of their 
 proper interpretation, and of the Umitations to 
 which they are subject. Since the rise of the 
 Critical Philosophy, moral science has almost 
 wholly lost its older meaning, and, except where 
 it is preserved under a debased form in the 
 casuistry still cultivated by Roman Catholic theo- 
 logians, it seems to be regarded nearly universally 
 as a branch of ontological inquiry. I do not know 
 that there is a single contemporary Enghsh writer, 
 with the exception of Dr. Whewell, who under- 
 stands moral philosophy as it was understood 
 before it was absorbed by metaphysics and before 
 the groundwork of its rules came to be a more 
 
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358 EARLY HISTORY OF CONTRACT [chap, ix 
 
 important consideration than the rules themselves. 
 So long, however, as ethical science had to do with 
 the practical regimen of conduct, it was more or 
 less saturated with Roman law. Like aU the 
 great subjects of modem thought, it was originally 
 incorporated with theology. The science of Moral 
 Theology, as it was at first called, and as it is stiU 
 designated by the Roman CathoUc divines, was 
 undoubtedly constructed, to the fuU 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 pro- 
 cess went on, it was inevitable that jurisprudence, 
 though merely intended to be the vehicle of 
 thought, should communicate its colour to the 
 thought itself. The tinge received through contact 
 with legal conceptions is perfectly perceptible in 
 the earliest ethical Uterature of the modern world, 
 and it is evident, I think, that the Law of Contract, 
 based as it is on the complete reciprocity and 
 indissoluble connection of rights and duties, has 
 acted as a wholesome corrective to the predis- 
 positions of writers who, if left to themselves, 
 might have exclusively viewed a moral obhgation 
 as the pubUc duty of a citizen in the Civitas Dei. 
 But the amount of Roman Law in moral theology 
 becomes sensibly smaller at the time of its culti- 
 vation by the great Spanish moralists. Moral 
 theology, developed by the juridical method of 
 doctor commenting on doctor, provided itself 
 with a phraseology of its own ; and Aristotelian 
 pecuUarities of reasoning and expression, imbibed 
 'loubtless in great part from the Disputations on 
 
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CHAP. IX] LATER MORAL PHILOSOPHY 359 
 
 Morals in the academical schools, take the place 
 of that special turn of thought and speech which 
 can never be mistaken by any person conversant 
 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 
 conclusions by the next generation of Roman 
 CathoUc writers on these subjects almost entirely 
 destroyed their influence. Moral Theology, de- 
 graded into Casuistry, lost aU interest for the 
 leaders of European 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 subjects 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^Tlie^Roman Catholic Church, 
 and nearly aU of them affiliated to one or other 
 of her reUgious orders. On the other side were 
 a body of writers connected with each other by a 
 common intellectual descent from the great author 
 of the treatise 'De Jure Belli et Pacis,' Hugo 
 Grotius. A lmost all of th e JLatteii were adherents 
 of the Reformation ; and though it cannorbg"Mid 
 ,that~tliey~wefe formally and avowedly at conflict 
 
 • The passage quoted is transcribed, with slight alterations, 
 from a paper contributed by the author to the "Cambridge 
 Essays" for 1856. 
 
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360 EARLY HISTORY OF CONTRACT [chap, ix 
 
 with the Casuists, the origin and objects of their 
 system were nevertheless essentially different from 
 those of Casuistry. It is necessary to call attention 
 to this difference, because it involves the question 
 of the influence of Roman law on that department 
 of thought with which both systems are concerned. 
 The book of Grotius, though it touches questions 
 of pure Ethics in every page, and though it is 
 the parent immediate or remote of innumerable 
 volumes of formal morahty, is not, as is well 
 known, a professed treatise on Moral Philosophy ; 
 it is an attempt to determine the Law of Nature, 
 or Natural Law. Now, without entering upon 
 the question whether the conception of a Law 
 Natural be not exclusively a creation of the 
 Roman jurisconsults, we may lay down that, 
 even on the admission of Grotius himself, the 
 dicta of the Roman jurisprudence as to what 
 parts of known positive law must be taken to 
 be parts of the Law of Nature, are, if not infallible, 
 to be received at all events with the profoundest 
 respect. Hence the system of Grotius is impli- 
 cated with Roman law at its very foundation, 
 and this connection rendered inevitable — ^what 
 the legal training of the writer would perhaps 
 have entailed without it — the free employment 
 in every paragraph of technical phraseology, and 
 of modes of reasoning, defining, and illustrating, 
 which must sometimes conceal the sense, and 
 almost always the force and cogency, of the argu- 
 ment from the reader who is unfamiUar with the 
 sources whence they have been derived. On the 
 other hand, Casuistry borrows httle from Roman 
 law, and the views of morality contended for 
 
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CHAP, ixl DECLINE OF CASUISTRY 361 
 
 have nothing whatever in common with the 
 undertaking of Grotius. All that philosophy of 
 right and wrong which has become famous, or 
 infamous, under the name of Casuistry, had its 
 origin in the distinction between Mortal and 
 Venial sin. A natural anxiety to escape the 
 awful consequences of determining a particular 
 act to be mortally sinful, and a desire, equally 
 inteUigible, 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 distinctions 
 of Casuistry, by enabling the priesthood to adjust 
 spiritual control to all the varieties of human 
 character, did really confer on it an influence 
 with princes, statesmen, and generals, unheard 
 of in the ages before the Reformation, and did 
 really contribute largely to that great reaction 
 which checked and narrowed the first successes 
 of Protestantism. But beginning in the attempt, 
 not to establish, but to evade — not to discover a 
 principle, but to escape a postulate — not to settle 
 the nature of right and wrong, but to determine 
 what was not wrong of a particular nature, — 
 Casuistry went on with its dexterous 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 
 
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363 EARLY fflSTORY OF CONTRACT [chap, ix 
 
 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 appearance of those memorable Papers, no 
 moralist of the smallest influence or credit has 
 ever avowedly conducted his speculations in the 
 footsteps of the Casuists. The whole field of 
 1 ethical science was thus left at the exclusive 
 command of the writers who followed Grotius ; 
 and it stiU exhibits in an extraordinary degree 
 the traces of that entanglement with Roman law 
 which is sometimes imputed as a fault, and 
 sometimes the highest of its recommendations, 
 to the Grotian theory. Many inquiriers since 
 Grotius' s day have modified his principles, and 
 many, of course, since the rise of the Critical 
 Philosophy, have quite deserted them ; but even 
 those who have departed most widely from his 
 fundamental assumptions have inherited much of 
 his method of statement, of his train of thought, 
 and of his mode of illustration ; and these have 
 Uttle meaning and no point to the person ignorant 
 of Roman jurisprudence." 
 
 I have already said that, with the exception 
 of the physical sciences, there is no walk of 
 knowledge which has been so slightly affected by 
 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 dialect of Latin expressly con- 
 structed to give expression to Greek conceptions. 
 The modern languages have only been fitted to 
 metaphysical inquiries by adopting this Latin 
 
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CHAP. IX] THEOLOGY AND ROMAN LAW 363 
 
 dialect, or by imitating the process which was 
 originally followed in its formation. The source 
 of the phraseology which has been always employed 
 for metaphysical discussion in modern times was 
 the Latin translations of Aristotle, in which, 
 whether derived or not from Arabic versions, 
 the plan of the translator was not to seek for 
 analogous expressions in any part of Latin htera- 
 ture, 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 problems 
 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 
 impressive than the fact that no Greek-speaking 
 people has ever felt itself seriously perplexed by 
 the great question of Free-will and Necessity. I 
 do not pretend 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 conception 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, 
 
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364 EARLY HISTORY OF CONTRACT [chap, ix 
 
 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 definition of 
 Obligation which I have repeatedly cited, " Juris 
 vinculum quo necessitate adstringimur alicujus 
 solvendas rei." 
 
 But the problem of Free-will was theological 
 before it became philosophical, and, if its terms 
 have been affected by jurisprudence, it wiU be 
 because Jurisprudence has made itself felt in 
 Theology. The great point of inquiry which is 
 here suggested has never been satisfactorily 
 elucidated. What has to be determined, is 
 whether jurisprudence has ever served as the 
 medium through which theological principles have 
 been viewed ; whether, by supplying a peculiar 
 language, a peculiar mode of reasoning, and a 
 peculiar solution of many of the problems of hfe, 
 it has ever opened new channels in which theolo- 
 gical speculation could flow out and expand itself. 
 For the purpose of giving an answer it is necessary 
 to recollect what is already agreed upon by the 
 best writers as to the intellectual food which 
 theology first assimilated. It is conceded on all 
 sides that the earliest 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 
 
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CHAP. IX] ROMAN LAW IN THE CHURCH 365 
 
 the Divine Natures. The Latin language 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 disputing 
 or reviewing them. " Latin Christianity," says 
 Dean Milman, " accepted the creed which its 
 narrow and barren vocabulary could hardly 
 express in adequate terms. Yet, throughout, 
 the adhesion of Rome and the West was a passive 
 acquiescence in the dogmatic system which had 
 been wrought out by the profounder theology 
 of the Eastern divines, rather than a vigorous 
 and original examination on her part of those 
 mysteries. The Latin Church was the scholar 
 as well as the loyal partisan of Athanasius." 
 But when the separation of East and West became 
 wider, and the Latin-speaking Western Empire 
 began to live with an intellectual hfe of its own, 
 its deference to the East was all at once exchanged 
 for the agitation of a number of questions entirely 
 foreign to Eastern speculation. " While Greek 
 theology (Milman, 'Latin Christianity,' Preface, 
 5) went on defining with stiU more exquisite 
 subtlety the Godhead and the nature of Christ " 
 — " while the interminable controversy still 
 lengthened out and cast forth sect after sect from 
 the enfeebled community " — the Western Church 
 threw itself with passionate ardour into a new 
 order of disputes, the same which from those 
 days to this have never lost their interest for any 
 family of mankind at any time included in the 
 Latin communion. The nature of Sin and its 
 transmission by inheritance — the debt owed by 
 
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366 EARLY HISTORY OF CONTRACT [chap, ix 
 
 man and its vicarious satisfaction — the necessity 
 and sufficiency of the Atonement — above all the 
 apparent antagonism between Free-will and the 
 Divine Providence — these were the points which 
 the West began to debate as ardently as ever 
 the East had discussed the articles 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 he 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 were more 
 " practical," less absolutely speculative, than 
 those which had torn Eastern Christianity asunder, 
 but none of them, so far as I am aware, has quite 
 reached it. I affirm without hesitation that the 
 difference between the two theological systems 
 is accounted for by the fact that, in passing from 
 the East to the West, theological speculation had 
 passed from a chmate of Greek metaphysics to 
 a climate of Roman law. For some centuries 
 before these controversies rose into overwhelming 
 importance, all the intellectual activity of the 
 Western Romans had been expended on juris- 
 prudence exclusively. They had been occupied 
 in appljdng a peculiar set of principles to all the 
 combinations in which the circumstances of hfe 
 are capable of being ariranged. No foreign pursuit 
 or taste called off their attention from this en- 
 grossing occupation, and for carrying it on they 
 possessed a vocabulary as accurate as it was 
 copious, a strict method of reasoning, a stock of 
 general propositions on conduct more or less 
 
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CHAP. IX] ROMAN LAW IN THE CHURCH 367 
 
 verified by experience, and a rigid moral philo- 
 sophy. It was impossible that they should not 
 select from the questions indicated by the Christian 
 records those which had some affinity with the 
 order of speculations to which they were accus- 
 tomed, and that their manner of dealing with them 
 should not borrow something from their forensic 
 habits. Almost everybody who has knowledge 
 enough of Roman law to appreciate the Roman 
 penal system, the Roman theory of the obligations 
 estabUshed by Contract or Delict, the Roman 
 view of Debts and of the modes of incurring, 
 extinguishing, and transmitting them, the Roman 
 notion of the continuance of individual existence 
 by Universal Succession, may be trusted to say 
 whence arose the frame of mind to which the 
 problems of Western theology proved so congenial, 
 whence came the phraseology in which these 
 problems were stated, and whence the description 
 of reasoning employed in their solution. It must 
 only be recollected that the Roman law which 
 had worked itself into Western thought was 
 neither the archaic system of the ancient city, 
 nor the pruned and curtailed jurisprudence of the 
 Byzantine Emperors ; still less, of course, was it 
 the mass of rules, nearly buried in a parasitical 
 overgrowth of modern speculative doctrine, which 
 passes by the name of Modem Civil Law. I 
 speak oiJy of that philosophy of jurisprudence, 
 wrought out by the great juridical thinkers of the 
 Antonine age, which may still be partially re- 
 produced from the Pandects of Justinian, a system 
 to which few faults can be attributed except 
 perhaps that it aimed at a higher degree of 
 
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368 EARLY HISTORY OF CONTRACT [chap, ix 
 
 elegance, certainty, and precision than human 
 affairs will permit to the limits within which 
 human law seeks 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 EngHsh writers of note and credit 
 have been led by it to put forward the most un- 
 tenable 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 advancing the 
 proposition, that from the close of the Augustan 
 era to the general awakening of interest on the 
 points of the Christian faith, the mental energies 
 of the civilised world were smitten with a paralysis. 
 Now there are two subjects of thought — the only 
 two perhaps with the exception of physical science 
 — ^which are able to give employment to all the 
 powers and capacities which the mind possesses. 
 One of them is Metaphysical inquiry, which knows 
 no limits so long as the mind is satisfied to work 
 on itself ; the other is Law, which is as extensive 
 as the concerns of mankind. It happens that, 
 during the very period indicated, the Greek- 
 speaking provinces were devoted to one, the Latin- 
 speaking provinces to the other of these studies. 
 I say nothing of the fruits of speculation in 
 Alexandria and the East, but I confidently affirm 
 that Rome and the West had an occupation in 
 hand fully capable of compensating them for the 
 absence of every other mental exercise, and I 
 add that the results achieved, so far as we know 
 them, were not unworthy of the continuous and 
 
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CHAP. IX] PREDOMINANCE OF LAW IN ROME 369 
 
 exclusive labour 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 comprehending why it was that an 
 unusual share of the collective intellect of Rome 
 was engrossed by jurisprudence. " The pro- 
 ficiency * of a given community in jurisprudence 
 depends in the long run on the same conditions 
 as its progress in any other hne of inquiry ; and 
 the chief of these are the proportion of the natioiial 
 intellect devoted to it, and the length of time 
 during which it is so devoted. Now, a combina- 
 tion 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 exercise to which a young 
 nation devotes itself is the study of its laws. As 
 soon as the mind makes its first conscious efforts 
 towards generahsation, the concerns of every-day 
 Ufe are the first to press for inclusion within 
 general rules and comprehensive formulas. The 
 popularity of the pursuit on which all the energies 
 of the young commonwealth are bent is at the 
 outset unbounded ; but it ceases in time. The 
 monopoly of mind by law is broken down. The 
 crowd at the morning audience of the great 
 
 * "Cambridge Essays," 1856. 
 
 24 
 
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370 EARLY HISTORY OF CONTRACT [chap, ix 
 
 Roman jurisconsult lessens. The students are 
 counted by hundreds instead of thousands in the 
 EngHsh Inns of Court. Art, Literature, Science, 
 and Pohtics claim their share of the national 
 intellect ; and the practice of jurisprudence is 
 confined within the circle of a profession, never 
 indeed limited or insignificant, but attracted as 
 much by the rewards as by the intrinsic recom- 
 mendations of their science. This succession of 
 changes exhibited itself even more strikingly at 
 Rome than in England. To the close of the 
 RepubHc the law was the sole field for aU ability 
 except the special talent of a capacity for general- 
 ship. But a new stage of intellectual progress 
 began with the Augustan age, as it did with our 
 own EUzabethan era. We all know what were its 
 achievements in poetry and prose ; but there 
 are some indications, it should be remarked, that, 
 besides its efflorescence in ornamental literature, 
 it was on the eve of throwing out new aptitudes 
 for conquest in physical science. Here, however, 
 is the point at which the history of mind in the 
 Roman States ceases to be parallel to the routes 
 which mental progress has since then pursued. 
 The brief 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 improper 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 Romans 
 despised philosophy and poetry as the toys of a 
 childish race. Of what nature were the external 
 
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CHAP. IX] ROMAN LAW IN WESTERN THEOLOGY 37I 
 
 inducements which, during the Imperial period, 
 tended to draw a man of inherent capacity to the 
 pursuits of the jurisconsult may best be under- 
 stood by considering the option which was prac- 
 tically before him in his choice of a profession. 
 He might become a teacher of rhetoric, a com- 
 mander of frontier-posts, or a professional writer 
 of panegyrics. The only other 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 V 
 was so enormous that there were schools of law \ 
 in every part of the Empire, even in the very J 
 domain of Metaphysics. But, though the transfer^''^ 
 of the seat of empire to Byzantium gave a per- 
 ceptible impetus to its cultivation in the East, 
 jurisprudence never dethroned the pursuits which 
 there competed with it. Its language was Latin, 
 an exotic dialect in the Eastern half of the Empire. 
 It is only of the West that we can lay down that 
 law was not only the mental food of the ambitious 
 and aspiring, but the sole aliment of all intellectual 
 activity. Greek philosophy had never been more 
 than a transient fashionable taste with the edu- 
 cated 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 speculation, and 
 their exclusive devotion to jurisprudence, 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 
 
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373 EARLY HISTORY OF CONTRACT [chap, ix 
 
 proved to be permeated with forensic ideas and 
 couched in a forensic phraseology. It is certain 
 that this substratum of law in Western theology 
 lies exceedingly deep. A new set of Greek 
 theories, the Aristotelian philosophy, made their 
 way afterwards into the West, and almost entirely 
 buried its indigenous doctrines. But when at 
 the Reformation it partially shook itself free from 
 their influence, it instantly suppUed their place 
 with Law. It is difficult to say whether the 
 religious system of Calvin or the religious system 
 of the Arminians has the more markedly legal 
 character. 
 
 The vast influence of this specific jurisprudence 
 of Contract produced by the Romans upon the 
 corresponding department of modem Law belongs 
 rather to the history of mature jurisprudence than 
 to a treatise Uke the present. It did not make 
 itself felt tiU the school of Bologna founded the 
 legal science of modern Europe. But the fact that 
 the Romans, before their Empire feU, had so fully 
 developed the conception of Contract becomes 
 of importance at a much earlier period than this. 
 Feudalism, I have repeatedly asserted, was a 
 compound of archaic barbarian usage with Roman 
 law ; no other explanation of it is tenable, or 
 even intelligible. The earliest social forms of the 
 feudal period differ in httle from the ordinary 
 associations in which the men of primitive civiUsa- 
 tions are ever5rwhere seen united. A Fief was 
 an organically complete brotherhood of associates 
 whose proprietary and personal rights were in- 
 extricably blended together. It had much in 
 common with an Indian Village Community and 
 
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CHAP. IX] CONTRACT LAW AND FEUDALISM 373 
 
 much in common with a Highland clan. But 
 stUl it presents some phenomena which we never 
 find in the associations which are spontaneously 
 formed by beginners in civilisation. True archaic 
 communities are held together not by express 
 rules, but by sentiment, or, we should perhaps 
 say, by instinct ; and new comers into the brother- 
 hood are brought within the range of this instinct 
 by falsely pretending to share in the blood- 
 relationship from which it naturally springs. 
 But the earliest feudal communities were neither 
 bound 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 person wishing to 
 engraft himself on the brotherhood by commen- 
 dation or infeudation came to a distinct under- 
 standing as to the conditions on which he 
 was to be admitted. It is therefore the sphere 
 occupied in them by Contract which principally 
 distinguishes the feudal institutions from the un- 
 adulterated usages of primitive races. The lord 
 had many of the characteristics of a patriarchal 
 chieftain, but his prerogative was Umited 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 
 differences 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 
 destructible than instinctive habits, and more 
 
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374 NOTES [CHAP. IX 
 
 various, because the contracts on which they 
 were founded were adjusted to the minutest 
 circumstances and wishes of the persons who 
 surrendered or granted away their lands. This 
 last consideration may serve to indicate how 
 greatly the vulgar opinions current among us 
 as to the origin of modern society stand in need 
 of revision. It is often said that the irregular 
 and various contour of modem civihsation is 
 due to the exuberant and erratic genius of the 
 Germanic races, and it is often contrasted with the 
 dull routine of the Roman Empire. The truth 
 is that the Empire bequeathed to modern society 
 the legal conception to which all this irregularity 
 is attributable ; if the customs and institutions 
 of barbarians have one characteristic more striking 
 than another, it is their extreme uniformity. 
 
 NOTE R 
 CONTRACT IN EARLY LAW 
 
 Remembering that Maine did not profess to write a treatise 
 on Roman law, we shall not follow this brilliant and suggestive 
 chapter with a critical eye for details. But we must note that 
 Savigny's explanation of the Stipulation as an " imperfect con- 
 veyance" — a truncated form of the Nexum (about which, by the 
 way, little seems to be really known) — is not accepted by any 
 recent author. The origin is now sought in an earlier religious 
 obligation, probably by oath ; opinions differ, as might be expected, 
 as to the conjectural details (Muirhead, 22-7 ; Girard, 481, 
 sqq. ; Pacchioni, "Actio ex sponsu," Bologna, 1888; Zocco-Rosa in 
 Annuario dello Istituto di storia di diritto Romano, vol. 8, Catania, 
 1902 ; Sohm's note, " Institutes," tr. Ledlie, 3rd ed., p. 64). 
 To such an origin the fact that the words " spondes ? spondeo " 
 could be used only by Roman citizens appears to point, though 
 Savigny strangely failed to see this ; and in medieval English 
 law we actually find the religious sanction of the spiritual 
 courts interposed, in the name of correcting the sinful breach of 
 plighted faith (fidei IcssioJ, to enforce promises which were still 
 
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CHAP. IX] NOTES 375 
 
 mere words for temporal courts, bound as they were to the archaic 
 categories of forms of action. English example also shows liow 
 improbable it is that contract should be derived from an imperfect 
 conveyance. In medieval English law a debt is constituted not 
 by the debtor's promise to repay, but by a supposed grant of the 
 sum to the creditor, and the creditor's action alleges no promise, 
 but is in exactly the same form as an action to recover land, 
 and is expressly called an action of property. Here we have 
 conveyance enough. But the action of debt was quite incompetent 
 to become the starting-point of any true law of contract, and when 
 a way was found to sue on informal promises outside its limits, 
 that way was altogether different. All this is in no degree pre- 
 judicial to the substance of Maine's argument, which is to show 
 that the law of contract, or, to be exact, any comprehensive 
 doctrine of contract, appears everywhere only at an advanced 
 stage of legal development. This is undoubtedly sound. Even 
 the classical Roman law in its final form never attained a really 
 general theory of contracts. Ultimately the want was supplied, 
 but it would hardly be too much to say of the canonists on the 
 Continent, certainly not too much to say of the common lawyers 
 in England, that they took the kingdom of heaven by violence (cp. 
 my " Oxford Lectures," 1890, pp. 59-62 ; details and references for 
 the English history in Pollock on Contract, 7th ed. 136, 170; the 
 use of the specially English term Consideration to represent 
 the Roman causa is too dangerous a liberty to be allowed to any 
 lesser man than Maine). 
 
 Maine censures unnamed English critics (p. 345) for identifying 
 the quasi-contracts of the Civil Law (the term is, of course, not 
 classical) with the implied contracts of the Common Law. But 
 the truth is that this latter expression is, or very lately was, 
 ambiguous. Real agreements manifested by acts and conduct, 
 and not by words, were constantly spoken of as "implied" 
 contracts in English books, as Maine says, at the time when he 
 wrote and long afterwards. Thus the Indian Contract Act of 1872 
 declares that a promise made otherwise than in words is said to 
 be implied. Here a real agreement is inferred as a fact. But 
 also many "relations resembling those created by contract" (to 
 use again the language of the Indian Act) arise from facts which 
 in Roman law would produce an obligation quasi ex contractu. 
 Such facts, under the Common Law, may produce an obligation 
 ascribed in the old system of pleading to a fictitious promise, 
 which promise was said to be "implied" by the law. There 
 are therefore so-called implied contracts in our law which may 
 quite properly be compared with the quasi-contracts of the Roman 
 law ; they cover, indeed, much of the same ground. Of late years 
 the term Quasi-contract has been fully naturalised in the American 
 law schools, and by this time it is fairly well known in England, 
 
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376 NOTES [CHAP. IX 
 
 "Constructive contract" would have been correct and in harmony 
 with the general usage of the Common Law, but no one seems ever 
 to have used it. 
 
 One result, and a somewhat important one of observing how late 
 and slow of growth any general doctrine of contract has been in 
 any system of civilized law is to strengthen the conviction that a 
 huge anachronism is involved in those political theories which seek 
 to make contract the foundation of all positive law and even of 
 government itself. It should be noted that the doctrine of the 
 Social Contract is much earlier than appears in Maine's statement, 
 and that the theory of the divine right of kings, to which Maine 
 alludes very briefly, was in its origin directed not against popular 
 liberty but against papal and ecclesiastical claims to supremacy 
 in temporal as well as spiritual affairs, as Mr. J. Neville Figgis 
 has shown at largelin his learned and acute monograph (" The Theory 
 of the Divine Right of Kings," Cambridge, 1896). 
 
 We have said that the classical Roman system of contracts was 
 not theoretically complete ; but this did not prevent the discovery 
 that rights could be freely and largely modified by contract (for a 
 discovery this was to the men of the Middle Ages, when the re- 
 vived study of Roman law made the fact prominent) from exercising a 
 fascination which is not at all exaggerated in Maine's remarks at 
 the end of this chapter. For a time there was a tendency to assume 
 that estates and interests in land could be modified without limit 
 at the will of parties, and this was not effectually checked in 
 England until the latter part of the thirteenth century. 
 
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CHAPTER X 
 
 THE EARLY HISTORY OF DELICT AND CRIME 
 
 The Teutonic Codes, including those of our Anglo- 
 Saxon ancestors, are the only bodies of archaic 
 secular 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 frag- 
 ments of Roman and Hellenic codes suffice to 
 prove to us their general character, there does 
 not remain enough of them for us to be quite 
 sure of their precise magnitude or of the proportion 
 of their parts to each other. But stiU on the whole 
 all the known collections of ancient law are 
 characterised by a feature which broadly dis- 
 tinguishes them from systems of mature juris- 
 prudence. 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 tradi- 
 tions 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 alone, produced by a society of 
 greater legal genius and at first of gentler manners, 
 the civil law has something Uke 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 
 
 377 
 
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378 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 may be laid down, I think, that the more archaic 
 the code, the fuller and the minuter is its penal 
 legislation. The phenomenon has often been 
 observed, and has been explained, no doubt to 
 a great extent correctly, by the violence habitual 
 to the communities 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 bar- 
 barian life. I imagine, however, that this account 
 is not quite complete. It should be recollected 
 that the comparative barrenness of civil law in 
 archaic collections is consistent with those other 
 characteristics of ancient jurisprudence 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 of 
 the Law of Contract. But it is plain that all these 
 provinces of jurisprudence must shrink within 
 narrower 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, wiU be restricted to the scantiest 
 Umits as long as all fornis of status are merged 
 in common subjection to Paternal Power, as long 
 as the wife has no rights against her Husband, 
 the Son none against his Father, and the infant 
 Ward none against the Agnates who are his 
 Guardians. Similarly, the rules relating to Pro- 
 perty 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 greatest gap in ancient 
 
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CHAP. X] CRIMES AND WRONGS 379 
 
 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 immaturity of the moral notions on which 
 Contract depends by supplying its place with an 
 elaborate jurisprudence of Oaths. There are no 
 corresponding reasons for the poverty of penal 
 law, and accordingly, even if it be hazardous to 
 pronounce that the childhood of nations is always 
 a period of ungoverned violence, we shall still 
 be able to understand why the modern relation 
 of criminal law to civil should be inverted in 
 ancient codes. 
 
 I have spoken of primitive jurisprudence as 
 giving to criminal law a priority unknown in a 
 later age. The expression has been used for 
 convenience' sake, 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 Individual, 
 and the two classes of injuries, thus kept apart, 
 I may here, without pretending that the terms 
 have always been employed consistently in juris- 
 prudence, call Crimes and Wrongs, crimina and 
 delicta. Now the penal Law of ancient com- 
 munities is not the law of Crimes ; it is the law 
 of Wrongs, or, to use the EngUsh technical word, 
 of Torts. The person 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 
 
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380 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 treats of the penal jurisprudence founded on the 
 Twelve Tables, it will be seen that at the head of 
 the civil wrongs recognised by the Roman law 
 stood Furtum or Theft. Offences which we are 
 accustomed to regard exclusively as crimes are 
 exclusively treated as torts, and not theft only, 
 but assault and violent robbery, are associated 
 by the jurisconsult with trespass, hbel, and 
 slander. AU aUke gave rise to an ObUgation or 
 vinculum juris, and were aU requited by a pajnnent 
 of money. This peculiarity, however, is most 
 strongly brought out in the consohdated Laws 
 of the Germanic tribes. Without an exception, 
 they describe an immense system of money 
 compensations for homicide, and with few ex- 
 ceptions, as large a scheme of compensation for 
 minor injuries. " Under Anglo-Saxon law," writes 
 Mr. Kemble (" Anglo-Saxons," i. 177), " a sum was 
 placed on the hfe 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 adventitious circum- 
 stances." These compositions are evidently re- 
 garded as a valuable source of income ; highly 
 complex rules regulate the title to them and the 
 responsibihty for them ; and, as I have already 
 had occasion to state, they often foUow a very 
 pecuhar hne of devolution, if they have not been 
 acquitted at the decease of the person to whom 
 they belong. If therefore the criterion of a 
 delict, wrong, or tort be that the person who suffers 
 it, and not the State, is conceived to be wronged. 
 
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CHAP. X] CONCEPTION OF CRIME 381 
 
 it may be asserted that in the infancy of juris- 
 prudence 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 
 primitive jurisprudence. It must be added that 
 Sins are known to it also. Of the Teutonic codes 
 it is almost unnecessary to make this assertion, 
 because those codes, in the form in which we have 
 received them, were compiled or recast by Christian 
 legislators. But it is also true that non-Christian 
 bodies of archaic law entail penal consequences 
 on certain classes of acts and on certain classes 
 of omissions, as being violations of divine pre- 
 scriptions and commands. The law administered 
 at Athens by the Senate of Areopagus was probably 
 a special religious code, and at Rome, apparently 
 from a very early period, the Pontifical juris- 
 prudence punished adultery, sacrilege, and perhaps 
 murder. There were therefore in the Athenian 
 and in the Roman States laws punishing sins. 
 There were also laws punishing torts. The con- 
 ception of offence against God produced the first 
 class of ordinances ; the conception of offence 
 against one's neighbour produced the second ; 
 but the idea of offence against the State or aggre- 
 gate community did not at first produce a true 
 criminal jurisprudence. 
 
 Yet it is not to be supposed that a conception 
 so simple and elementary as that of wrong done 
 to the State was wanting in any primitive society. 
 It seems rather that the very distinctness with 
 which this conception is realised is the true cause 
 which at first prevents the growth of a criminal 
 
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382 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 law. At all events J when the Roman community 
 conceived itself to be injured, the analogy of a 
 personal wrong received was carried out to its 
 consequences with absolute 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 legis- 
 lature. And this is the earliest conception of a 
 crimen or Crime — an act involving such high 
 issues that the State, instead of leaving its cognis- 
 ance to the civil tribunal or the reUgious court, 
 directed a special law or privilegium against the 
 perpetrator. Every indictment therefore took 
 the form of a bill of pains and penalties, and the 
 trial of a criminal was a proceeding wholly extra- 
 ordinary, wholly irregular, wholly independent 
 of settled rules and fixed conditions. Conse- 
 quently, both for the reason that the tribunal 
 dispensing justice was the sovereign State itself 
 and also for the reason that no classification 
 of the acts prescribed or forbidden was possible, 
 there was not at this epoch any Law of Crimes, 
 any criminal jurisprudence. The procedure was 
 identical with the forms of passing an ordinary 
 statute ; it was set in motion by the same persons 
 and conducted 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 administration had afterwards come 
 into being, the old procedure, as might be supposed 
 from its conformity with theory, still in strictness 
 remained practicable ; and, much as resort to 
 
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CHAP. X] ARBITRAL JURISDICTION 383 
 
 such an expedient was discreditedj the people 
 of Rome always retained the power of punishing 
 by a special law offences against its majesty. 
 The classical scholar does not require to be 
 reminded that in exactly the same manner the 
 Athenian Bill of Pains and Penalties, or eicrayyeKia, 
 survived the estabUshment of regular tribunals. 
 It is known too that when the freemen of the 
 Teutonic races assembled for legislation, they also 
 claimed authority to punish offences of peculiar 
 blackness or perpetrated by criminals of exalted 
 station. Of this nature was the criminal juris- 
 diction of the Anglo-Saxon Witenagemot. 
 
 It may be thought that the difference which I 
 have asserted to exist between the ancient and 
 modern view of penal law has only a verbal exist- 
 ence. The community, it may be said, besides 
 interposing to punish crimes legislatively, has from 
 the earUest times interfered by its tribunals to 
 compel the wrong-doer to compound for his wrong, 
 and if it does this, it must always have supposed 
 that in some way it was injured through his 
 offence. But, however rigorous this inference may 
 seem to us nowadays, it is very doubtful whether 
 it was actually drawn by the men of primitive 
 antiquity. How httle the notion of injury to the 
 community had to do with the earliest inter- 
 ferences of the State through its tribunals, is shown 
 by the curious circumstances that in the original 
 administration of justice, the proceedings were a 
 close imitation of the series of acts which were 
 likely to be gone through in private Ufe by persons 
 who were disputing, but who afterwards suffered 
 their quarrel to be appeased. The magistrate 
 
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384 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 carefully 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 
 Sacramenti of the Romans, out of which all the 
 later Roman Law of Actions may be proved to 
 have grown. Gains carefully describes its cere- 
 monial. Unmeaning and grotesque as it appears 
 at first sight, a Uttle attention enables us to 
 decipher and interpret it. 
 
 The subject of htigation is supposed to be in 
 Court. If it is movable, it is actually there. If 
 it be immovable, a fragment or sample of it is 
 brought in its place ; land, for instance, is repre- 
 sented by a clod, a house by a single brick. In the 
 example selected by Gains, the suit is for a slave. 
 The proceeding begins by the plaintiff's advancing 
 with a rod, which, as Gains expressly teUs, sym- 
 bohsed a spear. He lays hold of the slave and 
 asserts a right to him with the words, " Hunc ego 
 hominem ex Jure Quiritium meum esse dico secun- 
 dum suam causam sicut dixi " ; and then saying, 
 " Ecce tihi Vindictam imposui," he touches him 
 with the spear. The defendant goes through the 
 same series of acts and gestures. On this the 
 Praetor intervenes, and bids the litigants relax 
 their hold, " Mittite umbo hominem." They obey, 
 and the plaintiff demands from the defendant the 
 reason of his interference, " Postulo anne dicas qu& 
 ex causA vindicavens," a question which is rephed 
 to by a fresh assertion of right, " Jus peregi sicut 
 vindictam imposui." On this, the first claimant 
 
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*»*'• *] THE LEGIS ACTIO 385 
 
 ofiers to stake a sum of money, called a Sacra- 
 mentum, on the justice of his own case, " Quando 
 tu injur id provocasti, D eeris Sacramento teprovoco," 
 and the defendant, in the phrase, " Similiter ego 
 te," accepts the wager. The subsequent proceed- 
 ings 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 
 Roman smt. It is impossible, I think, to refuse 
 assent to the suggestion of those who see in it 
 a dramatisation 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 arbitrate 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 remuneration for his trouble and 
 loss of time. This interpretation would be less 
 plausible than it is, were it not that, by a sur- 
 prising coincidence, the ceremony described by 
 Gains as the imperative course of proceeding in 
 a Legis Actio is substantially the same with one 
 of the two subjects which the God Hephaestus is 
 described by Homer as moulding into the First 
 Compartment 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 
 
 25 
 
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3b& EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 never received it. The point of detail, however, 
 which stamps the picture as the counterpart of 
 the archaic Roman practice is the reward designed 
 for the judges. Two talents of gold lie in the 
 middle, to be given to him who shall explain the 
 grounds of the decision most to the satisfaction 
 of the audience. The magnitude of this sum as 
 compared with the trifling amount of the Sacra- 
 mentum seems to me indicative of the difference 
 between fluctuating usage and usage consoHdated 
 into law. The scene introduced by the poet as a 
 striking and characteristic, but still only occa- 
 sional, feature of city life in the heroic age has 
 stiffened, at the opening of the history of civil 
 process, into the regular, ordinary formahties of 
 a lawsuit. It is natural 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 number of arbitrators 
 by popular acclamation, it should be paid as a 
 matter of course to the State which the Praetor 
 represents. But that the incidents described so 
 vividly by Homer, and by Gains with even more 
 than the usual crudity of technical language, have 
 substantially the same meaning, I cannot doubt ; 
 and in confirmation of this view it may be added 
 that many observers of the earliest judicial usages 
 of modem Europe have remarked that the fines 
 inflicted by Courts on offenders were originally 
 sacramenta. The State did not take from the 
 defendant a composition for any wrong supposed 
 to be done to itself, but claimed a share in the 
 compensation awarded to the plaintiff simply as 
 the fair price of its time and trouble. Mr. Kemble 
 
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CHAT.x] OLD ROMAN LAW OF THEFT 387 
 
 expressly assigns this character to the Anglo- 
 Saxon bannum or fredum. 
 
 Ancient law furnishes other proofs that the 
 earliest administrators of justice simulated the 
 probable acts of persons engaged in a private 
 quarrel. In settling the damages to be awarded, 
 they took as their guide the measure of vengeance 
 Ukely to be exacted by an aggrieved person under 
 the circumstances 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 exempUfica- 
 tions of this peculiarity are supplied by the old 
 Roman law of Theft. The laws of the Twelve 
 Tables seem to have divided Thefts into Manifest 
 and Non-Manifest, and to have allotted extra- 
 ordinarily different penalties to the offenc^e accord- 
 ing 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 were 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 circumstances than those de- 
 scribed ; and the old code simply directed that 
 an offender of this sort should refund double the 
 value of what he had stolen. In Gaius's day the 
 excessive severity of the Twelve Tables to the 
 Manifest Thief had naturally been much mitigated, 
 but the law still maintained the old principle by 
 
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388 EARLY HISTORY OF DELICT AND CRIME [<»*»■• x 
 
 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 
 punishment when his blood was hot from that 
 with which he would be satisfied when the Thief 
 was detected after a considerable interval ; and to 
 this calculation the legal scale of penedties was 
 adjusted. The principle is precisely the same as 
 that followed in the Anglo-Saxon and other 
 Germanic codes, when they suffer a thief chased 
 down and caught with the booty to be hanged or 
 decapitated on the spot, while they exact the ^oll 
 penalties of homicide from anybody who kiUs him 
 after the pursuit has been intermitted. These 
 archaic distinctions bring home to us very forcibly 
 the distance of a refined from a rude jurisprudence. 
 The modem administrator of justice has con- 
 fessedly one of his hardest tasks before him when 
 he undertakes to discriminate between the degrees 
 of criminaUty which belong to offences falling 
 within the same technical description. It is 
 always easy to say that a man is guilty of man- 
 slaughter, larceny, or bigamy, but it is often most 
 difficult to pronounce what extent of moral gtiilt 
 he has incurred, and consequently what measure 
 of punishment he has deserved. There is hardly 
 any perplexity in casuistry, or in the analysis of 
 motive, which we may not be called upon to 
 confront, if we attempt to settle such a point with 
 precision ; and accordingly the law of our day 
 shows an increasing tendency to abstain as much 
 as possible from laving down positive rules on the 
 
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CHAPX]. CRIMINAL JURISPRUDENCE 389 
 
 subject. In France, the jury is left to decide 
 whether the offence which it finds committed has 
 been attended by extenuating circumstances ; in 
 England, a nearly unbounded latitude in the 
 selection of punishments is now allowed to the 
 judge ; while all States have in reserve an ultimate 
 remedy for the miscarriages of law in the Pre- 
 rogative 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 
 persuaded that the impulses of the injured person 
 were the proper measure of the vengeance he was 
 entitled to exact, and how Uterally they imitated 
 the probable 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 modem systems of law 
 which, in cases of graver wrong, admit the fact of 
 the wrong-doer having been taken in the act to 
 be pleaded in justification of inordinate punish- 
 ment inflicted on him by the sufferer — an indul- 
 gence 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 socie- 
 ties to the formation of a true criminal jurispru- 
 dence. The State conceived itself to be wronged, 
 and the Popular Assembly struck straight at the 
 offender with the same movement which accom- 
 panied its legislative action. It is further true 
 of the ancient world — though not precisely of the 
 modem, as I shall have occasion to point out — 
 
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390 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 that the earliest criminal tribunals were merely 
 subdivisions, or committees, of the legislature. 
 This, at all events, is the conclusion pointed at by 
 the legal history of the two great states of antiquity 
 with tolerable clearness in one case, and with 
 absolute distinctness in the other. The primitive 
 penal law of Athens intrusted the castigation of 
 offences partly to the Archons, who seem to have 
 punished them as torts, and partly to the Senate 
 of Areopagus, which punished them as sins. Both 
 jurisdictions were substantially transferred in the 
 end to the Helisea, the High Court of Popular 
 Justice, and the functions of the Archons and of 
 the Areopagus became either merely ministerial 
 or quite insignificant. But " Helisea " is only an 
 old word for assembly ; the HeUsea of classical 
 times was simply the Popular Assembly convened 
 for judicial purposes, and the famous Dikasteries 
 of Athens were only its subdivisions or panels. 
 The corresponding changes which occurred at 
 Rome are still more easily interpreted, because the 
 Romans confined their experiments to the penal 
 law, and did not, Uke the Athenians, construct 
 popular courts with a civil as weU as a criminal 
 jurisdiction. The history of Roman criminal 
 jurisprudence begins with the old Judicia PopuU, 
 at which the Kings are said to have presided. 
 These were simply solemn trials of great offenders 
 under legislative forms. It seems, however, that 
 from an early period the Comitia had occasionally 
 delegated its criminal jurisdiction to a Quaestio or 
 Commission, which bore much the same relation 
 to the Assembly which a Committee of the House 
 of Commons bears to the House itself, except that 
 
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CHAP. X] XHE ROMAN QU^STIONES 39I 
 
 the Roman Commissioners or Quaestores did not 
 merely report to the Comitia, but exercised all 
 powers which that body was itself in the habit of 
 exercising, even to the passing sentence on the 
 accused. A Quaestio of this sort was only ap- 
 pointed to try a particular offender, but there was 
 nothing to prevent two or three Qusestiones sitting 
 at the same time ; and it is probable that several 
 of them were appointed simultaneously, when 
 several grave cases of wrong to the community 
 had occurred together. There are also indications 
 that now and then these Qusestiones approached 
 the character of our Standing Committees, in that 
 they were appointed periodically, and without 
 waiting for occasion to arise in the commission of 
 some serious crime. The old Quaestores Parricidii, 
 who are mentioned in connection with transactions 
 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 Duum- 
 viri Perduellionis, 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 appointed when and as state- 
 offences were committed, they had a general, 
 though a temporary jurisdiction over such as 
 might be perpetrated. Our proximity to a regular 
 criminal jurisprudence is also indicated by the 
 general terms " Parricidium " and " Perduelho," 
 which mark the approach to something hke a 
 classification of crimes. 
 
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393 EARLY HISTORY OF DELICT AND CRIME [cha'- x 
 
 The true criminal law did not however come 
 into existence till the year B.C. 149, when L. 
 Calpumius Piso carried the statute known as the 
 Lex Calpumia de Repetundis. The law applied 
 to cases Repetundarum Pecuniarum, that is, 
 claims by Provincials to recover monies improperiy 
 received by a Governor-General, but the great 
 and permanent importance of this statute arose 
 from its establishing the first Qusestio Perpetua. 
 A Quaestio Perpetua was a Permanent Commission 
 as opposed to those which were occasional and 
 to those which were temporary. It was a regular 
 criminal tribunal, whose existence dated from 
 the passing of the statute creating it and continued 
 till another statute should pass abolishing it. Its 
 members were not specially nominated, as were the 
 members of the older Quaestiones, but provision 
 was made in the law constituting it for selecting 
 from particular classes the judges who were to 
 ofiiciate, 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 Quaestio had authority 
 to try and sentence all persons in future whose acts 
 should faU under the definitions of crime supphed 
 by the law. It was therefore a regular criminal 
 judicature, administering a true criminal juris- 
 prudence. 
 
 The primitive history of criminal law divides 
 itself therefore into four stages. Understanding 
 that the conception of Crime, as distinguished 
 from that of Wrong or Tort, and from that of Sin, 
 involves the idea of injury to the State or collec- 
 tive community, we first find that the common- 
 
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CHAP. X] QUiESTIONES PERPETU.E 393 
 
 wealth, in literal conformity with the conception, 
 itself interposed directly, and by isolated acts, to 
 avenge itself on the author of the evil which it had 
 suffered. This is the point from which we start ; 
 each indictment is now a bill of pains and penalties, 
 a special law naming the criminal and prescribing 
 his punishment. A second step is accomphshed 
 when the multipUcity of crimes compels the 
 legislature to delegate its powers to particular 
 Quaestiones or Commissions, each of which is 
 deputed to investigate a particular accusation, 
 and, if it be proved, to punish the particular 
 offender. Yet another movement is made when 
 the legislature, instead of waiting for the alleged 
 commission of a crime as the occasion of appointing 
 a Qusestio, periodically nominates Commissioners 
 like the Qusestores Parricidii and the Duumviri 
 PerdueUionis, on the chance of certain classes of 
 crimes being committed, and in the expectation 
 that they will be perpetrated. The last stage is 
 reached when the Quaestiones from being periodical 
 or occasional become permanent Benches or 
 Chambers — when the judges, instead of being 
 named in the particular law nominating the 
 Commission, are directed to be chosen through all 
 future time in a particular way and from a parti- 
 cular class — and when certain acts are described 
 in general language and declared to be crimes, 
 to be visited, in the event of their perpetration, 
 with specified penalties appropriated to each 
 description. 
 
 If the Quaestiones Perpetuae had had a longer 
 history, they would doubtless have come to be 
 regarded as a distinct institution, and their 
 
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394 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 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 justice. But the Imperial despotism 
 destroyed them before their origin had been com- 
 pletely forgotten, and so long as they lasted, 
 these permanent Commissions were looked upon 
 by the Romans as the mere depositaries of a 
 delegated power. The cognisance of crimes was 
 considered a natural attribute of the legislature, 
 and the mind of the citizen never ceased to be 
 carried back from the Qusestiones to the Comitia 
 which had deputed them to put into exercise 
 some of its own inalienable functions. The view 
 which regarded the Quaestiones, even when they 
 became permanent, as mere Committees of the 
 Popular Assembly — as bodies which only niinis- 
 tered to a higher authority — had some important 
 legal consequences which left their mark on the 
 criminal law to the very latest period. One 
 immediate result was that the Comitia continued 
 to exercise criminal jurisdiction by way of bills 
 of pains and penalties, long after the Quaestiones 
 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 tr5nng and punishing 
 offenders side by side ; and any unusual outburst 
 of popular indignation was sure, until the extinc- 
 tion of the RepubUc, to call down upon its object 
 an indictment before the Assembly of the Tribes. 
 One of the most remarkable pecuUarities of 
 the institutions of the RepubUc is also traceable 
 
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CHAP, xj JURISDICTION OF COMITIA 395 
 
 to this dependence 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 favourite topic with the 
 writers of the last century, who were perpetually 
 using it to point some theory of the Roman 
 character or of modem 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 Centuries, therefore, had all 
 powers which may be supposed to be properly 
 lodged with a General commanding an army, 
 and, among them, it had authority to subject all 
 offenders to the same correction to which a soldier 
 rendered himself liable by breaches of discipline. 
 The Comitia Centuriata could therefore inflict 
 capital punishment. Not so, however, the Comitia 
 Curiata or Comitia Tributa. They were fettered 
 on this point by the sacredness with which the 
 person of a Roman citizen, inside the walls of the 
 city, was invested by reUgion and law ; and, 
 with respect to the last of them, the Comitia 
 Tributa, we know for certain that it became a 
 fixed principle that the 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 assembhes 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 
 
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396 EARLY HISTORY OF DELICT AND CRIME [chap » 
 
 dispensed the heavier penalties ; but then it 
 happened that the more democratic assembly, 
 that of the Tribes, almost entirely superseded 
 the others, and became the ordinary legislature 
 of the later Republic. Now the decline of the 
 Republic was exactly the period during which the 
 Qusestiones Perpetuae were established, so that 
 the statutes creating them were all passed by a 
 legislative assembly which itself could not, at 
 its ordinary sittings, punish a criminal with death. 
 It followed that the Permanent Judicial Com- 
 missions, holding a delegated authority, were 
 circumscribed in their attributes and capacities 
 by the Umits 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 the Assembly could not sentence 
 to death, the Qusestiones were equally incompetent 
 to award capital punishment. The anomaly thus 
 resulting was not viewed in ancient times with 
 anything hke the favour which it has attracted 
 among the modems, and indeed, while it is 
 questionable whether the Roman character was 
 at all the better for it, it is certain that 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 certain 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 penal law. Without it, the 
 community neither feels that it is sufficiently 
 revenged on the criminal, nor thinks that the 
 
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CHAP. X] RESULTS TRACEABLE TO THE QU^SSTIONES 397 
 
 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 
 Revolutionary intervals, known as the Proscrip- 
 tions, during which all law was formally suspended 
 simply because party violence could find no other 
 avenue to the vengeance for which it was thirsting. 
 No cause contributed 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 Uberty became 
 merely a question of time. If the practice of 
 the Tribunals had afforded an adequate vent for 
 popular passion, the forms of judicied procedure 
 woxild no doubt have been as flagrantly perverted 
 as with us in the reigns of the later Stuarts, but 
 national character would not have suffered as 
 deeply as it did, nor would the stabihty of Roman 
 institutions have been as seriously enfeebled. 
 
 I will mention two more singularities of the 
 Roman Criminal System which were produced 
 by the same theory of judicial authority. They 
 are, the extreme multiplicity of the Roman 
 criminal tribunals, and the capricious and anoma- 
 lous classification of crimes which characterised 
 Roman penal jurisprudence throughout its entire 
 history. Every Queestio, 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 rigorously observed the limits 
 which its charter prescribed to it, and touched 
 no form of criminality which that charter did not 
 
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398 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 expressly define. As then the statutes which 
 constituted the various Quaestiones 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 
 particularly odious or particularly dangerous, 
 these enactments made not the slightest reference 
 to each other, and were connected by no common 
 principle. Twenty or thirty different criminal 
 laws were in existence together, with exactly 
 the same number of Qusestiones to administer 
 them ; nor was any attempt made during the 
 kepubhc to fuse these distinct judicial bodies 
 into one, or to give symmetry to the provisions 
 of the statutes which appointed them and defined 
 their duties. The state of the Roman criminal 
 jurisdiction at this period, exhibited some resem- 
 blances to the administration of civil remedies 
 in England at the time when the Enghsh Courts 
 of Common Law had not as yet introduced those 
 fictitious averments into their writs which enabled 
 them to trespass on each other's peculiar province. 
 Like the Quaestiones, the Courts of Queen's Bench, 
 Common Pleas, and Exchequer, were all theo- 
 retical emanations from a higher authority, and 
 each entertained a special class of cases supposed 
 to be committed to it by the fountain of its 
 jurisdiction ; but then the Roman Quaestiones 
 were many more than three in number, and it 
 was infinitely less easy to discriminate the acts 
 which fell under the cognisance of each Quaestio, 
 than to distinguish between the provinces of the 
 three Courts in Westminster Hall, The dif&culty 
 of drawing exact lines between the spheres of 
 
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<=»*«'• *1 CLASSIFICATION OF CRIMES 399 
 
 the different Quaestiones made the multiplicity 
 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 offences 
 ranged themselves, he might be indicted at once 
 or successively before several different Commis- 
 sions, on the chance of some one of them declaring 
 itself competent to convict him ; and, although 
 conviction by one Quaes tio ousted the jurisdiction 
 of the rest, acquittal by one of them could not be 
 pleaded to an accusation before another. This 
 was directly contrary to the rule of the Roman 
 civil law ; and we may be sure that a people so 
 sensitive as the Romans to anomalies (or, as their 
 significant phrase was, to inelegancies) in juris- 
 prudence, would not long have tolerated it, had 
 not the melancholy history of the Quaestiones 
 caused them to be regarded much more as tem- 
 porary weapons in the hands of factions than 
 as permanent institutions for the correction of 
 crime. The Emperors soon abolished this multi- 
 plicity and confhct 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 contained 
 even in the Corpus Juris of Justinian are remark- 
 ably capricious. Each Quaestio had, in fact, 
 confined itself to the crimes committed to its 
 cognisance 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 
 
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400 EARLY HISTORY OF DELICT AND CRIME [chap, x 
 
 had not therefore anything necessarily in common ; 
 but the fact of their constituting the particular 
 subject-matter of trials before a particular Quaestio 
 impressed itself naturally on the pubUc attention, 
 and so inveterate did the association become 
 between the offences mentioned in the same 
 statute that, even when formal attempts were 
 mode by Sylla and by the Emperor Augustus 
 to consolidate the Roman criminal law, the 
 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 give a single example in the fact that 
 perjury was always classed with cutting and 
 wounding and with poisoning, no doubt because 
 a law of SyUa, the Lex CorneUa de Sicariis et 
 Veneficis, had given jurisdiction over aU these 
 three forms of crime to the same Permanent 
 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 fist, which 
 doubtless gave its style to the Law Court deputed 
 to try them all. All the offences tried by the 
 Quaestio De Adulteriis would thus be called 
 Adultery. 
 
 I have dwelt on the history and characteristics 
 of the Roman Qusestiones because the formation 
 of a criminal jurisprudence is nowhere else so 
 instructively exemplified. The last Quaestiones 
 were added by the Emperor Augustus, and from 
 
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CHAP. X] LATER LAW OF CRIMES 4OI 
 
 that time the Romans may be said to have had 
 a tolerably complete criminal law. Concurrently 
 with its growth, the analogous process had gone 
 on, which I have called the conversion of Wrongs 
 into Crimes, for, though the Roman legislature 
 did not extinguish the civil remedy for the more 
 heinous offences, it offered the sufferer a redress 
 which he was sure to prefer. Still, even after 
 Augustus had completed his legislation, several 
 offences continued to be regarded as Wrongs, 
 which modem societies look upon exclusively as 
 crimes ; nor did they become criminally punishable 
 tiU some late but uncertain date, at which the 
 law began 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 revj^lted from their entaihng nothing 
 worse on their perpetrator than the payment of 
 money damages, and accordingly the injured 
 person seems to have been permitted, if he 
 pleased, to pursue them as crimes extra ordinem, 
 that is, by a mode of redress departing in some 
 respect or other from the ordinary procedure. 
 From the period at which these crimina extra- 
 ordinaria were first recognised, the hst of crimes 
 in the Roman State must have been as long as 
 in any community of the modern world. 
 
 It is unnecessary to describe with any minute- 
 ness 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 
 
 26 
 
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402 EARLY HISTORY OF DELICT AND CRIME [<»*»•• x 
 
 immediately abolish the Quaestiones, 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 criminal jurisdiction had 
 been claimed by the Prince from the first ; and 
 this, as recollections of the free commonwealth 
 decayed, tended steadily to gain at the expense 
 of the old tribunals. Gradually the punishment 
 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 
 appeal. Under these influences the "doctrine, 
 famihar to the moderns, insensibly shaped itself 
 that the Sovereign is the fountain of all Justice 
 and the depositary of all Grace. It was not so 
 much the fruit of increasing adulation and servility 
 as of the centralisation of the Empire which had 
 by this time perfected itself. The theory of 
 criminal justice had, in fact, worked round almost 
 to the point from which it started. It had begun 
 in the behef that it was the business of the collec- 
 tive 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 representative and 
 mandatory of his people. The new view differed 
 from the old one chiefly in the air of awfulness 
 and majesty which the guardianship of justice 
 appeared to throw around the person of the 
 Sovereign. 
 
 This later Roman view of the Sovereign's 
 
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CHA'- X] ECCLESIASTICAL INFLUENCE 403 
 
 relation to justice certainly assisted in saving 
 modem societies from the necessity of travelling 
 through the series of changes which I have illus- 
 trated by the history of the Quaes tiones. 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 assembly of freemen ; and 
 there are some States — Scotland is said to be one 
 of them — in which the parentage of the existing 
 judicature can be traced up to a Committee of 
 the legislative body. But the development of 
 the criminal law was universally hastened by two 
 causes, the memory of the Roman Empire and 
 the influence of the Church. On the one hand, 
 traditions of the majesty of the Caesars, perpetu- 
 ated by the temporary ascendancy of the House 
 of Charlemagne, were surrounding Sovereigns 
 with a prestige which a mere barbarous chieftain 
 could never otherwise have acquired, and were 
 communicating to the pettiest feudal potentate 
 the character of guardian of society and repre- 
 sentative of > the State. On the other hand, the 
 Church, in its anxiety to put a curb on sanguinary 
 ferocity, sought about for authority to punish the 
 graver misdeeds, and found it in those passages 
 of Scripture which speak with approval of the 
 powers of punishment committed to the civil 
 magistrate. The New Testament 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 
 
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404 EARLY raSTORY OF DELICT AND CRIME [chap, x 
 
 crime are based upon two assumptions contended 
 for by the Church in the Dark Ages — first, that 
 each feudal ruler, in his degree, might be assimi- 
 lated to the Roman Magistrates spoken of by 
 Saint Paul ; and next, that the offences which 
 he was to chastise were those selected for pro- 
 hibition in the Mosaic Commandments, or rather 
 such of them as the Church did not reserve to 
 her own cognisance. Heresy, supposed to be 
 included 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 modi- 
 fications, were under 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 prevailed in his day as to the origin 
 of criminal jurisdiction. It will be seen that 
 Alfred attributes it partly to the 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 had assigned to 
 treason against the Caesar. " After this it hap- 
 pened," he writes, " that many nations received 
 the faith of Christ, and there were many synods 
 assembled throughout the earth, and among the 
 Enghsh race also after they had received the 
 
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'=*""■• ^] . NOTES 405 
 
 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, with their leave, might without sin take 
 for every misdeed the bot in money which they 
 ordained ; except 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." 
 
 NOTE S 
 
 ARCHAIC PROCEDURE 
 
 The account given by Maine of the symbolism involved in the Legis 
 Actio Sacramenti may be taken as generally correct The Sacra- 
 mentum itself, however, seems, according to the generally received 
 modern opinion, to have had the definite and practical purpose of 
 bringing the matter in dispute within the highest jurisdiction. 
 Each party swears to the justice of his cause under a conventional 
 forfeit, and thus the king, who is also chief priest, is brought in to 
 decide which of them is perjured: " il faut au roi, chef de la religion 
 et de la justice criminelle, chercher qui a raison." The separation 
 of civil and spiritual jurisdiction under the Republic led to the 
 abolition of the oath (Girard, " Manuel," pp. 13, 977). If this opinion 
 is right, the Praetor does not represent a discreet passer-by, nor 
 yet (as might also be conjectured) the village elders, but intervenes 
 as the minister of the king's justice, conceived in the first instance 
 (as it was in England in the early Middle Ages) as an extraordinary 
 justice applicable only for special reasons. English readers hardly 
 need to be reminded of the fictions by which the King's Bench and 
 Exchequer extended their jurisdiction to ordinary pleas between 
 subjects. 
 
 Maine's reference to the trial scene described in the Iliad, 
 2. 497-508, as adorning the shield of Achilles, is very brief; 
 but the whole scene is of such interest for early legal history 
 that we may be allowed to dwell on it a little. The point specially 
 made by Maine is that the two talents of gold are a fee for the 
 
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4o6 
 
 NOTES [CHAP. 
 
 member of the court who shall be thought to speak the law beat. 
 On this he is confirmed by Dr. W. Leafs very careful inter- 
 pretation of the passage in his notes ad loc, and his earlier paper 
 in Joum. Hell. Stud. viii. 122. There is no difficulty about the 
 magnitude of the sum, for the Homeric talent represents only the 
 value of one ox (Ridgeway in Joum. Hell. Stud. viii. 133). We 
 shall now give Dr. Leafs version. 
 
 " The people were gathered in the place of assembly, and there 
 had sprung up a strife ; two men were striving about the price 
 of a man slain. The one averred that he had paid in full [namely 
 by tender of the blood-fine then and there before the assembly ; 
 but Dr. Leaf's alternative in his later notes to the Iliad, Appen- 
 dix I., ' claimed to pay,' is as good or better for the grammar of 
 ci^X^ro Train-' airoSoCvat, and makes better sense], and made de- 
 claration thereof to the people, but the other refused to accept 
 aught [this is the proper idiomatic meaning of dvaivero fu]bev 
 fKetrOai : ' denied that he had received anything ' is, even apart 
 from the context, barely admissible] ; and both were desirous to 
 take an issue at the hand of a daysman [this person, lorup, summons 
 the council and presides, but the judgment has to be theirs ; 
 he is more like the sheriff in the old county court than a modem 
 judge or referee]; and the people were shouting for both, taking 
 part for either side [not unlike such glimpses as Bracton's Note Book 
 and other sources afford us of the behaviour of medieval county 
 courts]. And the heralds were restraining the people, and the elders 
 sate on polished stones in the holy circle [such stones may be seen 
 on Dartmoor to this day], and in their hands they held the clear- 
 voiced herald's staves. With these they rose up and gave sentence 
 in turn ; and in their midst lay two talents of gold to give to him 
 among them that spake the justest doom." 
 
 In addition to Dr. Leafs reasons for rejecting the view formerly 
 current that the dispute is on the mere question of fact whether 
 a blood-fine admitted to be due has been paid or not, we may 
 observe that such a payment would surely be made in a notorious 
 manner and with ample witness, to say nothing of the physical 
 difficulty of handing over some score of cattle (for such would be 
 the most likely form of payment) as privately as modem debtors 
 hand over cash or post a cheque. 
 
 The result is that we are confronted with an ancient Greek blood- 
 feud in an interesting stage of transition, that in which the slain 
 man's kindred are no longer free to accept or refuse compensation 
 at their will, but are expected to abandon the feud, in a proper 
 case, on receiving a sum fixed either by custom or by the judgment 
 of the assembly. Homicide aggravated by treachery or the like 
 would probably not fall within such a rule ; and the amount of 
 the fine, if we may judge by the practice of Iceland as described 
 in the Sagas, might give matter enough for discussion among 
 
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CHAP. X] NOTES 407 
 
 the wise men even if no preliminary question arose. Indications 
 of a similar stage, though not clear enough to amount to proof 
 if they stood alone, may be found in the Anglo-Saxon laws. 
 
 There is no question in the Homeric text of a formally com- 
 pulsory jurisdiction ; the parties have agreed to put themselves 
 on the judgment of the assembly whether in all the circumstances, 
 whatever they were, tender of the customary fine ought to be 
 accepted. But when such voluntary references have become 
 common practice we are near the point at which they cease to 
 be voluntary, and the party who stands out for what formerly 
 would have been his right incurs, at all events, public reprobation 
 which will be an efficient sanction for most purposes. 
 
 Maine's opinion that in the infancy of criminal jurisdiction the 
 sum paid to the king, or the State, was not penal, but a fee for 
 hearing and determining the cause at the request of the parties, 
 "the fair price of its time and trouble," is borne out by later 
 researches in the antiquities of Germanic law. Such was probably 
 at one time the wite of the Anglo-Saxon laws, though it is treated 
 as penal in the earliest documents we have. If one feature in 
 early procedure may be fixed on more than another as marking 
 the recognition of criminal and civil responsibility as distinct in 
 character, though one and the same act may be and quite com- 
 monly is both a wrong and an offence, perhaps it is the appearance 
 of a special fine for breaking the peace. The development of the 
 king's peace in England from a privilege attached to certain per- 
 sons, places, and occasions, to the common right of every lawful 
 man belongs to another and later stage. 
 
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INDEX 
 
 ADOPTION 
 
 Adoption, fiction of, 138 
 
 — influence of the sacra gentilicia 
 
 on the law of, 5, 6, 31 
 
 — in Hindoo law, 205 
 Adprehensio ; or assumption of 
 
 sovereign power in a newly dis- 
 covered country, 262 
 
 ^quitas, the term, 60. See 
 Equity 
 
 £quus, the word, 61 
 
 Agnatic and Cognatic relationship, 
 difference between, 61, 152 
 
 Agnation described, 152, 154 
 
 Agreement, Roman analysis of, 
 
 335 
 Agri vectigales, Roman practice of 
 letting out, 307 
 
 — limitrophi of the Romans on 
 
 the banks of the Rhine and 
 Danube, 309 
 Alexander the Sixth, Pope, his 
 
 Bull, 263 
 Alfred, King, his remarks on 
 criminal jurisdiction, quoted, 
 404 
 Alienation of property, ancient 
 difl&culties of, 281, 282 
 
 — archaic ceremonies of, 282 
 Allodial property, of the ancient 
 
 Germans, 242, 291 
 
 America, United States of. De- 
 claration of Independence of, 99 
 
 Anglo Saxons, character of their 
 kingship, no 
 
 — their law of succession, 290 
 
 — their penal law, 380, 383, 388 
 
 Archon of Athens, the office of 
 
 the, 9 
 Aristocracies, origin of the rule 
 
 of, 9 
 
 — those of Greece, Italy, and 
 
 Asia Minor, 9 
 
 — difference between those of the 
 
 East and West, 10 
 
 — aristocracies the depositaries 
 
 and administrators of the 
 law, 10, II 
 
 — importance of judicial, before 
 
 the invention of writing, 1 1 
 
 — foundation of aristocracies, 140 
 Aristotle, his Treatise on Rhe- 
 toric, referred to, 81 
 
 Assignees in Bankruptcy, succes- 
 sion of, 194 
 
 Athenian wills, 208 
 
 Athens, primitive penal law of, 
 390 
 
 Augustus, the Emperor, his altera- 
 tions in the Roman law, 44, 
 
 45 
 Austin's " Province of Jurispru- 
 dence Determined " referred 
 to, 6 
 
 Bayle referred to, 92 
 Benefices of the invading chiefe of 
 the Roman Empire, 243 
 
 — transformation of the Benefice 
 
 into the hereditary Fief, 254 
 Bengalee Wills, 209 
 Bentham, his " Fragment on 
 Government," referred to, 6 
 
 40S 
 
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INDEX 
 
 409 
 
 BENTHAM 
 
 Bentham, causes of his influence 
 in England, 84 
 
 — the Roman counterpart of 
 
 Benthamism, 84 
 
 — the theory of Jurisprudence, 
 
 128 
 
 — his eulogy of the Bull of Pope 
 
 Alexander the Sixth, 263 
 
 — Bentham and Austin's rules as 
 
 to the essentials of a contract, 
 
 335 
 Blackstone, Sir William, his 
 theory of the first principles of 
 law, 123, 124 
 
 — his justification for the exclu- 
 
 sion of the half-blood, 157 
 
 — his theory of the origin of 
 
 property quoted, 264 
 
 — his theory criticised, 266 
 Bonorum Possessio of the Romans, 
 
 221 
 Bracton, his Plagiarisms, 87 
 Burgundians, the, referred to, 106 
 
 C^SAR, Julius, his contemplated 
 
 additions to the Roman Statute 
 
 Law, 45 
 Capet, Hugh, character of his 
 
 sovereignty, 1:0 
 Capture in War, sources of the 
 
 modem International Law of, 
 
 2S9 
 
 — ancient Law of, 260 
 Caracalla, efiect of his constitution 
 
 in enlarging the Patria Potestas, 
 151 
 Casuists, the, 360 
 
 — comparison of their system 
 
 with that of Grotius and his 
 school, 360 
 
 — origin of Casuistry, 361 
 
 — blow struck at Casuistry by 
 
 Pascal, 362 
 
 Cessio in Jure of Property, in 
 Roman and in English Law, 
 297 
 
 Cestui que Trust, special pro- 
 prietorship created for the, 302 
 
 Chancellor, the Lord, compared 
 with a Roman Praetor, 66, 67 
 
 Chancery, Court of, in England 
 remarks on the, 48 
 
 — origin of its system, 48, 49 
 Charlemagne, his claim to univer- 
 sal dominion, 108 
 
 — his distribution of Benefices, 
 
 243 
 
 Children, disinherison of, under 
 the Romans, 231 
 
 China, cause of the arrest oi 
 progress in, 28 
 
 Churches, Eastern and Western, 
 conclusion of the East on theo- 
 logical subjects accepted by the 
 West without dispute or review, 
 365 
 
 — problems of the Western 
 
 Church, 366 
 Cicero referred to, 63 
 
 — his allusions to the ancient 
 
 Roman Sacra, 205 
 Code Napoleon, restraints imposed 
 
 by it on the Testamentary 
 
 Power, 191 
 Codes, Ancient, I 
 
 — sources of knowledge afforded 
 
 by the Greek Homeric poems, 
 2 
 
 — Themistes, 3, 4 
 
 — Hindoo Laws of Manu, 5 
 
 — difference between Ccise-law 
 
 and Code-law, 12 
 
 — era of Codes, 12 
 
 — the Twelve Tables, i, 12 
 
 — the Codes of Solon and Draco, 
 
 H 
 
 — importance of Codes to ancient 
 
 societies, 14-17 
 
 Coemption, or higher form of civil 
 marriage of the ancient Ro- 
 mans, 159 
 
 Cognatic relationship described, 
 152. IS3 
 
 Co-heirs, rights and duties of, 195 
 
 — rights of, under the Roman 
 
 Law, 241 , 
 
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410 
 
 INDEX 
 
 Coloni of the Romans, 245 
 
 — origin and situation of the, 307 
 Comitia Calata, ancient Roman 
 
 execution of Wills in the, 210 
 
 — end of the, 214 
 
 Comitia Centuriata, power of the, 
 
 395 
 
 — Curiata, powers of the, 395 
 
 — Tributa, powers of the, 395 
 Commentaries of the Roman law- 
 yers, 39 
 
 Common law of England, formerly 
 an unwritten law, 1 1 
 
 — difference between Case-law 
 
 and Code-law, 12 
 
 — Case-law and its anomalies, 35 
 
 — similarity between English 
 
 Case-law and the Responsa 
 Prudentium of the Romans, 
 
 37 
 
 Confarreation, or religious mar- 
 riage of the ancient Romans, 159 
 
 Constantino, the Emperor, his 
 improvements in the Law, 45 
 
 — his modification of the Patria 
 
 Potestas, 149 
 Contract, movement of societies 
 from Status to, 174 
 
 — early history of, 319 
 
 — Contract and Political Eco- 
 
 nomy, 320 
 
 — Rousseau's doctrine of an 
 
 original Social Contract, 323 
 
 — Montesquieu's apologue of the 
 
 Troglodytes, 325 
 
 — early notions of Contract, 326 
 
 — Roman Contracts, 328 
 
 — specialising process in ancient 
 
 law, 329 
 
 — historical alliance between Con- 
 
 tracts and Conveyances, 331 
 
 — changes in the Nexum, 331 
 
 — Executory Contracts of Sale, 
 
 334 
 
 — primitive association of Con- 
 
 veyances and Contracts, 334 
 
 — ancient and modem doctrine of 
 
 Contracts. 335 
 
 CUSTOMARY 
 
 Contract, the Roman Obligation, 
 
 336 
 
 — Roman classification of Con- 
 
 tracts, 337 
 
 — the Verbal Contract, 338 
 
 — the Literal or Written Con- 
 
 tract, 342 
 
 — the Real Contract, 343 
 
 — Consensual Contracts, 343 
 
 — changes in Contract law, 348 
 
 — history of the progress of Con 
 
 tract law, 349 
 
 — Quasi-Con tracts, 353 
 
 — Contract law and Fiefs, 372 
 Conveyances, relation of Wills to, 
 
 under the Roman Law, 214 
 
 — consequence of this relation, 216 
 
 — remedies, 217 
 
 — historical alliance between Con- 
 
 tracts and Conveyances, 331 
 
 C 0-0 wnership of property, 
 
 amongst the Hindoos, 272, 273 
 
 — regarded by the Roman Law as 
 
 exceptional and momentary, 
 
 273 
 Corporations aggregate, 200 
 
 — sole, leading attribute of, 200 
 " Corpus Juris Civilis " of Jus- 
 tinian, 69 
 
 — resorted to by English Chan- 
 
 cery judges, 48 
 
 Creation, Greek philosophical ex- 
 planation of the fabric of, 56 
 
 Creditors, cause of the extrava- 
 gant powers given to, by ancient 
 laws, 334 
 
 Crimes and Wrongs. Ste Delict 
 and Crime 
 
 Croatia, co-ownership of the villa- 
 gers of, 278 
 
 Curatores of male Orphans under 
 the Roman law, 166 
 
 Curse, inherited, Greek notion of 
 an, 135 
 
 Customary Law, 6 
 
 — Homeric terms for customs, 5 
 
 — origin of customary law, 8 
 
 — epoch of customary law and its 
 
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INDEX 
 
 411 
 
 CYCLOPS 
 
 custody by a privileged order, 
 II 
 Cyclops, Homer's account of, 
 quoted, 133 
 
 Dkath, disappearance of, from 
 the penal system of republican 
 Rome, 395 
 
 — causes for this, 395 
 
 — death punishment a necessity 
 
 in certain stages of society, 
 396 
 Debtors, cause of the severity of 
 
 ancient laws against, 334 
 Decretals, forged, motives of the 
 
 author of the, 87 
 Delict and Crime, early history of, 
 
 377 
 
 — Penal law in ancient codes, 378 
 
 — Crimes and Wrongs, crimina 
 
 and delicta, 379 
 
 — Furtum or Theft of the Roman 
 
 Law, 380, 387 
 
 — Wrongs and Sins both known 
 
 to primitive jurisprudence, 
 
 381 
 
 — difference between the ancient 
 
 and modern conception of 
 Crime, 382 
 
 — the Roman Legis Actio Sacra- 
 
 menti, 384 
 
 — Homer's description of an 
 
 ancient law-suit, 386 
 
 — primitive penal law of Athens, 
 
 390 
 
 — old Rtiman criminal jurispru- 
 
 dence, 390 
 
 — the Quaestiones, 391 
 
 — Quaestores Paxricidii, 391 
 
 — Duumviri Perduellionis, 391 
 
 — the first true Roman Criminal 
 
 Law, 392 
 
 — the primitive history of crimi- 
 
 nal law, 392 
 
 — extreme multiplicity of Roman 
 
 criminal tribunals, 397 
 
 — capricious classification of 
 
 crimes, 399 
 
 EQUALITY 
 
 Delict and Crime, statutes of Sylla 
 and Augustus, 400 
 
 — later law of crimes, 402 
 
 — crimina extraordinaria, 401 
 
 — mode of administering criminal 
 
 justice under the Roman 
 Empire, 401 
 
 — modern history of crimes, 403 
 
 — King Alfred on Criminal juris- 
 
 diction quoted, 404 
 Discovery, considered as a mode 
 
 of acquiring dominion, 262 
 Dominion, its nature, limitation, 
 
 and mode of securing it, 104 
 
 — of the Romans, 330 
 
 Dower, the principle of, engrafted 
 on the Customary Law of 
 Western Europe, 239 
 
 Draco, rudeness of the Code of, 14 
 
 — penal laws of, 377 
 Dumoulin referred to, 90 
 Dumont's " Sophismes Anar- 
 
 chiques," remarks, 96 
 Duumviri Perduellionis, the, 391 
 
 Edict of the Roman Praetor, 44, 
 
 59. 65-7, 219, 301 
 Egypt, Modern, rule of succession 
 
 to the throne of, 255 
 Eldon, Lord, his Chancellorship, 
 
 70 
 Elphinstone's " History of India " 
 
 quoted, 275 
 Emphyteusis, system of, 306 et 
 
 seq. 
 
 — rights of the Emphyteuta, 308 
 Emptor FamiUae. See Familiae 
 
 Emptor 
 England, the Land-law of, at the 
 
 present time, 24 1 
 English Common Law, formerly 
 
 an unwritten law, 11 
 
 — law, hesitation of our Courts in 
 
 declaring principles of, 43 
 EquaJity of men, doctrine of the, 
 96 
 
 — as understood by the Roman 
 
 jurisconsults, 97 
 
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412 
 
 INDEX 
 
 EQUALITY 
 
 Equality of men, its meaning in its 
 modern dress, 97 
 
 — ordinance of Louis Hutin 
 
 quoted, 97 
 
 — declaration of American Inde- 
 
 pendence, 99 
 
 — assumption of the Grotian 
 
 school, 103 
 Equity, early history of, 29 
 
 — equity considered as an agent 
 
 by which the adaptation of 
 law to social wants is carried 
 on, 32 
 
 — meaning of the term equity, 32 
 
 — difference between equity and 
 
 legal fictions, 32 
 between equity and legisla- 
 tion, 33, 34 
 
 — remarks on the law of nature 
 
 and equity, 48 et seq. 
 
 — the English Court of Chancery, 
 
 48 
 
 — origin of its system, 48, 49 
 
 — tlie equity of Rome, 49 
 
 — origin and history of the term 
 
 "Equity," 60 
 
 — the terms £quitas and 'lebrrii, 
 
 60 
 
 — picture presented to the Roman 
 
 mind by the word " Equity," 
 62 
 
 — the English Chancellor com- 
 
 pared with the Roman 
 Praetor, 67 
 
 — exhaustion of the power of 
 
 growth in Roman Equity, 
 69 
 
 — features common to English 
 
 and Roman Equity, 69 et seq. 
 
 — distinction between Law and 
 
 Equity in their conceptions of 
 proprietary right, 301 
 Ethics, obligations of, to the 
 Roman Law, 357 
 
 — the Casuists', 359 
 
 — Grotius and his school, 359 
 
 Familia. meaning of, in the lan- 
 
 FIDEI-COMMISSA 
 
 guage of the ancient Roman 
 Law, 218 
 Familise Emptor, oflSce of the. 
 215 
 
 — rights and duties of the, 216 
 
 — remarks on the expression 
 
 Familiae Emptor, 218 
 Family the, of Archaic society, 
 140 
 
 — disintegration of the Family, 
 
 172 
 
 — regarded as a corporation, 197 
 
 — organisations of elementary 
 
 communities, 248 
 
 — Highland chieftainship, 241 
 
 — Families, not Individuals, 
 
 known to ancient law, 270 
 
 — Indian, Russian, Croatian, and 
 
 Sclavonian laws respecting 
 the property of Families, 279, 
 280 
 Feudal view of the ownership of 
 
 property, 304 
 Feudal services, 310 
 Feudalism, its connection with 
 territorial sovereignty, 109 
 
 — feudal organisation, 109, no 
 
 — the modern Will an accidental 
 
 fruit of, 239, 240 
 
 — Feudalism and Contract law, 
 
 373 
 Fictions, legal, 26, 28 
 
 — early history of, 28 
 
 — meanirg of fictio in old Roman 
 
 Law, 30 
 
 — object of the fictiones, 30 
 
 — instances cited from the Eng- 
 
 lish and Roman Law, 3 1 
 
 — their former importance and 
 
 modem uselessness, 31, 32 
 
 — difference between legal fictions 
 
 and equity, 32, 33 
 
 — and between legal fictions and 
 
 legislation, 33 
 
 — instances of legal fictions, 34 
 
 — Case-law and its auiomalies, 35 
 Fidei-Commissa, or Bequests in 
 
 Trust, of the Roman Law, 338 
 
 Digitized by Microsoft® 
 
INDEX 
 
 413 
 
 Fiefs, hereditary, gradual trans- 
 formation of Benefices into, 344 
 
 — original tenures, 244, 245 
 
 — laws of fiefs, 374 
 Foreigners, causes of immigration 
 
 of, into ancient Rome, 50, 5 1 
 
 — exclusion of, under the early 
 
 Roman republic, 51 
 France, lawyers and juridical 
 science of, S$ et seq. 
 
 — effects of the alliance between 
 
 the lawyers and the kings, on 
 the fortunes of, 85, 86 
 
 — difference between the Pays 
 de Droit Coutumier and the 
 Pays de Droit £crit, 88, 89 
 
 — pre-eminence given in France 
 
 to Natural Law, 90 
 
 — Rousseau, 92 
 
 — the Revolution, 95 
 Franks, the, referred to, io6 
 
 — Roman institution of the Patria 
 
 Potestas not known to the, 
 
 150 
 
 Free-will and Necessity, question 
 
 of, unknown to the Greeks, 363 
 
 Furtum, or Theft, of the Roman 
 
 Law, 380 
 
 Gaiwj referred to, 55 
 
 — bis description of the institution 
 
 of the Patria Potestas, 142 
 
 — his information respecting the 
 
 Perpetual Tutelage of women, 
 
 159 
 
 — on the duplication of proprie- 
 
 tary right, referred to, 303 
 Galatae, the Patria Potestas of the, 
 
 143 
 Gens, or House, of the Romans 
 
 compared with the Village 
 
 Community of India, 276 
 Gentiles, Roman, their rights in 
 
 cases of Intestate Succession, 
 
 236 
 German law of Succession, 290 
 Germans, Wills of the ancient, 
 
 208, 209 
 
 RiERBDITAS 
 
 Germans, penal laws of the ancient, 
 
 377 
 
 — Patria Potestas of the, 149 
 
 — primitive property of, 209 
 
 — the ancient law of allodial 
 
 property, 242 
 " Germany " of Tacitus, its value, 
 129 
 
 — suspicions as to its fidelity, 130 
 
 — allodial property of, 290 
 Greece, aristocracies of, 9 
 Greek theory of a Law of Nature, 
 
 55. 56 
 Greeks, equality of laws on which 
 they prided themselves, 60 
 
 — their tendency to confound 
 
 law and fact, 81 
 
 — their notion of an inherited 
 
 curse, 135 
 
 — assistance afforded by, in the 
 
 formation of the Roman 
 codes, 13, 14 
 
 — Umited Patria Potestas of the, 
 
 143. 144 
 
 — metaphysics of the, 351 
 
 — their want of capacity for pro- 
 
 ducing a philosophy of law, 363 
 Grote, Mr., his " History of 
 
 Greece," referred to, 4, 8 
 Grotius, Hugo, and his successors, 
 
 on International law, 100 
 
 — his doctrines, 103 
 
 — success of his treatise " De Jure 
 
 Belli et Pacis," 112 
 
 — his theory of a. natural state 
 
 and of a system of principles 
 congenial to it, 123 
 
 — his moral philosophy and that 
 
 of his school, 360 
 
 — comparison of his system with 
 
 that of the Casuists, 360, 361 
 Guardianship, Perpetual, of Wo- 
 men under the Roman Law, 158 
 
 — amongst the Hindoos, 158 
 
 — amongst the Scandinavians, 158 
 
 H.ffi;REDiTAS, or Inheritance, de- 
 finition, 195 
 
 Digitized by Microsoft® 
 
414 
 
 INDEX 
 
 Hseres or Heir, his rights and 
 
 duties, 194, 204, 241 
 Half-blood relationship, 157 
 
 — the rule according to the 
 
 customs of Normandy, 157 
 Haus-Gesetze of Germany, 245 
 Heirs, rights of, under the Roman 
 
 Law, 194, 202, 241 
 Highland chieftainship hereditary, 
 
 247 
 
 — form of Primogeniture, 252 
 Hindoo laws of Manu, 5, 15, i6 
 
 — Customary Law, 6 
 
 — law of Succession, 290 
 
 — differences between Inheri- 
 
 tances and Acquisitions, 290 
 
 — Perpetual Tutelage of Women 
 
 amongst the Hindoos, 158 
 
 — right amongst the Hindoos, 
 
 to inherit a dead man's 
 property, 204 
 
 — the Hindoo sacra, 205. 
 
 — the Suttee, 205 
 
 — the place of Wills amongst the 
 
 Hindoos occupied by Adop- 
 tions, 205 
 
 — rights of the first-born son 
 
 amongst the Hindoos, 242 
 
 — primogeniture of the Hindoos 
 
 in public office or political 
 
 power, but not in property, 
 
 247 
 
 Hindoos, form of Ownership of 
 
 Property amongst the, — the 
 
 Village Community, 272 
 
 — Co-ownership, 273 
 
 — simplest form of the Village 
 
 Community, 274, 275 
 
 — Acquisitions of Property and 
 
 Inheritances, Hindoo distinc- 
 tion between, 290 
 Hobbes, his theory of the origin of 
 
 law, 124 
 Homer, his account of the Cyclops, 
 quoted, 133 
 
 — his description of an ancient 
 
 law-suit, 385 
 Homeric poems, rudimentary 
 
 idesis afforded by 
 
 the, 
 
 jural 
 2 
 Homeric poems, Themis and The- 
 mistes, 3, 4 
 
 — Homeric words for Custom, 5 
 
 India, heroic and aristocratic eras 
 of the races of, 9 
 
 — laws of Manu, 5, 15, 16 
 
 — Customary law of, 6 
 
 — stage beyond which India has 
 
 not passed, 28 
 Inheritance a form of universal 
 succession, 192 
 
 — Roman definition of an In- 
 
 heritance, 195 
 
 — old Roman Law of, 202 
 
 — and Acquisition, Hindoo differ 
 
 ences between, 290 
 Injunction of the Court of Chan- 
 cery, 301 
 Institutes of the Roman lawyers, 39 
 International Law, modem con- 
 fusion between it and Jus 
 Gentium, 56 
 
 — function of the Law of Nature 
 
 in giving birth to modem 
 International Law, 99 
 
 — postulates forming the founda- 
 
 tion of International Law, 99 
 
 — Grotius and his successors, 100 
 
 — dominion, 104 
 
 — territorial sovereignty, 105 
 
 — the ante-Grotian system of the 
 
 Law of Nations, 1 1 1 
 
 — preparation of the public mind 
 
 for the reception of the 
 Grotian system, in, 112 
 
 — success of the treatise " De 
 
 Jure Belli et Pacis," 112 
 
 — points of junction between 
 
 modern public law and terri- 
 torial sovereignty, 1 1 3 
 
 — sources of the mode in case of 
 
 Capture in War, 260 
 Intestacy. See Succession, In- 
 testate 
 'Iffonitithe Greek principle of, 60,63 
 
 Digitized by Microsoft® 
 
INDEX 
 
 415 
 
 ITAIY 
 
 Italy, aristocracies of, 9 
 
 — codes of, 12 
 
 — instability of society in ancient, 
 
 50 
 
 — territorial sovereigntyof princes 
 
 of, no 
 
 Jews, Wills of the, 208 
 Julianus, Salvius, the Praetor, his 
 Edict, 65 
 
 — effect of his measures on the 
 
 Praetorian Edicts, 67 
 Jurisconsults, early Roman, 40-2 
 
 — later, 44 
 
 — Natural Laiw of the, 82 
 Jurisprudence, golden age of 
 
 Roman, 58 
 Jurists, Roman, period of, 68, 69 
 Jus Feciale, or International Law 
 
 of the Romans, 56 
 Jus Gentium, origin of, 52 c< seq. 
 
 — circumstances of the origin 
 
 of, 53 
 
 — how regarded by a Roman, 53 
 
 — and by a modern lawyer, 54 
 
 — difference between the Jus 
 
 Gentium and the Jus Natu- 
 rale, 55, 56 
 
 — point of contact between the 
 
 old Jus Gentium and the Jus 
 Naturale, 60 
 
 — difference between the Jus 
 
 Gentium and the Quiritarian 
 Law, 61 
 
 — influence of the, on modem 
 
 civilisation, 105 
 Jns Naturaile, or Law of Nature, 
 
 SS 
 
 — difference between the Jus 
 
 Naturale and the Jus Gen- 
 tium, 55, 36 
 
 — Greek conceptions of Nature 
 
 and her law, 56 
 
 — point of contact between the 
 
 old Jus Gentium and the Law 
 of Nature, 60 
 
 — modern history of the Law of 
 
 Nature. 79 
 
 Jus Naturale, Natural law of the 
 Roman Jurisconsults, 82 
 
 — ancient counterpart of Ben- 
 
 thamism, 84 
 
 — vastness of the influence of the 
 
 Law of Nature on modern 
 society, 85 
 
 — history of the Law of Nature, 
 
 85 et seq. 
 
 — pre-eminence given to Natural 
 
 law in France, 90 
 
 — its condition at the middle of 
 
 the eighteenth century, 91 
 
 — Rousseau, 92 
 
 — the French Revolution, 95 
 
 — equality of men, 96 
 
 — function of the Law of Nature 
 
 in giving birth to modern 
 International Law, 99 
 
 — sources of the Modern Inter- 
 
 national Law of Capture in 
 War, 259 
 Justinian's " Institutes " quoted, 
 49 
 
 — referred to, 60 
 
 — " Pandects " of, 68 
 
 — " Corpus Juris Civilis " of, 69 
 
 — his modifications of the Patria 
 
 Potestas, 149 
 
 — his scale of Intestate Succes- 
 
 sion, 234 
 
 Kings, origin of the doctrine of 
 
 the divine right of, 356 
 Kingship, heroic, origin of, 8 
 
 Lacedemonian kings, authority 
 of the, 9 
 
 Land-law of England at the 
 present day, 241 
 
 Land and goods, English distinc- 
 tion between, 293 
 
 Latifundia, Roman mode of culti- 
 vating the, 306 
 
 Law, socialnecessities and opinions 
 always in advance of, 29 
 
 — agencies by which law is 
 
 brought into harmony with 
 society, 29 
 
 Digitized by Microsoft® 
 
4i6 
 
 INDEX 
 
 Law, ancient, 123 
 
 — theories of a natural state and 
 
 of a system congenial to it, 
 
 123 
 
 — Grotius, Blackstone, Locke, 
 
 and Hobbes, 123, 124 
 
 — theory of Montesquieu, 125 
 
 — Bentham, 127 
 
 — dissatisfaction with existing 
 
 theories, 128 
 
 — proper mode of inquiry, 1 28 
 
 — the Patriarchal theory, 131 
 
 — fiction of Adoption, 138 
 
 — the archaic Family, 140 
 
 — the Patria Potestas of the 
 
 Romans, 142 
 
 — agnatic and cognatic relation- 
 
 ships, 152 
 
 — Guardianship of Women, 158 
 
 — ancient Roman Marriage, 159 
 
 — Master and Slave, 166 
 Leges Barbarorum, 305 
 Leges Corneliae of Sylla, 44, 45 
 Leges Julias of Augustus, 45 
 Legis Actio Sacramenti of the 
 
 Romans described, 384 
 Legislation, era of, 29, 30 
 
 — considered as an agent by 
 
 which the adaptation of law 
 to the social wants is carried 
 on, 33 
 
 — difference between it and legal 
 
 fictions, 34 
 Lex Calpurnia de Repetundis, the 
 first true Roman Criminal Law, 
 
 392 
 
 Lex Plaetoria, purport of the, 
 166 
 
 Lidi of the Germans, 24; 
 
 Local Contiguity as the condi- 
 tion of community in political 
 functions, 140 
 
 Locke, John, referred to, 92 
 
 — his theory of the origin of law, 
 
 124 
 Lombards, referred to, 106 
 Louis Hutin, King of France, his 
 ordinance quoted, 97 
 
 Mahometan Law of Succession, 
 
 2SS 
 Majority and Minority, meaning of 
 
 the terms in Roman Law, 166 
 Mancipation, Roman, 53, 215, 288 
 
 331 
 
 — mode of giving the effect of 
 
 Mancipation to a Tradition, 
 
 288 
 Manus of the Romans, 330 
 Marriage, ancient Roman, 159 
 
 — later Roman, 161 
 Master and Slave, 166 
 
 — under the Romans, 167 
 
 — in the United States, 167 
 Manu, Hindoo Laws of, 5, 15, 16 
 Merovingian kings of the Franks, 
 
 107 
 
 Metayers, the, of the south of 
 Europe, 308 
 
 " Moniteur," the, during the 
 period of the French Revolu- 
 tion, 96 
 
 Montesquieu's " Esprit des Lois," 
 remarks on, 91 
 
 — his Theory of Jurisprudence, 
 
 125 
 
 — Apologue of Montesquieu con- 
 
 cerning the Troglodytes, in 
 the " Lettres Persanes," 325 
 Moral doctrines, early, 135 
 Mortgagor, special proprietorship 
 created by the Court of Chan- 
 cery for the, 302 
 Moses, testamentary power not 
 provided for by the Laws of, 
 209 
 
 Naples, territorial sovereignty of 
 the monarchs of, no 
 
 Nations, Law of, 100 et seq. See 
 International Law and Jus 
 Gentium 
 
 Nature and her Law, Greek con- 
 ceptions of, 56 
 
 Nexum of the ancient Romans, 
 51.328 
 
 — changes in the, 331 
 
 Digitized by Microsoft® 
 
INDEX 
 
 417 
 
 NORMANDY 
 
 Normandy, customs of, referred 
 
 to, IS7 
 N4/J0I, the word not known to the 
 
 Homeric poems, 5 
 Nuncupatio, of the Romans, 216 
 
 Obligations of the Roman Law, 
 336 
 
 — rights and duties of, 337 
 Occupatio, or Occupancy, of the 
 
 Roman Law, a " natural mode 
 of acquiring property," 259, 263 
 
 — things which never had an 
 
 owner, 259 
 
 — things which have not an 
 
 owner, 259 
 
 — Capture in war, 259 
 
 — Discovery, 262 
 
 — objections to the popular 
 
 theory of Occupancy, 269 
 Ordinance of Louis Hutin, quoted, 
 
 97 
 Orphans, Guardianship of male, 
 
 under the Roman Law, 165 
 
 Pactes de FamUle of France, 
 245 
 
 Pascal, his " Lettres Provin- 
 ciales," 362 
 
 Paterfamilias in elementary com- 
 munities, 248 
 
 Patria Potestas, the, of the 
 Romans, 142 
 
 — of the Galatae, 143 
 
 — of the Greeks, 144 
 
 — causes which helped to mitigate 
 
 the stringency of the father's 
 power over the persons of his 
 children, 147 
 
 — liabilities of the Paterfamilias, 
 
 151 
 
 — unity of person between the 
 
 Paterfamilias and the Filius- 
 familias, 151 
 
 — rights and duties of the Pater- 
 
 familias, 151, 152, 248, 249 
 
 — the Patria Potestas not a dur- 
 
 able institution. 153 
 
 PR/ETOMAN 
 
 Patriarchal theory of primeval 
 jurisprudence, 131 
 
 — chief points from Scriptural 
 
 accounts, 132 
 
 — Homer's account of the Cy- 
 
 clops, 133 
 
 Pays de Droit ^crit and'Pa3rs de 
 Droit Coutumier, difference be- 
 tween the, 88, 89 
 
 PecuUum, the, of the Romans, 149 
 
 — Castrense Peculium, 149 
 
 — Quasi-castrense Peculium, 149 
 Penal law in ancient codes, 377 
 Perjury, how punished by the 
 
 ancient Romans, 400 
 Persian monarchy, heroic and 
 
 aristocratic eras of the races 
 
 composing the, 9 
 Persians, the ancient, their 
 
 veracity, 333 
 Uns of the Greeks, meaning of 
 
 the, 56 
 Plebeian Wills of the Romans, 212 
 
 — legalised by, at the Twelve 
 
 Tables, 213 
 
 — their influence on the civilisa- 
 
 tion of the modern world, 314 
 Political ideas, early, 137 
 
 — foundation of aristocracies, 140 
 Political Economy and Contract, 
 
 320 
 
 Polygamy, its influence on Primo- 
 geniture, 255 
 
 Possessory interdicts of the Ro- 
 man Law, 300 
 
 Prsetor, origin of the office of, 64 
 
 — Edict of the, 44, 59, 65, 67 
 
 — the Roman, compared with an 
 
 English Chancellor, 66, 67 
 
 — restraints on the Praetor, 67 
 
 — the Praetor the chief equity 
 
 judge as well as the great 
 common law magistrate, 68 
 Praetor Peregrinus, office of the, 64 
 Praetorian Edict of the Romans, 
 44, 59. 66, 67 
 
 — the Edictum Perpetuum, 65 
 
 — that of Salvius Julianus, 65, 67 
 
 27 
 
 Digitized by Microsoft® 
 
4i8 
 
 INDEX 
 
 PE^TORIAN 
 
 Praetorian Edict, remedies given 
 
 by the, 301 
 Praetorian Will, the, 219 
 
 — described, 220 
 Prescription of Property, history 
 
 of, 293 et seg. 
 Primogeniture, changes in the 
 Law of Succession, caused by, 
 340 
 
 — almost destroyed by the 
 
 authors of the French code, 
 240, 241 
 
 — results of the French system, 
 
 241 
 
 — rights of the first-bom son 
 
 amongst the Hindoos, 242 
 
 — early history of Primogeniture, 
 
 243 
 
 — Benefices, 243 
 
 — gradual transformation of 
 
 Benefices into hereditary 
 Fiefs, 244 
 
 — the Pactes de Famille of France 
 
 and the Haus-Gesetze of Ger- 
 many, 245 
 
 — causes of the diffusion of Primo- 
 
 geniture, 246 
 
 — in public offices or political 
 
 power amongst the Hindoos, 
 but not in property, 247 
 
 — ancient forms of Primogeniture 
 
 248 
 
 — why did Pn mogeniture gradu- 
 
 ally supersede every other 
 principle of Succession ? 249 
 
 — earlier and later Primogeniture, 
 
 250 
 
 — Hindoo rule of the eldest son 
 
 and of the eldest line also, 
 252 
 
 — Celtic form of Primogeniture, 
 
 253 
 
 — Mahometan form, 255 
 
 — influence of polygamy on Pri- 
 
 mogeniture, 255 
 Progress, causes of the arrest of, of 
 the greater part of mankind, 83 
 Property, early history of, 258 
 
 PROPERTY 
 
 Property, " natural modes " of 
 acquisition, 258 
 
 — Occupancy, 259 
 
 — Capture in War, 259 
 
 — rule of Discovery, 262 
 
 — history of the origin of pro- 
 
 perty, 263 
 
 — Blackstone on the theory of 
 
 Occupancy as the origin of 
 property, 264 
 
 — aphorism of Savigny on the 
 
 origin of property, 267 
 
 — objections to the popular 
 
 theory of Occupancy, 268 
 
 — Co-ownership amongst the 
 
 Hindoos, 272 
 
 — the Gens, or House, of the 
 
 Romans compared with the 
 Village Community of India, 
 276 
 
 — Russian village co-ownership, 
 
 277 
 
 — Croatian and Sclavonian Laws 
 
 respecting the property of 
 Families, 278, 279 
 
 — ancient difficulties of Aliena- 
 
 tion, 282 
 
 — natural classification of pro 
 
 perty, 283 
 
 — ancient modes of transfer of 
 
 property, 286 
 
 — definition of the Res Mancipi, 
 
 287 
 
 — tradition of property, 288 
 
 — distinction between Res Man- 
 
 cipi and Res Nee Mancipi, 
 289 
 
 — Hindoo Law of Inheritances 
 
 and Acquisitions, 290, 291 
 
 — law of movables and law of 
 
 land, according to the French 
 codes, 292 
 
 — and in England, 392 
 
 — Usucapion, or Prescription, 293 
 
 — Cessio in Jure, or recovery, in 
 
 a Court of Law, of property 
 sought to be conveyed, 297 
 
 — influence of Courts of Law and 
 
 Digitized by Microsoft® 
 
INDEX 
 
 419 
 
 moPERTY 
 
 of their procedure upon Pro- 
 perty, 298 
 Property, distinction between Pro- 
 perty and Possession, 298 
 
 — - and between Law and Equity 
 
 in their conceptions of pro- 
 prietary right, under the 
 Roman and English Law, 301 
 
 — feudal view of Ownership, 303 
 
 — Roman and barbarian law of 
 
 Ownership, 304 
 
 — Roman system of Tenancy, 306 
 
 — the Coloni of the Romans and 
 
 the Metayers of the South of 
 Europe, 307, 308 
 
 — rights of the Emphyteuta, 308 
 
 — the Agri Limitrophi of the 
 
 Rhine and the Danube, 309 
 Proscriptions, Roman, origin of 
 
 the, 397 
 Pupilage or Wardship in modem 
 
 jurisprudence, 166 
 
 — compared with the Guardian- 
 
 ship of Orphans under the 
 Roman Law, 165 
 
 Quasi-contract, 353 
 
 — meaning of, in Roman Law, 354 
 Quasi, meaning of the word, in 
 
 Roman Law, 354 
 Quaestiones Perpetuae of the Ro- 
 mans, 392 
 
 — theory of the Quaestiones, 393, 
 
 394 
 
 — results traceable to the Quaes- 
 
 tiones, 398 
 
 Quaestores Parricidii of the an- 
 cient Romans, 391 
 
 Querela Inofficiosi Testamenti of 
 the old Roman Law, 231 
 
 Quiritarian Law, the, 5 1 
 
 — principles of the, 61 
 
 difference between it and the 
 
 Jus Gentium, 61 
 
 Recoveries, collusive, of pro- 
 perty in the Roman and English 
 Law, 297 
 
 Regency, form of, according to 
 
 the French custom regulating 
 
 the succession to the throne, 253 
 
 Reipus, the, of Germany, 291 
 
 Res Mancipi and Res Nee Mancipi, 
 
 284, 289 
 
 — definition of the Res Mancipi, 
 
 287 
 
 Res nnllius of the Roman Law 
 261 
 
 Responsa Prudentium of the Ro- 
 mans described, 37 
 
 — similarity between them and 
 
 English Case-law, 37 
 
 — decline and extinction of the 
 
 Responses, 43, 44 
 Revolution, French, effects of the 
 
 theory of the state of Nature on 
 
 the, 95 
 Rex Sacrorum, or Rex Sacriftculus 
 
 office of the, 9, 64 
 Roman Law, i 
 
 — the Twelve Tables, i, 12. 37 
 
 — influence of the sacra on the 
 
 Law of Adoption and of 
 Wills, 6 
 
 — class of codes to which the 
 
 Roman code belongs, 13 
 
 — probable assistance afforded by 
 
 the Greeks, 1 3 
 
 — meaning of fictio, 30 
 
 — instances of fictiones cited, 30 
 
 — the Responsa Prudentium de- 
 
 scribed, 37 
 
 — judicial functions of the Magis- 
 
 trates of RepubUcan Rome, 
 
 39 
 
 — reasons why the Roman Law 
 
 was not popularised, 40 
 
 — sources of the characteristic 
 
 excellence of the Roman Law, 
 
 41 
 
 decline and extinction of the 
 
 Responses, 43, 44 
 
 — the Praetorian Edict, 44, S9. 65. 
 
 67 
 
 — the Leges Comeliee, 44, 45 
 
 — later jurisconsults, 44 
 
 Digitized by Microsoft® 
 
420 
 
 INDEX 
 
 Roman Law, remarks on the Sta- 
 tute Law of the Romans, 44, 45 
 
 — and on the Equity of the 
 
 Romans, 48, 49 
 
 — golden age of Roman jurispru- 
 
 dence, 58 
 
 — Roman Equity, 61, 68 
 
 — features common to both Eng- 
 
 lish and Roman Equity, 69 
 et seq. 
 
 — International Law largely in- 
 
 debted to Roman Law,99, 100 
 
 — the Patria Potestas of the 
 
 Roman Law, 144 et seq. 
 
 — Agnatic and Cognatic Relation- 
 
 ship, 152 
 
 — Perpetual Tutelage of Women, 
 
 158 
 
 — Roman Marriage, 159, 160 
 
 — Guardianship of male Orphans, 
 
 164 
 
 — Law of Persons — Master and 
 
 Slave. 166 
 
 — Testamentary Law, lij et seq. 
 
 — Wills anciently executed in the 
 
 Comitia Calata, 210, 212 
 
 — ancient Roman Law of Intes- 
 
 tate Succession, 211 
 
 — Roman Wills described, 212 
 
 — the Mancipation, 215 
 
 — the Nuncupatio, 216 
 
 — the Praetorian Will, 219 
 
 — first appearance of Sealing in 
 
 the history of jurisprudence 
 as a mode of authentication, 
 220 
 
 — Querela Inofficiosi Testament!, 
 
 231 
 
 — Disinherison of Children under, 
 
 231 
 
 — Intestate Succession under, 233 
 
 — Fidei-Commissa, or bequests in 
 
 trusts, 238 
 
 — rights of Co-heirs, 241 
 
 — Occupancy, 259 
 
 — Roman distinction between the 
 
 Law of Persons and the Law 
 ef Things, 271 
 
 Roman Law, influence of Roman 
 classifications, 271 
 
 — Co-ownership of property re- 
 
 garded by the mature Roman 
 Law as exceptional and mo- 
 mentary, 273 
 
 — the Gens of the Romans com- 
 
 pared with an Indian Village 
 Community, 276 
 
 — Res Mancipi and Res Nee 
 
 Mancipi, 284, 287 
 
 — Mancipation, 288 
 
 — Usucapion, or Prescription, 293 
 
 — the Cessio in Jure, 297 
 
 — distinction between Property 
 
 and Possession, 298 
 
 — Roman and Barbarian Law, 
 
 304 
 
 — Roman Contracts, 327 et seq. 
 
 — the Four Contracts, 337 
 
 — connection between Theology 
 
 and Roman Law, 363, 364 
 
 — causes of improvement in Ro- 
 
 man Law, 369 
 
 — Roman Law in the Eastern 
 
 Empire, 371 
 
 — Civil Wrongs of the Roman 
 
 Law, 379 
 
 — the Legis Actio Sacramenti, 
 
 384 
 
 — old Roman Criminal Juris- 
 
 prudence, 390 
 
 — extreme multiplicity of Roman 
 
 criminal tribunals, 397 
 
 — results traceable to the Quaes- 
 
 tiones, 398 
 Romans, causes of the rapid pro- 
 gress of the Stoical philosophy 
 amongst the, 58 
 
 — their progress in legal im- 
 
 provement, 59 
 Rome, immigration of foreigners 
 into, 50, 51 
 
 — exclusion of foreigners, under 
 
 the early Republic, 5 1 
 
 — See of, origin of the tendency 
 
 to attribute secular superio- 
 rity to the, 109 
 
 Digitized by Microsoft® 
 
INDEX 
 
 421 
 
 ROME 
 
 Rome, decline of ecclesiastical in- 
 fluence in international ques- 
 tions, III 
 
 — early political ideas of, 137 
 Rousseau, J. J., influence of his 
 
 writings, 92 
 
 — his doctrine of an original 
 
 Social Compact, 323, 324 
 Russian villages. Co-ownership of 
 the occupiers of, 278 
 
 Sacra, or Family Rites, of the 
 Romans, 6, 31, 203, 204 
 
 — of the Hindoos, 205 
 Sacramental Action of the Ancient 
 
 Romans, 51 
 Salic Law, origin of the, 1 56 
 Savigny, on Possession and Pro- 
 perty, 299, 300 
 
 — his aphorism on the Origin of 
 
 Property, 267 
 
 Scxvola, Q. Mucins, his manual of 
 the Civil Law, 43, 44 
 
 Scandinavian nations, their laws 
 respecting the Perpetual Tute- 
 lage of Women, 158, 163 
 
 Sclavonian laws respecting the 
 property of families, 279 
 
 Sealing, first appearance of, in 
 jurisprudence, as a mode of 
 authentication, 220 
 
 Sin, mortal and venial, casuistical 
 distinction between, 361 
 
 Sins known to primitive jurispru- 
 dence, 381 
 
 Slavery, ancient, 167 
 
 — under the Romans, 167 
 
 — in the United States of America, 
 
 167 
 Socage, English law of, 246 
 Social Compact, Rousseau's doc- 
 trine of an original, 323, 324 
 
 — Dr. Whewell quoted, 356 
 Societies, stationary and pro- 
 gressive, 27 
 
 — difference between stationary 
 
 and progressive societies, 28 
 agencies by which Law is 
 
 SOVEREIGNTY 
 
 brought into harmony with 
 Progressive Societies, 29 
 Societies, perils of early, 80 
 
 — primitive, 1 34 
 
 — early moral doctrines, 135 
 
 — early political ideas, 137 
 
 — fiction of Adoption, 138 
 
 — foundation of aristocracies, 140 
 
 — principle of Local Contiguity, 
 
 140 
 
 — the ancient Family, 140 
 
 — the Patria Potestas, I42 
 
 — agnatic and cognatic relation- 
 
 ships, 152 
 
 — Guardianship of Women, 158 
 
 — ancient Roman Marriage, 159 
 
 — Master and Slave, 166 
 
 — uniformity of movement of the 
 
 progressive societies, 172 
 
 — disintegration of the Family, 
 
 172 
 
 — movement of societies from 
 
 status to contract, 174 
 
 — Universal Succession, 193, 194, 
 
 I9S 
 
 — primitive society and universal 
 
 succession, 197 
 
 — the ancient family a corpora- 
 
 tion, 197 
 
 Society in primitive times not a 
 collection of individuals, but an 
 aggregation of families, 134 
 
 Solon, Attic code of, 14 
 
 " Sophismes Anarchiques " of Dn- 
 mont, remarks on, 96 
 
 Sovereign, origin of the doctrine 
 that the monarch is the fountain 
 of justice, 402 
 
 Sovereignty, territorial, proposi- 
 tion of International Law on, 
 105, 106 
 
 — Tribe-sovereignty, 106 
 
 — Charlemagne and universal do- 
 
 minion, 108 
 
 — Territorial sovereignty ao off- 
 
 shoot of feudalism, 108 
 
 — the See of Rome, 109 
 — • Hugh Capet, r 10 
 
 Digitized by Microsoft® 
 
422 
 
 INDEX 
 
 SOVEREIGNTY 
 
 Sovweignty, the Anglo-Saxon 
 princes, no 
 
 — Naples, Spain, and Italy, i lO 
 
 — Venice, i lo 
 
 — points of junction between 
 
 territorial sovereignty and 
 modern public law, 113 
 Spain, territorial sovereignty of 
 
 the monarchs of, no 
 Status, movement of societies 
 
 from, to contract, 1 74 
 Statute Law of the Romans, 44, 49 
 Stoic philosophy, principles of the, 
 
 57 
 
 — its rapid progress in Roman 
 
 society, 57 
 
 — alliance of the Roman lawyers 
 
 with the Stoics, 58 
 Succession, rules of, according to 
 the Hindoo Customary law, 6 
 
 — Testamentary, 1 86 
 
 — early history, 186 
 
 — influence of the Church in en- 
 
 forcing the sanctity of Wills, 
 187 
 
 — English law of, 188 
 
 — qualities necessarily attached 
 
 to Wills, 188 
 
 — natural rights of testation, 189 
 
 — restraints imposed by the Code 
 
 Napolfeon, 191 
 
 — nature of a Will, 191 
 
 — rights and duties of universal 
 
 successor, 192 
 
 — usual Roman definition of an 
 
 Inheritance, 195 
 
 — difference between modern Tes- 
 
 tamentary jurisprudence and 
 the ancient law of Rome, 
 196 
 
 — the Family regarded as a Cor- 
 
 poration, 197 
 
 — old Roman Law of Inheritance 
 
 and its notion of a Will, 202 
 
 — ancient objects of Wills, 203 
 
 — Saera, or Family Rites, of the 
 
 Romans, 203 
 
 — and of the Hindoos, 204, 205 
 
 SUCCESSION 
 
 Succession, the invention of Wills 
 due to the Romans, 206 
 
 — Roman ideas of Succession, 207 
 
 — Testamentary Succession less 
 
 ancient than Intestate Suc- 
 cession, 207 
 
 — primitive operation of Wills. 
 
 209 
 
 — Wills of the ancient Germans, 
 
 209 
 
 — Jewish and Bengalee Wills, 
 
 208, 209 
 
 — mode of execution of ancient 
 
 Roman Wills, 211 
 
 — description of ancient Roman 
 
 Wills, 212 
 
 — influence of ancient Plebeian 
 
 Wills on the civilisation of 
 the modem world, 214 
 
 — the Mancipation, 215 
 
 — relation of Wills to convey- 
 
 ances, 214 
 
 — the Testament per as et Hbram, 
 
 215, 223, 224 
 
 — consequence of this relation of 
 
 Testaments to Conveyances, 
 216 
 
 — remedies, 217 
 
 — ancient Wills not written, 217 
 
 — remarks on the expression 
 
 Emptor Familiae, 218 
 
 — the Praetorian 'Will, 219 
 
 — the Bonorum Possessio, and the 
 
 Bonorum Possessor, 221 
 
 — improvements in the old Will, 
 
 222, 223 
 
 — ancient and modem ideas re- 
 
 specting Wills and Succes 
 sions, 231 
 
 — Disinherison of Children, 231 
 
 — the age of Wills coeval with 
 
 that of Feudalism, 239 
 
 — introduction of the principle of 
 
 Dower, 239 
 
 — rights of Heirs and Co-heirs 
 
 under th* Roman Law, 241 
 
 — intestate, 207 
 
 — ancient Roman law of, 211, 234 
 
 Digitized by Microsoft® 
 
INDEX 
 
 42't 
 
 SCCCE9SION 
 
 Sucession, the Justinian scale of 
 Intestate Succession, 235 
 
 — order of Intestate Succession 
 
 among the Romans, 236 
 
 — horror of intestacy felt by the 
 
 Romans, 237, 238 
 
 — rights of all the children of the 
 
 deceased under the Roman 
 Law, 242 
 
 — Universal, 192, 201 
 
 — in what it consists, 193 
 
 — the universal successor, 194 
 
 — formula of old Roman investi- 
 
 ture referred to, 203 
 Suttee of the Hindoos, 205 
 Sylla, L. Cornelias, his improve- 
 ments in the Roman Law, 44, 45 
 
 Tables, the Twelve Decemviral, 
 
 I. 12. 37 
 
 — collections of opinions interpre- 
 
 tative of the, 37 
 
 — their legalisation of Plebeian 
 
 Wills, 213 
 
 — Law of the Twelve Tables re- 
 
 specting Testamentary Dis- 
 positions, 231, 232 
 Tablets, laws engraven on, 13 
 Tacitus, value of his " Germany " 
 as a record of primitive history, 
 129 
 
 — suspicions as to its fidelity, 130 
 Tarquins, change in the adminis- 
 tration of the law after the 
 expulsion of the, 63, 64 
 
 Tenancy, Roman system of, 243 
 Testaments. See Succession, Tes- 
 tamentary 
 Theft, ancient Roman Law of, 
 322, 387, 388 
 
 — modern breaches of trust, 322 
 Themis and Themistes of the 
 
 Greek Homeric poems, 3, 5, 
 
 134 
 Theology, connection between it 
 
 and Roman Law, 364 
 Thirty Years' War, influence of 
 
 the horrors of the, on the suc- 
 
 WILLS 
 
 cess of the treatise " De Jure 
 Belli et Pacis " of Grotius, 112 
 
 Torts, law of, 379 
 
 Tradition of property amongst the 
 Romans, 388 
 
 — practical effect of a Mancipa- 
 
 tion given to a Tradition, 388 
 Transfer of property, ancient 
 
 modes of, 287 
 Troglodytes, the, 325 
 Turkey, rule of succession to the 
 
 throne of, 255 
 
 Ulpian, his attempt to distin- 
 guish between the Jus Naturale 
 and the Jus Gentium, 55 
 
 Universitas juris, in what it con 
 sists, 192 
 
 Usucapion, principle of Roman 
 Law known as, 222 
 
 — history of, 293 
 
 Usus, or lower form of civil mar- 
 riage of the ancient Romans, 
 IS9 
 
 Vandals, the, referred to, 106 
 
 Venetians, their lapse from tribe 
 sovereignty to territorial sove- 
 reignty, no 
 
 Village Communities of India, 372, 
 275 et seq. 
 
 Visigoths, the, referred to, 106 
 
 Voltaire, referred to, 92 
 
 Wakfake, ancient forms of, 260 
 Wehrgeld, the, of Germany, 291 
 Whewell, Dr., on original Social 
 Compact, quoted, 356 
 
 — his view of "Moral Philosophy, 
 
 357 
 Widow's share of her husband's 
 estate, 239 
 
 — the reipus, or fine leviable on 
 
 the re-marriage of a widow in 
 Germany, 291 
 Wills, influence of the Sacra 
 Gentilicia on the law of, 6 
 
 — See Succession, Testamentary 
 
 Digitized by Microsoft® 
 
4*4 
 
 INDEX 
 
 Women, la^rs respecting the status 
 of, 157 
 
 — Roman law of the Perpetual 
 
 Tutelage of, 158 
 
 — amongst the Hindoos, 158 
 
 — and amongst the Scandina- 
 
 vians, 158 
 
 — Guardianship of Women under 
 
 the Roman Law, 158 
 
 — tutelage of, amongst the Hin- 
 
 doos, 153 
 
 Women, tutelage of, amongst the 
 Scandinavians, 158 
 
 — ancient Roman Marriage, 
 
 159 
 
 — later Roman Marriage, 160 
 
 — special Proprietorship created 
 
 by the Court of Chancery for, 
 302 
 
 ZEtJS, not 
 judge. 4 
 
 a lawmaker, but a 
 
 Digitized by Microsoft® 
 
INDEX TO INTRODUCTION AND NOTES 
 
 Achilles, trial scene on Homeric 
 
 shield of, 405 
 Aequitas, 76 
 
 American Revolution, 119 
 Ancestor-worship, 177, 228 
 Anglo-Saxon land tenure, 317 
 
 — penal law, 407 
 
 — wills, 228 
 
 Aquinas, St. Thomas, 73, 114 
 Aristotle, 73, 116 
 AuflEroy, Henri, 225 
 Avebury, Lord, 176, 226 
 Azo of Bologna, 116 
 
 Baden-Powell, B. H., 315 
 Bentham, Jeremy, 175 
 Blackstone, Sir William, 117, 314 
 Blood-feud in archaic Greek law, 
 
 406 
 Bracton or Bratton, Henry of, 
 
 116, 229 
 Bryce, James, 73, 76, 114 
 
 Capture, marriage by, 178 
 
 — in war, 311 
 Case-law, 46 
 Chancery, Court of, 78 
 Contract, early history of, 374 
 
 — Status and, 183 
 
 — the Social, 376 
 Corporations, 225, 226 
 Custom, codification of, 24 
 
 — in Homer, 20, 21 
 
 Debt in early English law, 375 
 Dicey, A. V., 185 
 Dooms and legislation, 22 
 
 Du Molin or Dumoulin, Charles 
 118 
 
 EguiTY, 77 
 
 Family, early history of, 176 
 
 — in Hindu law, 182 
 
 — the Cyclopean, 180, 183 
 Fictions, 46, 405 
 
 Figgis, J. Neville, 376 
 French Revolution, 119 
 
 Gentili, Albbrico, 120 
 
 Gierke, Otto, 73 
 
 Girard, Paul Fr6d6ric, 19, 227, 
 
 312, 317, 405 
 Grotius or Groot, Hugo, 73, 312 
 
 Hindu law, wills in, 228 
 Holmes, O. W. (Justice), 227 
 Homer, archaic custom in, 20 
 
 — blood-feud in, 406 
 Hooker, Richard, 115, 120 
 
 Iceland, early courts and juris- 
 diction in, 20, 23 
 Ihering, Rudolf von, xviii, 178 
 Ilbert, Sir Courtenay, 22, 174 
 Indian Village Community, 315 
 International law, 120 
 Intestacy, 230 
 
 Jones, Sir William, xxii 
 Jus gentium and jus naturale, 73, 
 75 
 
 Kbmble, John Mitchell, zx, xxi, 
 256 
 
 4*5 28 
 
 Digitized by Microsoft® 
 
426 
 
 INDEX TO rNTRODUCTION AND NOTES 
 
 King, Homeric, his dooms, ai 
 
 — residuary jurisdiction of, 77 
 
 — Roman, civil jurisdiction of, 
 
 405 
 Kings, divine right of, 376 
 Kohler, JoSef, 22, 176, 181 
 Kovalevsky, Maxime, 176, 178 
 
 Lang, Andrew, 182 
 
 Law, natural, 73-77, 114-120, 225 
 
 — of nations, 120, 31* 
 
 — of persons, 184 
 
 — Roman, in England, 117 
 
 — written and unwritten, 23 
 Law Merchant, 75 
 
 Leaf, Walter, 406 
 
 Lyall, Sir Alfred, 182, 315 
 
 McLennan, J. F., 176, 179, 183 
 
 Magic, 182 
 
 Maitland, F. W., 118, 178, 181, 
 
 185. 317 
 Mancipi, res, 3 17 
 Marriage, 178, 180, 183, 184 
 Matriarchal family, 177 
 Montesquieu, Charles de Secondat, 
 
 Baron, 115, 174 
 Morgan, L. H., 176, 179, 181, 183 
 Muirhead, James, 227, 3x7, 374 
 
 Nature, law of. See Law 
 
 — state of, 115, 119 
 Nexum, 374 
 
 Occupation, in Roman and in- 
 ternational law, 311 
 Orestes, 177 
 
 Palgravb, Sir Francis, xxi 
 
 Paragium, tenure in, 256 
 Patria Potestas, 181 
 Patriarchal theory, 176 
 Persons, law of, 184 
 Philip the Fair of France, 118 
 Possession, 313, 314 
 Primogeniture, 256 
 
 Quasi-contract, 375 
 
 Religion and magic, 182 
 Roman law in England, 117 
 Rousseau, Jean- Jacques, 119 
 
 Savigny, F. C. von, xviii, 314, 374 
 
 Scotland, testamentary disposi- 
 tions in, 229 
 
 Selden, John, 117 
 
 Slavery, 75, 76, 118 
 
 Sovereignty, distinguished from 
 feudal superiority, 121 
 
 Spencer, Herbert, 177 
 
 Status, 183 
 
 Stipulation in Roman law, origin 
 of. 374 
 
 Testament, early Roman, 227 
 Themistes, 21 
 
 Twelve Tables, the, 18, 228, 317 
 Tylor, E. B., 176 178, 180 
 
 Ulpian, on law of nature, 75 
 
 ViLLAGB Communities, Indian, 
 315 
 
 Wales, Statute of, 122 
 
 War, capture of property in, 311 
 
 Wills and testaments, 224, 228 
 
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